Ontario Bank v. Petrie

3 Wend. 456

Opinion

By the Court,

Savage, Ch; J.

The only difficulty in this case is in the notice of non-payment. The note was due on the thirty-first day of August, 1828, which was Sunday, the demand was made on Saturday, the thirtieth, and notice sent by the first mail. The notice, dated the thirtieth, states payment, was demanded last evening instead of this evening. The judge was right in submitting to the jury the question, whether the defendant was misled. The case of Reedy v. Seixas, (2 Johns. C. 337, 8,) is similar in principle ; there, the note was misdescribed in the notice, and the court said it was sufficient to put the defendant on' enquiry, and that it was incumbent on him to shew circumstances to mislead him, such as other notes endorsed by him. Here there were other notes, but none due the same month. In Smith v. Whiting, (12 Mass. R. 6,) there were two errors in the notice : the maker’s.name was written Cushing instead of Cushman, and the note was said to have fallen due before the days of grace had expired, but the court considered the errors immaterial. In this case, it was properly left to the jury to say whether the defendant was misled, and they have found that he was not misled. The demand was made on the right day, and the notice was in due season. The stating in the notice that the draft was protested for non-payment on the evening before it fell due, could not prejudice' the defendant.

New trial denied!