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that this note was to be dealt with in the same note, which upon its face has sixty days to run, way; for it was a renewal of a discount, con- is in truth and in fact a contract for sixty-three tinued for a considerable time before, on other days, and interest is taken for that time. And notes similarly drawn and indorsed, some of how is it ascertained that it is a note for sixtywhich had been demanded in like manner, and three days, but by looking out of the contract, protested, and afterwards paid and taken up and finding what was the understanding of the by himself. Under such circumstances, it parties? Where the custom has existed for a would seem that nothing short of some posi- long time, and has become general, courts of tive and unbending principle of law could justice, as before observed, will notice it ex shield the defendant from responsibility. But, officio; and where it has not, it is matter of so far from trenching upon any such principle, proof. we think his liability completely established, If this is not the light in which these by well-settled rules of law.

transactions are to be considered, all banks are It seems to be assumed as the settled law of chargeable with usury; for all take interest bepromissory notes, that in order to charge an yond what is allowed by law, if time is to be indorser, demand of the maker must be made determined by the note itself. The general on the third day after that limited in the note; rule of law is, *that demand of pay. (*587 585*) and that *this is so stubborn a rule that ment must be made of the maker, when the parties are not permitted to violate it, even by note falls due; and that time, as now settled, is their mutual agreement.

on the last day of grace; and even this rule is We admit, in the most unqualified manner, of recent date, for in the King's Bench in Engthat the usage of making the demand on the land, as late as the year 1791, about coeval third day of grace has become so general, that with the institution of this bank, and the cuscourts of justice will notice it ex officio; and in tom established by it, we find (Leftly v. Mills, 3 the absence of any proof to the contrary, will T. R.) Lord Kenyon and Mr. Justice Buller presume that such was the understanding of all differing on this very point; the former holdparties to a note, when they put their names ing that, by analogy to other contracts, the acupon it. But that this rule has any attributes ceptor of a bill of exchange had the whole of so inviolable, as not to be touched by the par the third day of grace to pay the bill, and that ties to negotiable paper, cannot be admitted. a demand on the fourth day was not too late. It has its origin in custom, and that custom, Mr. Justice Buller thought the demand ought too, comparatively, of recent date; and is not to be made on the third day of grace; that ile one of those, to the contrary of which the nature of the acceptor's undertaking was to pay memory of man runneth not, and which con- the bill on demand, on any part of the third tributed to make up the common law code day of grace; and he inferred this, from its which is so justly venerated. So far from this, having been, as he said, the practice to make that the allowance of any days of grace, is in the demand on that day. If it was a doubtful derogation of the common law rule, applicable question in England, so late as the year 1791, to other contracts. They are, emphatically, whether the demand ought to be made on the the mere creatures of usage, varying in differ. third day of grace, or the day after, this bank ent countries, to suit the views and conven. ( is not chargeable with any culpable innovation ience of men in business, originally gratuitous, upon long-established rules of law or usage, by and not binding on the holder. The common adopting the practice of making the demand law would require payment on the last day on the fourth day. limited by the contract, and would also give to It is said, however, that the effect of this the maker the whole of that day. It is a set- testimony is to alter and vary, by parol evitled principle of the common law, applicable dence, the written contract of the parties. If to all contracts, that a party has until the last this is the light in which it is to be considered. day limited by his agreement, to perform his there can be no doubt that it ought to be laid engagement, and even until the last hour of the entirely out of view; for there is no rule of law day. The common law knows of no frac- better settled, or more salutary in its applications of a day; custom, however, and that tion to contracts, than that *which [*588 introduced, too, principally by banks, has lim- precludes the admission of parol evidence, to 586*) ited *the day to a few hours of busi- contradict or substantially vary the legal imness. But this, and whatever other rules have port of a written agreement. Evidence of been adopted by consent, and merely for the usage or custom is, however, never considered convenience of commercial men, are departures of this character; but is received for the purfrom the common law doctrine. When, there- pose of ascertaining the sense and understandfore, the allowance of only three days of grace ing of parties by their contracts, which are is said to be the law of the contract, by bills of made with reference to such usage or custom; exchange and promissory notes, nothing more for the custom, then, becomes a part of the can be intended than that custom has so long contract, and may not improperly be considsanctioned this rule that all dealers in paper of ered the law of the contract; and it rests this description are understood to govern them- upon the same principle as the doctrine of selves by it. The law of the contract, properly the lex loci. All contracts are to be governed speaking, is to pay when due; and that time is by the law of the place where they are to be to be ascertained, either from the contract per performed; and this law may be, and usually &, or that taken in connection with some is, proved as matter of fact. The rule is known custom, which the parties are presumed adopted for the purpose of carrying into efto have tacitly consented should be made a part fect the intention and understanding of the of the contract. And it is in this view only. parties. That the note in question was to be that three days of grace are allowed, where paid at the Bank of Columbia, and to be govthat custom is recognized as the rule; for alerned by the regulations and custom of the institution, and so anderstood by all parties, specting demands on makers of promissory cannot admit of a doubt.

