v. Doane, 12 Wall. 342; Robinson v. Bland, 2 Burr. 1077; Carlton v. Woods, 28 N. H. 290. See 1 Daniel, Neg. Instr. § 204.

The rule that the execution of a note, bill, or check, imports a consideration, applies, however, at least in Massachusetts and Maine, only where the defendant does not dispute the consideration, or where if he pleads the want thereof he fails to bring evidence in support of his plea. Small v. Clewley, 62 Maine, 155; Delano v. Bartlett, 6 Cush. 367.

But where a want of consideration is relied upon, and is an admissible defence, and evidence is given on the one side in the affirmative and on the other in the negative, of the fact of consideration, the burden of proof is upon the plaintiff to satisfy the jury, upon the whole evidence, of that fact. Ib.

In one sense, the burden is upon the defendant, the burden of rebut ting the prima facie case made by the production of a genuine note, bill, or check; but the general burden of proof is upon the plaintiff to show a consideration for the same; and that burden does not shift. The note itself fulfils the condition in the absence of evidence from the defendant; but, when there is evidence on both sides, though its weight may be on the one side or on the other, the burden of proof still remains upon the plaintiff, unless the defendant sets up a new and distinct issue, confessing the original contract and seeking to avoid it. Small v. Clewley, supra, Peters, J.; Delano v. Bartlett, supra; Powers v. Russell, 13 Pick. 76; Burnham v. Allen, 1 Gray, 496; Noxon v. De Wolf, 10 Gray, 343; Estabrook v. Boyle, 1 Allen, 412; Smith v. Edgworth, 3 Allen, 233; Tarbox v. Eastern Steamboat Co., 50 Maine, 339; Bourne v. Ward, 51 Maine, 191. The cases,

Quimby v. Morrill, 47 Maine, 470, and Sawyer v. Vaughan, 25 Maine, 336, so far as they are opposed to this view, were overruled in Small v. Clewley,

supra.

§ 3. Days of Grace. A certain period of time is allowed the maker of a note or the acceptor of a bill, when the instrument is not payable on demand, after the time when in terms it would be due; such time having originally been allowed by common custom as matter of grace or favor. Custom hardened at length into law, or was confirmed and established as such by legislation. But while the period has therefore ceased to be grace in fact, the period is still called days of grace. In England and in the United States three days in ordinary cases are allowed after the day upon which the paper would otherwise be due, before it arrives at what is termed its maturity. Thus, a note made on the first day of December, and promising to pay $1,000 one month from date, would mature-become payable-only upon the fourth day of January, three days after the first day of January.

If, however, the last day of grace were to fall upon a Sunday or a legal holiday, the paper would mature on the second day of grace; the principle of grace in such a case still finding expression, and the holder not being compelled to extend the time of grace to the fourth day. And not only is the holder not compelled to extend the period of grace in such a case, but, if the action be against an indorser or the drawer of a bill, it will be altogether fatal to the plaintiff's claim if it appear that demand of payment was not made until the day after the Sunday or holiday. But notice of dishonor may be deferred until the day after such non-secular day.

If it should happen that two nonsecular days should come in succession,

the second of them being the one which otherwise would be the third day of grace, the paper for the same reason matures on the first day of grace. That is, the note in the example above put would in such an event mature on the second day of January.

But if the paper is not entitled to grace, the maker or acceptor has, by the weight of authority, until the day succeeding the non-secular day on which it may happen to fall due for making payment; and demand before that day is therefore premature for all purposes. Salter v. Burt, 20 Wend. 205; Kuntz r. Tempel, 48 Mo. 71, 75; Barrett v. Allen, 10 Ohio, 426; Avery v. Stewart, 2 Conn. 69. All of these cases were decided upon the authority of Avery v. Stewart, which, however, was the case of a promise to pay a certain sum of money in yarn; but its reasoning was applied to a common bank check in Salter v. Burt (but see Osborne v. Smith, 14 Conn. 366, note); and there can be no reasonable doubt of the soundness of the rule as applied to notes and bills proper, in the absence of statute. Osborne v. Smith, supra, appears to stand alone. Barrett v. Allen, supra, was like Avery v. Stewart, the case of a promise to pay in specific articles. As to the English rule, see Byles, Bills, 270, 13th Eng.

ed.

