Lewis v. Burr

2 Cai. Cas. 195

• Court: New York Supreme Court
• Decided: July 1, 1796
• Status: Published

Opinion

Per Curiam, by Benson, J.

By our statute of the 27th March, 1794, “ promissory notes are made assignable and indomable over; and an action may be maintained on them, as in cases of inland bills of exchange.”

The reference to bills of exchange is contained in the English statute of the 3d and 4th Anne; .but having been omitted in the colonial statute of 1773, it was also omitted in the statute of 1788, in our revised code; the omission, therefore, in the statute of 1788, can be accounted for. But whether it was in the first instance designed or accidental in the statute of 1773, cannot be ascertained. It, however, occasioned the statute of 1794, which, it is known, was intended, and has been received and practised on in the community, as a provision, in addition or amendment of the statute of 1788, to give days of grace to promissory notes; hence it is, that they are now considered as entitled to this incident, by law. The law, however, does not create the incident; it existed before, as appertaining to bills of exchange, and the law can only be adjudged as constructively contending it to promissory notes, it however existed by force of custom only; to know, therefore, what the incident is, we still resort to custom.

Days of grace, as a general incident to bills of exchange, are by almost universal custom; the number of days being different in different places, according to their respective laws or customs. In England the number is three, and wholly by custom.

There, also, if the last of the three days happens to be a day on which either "the law or custom hath established “ that no money is to be paid,” then the number is to be restricted to two. . This is also not only wholly by custom, but is repugnant to the analogy of a rule of municipal law, by which, if an act is to be done on a day which happens to be a Sunday, or any other day on which it could not be done, without transgressing the law, that then, instead of the day before, it must be done on the day after; so that the regulation of restricting the period of respite in favour of the creditor, preferably to enlarging it in favour of the debtor, if it had been questioned in its commencement, I should conceive, ought to have been arrested by the courts of justice, not as inconvenient or injurious in itself, but as repugnant to the rule of law in analogous cases ; it having, however, been sanctioned by custom, it was, therefore, judicially “approved;” consuetuclo altera lex.

I assume it, that the custom, as it existed in England at the time @f our revolution, was deemed, in fact, to be the custom among us, and entitled to prevail. In addition to the custom, as it then existed, the special verdict finds a continued custom from the month of May, 1784, hitherto for another day, besides Sunday, &c. when the restriction of the number of days of grace is to take place, namely, the anniversary of our independence. The question, therefore, between the parties is, whether the custom is not, in this particular, also equally entitled to prevail ? with respect to which, I would briefly state that, whenever a practice, usage or custom hath obtained, for a length óf time, so as that it may be presumed to be generally known ; that then, all contracts to which it may be applicable, shall be interpreted and governed by it. This principle is not new; we practise on it daily. Where the contract is not special or explicit, so as to exclude construction, the inquiry always is, what is usual ? Lest I may be misunderstood, I would mention, that I mean such practices,' usages, or customs only, as may consist with law; that I decide only on their force or audio- ■ rity, admitting the object of them to be lawful.

I am of opinion, that the note in question is to be adjudged as having fallen due on the 3d day of July, the second day of grace, and, consequently, that the plaintiff is entitled to recover.