notes, and notices to indorsers, being known It would be a waste of time to go very to dealers in the banks, they were bound by much at large into an examination of the them, and that the usage was proper evidence various usages and customs that are admitted to be submitted to a jury. These cases are in evidence and recognized in courts of justice, not referred to for the purpose of approving both in England and in this country, in the particular usages, but to show that evi. almost every branch of business, and especial. dence of such usage was never considered as ly in commercial transactions, for the purpose contradicting the written contract. of ascertaining the meaning and interpretation Halsey v. Brown et al. (3 Day, 346), is a very of contracts. A few only will be noticed, that strong case on this subject. The question was are somewhat analogous to the present case. as to the liability of shipowners, for the loss

In the case of Cutler v. Poroell (6 T. R., of money taken on freight by the captain. 320), where was brought under consideration The defense set up was, that the master, acthe legal effect of a promissory note, given to cording to *established custom, was [*591 589*) the mate of a *ship for a certain sum permitted to take money on freight, as a perof money, provided he proceeded on ber quisite to himself, and the owners discharged voyage, and continued to do duty to the port from responsibility; and the question directly of destination. The legal construction to be presented to the court was, whether a particugiven to this note was clear, and so considered lar custom or usage could be given in evidence by the court, that nothing was due unless the to control the general law. And the court mate continued to do duty to the port of des- says it is a principle, that the general common tination. He having died, however, on the law may be, and in many instances is, convoyage, the court directed an inquiry into the trolled by special custom. So the general usage of merchants in such cases, declaring commercial law may, by the same reason, that if it sanctioned an allowance for the be controlled by a special local usage, so far time the service was performed, the plaintiff as that usage extends, which will operate should recover according to such usage. upon all contracts of this nature, made in

No intimation is here given that such proof view of, or with reference to, such usage. would be repugnant to the contract, although In Smith v. Wright (1 Caines, 43), this it was against the legal import of the note, general principle is laid down: The true test if construed without reference to the usage: of a commercial usage is, its having existed and although the usage related to trade, it long enough to have become generally known, was very limited in its application.

and to warrant a presumption that contracts So in Noble v. Kenneioay. (Doug., 511), are made in reference to it. usage of trade was admitted in evidence, to In the case of The Bank of Utica v. Smith explain the understanding of parties, in a (18 Johns. Rep., 230), a note, payable at the policy of insurance, although the usage had Mechanics' Bank in New York, was presentnot existed three years. Lord Mansfield said, cd, and payment demanded, fifteen minutes the usage could only be known by proof, after bank hours, and this was held suifi. and must be tried by a jury; that under- cient; it appearing that, although it was a writers must be presumed to be acquainted quarter of an hour after the usual time of closwith the practice of the trade they insure, ing the bank as to other business, it was within whether recently established or not. If it were bank hours, it appearing that, according to the necessary, cases might be multiplied almost general course of doing business at this bank, without end, showing the same principle and these fifteen minutes were the usual and accussame recognition of local and particular usages, tomed time for these presentments, and of this in almost every branch of business.

course of business the defendant ought to have We have, also, in the state courts in our own informed himself. country, the decisions of very enlightened *It is unnecessary to pursue this [*592 judges, adopting the same principles, and gov. subject farther by particular reference to de$90*) erning themselves *by the same rules; cisions in the state courts. The same doctrine, and in many cases, not unlike the one before us. as to the effect of particular usages in controll

