dеlivered the opinion of the Court. We are of opinion that the plea of tender is bad, the tender not having been made until the day after the debt became due against the defendants by means of the notice to them of nonpayment by the maker of the note.
We are also satisfied, that the notarial fees could not have been demanded, if the tender had been seasonable and sufficient in other respects, because the agency of a notary is not necessary, however it may be for the cоnvenience of the parties.
We think the counsel for the defendants has satisfactorily shown by authorities, that commencement day cannot be enforced as a day of reduction of the credit on a note, oy the genеral principles of law.
In regаrd to the supposed variance, we think the objection not tenable. It is held, that if the plaintiff avers that he presented a bill or note and demanded рayment, this allegation will not be proved by evidence that the party had аbsconded, so that the demand could not be made upon him. This is because the fact proved renders a demand unnecessary, and of itself makes an indоrser or drawer liable. The case before us is different. An independent faсt which is to answer instead of a demand, is not found, but a demand is proved in a form which has been agreed upon by the party to be affected by it, that is, that there is a usage as to this form of demand, to which usage he has given an implied assent. The case of Jones v. Fales, which stands at the foundation of the law in this commonwеalth, and by which hundreds of cases have since been decided, is entirely deсisive of this case on this point. In that case the averment, and the evidence to support it, were the same as in this.
We think the note’s not being payablе at the City Bank makes no difference, as it was there negotiated. On this point аlso the case of Jones v. Fales is conclusive.
Judgment according to verdict.
Notes
In strictness a plea of tender is applicable only to those cases, where the party pleading it has never been guilty of any breach of his contract. Hume v. Peploe, 8 East, 168; Frazier v. Cushman,
The law in this respect is altered in Massachusetts, so that the payment or the tender of payment of the whole sum due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought, in like manner and. with like effect as if such payment or tender had been made at the time prescribed in the contract. Revised Stat. c. 100, § 14.
By thе common law and the practice of Connecticut, a tender of а debt is good, though the day of payment has elapsed. Tracy v. Strong, 2 Connect. R. 659.
See Greeley v. Thurston, 4 Greenl. 479; Crenshaw v. M'Keirnan, 1 Minor, (Ala.) 173; Bayley on Bills, (Phil. and Sewall’s 2d ed.) 345; Wilson v. Williman, 1 Nott & M‘Cord, 440. But see Osborne v. Moncure,
The holder of a dishonored note is excused from giving notice of nonpayment to the indorser on the fourth of July. Cuyler v. Stevens,
See Weld v. Gorham, 10 Mass. R. (Rand's ed.) 367, n. (a); Bank of Washington v. Triplett,