
    M'DONALD vs. LEE’S ADMINISTRATOR.
    Western Dist.
    
      Oct. 1838.
    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF CONCORD'IA.
    A note made payable on a particular day, without defalcation, is entitled to the usual days of grace, before it is protested for non-payment.
    'The words “ without defalcation,” in a note, imply that it is to be paid to the holder without any diminution, or claim to set-off, or otherwise, by the maker and endorser.
    This is an action on the following promissory note, in which the plaintiff seeks to recover the amount from the endorser’s estate.
    «$9,677 32. - “Rodney, May 5th, 1835.
    “ On the fifth day of November, 1837, I promise to pay to the order of Charles S. Lee, nine thousand six hundred and seventy-seven 32-100 dollars, without defalcation, for value received, payable at the Agricultural Bank, at Natchez, Mississippi. SAMUEL A. MASON.”
    
      Endorsed, “ Charles S. Lel.”
    “Trios. McDonald.”
    When this note became due it was presented at Bank for payment, and duly protested on the 8th day of November, 1835, for non-payment, and notice thereof given to the endorser.
    This suit is instituted against the administrator of the ■endorser, and the defence is, that payment of the note was not demanded on the 5th of November, when it became due, as it was payable then without defalcation; but that three days of grace were allowed, contrary to the tenor of the obligation, by which the endorser is discharged.
    „ , A note made payable on a \dthmt\falca-to theuauaídays ofgraco, before for non payment!
    There was judgment for the plaintiff, and the defendant appealed.
    
      Stacy, for the,appellant,
    contended, that the note sued on, was made payable on a particular day without defalcation, and should have been presented for payment, and protested on that day, and notice given to the endorser, in order to make him liable. But the protest shows that a demand was not made on the day the note was absolutely payable, and not until three days after. This delay exonerates the endorser. Kenner et al. vs. their. Creditors, 8 Martin, Jf. S. 36. 7 Martin, 460.
    
      O. JV. Ogden, contra.
    
   Martin, J.,

delivered the opinion of the court.

The defendant, administrator of the estate of Charles S. Lee, is appellant from a judgment, by which the plaintiff has recovered the amount of a promissory note, endorsed by Lee, and complains that the judgment is erroneous, because the protest was not made, and notice given to the endorser in due time.

The protest was made at the close' of the third day after that mentioned in the note, as the one on which it was made payable. Notice was given immediately after the protest ; in other words, the usual days of grace were allowed.

• His counsel has contended, that as the note was expressly . , r, J promised to be paid without dejalcation, the protest Ought to have been made on the very day stated in the note, and not’ce given thereof on the following day; and that the expression used, was intended to exclude any postponement of delay of payment, which might' otherwise have been claimed.

According to the definition given by Johnson, the word defalcation means, diminution, abatement, excision of any part of a customary allowance.” He derives the verb “ defalcate” from the Latin defalco, — “ I mow or cut off with a scythe.”

The words “ defaf cation, in a note imply, that it is holder without ™y diminution, or otherwise, by the maker and endorser.

On the establishment of banks in the several states of the union, after the peace of 1783, these institutions required the insertion of the words “ without defalcation,” in notes offered to them, evidently with the view to cause the makers to renounce any claim, by set off or otherwise. The note in this case, is made payable at a bank in Natchez, in the state , 1 J of Mississippi, and we understand, that by a law of that state, .promissory notes are, in the hands of endorsers, subject to set-offs or any other defence, which may be made against the maker, in the same manner as in this state, when , •, endorsed after maturity.

The words without defalcation,” appear in the state of Mississippi, to be intended as precluding the maker of the note, from availing himself of the plea of set off.

According to the construction urged by the appellant’s counsel, the words “ without defalcation,” signify, with the ■defalcation or cutting off the days of grace.

It appears to us the Court of Probates did not err.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.  