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    Jane Campbell, Executrix, &c., of Daniel Campbell, deceased, v. The International Life Assurance Society of London.
    By the terms of one of the printed conditions annexed to a life policy, issued on the 29 th of May, 1850, ($2,000 being the sum insured, and $65.40 being the premium payable yearly therefor,) it was declared that policies “ will not be considered in force if the premiums remain unpaid beyond thirty days after becoming due; but, on satisfactory proof to the directors that the party or parties assured continue in good health, the policies may be renewed at any period within twelve months, on payment of a fine of ten shillings per cent (half per cent) on the sum assured;’’ and there was entered on the margin of said policy the words “premium paid on the 31st day of May, 1850, risk commencing 29th of May, 1850, ending 28th May, 1851,” and one of the printed “ notes ” to the printed application for such insurance declared that “ the premium must, in all cases, be paid annually in advance;" and the annual premiums were regularly paid in advance, except for the year commencing on the 29th of May, 1857; andin April, 1857) the defendants, by a letter addressed to the assured, stated that the annual premium on his said policy would “ be due on the 29th of May next, and unless the same be paid” * * “on or before thirty days from that date, the policy will become void,” and the assured, on Monday, the 29th of June, 1857, at about the hour of. noon, (Saturday, the 27th of June, being the 30th day in numerical order from the 28th of May, and Sunday, the 28th of June,-being the 30th from the 29th of May,) tendered the sum payable annually as premium, which the defendants refused to receive, alleging that the time for renewing the policy and paying the premium expired before that day, but offering to renew the policy if the assured would go before the defendants’ medical examiner and be examined as to his general health, provided the report of said examiner was satisfactory; which the assured refused to do, being at the time an invalid and in failing health; and the assured died a natural death on the 28th of August, 1857, the premium for that year not having been actually paid; it was
    1. Held, that the tender of the premium made on the 29th of June, 1857, was in time, and that the pohcy was thereby continued in force, and that the plaintiff was entitled to recover.
    2. That Sunday, the 28th of June, was the last day of the thirty days within which the assured had the right to pay such premium, and that the thirtieth day being Sunday, the premium, as a matter of right, could be paid by the assured on the next day thereafter, the day on which it was tendered.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 17, 1858;
    Decided, February 26, 1859.
    The parties to this controversy are Jane Campbell, executrix, &e., of Daniel Campbell, deceased, plaintiff, and The International Life Assurance Society, of London, defendants.
    It was submitted to the court under section 872 of the Code. The Case upon which the parties agreed, as containing the facts on which the controversy depends, exclusive of" the affidavits showing “ that the controversy is real and the proceeding in good faith to determine the rights of the parties,” is in the words and figures following, viz.:
    “ First. The defendants herein are a Society established under the laws of the Kingdom of Great Britain, capable of suing and being sued, located at the city of London, and also transacting the business of life assurance under the laws of this State, through their duly constituted agents hereinafter mentioned, at their agency established for that purpose in the city of New York.
    “Second. On the 29th day of May, 1850, the said Daniel Campbell, deceased, effected an assurance on his life with the defendants, and took out a policy of assurance thereon for the sum of two thousand dollars for the term of life. A copy of so much of the policy, styled a  temporary policy,’ so taken out and issued to him by the defendants, as is material to the determination of this controversy, is annexed to and made a part of this statement, and no other policy of assurance in lieu thereof, was ever delivered, as is therein provided, to him by the defendants.

      Third. The corporate name and style of the defendants at the time the policy was issued was ‘ The National Loan Fund Life Assurance Society, of 26 Cornhill, London.’ Its corporate name has since then been changed to, and now is, ‘ The International Life Assurance Society of London.’
    “ Fourth. The first annual premium for the assurance covered . by the said policy was paid in advance by said Daniel Campbell, deceased, arid accepted by the defendants, on the 31st day of May, 1850, and continually thereafter the annual premiums thereon were duly paid, to the defendants annually in advance by said Campbell, within the time provided for that purpose by the said policy, up to (exclusive of the additional thirty days provided in said policy) the twenty-ninth day of May, 1857.
    “ Fifth. Prior to the last mentioned day, and in the month of April, 1857, said Daniel Campbell, now 'deceased, received a note from the defendants, in relation to said policy, of which the following is a copy:
    “ International Life Assurance Society of London,

