
    Reuben Wiggle et al. vs. John Thomason.
    Promissory notes, in this state, are entitled to days of grace ; a note, therefore, payable on the first of March, is not due until the expiration of the fourth of that month ; an action therefore commenced on such a note on the fourth of March, is commenced too early; and a verdict and judgment against the makers thereof, in such action, will be erroneous.
    In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge.
    John Thomason, on the 4th of March, 1846, filed in the circuit clerk’s office a promissory note for the sum of $400, executed by R. Wiggle and A. Elkin, on the 19th of August, 1845, and payable to the said John Thomason, or bearer, on or before the 1st day of March, 1846. The writ issued under the statute of 1842, authorizing suits to be thus commenced by persons holding notes, &c. The writ issued on the same day the note was filed, being the 4th day of March, 1846. The minutes of the court below, show that the parties came by their attorneys, and that a jury came, &c., to try the issue joined between the parties, and that they found for the plaintiff, &c.; but there appears neither declaration nor plea in the papers.
    There is a bill of exceptions in the record, taken by the defendants below, to the opinion of the court, by which it appears that the defendants below, at the same term of the court, by their counsel, moved the court for a new trial; first, because the verdict was contrary to law; second, because it was contrary to evidence; and third, because it was found without evidence, and for reasons which appear upon the face of the papers in the cause. No evidence is embodied in the bill of exceptions. The court below overruled the motion, and the defendants sued out this writ of error.
    Herbert, and C. H. Robinson, for plaintiff in error,
    contended,
    1. That promissory notes, in this state, are entitled to three days of grace. Fleming v. Fulton, 6 How. Rep. 473; Barlow et al. v. The Planters' Bank, 7 How. 129.
    2. That the maker has the whole of the third day to make payment in. If this were not the case, the question would, certainly, be a very perplexing one, at what time of the third day this privilege ceases? Although the demand must be made on the third day of grace, (where demand is necessary,) yet it must be within reasonable hours. Story on Promissory Notes, § 226, p. 255. And what these reasonable hours are, depends upon a variety of circumstances, such as business hours, the custom of the place, the point fixed for the place of payment. Now if the demand, and the time thereof, are dependent upon the reasonableness of the hours, where no demand is necessary, the rule should be as reasonable for the maker as for the holder, and give him the whole day to pay in; especially so, when he cannot know in many cases, into whose hands the note may have fallen. The law is so settled. See Osburn v. Moncure’, 3 Wend. Rep. 170; 3 Kent, Com. 102, note (b), 103.
    3. If, then, the maker is entitled to the whole of the third day to make payment, it follows that the holder has no right of action until the day after, and he must withhold his appeal to the law until the third day has wholly expired. Love v. Nelson, Mart. & Yerg. 237; Chitty on Bills, 343; Smithy. Kendall, 6 Term Rep. 123; Brown v. Harraden, 4 lb. 148; Brodie v. Searcy, Peck, Rep. 183; see 1 Saund. Rep. 287; 1 Rol. Ab. 189; Max. on Bills, 338, 339; Kyd, 6, 7; 3 Bos. & Pull. 173; Ld. Raymond, 1076; Bayley on Bills, 236, 238; 7 Eng. Com. Law Rep. 403; 3 Brod. & Bing. 187; Chitty on Bills, 406; Barlow et al. v. The Planters’ Bank, 7 How. Rep. 129.
    4. There was no plea filed by the defendants below, and therefore no issue joined between the parties. McAdams v. Massey, 1 S. & M. 660, and authorities there cited; 1 How. 24; 6 lb. 193.
   Mr. Justice Thacher

delivered the opinion of the court.

This suit was instituted by the plaintiff below, under the act of Feb. 28, 1842, entitled an act to authorize citizens of this state to prosecute or defend their suits without the aid of an attorney. Hutch. Dig. 854. The statute authorizes any person, being the bond fide owner of a promissory note, &c., without the trouble and expense of employing a lawyer,” to file such note Avith the clerk of the circuit court of the proper county, which shall be taken and deemed as a declaration in said suit.

In accordance with the statute above referred to, the plaintiff below filed his promissory note with the clerk of the circuit court of Itawamba county, and a summons issued and was served upon the makers of the note. There were no pleadings filed upon either side, but a jury came, and verdict and judgment were rendered for the plaintiff. A bill of exceptions appears in the records to the overruling of a motion for a new trial, founded upon the allegation that the verdict was contrary to the law and the evidence, and because it was found in the absence of all evidence.

The only evidence adduced upon the trial was the promissory note upon which the action was founded, which was payable upon the 1st day of March, 1846. The record shows that the note was filed with the clerk of the circuit court upon the 4th day of March, 1846, and that the summons emanating thereon according to the statute, was issued and served the same day.

By the act of June 25, 1822, H. & H. 373, sec. 12, promissory notes are made negotiable, and consequently are allowed three days of grace. Fleming et al. v. Fulton, 6 How. 473; Barlow et al. v. The Planters' Bank, 7 Ib. 129. The promissory note therefore, upon which this action was founded, although upon its face payable on the 1st, was not by law due until the 4th day of March. It was not payable at any particular place, but generally on that day, and the makers had until the expiration of the 4th to pay the note. The 4th day of March, 1846, fell upon Wednesday.

A right of action did not accrue to the holder of the note until after the expiration of the days of grace, the maturity of the note. Love v. Nelson, Mart. & Yerg. 237.

The judgment of the circuit court was erroneous. The motion for a new trial should have been sustained.

It is not the province of this court to point out to parties their proper mode of proceeding, but on account of the present peculiar attitude of this case, we would recommend to the plaintiff below to take sound legal advice in regard to his future steps in prosecuting his rights.

Judgment reversed and new trial awarded.  