In Jones v. Fales (4 Mass. Rep., 252), the ing the general law, will be found to accomsame doctrine as to usages of banks was fully pany the administration of justice, wherever sanctioned; and although that particular usage the subject is brought under consideration. might have been found, in practice, incon- Whether these usages are, in all instances, wise venient, and not to meet public approbation, and beneficial, may, perhaps, be questionable. yet the principle which governed the decision but where they do exist, they are considered as of the court, is not thereby weakened, viz., regulating and controlling contracts, made that the usage with which the defendant was under and in reference thereto. conversant was proper evidence to be sub- The same principle is recognized by this mitted to a jury, to infer from it the agree-court, in the case of Yeaton v. The Bank of ment of the party. And although, as sug- Alexandria (5 Cranch, 492.) The Chief Jusgested at the bar, this custom was altered by tice, in speaking of the effect of usage upon the The banks, we do not find the courts of jus- legal obligation of parties, observes, if the case tice in that state attempting to control it, in showed that such was the usage of the bank, its application to notes made in reference to and such the understanding under which notes

were discounted, this couri is not prepared to The doctrine of this case was again fully say that the undertaking created by the inrecognized in The Lincoln and Kennebeck dorsement would not be so fashioned as to give Bank v. Page (9 Mass. Rep., 155), where it effect to the real intention of the parties. was held that bank usages, established re- These cases are sufficient to show, in the

the usage.

most satisfactory manner, the light in which | ed, it would have presented a very different
courts of justice consider contracts, made in question.
reference to any particular usage, and the effect The time of the demand, as laid in the dec-
that such usage is to have upon them. And laration, is according to the legal effect of the
no good reason is perceived why these prin- note. If made at an earlier day, it would have
ciples should not be applied to the case before given no cause of action against the indorser,
us. The custom, under which this bank for he was not bound to pay until the default
has transacted business for five and twen of the maker, and he was not in default until
ty years, of demanding payment of the draw. the fourth day. *It is a general rule, in [595
ers of notes on the fourth instead of the third declaring as to time, that it must be laid after
day, after the time limited for payment, is the cause of action accrues.
593*] *not unreasonable or repugnant to any

The case of Rushton v. Aspinwall (Doug., principles of general policy. It does not stand 679) does not apply. The bill of exchange, alone, but is in accordance with the usage of upon which that suit was founded, was dated every other bank in Washington and George on the 27th of November, in the year 1778, town. The defendant indorsed the note in payable three months after date. The declaraquestion, with full knowledge of the custom. tion stated that the bill was presented for acA demand on the fourth day is in perfect har- ceptance on the day of the date thereof, and mony with the principles of the common law, duly accepted, and, afterwards, on the same if applied to the contract, the maker having day, the acceptor was requested to pay, &c., the whole of the third day to pay his note, and but neglected and refused, &c., and then goes not being in default until the fourth. The in- on to state the liability of the defendant, as inconveniences suggested on the argument grow- dorser, and that he, on the same day, assumed ing out of a usage here, differing from that and promised to pay, &c. It appears, therewhich is in practice in other places on this fore, that the refusal of the acceptor, and the subject, are not of great public concern. If assumption of the indorser, are laid on the day they exist, they affect the banks and their cus of the date of the note, which was three months tomers only. And if felt to the prejudice of before it fell due. The plaintiff, therefore, by either the one or the other, we may rest as his own showing, had no cause of action when sured it would be altered. Their private inter- he commenced his suit. This was a defect est is a sure guaranty for this.

which no verdict could cure. He had not set But, admitting the practice to be inconvenient, forth his cause of action defectively, but shown and that a uniformity, in this respect, with that he had no cause of action; and this was other parts of the country would be desirable, the ground on which it was placed by the court. the remedy is not in the hands of courts of A cause of action, defectively or inaccurately justice, whose business it is to judge of con set forth, is cured by the verdict, because, to entracts as made by parties themselves, and not title the plaintiff to recover, all circumstances to prescribe the manner in which they shall be necessary in form or in substance, to make out made.

