
    John Henry versus Nathan Jones.
    A promissory note made payable in a given number of days, without saying more, is payable in so many days from the date, exclusive of the day of the date.
    Case by the endorsee against the endorser of a promissory note, with an additional count for money had and received.
    On a trial upon the general issue, which was had before Parker, J., November term, 1810, a verdict was taken for the plaintiff, subject to the opinion of the Court on the following facts reported by the judge who sat at the trial: —
    
      Timothy Whiting made his promissory note for 5000 dollars, dated March 4th, 1809, payable to the defendant or his order in sixty days with interest. On the same day Jones endorsed the note to Henry. In the afternoon of the 2d day of May, 1809, at Boston, the plaintiff presented the note to Whiting for payment, who said he could not pay it then, or at any time, unless the plaintiff would receive the assignment of a certain note for 500 dollars in part satisfaction, which was refused. The conversation between the parties continued until after dark. Before the post-office was closed, and after the conversation above mentioned, and after the mail for that day had gone to Medway, where the defendant then resided, the plaintiff put a letter into the post-office addressed to the defendant. giving notice of the non-payment of the note in due form. The same evening the plaintiff sent his agent, with the note and a written order to the defendant, to enable the agent to receive payment of him. On the 3d day of May, at 5 * o’clock in the morning, the agent presented the note and order to the defendant, and gave notice of the presentment of the note as aforementioned to the promisor, and of his neglect to pay the contents. The defendant said he was unable to pay it, or any part of it. The agent asked if the money could be paid during that day; and was answered in the negative. The writ was then served by attaching the defendapt’s real estate at 25 minutes past 5 o’clock in the morning, and a summons was left on the 20th day of June following. The writ bore date the same day of the attachment.
    The cause was argued upon this report at the last March term in this county by Mr. Solicitor General for the plaintiff, and Bigelow for the defendant.
    
      Bigelow objected to the verdict,
    that the demand on the promisor and notice to the endorser were made too soon; and he argued that the note in this case being made payable in sixty days, without saying more, must be taken the same as if made payable in sixty days from the date, which would exclude the day of the date; and so the note was not payable until the 3d of May. 
    
    
      The Solicitor General contended
    that the day of the date was regularly to be included in computing the sixty days, and he cited the case of Bellasis vs. Hester, 
       and an anonymous case in 1 Lord Raym. 480. — He also read a certificate subscribed by several of the cashiers and clerks of the banks in Boston, purporting that it is the custom of the banks to include the day of the date, in computing the time when a promissory note falls due, which is made payable in a given number of days: thus a note bearing date on the 1st of March, payable “ in thirty days,” would be held due by the custom of the banks on the 30th day of March.
    But he argued that notice under the circumstances of this case was waived; or that both the promisor and endorser declaring themselves unable to pay the demand was equivalent to a waiver, since no possible inconvenience arose to the defendant from a want of due notice. 
    
    * The action stood continued to this term for advisement.
    
      
       1 L. Raym. 84, Hatter vs. Ash.—3 Selw, N. P. 997, Anderson vs. George 1 Esp. Rep. 261, Wiffen vs. Roberts. — Kyd on Exchange, 6.
    
    
      
       1 L. Raym. 280.—■ 5 Rep. 1, Clayton's case.— Com. Dig. Temps, A.
    
    
      
      
        Chitty. 162, note 1, Amer. ed.
      
    
   By the Court.

The endorser is not chargeable upon his endorsement unless the holder can show a demand regularly made on the promiser on the day the note falls due, or due diligence to make such demand. — Where a note is payable in a certain number of days from, the date or from the day of the date, the day of the date is to be excluded in the computation. In the case at bar, the note was made payable in sixty days, without adding, as is customary, from the date. But the intention is apparant; and the Court will supply the omission. The meaning must be the same as in sixty days from the date; otherwise a note payable in one day would be payable immediately, which would be an absurdity. No action lies against the endorser, until after the demand made on the day of the maturity of the note. In this case the demand was made on the day preceding, and not on the day fixed by the parties for the payment. Let the plaintiff be called.

Plaintiff non <uit.  