Mechanics' & Farmers' Bank v. Gibson

Headnote

When the third day of grace falls on Sunday, a note may be protested on the second day, and it not necessary to aver in the declaration that the third day happened on Sunday.

•Demurrer to declaration. The declaration was on a promissory note against the endorser, and the demand of payment was stated to have been made on the second day of grace, for which cause the defendant demurred. The counsel for the plaintiffs now moved for judgment, on the ground of the frivolousness of the demurrer, averring that the third day of grace happened on Sunday, and that therefore the'note was correctly protested for non-payment on the second day of grace.

contended that if the fact was as stated by the counsel, it should have been averred by the declaration, from an inspection of which it was manifest that the plaintiffs had no cause of action against the defendant.

Such averment was not necessary; the defendant should have consulted his almanac, of which the court will now take judicial notice. 1 Petersdorff’s Abr. 490.