Skinner v. Collier ( 1840 )

Opinion of the court by

Mr. Justice Turner.

The counsel for the plaintiff in error, has raised the question, whether in cases of sealed instruments, such as this, days of grace are allowed, as in cases of promissory notes and bills of exchange. We were at first of opinion that sealed instruments are not within the lex mercatoria, which allows three days of grace. But, on further consideration, and the examination of the statute, and the adjudged cases, we have considered otherwise, and so adjudge, in order to settle the question. We find no reported case on the subject in our own courts; but it is believed, that the practice has varied. See the case of-, and of-, in Walker’s Reports.

Our statute, Rev. Code, page 464, section 9, makes all bonds, bills, &c. for the payment of money or other thing, assignable, and gives an action to the assignee, as in cases of inland bills of exchange.

In Alabama and Tennessee, it has been decided, that under their statutes, which are similar to ours, days of grace are allowable, on sealed instruments. See 2 Yerger, 576; and Yerger, Alabama, 296; and 2 Porter’s Rep. 461; Martin & Yerger, 237, Love v. Nelson.

There is in the ordinary transactions of business, but a technical difference between a written promise under seal, and one not under seal, for the payment of money; and it is better to have our rules of conduct as uniform as possible.

But this case does not turn on this question.

The testimony given in the ease, went to the jury without objection, except as to Gray’s evidence, and that was clearly admissible, or if it was not, it was quite immaterial in the case. The first objection made to the evidence was on the motion for a new trial. It was then too late. The silence of the party was a waiver of objection. A party who intends to avail himself of the admission of improper testimony, must make his objection when the testimony is offered. For any thing that appears, this testimony was admitted by consent.

As the whole of the evidence was before the jury, without objection, except as-above stated, they were the proper judges of the weight to which it was entitled. Its evident tendency was to prove demand and notice, and we ought not to disturb a just verdict.

Judgment affirmed.