
    Mark Hudson vs. R. & O. Mathews.
    
      July, 1841
    If the court ought to presume any thing, it would be in favor of the legality of the proceedings.
    When a party seeks to reverse a judgment, he should show affirmatively that there was error.
    The District Court has concurrent jurisdiction with Justices of the Peace, where the amount in controversy is less, than fifty dollars.
    And, therefore, where a party recovers any amount, however small, he is entittled to costs.
    The law merchant is in force in this Territory; and the court is bound to recognize it until it is shown by testimony that it does not prevail.
    Three days of grace are allowed on promissory notes after maturity.
    This was an action of assumpsit, containing several counts, one of which was on a promissory note, brought fey R. & O. Mathews vs. Hudson. There was judgment below for the plaintiffs, and thereupon Hudson brought the case to this court by writ of error, and assigned as errors therein—
    
      First. By the law of the land and the custom of the country in regard to bills of exchange and promissory notes, the plaintiff’s right of action did not accrue upon the said promissory note, lor which the verdict and judgment-in this cause was rendered, until the three days of grace had expired after the said note was payable.
    
      Second. Because the District Court had no original jurisdiction to render a judgment upon a note for the sum of $6 77.
    
      Third. The amount of said note having been tendered and brought into court, was a payment in law, and the verdict of the jury should have been for the defendant generally.
    
      Fourth. Because the judgment of said court awarded full costs of suit to the plaintiffs.
    Learned, for plaintiff in error,
    argued that, by the custom of merchants, three days of grace are to be allowed on promissory notes, and that suit could not be commenced on a. note until the days of grace had expired. In this case the action was brought before the expiration of the days of grace; and cited Chiity on Bills.
    
    Olnet and Rich for defendants.
   Wilson, Justice.

The first and third errors set forth in the plaintiff’s assignment, are not presented by the record of the proceedings in the court below. The declaration contains some of the common counts in assumpsit, and also a special count upon a promissory note, but it does not appear that the finding of the jury was upon that count. The ver- • diet was general, and as follows, viz: “We, the jury, find in favor of the plaintiff, and assess the damages at six dollars seventy five cents.”— There is nothing upon the record which shows that the note was given in evidence to the jury, or that the common counts in the declaration were unsupported by testimony. Can the court presume this? We think that such a presumption would be a violent one, and that if the court ought to presume any thing, it would be in favor of the legality of the proceedings. When a party seeks to reverse a judgment, he should show, affirmatively, that there was error. It does not appear from the record that the amount of the note was tendered and brought into court, and it is unnecessary to say what the court should have decided upon that state of facts.

The second point has been settled by the court at this term, in the case of Koons vs. Dyer. The District Court has, under our present laws, concurrent jurisdiction with Justices of the Peace where the amount in controversy is less than fifty dollars. The fourth point is settled by the decision of the second; for, if the District Courts have concurrent jurisdiction with Justices of the Peace in cases where the demand is less than fifty dollars, it follows as a matter of course that where a party recovers any amount, however small, he is entitled to costs. As the record does not present any erroneous proceedings in the court below, the judgment of that court must be affirmed.

As the decision of the questions presented by the plaintiffs’ first assignment of errors might tend to prevent, ;n some measure, future litigation upon the subject, we have determined to examine them. These questions present themselves as follows, to wit: First — Whether the lex mercatoria of England is in force in this Territory? Second — Whether the note declared upon is governed by that law? Third — Whether a suit can be instituted 'on said note previous to the expiration of the days of grace recognized by the law merchant?

These three questions may be considered together. That days of grace have been allowed in the United States as in England, cannot but be admitted. In Chitty on Bills, p. 407, note of the-Ani. editor, we find the following: “The days of grace as allowed in England are generally allowed in the United States. At least no traces can be found of a contrary decision, except in the State of Massachusetts, where it is held that no days of gracs are allowed unless stipulated in the contract itself.” In the case of Renner vs. Bank of Columbia, Cond. Rep. Sup. Court U. S. vol. 5, page 693, the court say, “We admit, in the most unqualified manner, that the usage of making the demand on the third day of grace has become so general that courts of justice will' notice it ex officio, and in the absence of any proof to the contrary, will presume that such was the understanding of all parties to a note when they put their names to it.”

The Supreme Court of Indiana, (1 Blackford, page 82,) say that the doctrine is applicable to that State, although they have no statute recognizing the law merchant.

In the case of Hogan vs. Cuyler, 8 Cowen, page 203, it was decided that the three days of grace are allowed as between the maker and holder of* promissory note.

The doubt with us was not so much as to the general adoption in the United States of the lex mercaioria, as to the necessity of such adoption once being proven in the courts of the Territory. The latter doctrine is applicable to customs which prevail in foreign countries, and which have not been recognizedhere. See Consequa vs. Willing et al., 1 Peters' C. C. R. 225. But as the law merchant has been so generally recognized by the courts of the country ex officio, we feel bound to recognize if until it be shown by testimony that it does not prevail.

The judgment of the court below will be affirmed, with costs.  