Greeley v. Thurston
| Decision Date | 01 May 1827 |
| Citation | 4 Me. 479 |
| Parties | GREELEY & AL. v. THURSTON |
| Court | Maine Supreme Court |
IN this case, which was assumpsit by the payee against the maker of promissory notes, the writ was issued Oct. 21, 1825 between the hours of four and five in the afternoon; and contained one count upon a note dated April 18, 1825, for $ 156,25, payable in six months from the date with grace; and another upon another note, dated June 20, 1825, for $ 93,76 payable in four months from the date with grace. The service of the writ was commenced on the following day, by attaching the defendant's goods:
On or about Oct. 26, the plaintiffs caused the second count to be stricken out of this writ; and on the 9th of November a new writ was made upon the last mentioned note, and the same property again attached. The service of both writs was completed Nov. 15, by leaving the summonses at the defendant's place of abode; and the second suit proceeded to judgment.
Upon these facts the cause was submitted to the court, to determine whether the action was prematurely brought; and whether the alteration made in the writ, by erasing the second count, was such as to render it void.
Kinsman for the plaintiffs, contended that the note was due on the last day of grace, and that an action might well be commenced upon it at any hour of that day. Castle v. Burditt & al 3 D. & E. 623. Jones v. Fales 4 Mass. 251. But if the day of the date was to be excluded from the computation, and so the note not matured till the expiration of the last day of grace, yet this day, in mercantile acceptation, ended at the closing of the banks at four in the afternoon; after which an action would lie.
Daveis for the defendant, insisted that the action was premature; upon the ground that the day of the date of the note was to be excluded from the computation; in which case the promissor had the whole of the last day of grace, in which to make payment; the law not regarding fractions of a day. Henry v Jones 8 Mass. 453.
But however this may be, he said that the plaintiffs had destroyed their own writ, by altering it in a vital part, without leave of the court, and after the defendant had a vested interest in the action, by the attachment of his property. To permit such an act, especially when done, as this was, without the concurrence of the counsel, would go far to destroy all confidence in the sacredness of legal proceedings.
OPINIONThe opinion of the court was read at the ensuing November term, as drawn up by WESTON, J.
Prior to the service of a writ, the plaintiff may change, modify, or amend it at his pleasure. Whether, after the service had commenced by attaching the defendant's goods, but prior to its completion, it was competent for the plaintiffs in this case to strike the second count out of their declaration, from the view we have taken of the cause upon other points, need not now be decided.
The note declared on in the first count, dated April 18, 1825,. payable in six months with grace, became due on the 21st of October following. Was it suable on that day? It is remarkable that no decision directly upon this point has been adduced, nor have we, after considerable research, been able to find one. The treatises of Kyd, Chitty and Bayley on bills of exchange and notes of hand, have also been examined with a view to this question; but they contain no intimations, affording any satisfactory aid in the solution.
The objection on the part of the defendant, the maker of the note, is, that he has the whole of the last day in which to pay it; and that until that day is passed, he cannot be said to have broken his contract. There is no question, that with regard to bonds, mortgages and instruments in writing, other than notes of hand, or bills of exchange, the party who engaged to pay money, or to perform any other duty, fulfils his contract, if he does so on any part of the day appointed. Unless the case of negotiable paper forms an exception to the general rule, which attaches to other written contracts, the maker of...
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