McMurchey v. Robinson ( 1841 )

Lane, C. J.

This is an action of assumpsit from the county of Clermont.

It is brought against the makers on the following bill of exchange :

“ Ticks burg, March 20, 1839.

“ Four months after date, pay to the order of G-. & J. MoMurchey, $500, United States money, value received, and charge to the account of Robinson & Kain.

“ To J. W. Robinson,

“ Batavia, Clermont County, Ohio.

“Accepted, J. W. Robinson.”

The declaration avers, and the proof shows, the demand was made, and notice of non-payment given, on the 22d of July. No notarial protest was offered in evidence. The jury having. 497] Returned a verdict for the plaintiff, the defendants move for a new trial for the two reasons:

Thos. L. Hamer, for the plaintiffs.

1. The want of j>rotest.

2. Tho non-presentment for payment, and the want of notice to the drawer at the proper time.

The objection as to the want of protest, upon a bill like this, was examined at tho last term of this court: Case v. Heffner, 10 Ohio, 180, and held that our statute relieves the holder, from the necessity of procuring a notarial protest of bills drawn by a person living in one state, upon one living in another, except for the purpose of claiming tho statute damages.

The bill bears date on the 20th of March, and is payable at four months. The time (being computed by calendar months, by the mercantile law) expires on the 20th of July. To this time the statute adds days of grace, and the bill falls due on the 23d of July, and should be presented for payment on that day. The only presentment proved to have been made, is on the 22d day of July, 'a day too soon.-

The plaintiff’s counsel deny that days of grace properly belong to this note; but without stopping to examine the grounds of his position, it is enough for present purposes to say, that if no grace attaches, the demand and notice were equally out of season, for they were a day too late.

New trial granted — Costs to abide tho event.

It being surmised that the drawers of this bill had no effects in the hands of the drawee, and had no right to expect the honor of -the bill, by which it is claimed demand and notice are dispensed ■with, leave was given to amend the-declaration.