his cause of action, so imperfectly stated, must We are, accordingly, of opinion that the be proved at the trial; but when no cause of court below did not err in refusing to instruct action is stated, none can be presumed to have the jury that the demand upon the maker of been proved. the note, on the fourth day after the time lim- This case is not to be considered as if before ited for payment thereof, discharged the de- *us on demurrer to the declaration. [*596 fendant from liability on his indorsement. There being no averment of the special cus

One of the minor points, which has been tom as to the demand on the fourth day, and alleged as error, appearing on the face of the the general rule being that the demand must 594*) record, *is, that the demand on the be made on the third, if the declaration alleges maker of the note should, at all events, have it to have been made on the fourth, the joinder been laid on the third day after the time limit- in demurrer admits the fact, and, of course, ed by the note for payment, and not on the that the demand was too late. But had the fourth. This objection cannot be sustained at declaration contained an averment of the spethis time. Whether the declaration would not cial custom, it must allege a demand on the have been bad on demurrer, not, however, be fourth day. That is according to the legal efcause the demand is laid on a wrong day, but fect of the note; and a demand laid on any because it does not aver the usage, is a question other day would have been bad. We must not necessary now to decide.

But if, as we now consider the case as if the declaration had have determined, the demand was probably contained a special averment of the custom, made on the fourth day, it would have been the proof having been before the court and bad if laid at an earlier day, because the mak- jury without objection, and now making a part er would have been under no obligation to pay, of this record. and, of course, not in default. If, therefore, The only remaining question arises out of a the cause should be sent back to the court be- bill of exceptions, taken upon the trial, to the low, no amendment in this respect ought to be decision of the court below, admitting secondmade. The want of an averment, so as to let ary evidence of the contents of the note. And in the proof of the usage, cannot now be ob- it has been contended, jected to the record. The evidence was admit- 1st. That no such evidence was admissible, ted without objection, and now forms a part of unless it appeared that the note was destroyed. the record, as contained in the bill of excep- The rule with respect to the admission of sections. Had an objection been made to the ad- ondary evidence, we think, is not so restricted. mission of the evidence of usage, for the want If the original is lost, by accident, and no of a proper averment in the declaration, and fault is imputable to the party, it is sufficient. the evidence had, notwithstanding, been receiv- In the present case, it appeared that the note

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597 *) upon its own circumstances. This mume Twopinion of the court was delivered by

was in court a few days before, and introduced to the making of the note, a personal demand upon in evidence on the trial against Foyles, the him is not necessary to charge the indorser, but it

is sufficient to present the note at the foriner place maker, but had been mislaid, and upon thor- of residence of the maker. ough search could not be found. Every case

, THE

Mr. Justice JOHNSON: of evidence must be so applied as to promote *This case comes up from the Circuit (*599 the ends of justice, and guard against fraud or Court of the District of Columbia, in which a imposition. If the circumstances will justify suit was instituted against the plaintiff here, as a well-grounded belief, that the original paper indorser of one Patrick MÄGruder. is kept back by design, no secondary evidence The facts are exhibited in a stated case, upon ought to be admitted; but when no such sus- which, by consent, an alternative judgment is picion attaches, and the paper is of that de- to be entered. The judgment below was for scription that no doubt can arise as to the proof the plaintiffs in the action, and the defendant of its contents, there can be no danger in ad brings this writ of error to have that judgment mitting the secondary evidence. In this case, reversed, and a judgment entered in his favor. the note having been in court a few days before, The leading facts in the cause are so much and proved, upon a trial against the maker, identified with those in the case of Renner v. there could be no possible inducement to with The Bank of Columbia, decided at the present hold it, and it was, no doubt, mislaid purely term, on the question relative to the days of by accident.

grace, that the decision in that cause disposes It is objected, in the second place, that if of the principal question raised in this. secondary evidence is admissible, the contents But there is another point presented in the of the note was not proved by that which was present cause. There was no actual demand competent; that it should have been by a notarial made on the drawer of this note, and the quescopy. Proof of the contents of a lost paper tion intended to be presented was, whether the ought to be the best the party has in his power the facts stated will excuse it.. to produce, and, at all events, such as to leave At the time of drawing the note, and until no reasonable doubt as to the substantial parts within ten days of its falling due, the maker of the paper. But to have required a notarial was a house-keeper in the District of Columbia. copy, would have been demanding that, of the But he then removed to the state of Maryland, existence of which there was no evidence, and to a place within about nine miles of the Diswhich the law will not presume was in the trict. The case admits, that neither the holder power of the party; it not being necessary that of the note, nor the notary, knew of his rea promissory note should be protested.