The intervention of a holiday before the last day of grace, or the fact that the day on which paper would be due by its literal terms is a holiday, is immaterial when it is entitled to grace. Woolley v. Clements, 11 Ala. 220; Avery v. Stewart, supra, Gould, J.

Neither the maker nor acceptor, then, can be sued before the last day of grace. According to the law of some of the States, he may be sued upon that day, provided payment has been duly demanded. Estes v. Tower, 102 Mass. 65; Staples v. Franklin Bank,

1 Met. 43; Pierce v. Cate, 12 Cush. 190; Veazie Bank v. Wynn, 40 Maine, 62; Coleman v. Ewing, 4 Humph. 241; McKenzie v. Durant, 9 Rich. 61; Farmers' Bank v. Duvall, 7 Gill & J. 89.

According to the law in such States, the maker or acceptor is deemed to be in default at any reasonable time of the last day of grace when payment has been demanded of him and been refused. Estes v. Tower, supra; Staples v. Franklin Bank, supra. Demand made at eight o'clock in the morning is not, prima facie, reasonable. Lunt v. Adams, 5 Shep. 230.

If no demand has been made, the party is not in default until the end of the third day of grace; and consequently he cannot be sued before the following day. Pierce v. Cate, supra; Estes v. Tower, supra, explaining Butler v. Kimball, 5 Met. 94; Gordon v. Parmelee, 15 Gray, 413; Daly v. Proetz, 20 Minn. 411. An exception prevails probably in the case of a note, bill, or check payable at a place of business which closes before night; for the contract in such a case is to pay during business hours of the last day of grace. If payment should not be made or provided for at a place named (for there would be no default if funds were provided at a place designated for payment) within business hours, the holder could at once bring suit, provided it were not too late to obtain his writ.

In some States, the maker or acceptor is allowed till the close of business hours of the last day of grace or until the end of the day (if the paper be not payable at a place of business), even though there may have been a demand and a refusal; there being considered to be no legal default until the time as fixed by the contract (including grace) has fully expired. Osborne v. Moncure, 3 Wend. 170; Smith v.

if the action be against an indorser or drawer. Wheeler v. Warner, supra; Merritt v. Todd, 23 N. Y. 28.

Grace is always allowed unless expressly disallowed, except in the case of paper payable on demand. And, if the instrument be payable in instalments, grace is allowed on each instalment, as was decided in the principal case, Oridge v. Sherborne. If payable "on demand at sight," it is payable at sight, and hence is entitled to grace. Dixon v. Nuttall, 1 Cromp. M. & R. 307..

But grace may be dispensed with by any language clearly expressive of the intention. Perkins v. Franklin Bank, 21 Pick. 483; Durnford v. Patterson, 7 Mart. (La.) 460. And this does not affect the instrument in other respects as commercial paper.

Paper payable a certain number of months after date, without grace, falls due on the same day of the month as that of the date. Roehner v. Knickerbocker Life Ins. Co., 63 N. Y. 160; Campbell v. French, 6 T. R. 212; Hartford Bank v Barry, 17 Mass. 94; Ripley v. Greenleaf, 2 Vt. 129; Bank of Tennessee v. Officer, 3 Baxter, 173. If the paper is to run a certain number of days, the day of the date, or sight (according to the tenor of the paper), is excluded in ascertaining the time when payment is due. Loring v. Halling, 15 Johns. 120; Mitchell v. De Grand, 1 Mason, 176; Ammidown v. Woodman, 31 Maine, 580; Henry v. Jones, 8 Mass. 453; Taylor v. Jacoby, 2 Barr, 495.

The time which bills payable after sight have to run is computed from the date of the acceptance. Campbell v. French, 6 T. R. 200. A note payable at a certain period after sight is payable at that period after presentment for sight. Sturdy v. Henderson, 4 Barn. & Ald. 592. So if some time after a refusal to accept, a bill payable

after sight be accepted supra protest, the time is calculated, not from the date of the exhibition of the bill to the drawee, but from the date of the acceptance supra protest. Williams v. Germaine, 7 Barn. & C. 468; Byles, Bills, 211, 13th Eng. ed.

