
    David Peabody v. Charles Fisher.
    Exception does not lie, after verdict, to the averment of a demand of payment, on a day before or after the expiration of the days of grace, where such averment is made under the usual videlicit, and with an additional averment that the bill was due.
    Error to the common pleas of Muskingum.
    Fisher sued Peabody in the court below as drawer of two bills of exchange for $298.58, both dated June 16, 1836, one at eight and the other at ten months. His declaration is in three counts, viz: .
    1. On the bill at eight months.
    2. On the bill at ten months.
    3. The common counts for money had and received, and upon an account stated.
    Peabody demurred specially to the first and second counts. To the third he pleaded non assumpsit as to the money had and received ; and as to the account stated, moved to strike that much out.
    The demurrers were heard and overruled, and, the cause being submitted to the court, judgment was rendered for the plaintiff To reverse which, Peabody brings this suit.
    Goddard and Converse, for the plaintiff in error:
    The bills declared on do not appear to be made payable at any bank, and therefore are n ot supposed to be entitled to days of grace. If SO, the first bill matured on the 16th of Febuary, and the demand of payment and notice on the 18th fixes no liability on the 18th. The ten months bill, upon the same principle, matured on April 16, 1837. If the days of grace are computed, it matured on the 19th. There is no averment of its presentation on either of these days, but its presentation is averred on the 20th; the first was presented at two days’ grace; the second at four days’ grace; therefore, the laches oí the holder has discharged the drawer. 6 Ohio, 66 ; 1 lb. *508. The account stated is improperly inserted. The indorsement on the writ is upon two bills, and'“ also for money had and received by defendant to use of plaintiff.” The party, under the statute, can not declare for anything not expressed in the indorsement. 29 Ohio L. 58. So there was no plea, but a notice to strike out.
    
      Geo. James and H. Stanbery, contra.
    Thought it sufficient to say, that the third count was unquestionably good ; the clause for money had and received will sustain the judgment, without resorting to the account stated. The motion to strike out has not been pressed or decided; but the court will not reverse a judgment because the common count contains a cause of action not specifically indorsed on the writ. A bill of exchange is entitled to days of grace whether payable at a bank or not. 7 Ohio, 223.
   Judge Grimke

delivered the opinion of the court:

It is supposed that the first count is defective, because it avers a presentation of the bill for payment on the 18th of February, the second day after the bill became due. The averment is, “ that afterward, when the bill became due, to wit, on February 18, 1837, the said bill was duly presented.” Ohitty, in his treatise on Bills, 494, n. A, says, the day is material, unless there be an express averment that the bill was presented when it became due, in which case, a mistake in the day after a videlieit would not be material, and this though the day stated be a Sunday. He adds, the better way is, therefore, to state the time of presentment generally. Doug. 679. The quotation refers to a precedent of.a declaration* as the precise form of this. The first and second counts are, therefore, good according to the authorities.

The third count is also good. A motion was made to strike out of that count the account stated clause, because the indorsement on the writ did not state that cause of action. It would be carrying the nicety of the law too far, but even admitting it correct, the bills of exchange were admissible in evidence under the clause-for money had and received. The judgment- is affirmed.

*Peabody v. Fisher.

Grimke, J.:

This is another ease between the same. The- declaration is upon a bill of Peabody for $375, dated January 30, 1837, at five months; and avers its presentation on the 3d of Juljq when the bill became due. It was presented in proper time, inasmuch as bills .of exchange are commercial paper. But if they were not, the declaration is good for the same reasons given as to the two first counts in the last case. Judgment affirmed.  