moval or place of residence; but the circumIt is objected, lastly, that secondary evidence stances of his removal had nothing in them to was not admissible, without a special count in sanction its being construed into an act of abthe declaration upon a lost note. The English sconding. The words of *the admission (*600 practice on this subject has not been adopted to this point are, that he went to the house in this country, as far as our knowledge of it where the said Patrick had last resided, and 598*) extends, *and to require a special count from which he had removed, as aforesaid, in upon a lost note, would be shutting the door order there to present the said note, and deagainst secondary evidence, in all cases where mand payment of the same; and not finding the note was lost after declaration filed. We him there, and being ignorant of his place of do not think any danger of fraud is to be ap- residence, returned the said note under protest.' prehended from the admission of such evidence, The alternative in which the judgment of under the usual count upon the note; and, the the court is to be rendered, is not very appropractice in the court below not requiring a priately stated; but since the absurdity cannot special count in such cases, no error was com- have entered into the minds of the parties, that, mitted in the admission of the evidence. not knowing of the removal or present abode Judgment affirmed.

of the drawer, the holder was still bound to

follow him into Maryland, we will construe the Af'g-2 Cranch, C. C. 310.

submission with reference to the facts admitted; Cited-11 Wheat. 438 ; 12 Wheat. 298, 342; 1 Pet. 32; and then the question raised is, 3 Pet. 41; 6 Pet. 57, 715; 9 Pet. 513, 514, 537; 10 Pet. 581; 12 Pet. 456, 437; 14 Pet. 320; 4 How. 326, 319; 5

Whether the holder had done all that he was How. 291; 7 How.721; 15 How. 515; 23 How. 432; 20 bound to do, to excuse a personal demand upon Wall. 134, 246, 288: 2 Cranch, C. C. 152, 288, 494, 496, the maker. 497 ; 2 Story, 45; 2 McLean, 493; 3 McLean, 585; Bald. 521; Hemp. 500.

On this subject the law is clear: a demand on the maker is, in general, indispensable; and

that demand must be made at his place of abode [PROMISSORY NOTE]

or place of business. That it should be strictly

personal, in the language of the submission, is GEORGE MÖGRUDER, Plaintiff in Error, not required; it is enough if it is at his place

of abode, or, generally, at the place where he THE PRESIDENT, DIRECTORS, AND COM- ought to be found. But his actual removal is

PANY OF THE BANK OF WASHING. here a fact in the case, and in this, as well as TON, Defendants in Error.

0.

every other case, it is incumbent upon the in

dorsee to show due diligence. Now, that the Where the maker of the note has removed into notary should not have found the maker at his another state, or another jurisdiction, subsequent late residence, was the necessary consequence

of his removal, and is entirely consistent with 1.-Mr. Chief Justice Marshall, Mr. Justice Washington and Mr. Justice Duvall did not sit in this Mr. Justice Story dissented.

2.-Ante, p. 581.

cause.

601*] the supposition of his not *having made entee, to sbow cause why process should not issue any one of those inquiries which would have to repeal the patent, the patent is not repealed, de led to a development of ih2 cause why he did to be awarded is in the nature of a scire facias at not find him there. Non constat, but be may common law, to the patentee to show cause why have removed to the next door, and the first the patent should not be repealed, with costs ot question would, most probably, have extracted served, the juilge is to proceed to stay the cause, information that would have put him on further upon the pleadings filed by the parties, and the inquiry. Had the house been shut up, he issue joined thereon. If the issue be an issue of might with equal correctness have returned fact, the trial thereof is to be by a jury; if an issue

of law, by the court, as in other cases. " that he had not found him," and yet that In such a case, a record is to be made of the proclearly would not have excused the demand, ceedings, antecedent to the rule to show cause why unless followed by reasonable inquiries.