Sometimes there is a difference as to the number of days of grace to be allowed in the law of the several localities where the parties to a bill or note have undertaken. In such cases, the law of the place where payment is to be made governs. Brown v. Newell, 3 Kern. 290; Kilgore v. Bulkley, 14 Conn. 362; Bryant v. Edson, 8 Vt. 325; Vidal v. Thompson, 11 Mart. (La.) 23; Goddin v. Shipley, 7 B. Mon. 575.

The question of grace may also be affected in some cases by local usage, in the absence of statutory provisions or judicial declarations inconsistent therewith. Thus, it has been held by the Supreme Court of the United States as to an alleged usage in the District of Columbia (now obsolete), that a custom of all the banks of the District to demand payment of commercial paper on the fourth day after the day of payment named, which had been uniformly followed for upwards of twenty years, and which was known to and understood by the defendant (an indorser) when he indorsed the paper, was binding upon him. Renner v. Bank of Columbia, 9 Wheat. 581. If binding in favor of the holder, in an action against an indorser, it would doubtless have been binding against him in an action against the maker.

But this rule is considered to apply only in the case of paper discounted by the banks. Cookendorfer v. Preston, 4 How. 317. See also Bank of Washington v. Triplett, 1 Peters, 25; Raborg v. Bank of Columbia, 1 Har. & G. 231; Bank of Columbia v. Fitzhugh, 1 Har. & G. 239; Bank of Colum

bia v. Magruder, 6 Har. & J. 172; Adams v. Otterback, 15 How. 539.

With regard to this question of usage, a further step was taken in Mills v. Bank of United States, 11 Wheat. 431. It was there held that where commercial paper is made payable or negotiable at a bank in a city where the invariable usage is to demand payment on the fourth day, the parties are bound by that usage; being presumed to have agreed to be bound by it, even though they were in fact ignorant of it.

But usage can never have that effect in this country, in contravention to the all but universal practice, unless it is so general among the banks of a city, and so notorious, that an inference may fairly be drawn that the parties contracted with reference to it. In deed, it would seem necessary that the usage should, in the absence of special stipulation, be the universal practice of the locality; in which sense alone custom can be law, so as to bind those not familiar with it. In order to have the force of law, custom must have the characteristics of law: its operation in the locality must be universal, constant, and notorious. Such were the characteristics of those customs in early English history which had the force of law: such indeed have always been the characteristic features of customary law in all ages the world over.

It is apprehended that if the alleged custom is not universal, constant, and notorious in the city or locality in question, the parties must in fact have contracted with reference to it to be bound, as against the general practice of the land allowing and limiting grace to three days. See Woodruff v. Merchants' Bank, 25 Wend. 673; s. c. 6 Hill, 174. But of course where the note or bill is payable in a foreign jurisdiction, as in another State or country, the law of that jurisdiction

will govern as to grace; as has been stated, supra. Brown v. Newell, 3 Kern. 299.

If commercial paper fall due on Sunday, or on a holiday, it is payable the day before; and evidence' will be received to show a usage respecting what are holidays in the absence of statutory provision. City Bank v. Cutter, 3 Pick. 414. In this case the question was whether commencement day at Harvard College could be deemed a holiday. Parker, C. J., upon this point, said: "It is not in the language of the common law a holiday, though it is a day of festivity and amusement in the neighborhood of the University. But it is a fit subject of a usage which will bind all those dealing with a bank which has adopted it as a day when business is not to be done. It is found to have been the usage of the City Bank to regard it in this light, and the report finds that the defendants had express knowledge of this usage."

But proof of four instances within two years in which a bank departed from the law merchant as to the time of giving notice to an indorser, is not sufficient to establish a usage binding on the indorser. Adams v. Otterback, 15 How. 539. Per McLean, J.: "To constitute a usage, it must apply to a place rather than to a particular bank. It must be the rule of all the banks of the place, or it cannot consistently be called a usage. If every bank could establish its own usage, the confusion and uncertainty would greatly exceed any local convenience resulting from the arrangement." This reasoning is not at variance with that of Parker, C. J., above, as it is predicated of a case in which the defendant had no knowledge of the alleged usage. See also Dabney v. Campbell, 9 Humph. 680.

The parties must also have contracted with reference to the alleged usage when it is shown to be incon