process should not issue to repeal the patent, and

upon which the rule is founded. The party must, then, be considered as lying under the same obligations as if, having made inquiry, he had ascertained that the maker had THIS cause was argued by Mr. Haines' in removed to a distance of nine miles, and into

support of the rule, and by Mr. Emmetti another jurisdiction. This is the utmost his against it. inquiries could have extracted, and marks, of

Mr. Justice STORY delivered the opinion of course, the outlines of his legal duties.

the court: Mere distance is, in itself, no excuse from demand; but, in general, the indorser takes upon New York, under the 10th section of the patent

The district judge of the southern district of himself the inconvenience resulting from that cause. Nor is the benefit of the post-office al- act of the 21st of February, 1793, chapier 11, lowed him, as in the case of notice to the in. granted a rule upon Charles Wood and Gilbert dorser.

*Brundage, at the instance and com- [*604 But the question on the recent removal into plaint of Jethro Wood, to show cause why

proanother jurisdiction is a new one, and one of cess should not issue against them, to repeal a some nicety. In case of original residence in a patent granted to them for a certain invention. state different from that of the indorser, at the in due form of law; and upon hearing the partime of taking the paper, there can be no ques: shown to the contrary, he, on the 20 day of

ties, no sufficient cause being, in his judgment, tion; but how far, in case of subsequent and recent removal to another state, the holder July, 1823, passed an order that the said rule shall be required to pursue the maker, is a

be made absolute, and that the said patent be question not without its difficulties.

repealed; and that process issue to repeal the We think that reason and convenience are in said patent, and for the costs of the complain602*) *favor of sustaining the doctrine that i ant. The patentees, by their counsel, moved such a removal is an excuse from actual de the court to direct a record to be made of the mand. Precision and certainty are often of whole proceedings, and that process in the more importance to the rules of law than their nature of a scire facias, should be issued, to try abstract justice. On this point, there is no

the validity of the patent. The court denied other rule that can be laid down, which will the motion, upon the ground that these were not leave too much latitude as to place and dis- summary proceedings, and that the patent was tance. Besides which, it is consistent with repealed de facto, by making the rule absolute; analogy to other cases, that the indorser should the nature of a scire facias, to try the validity

and that the process to be issued was not in stand committed, in this respect, by the con of the patent, but merely process repealing the duct of the maker. For his absconding or removal out of the kingdom, the indorser is held,

patent. in England, to stand committed; and, although term, in behalf of the patentees, for a rule upon

A motion was made, on a former day of this from the contiguity, and, in some instances, the district judge, to show cause why a manreduced size of the states, and their union un: damus should not issue from this court, directder the general government, the analogy is not perfect, yet it is obvious that a removal from ing him to make a record of the proceedings in the sea board to the frontier states, or vice versa; purpose of trying the validity of the patent.

the cause, and to issue a scire facias, for the would be attended with all the hardships to the rule having been granted, and due service holder, especially one of the same state with the maker, that could result from crossing the bad, the case has since been argued by counsel, British channel.

for and against the rule; and the opinion of With this view of the subject, we are of this court is now to be delivered. opinion that the judgment below, although *against the making this rule absolute. [*605

Two objections have been urged at the bar, rendered on a different ground, must be sus. The first is, that these proceedings, being sumtained. Judgment affirmed.

mary, are not properly matters of record. The

second, that this is not a case in which, by law, Cited-10 Pet. 580; 2 Cranch, C. C. 288, 512.

a scire facias, or process in the nature of a scire facias, can be awarded, to try the validity of the patent.

Both of these objections are founded upon 603*] [*PATENT. PRACTICE. ]

the provisions of the 10th section of the patent

Ex-parte WOOD & BRUNDAGE.

1.-He cited Stearns v. Barrett, 1 Mason's Rep.

153; 8 Mod. 28; 1 Salk. 144. Under the 10th section of the pate act of the 2.-He cited 1 U. S. Law Journal, 88; Ex-parte 21st of February, 1793, ch. 11, upon granting a rule, O'Reilly, 1 Ves., Jun., 112; Ex-parte Fox, 1 Ves. & by the judge of the District Court, upon the pat-' Beames, 67; Jefferson's case, 2 Saund. 15.

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