      ("LaieJLational Loan Fund Life Assurance Society,)
    “ General Agent’s Office, )
    “ 71 Wall st.,' New York, April , 1857. f “ Mr. Daniel Campbell :
    “ Sir—The annual premium on your policy, No. 4,710, will be due on the 29th day of May next, and unless the same be paid at the office of the Society’s Agent, at Washington, on or before thirty days from that date, the policy will become void.
    “ Your ob’t servants,
    “ O. E. Habicht and “ J. G. Holbrooke,
    “ General Agents for the United States.
    “ Statement.
    “ Premium, .. .i................'..................$65 40
    “Interest on Loan,............................... 9 78
    “Total amount due,..............................$75 18
    “ Sixth. The thirtieth day in numerical order from the twenty-ninth day of May, 1857, was the twenty-eighth day of June, 1857, which last mentioned day fell upon, -and Was a Sunday, and the thirtieth day in numerical order from the 28th day of May, 1857, was the 27th day of June, 1857, which last mentioned day fell upon and was a Saturday.
    “Seventh. On Monday, the twenty-ninth day of June, 1857, at about the hour of noon, Daniel Campbell, since deceased, tendered, at the office of the defendants’ agent, at Washington, to such agent, the aforesaid premium and interest on loan, mentioned in the aforesaid note of April, 1857, of the defendants’ general agents for the United States to said Daniel Campbell, which such agent then refused to accept or receive, alleging that the time for renewing the policy and paying the said premium; under the same, had expired before that day.
    “ The agents of the defendants, at or about the same time, informed said Campbell that if he would,go before the defendants’ medical examiner, in Washington, and be examined as to his general health, they would renew his policy if the report of the said examiner was satisfactory., Mr. Campbell, at that time, was an invalid and in failing health, and refused to go before such medical examiner.
    “ Eighth. On the twenty-eighth day of August, 1857, said Daniel Campbell died a natural death, not.having had any policy delivered to him by said defendants other than the one aforesaid annexed to this statement.
    “ Ninth. The plaintiff in this controversy is his widow and executrix; and as of the .. day of....., 1857, has furnished to the satisfaction of the defendants the proof required by them to be furnished in order to establish the claim under the policy, if the Court shall decláre it to be in force.
    “ Tenth. ' The amount due on the policy, if the Court declare the same to be in force, is the. sum of $1,756.37, and interest thereon from the first day of December, 1857. And the defendants admit that if they are liable at all upon said policy, the ■plaintiff is entitled to receive thereon from them the last mentioned sum and interest. The original policy and the entire printed application for insurance made by Daniel Campbell, an extract from which is hereto annexed, may be used on the argument of this case.

      “ Eleventh. The plaintiff claims that the thirtieth day referred to in said policy and note, on or before which said premium and interest were to be paid, was the twenty-eighth day of June, 1857, and that day having.been, as is admitted herein, a Sunday, that said premium was not due and payable until the next day, to wit, Monday, the 29th day of June, 1857, when Campbell tendered the premium to the defendants. The defendants claim that said thirtieth day fell on Saturday, the 27th day of June, 1857; and if the Court should be against them on this claim and hold that such thirtieth day fell on Sunday, the 28th of June, 1857, then the defendants claim that the premium was due and payable on or before that day or the preceding Saturday, the 27th of June, 1857, and not having been paid on or before said 28th of June, 1857, that the policy was not in force, and said Campbell was not entitled to pay said premium after that day, and the parties herein mutually pray for the judgment of this Court.
    “Dated Hew York, March 22d, 1858.”
    [“ Policy referred to in the foregoing statement of facts.~\

    (“ Temporary Policy.)
    “Hational Loan Fund Life Assurance Society of 26 Cornhill, London, and 71 Wall st., Hew York.
    “ I, the undersigned,. J. Leander Starr, the special agent and no. 2.953. registered attorney of three of the directors of the Hational Loan Fund Life Assurance Society of London, and the general agent of the said society for the United States, and British Horth American Colonies, (being duly authorized in this behalf,) hereby Hfe Assurance declare that the proposal of Daniel Campbell, of "Wash- • üfe with profits? ington city, District of Columbia, Saddler, bearing date the 5th day of April, 1850, for an assurance with the said society on the life of himself for the term of ‘ life with profits ’ for the sum of two thousand dollars, hath been accepted, that the yearly premium for such assurance is sixty-five r\\ dollars, and that the said »2m aS8Uiea Daniel Campbell hath paid the sum of sixty-five TW dollars, being the annual premium for such assurance, to wit, for the term of twelve months, ending the 28th day of May 1851.

      “ And I hereby undertake to deliver, or cause to be pre_m!. delivered, to the said Daniel Campbell, or his assigns, ni>oiicy,'.V.$6i:l within three calendar months from the date hereof,' a «s.® policy of assurance of said society, in accordance with the terms and conditions of the said proposal and declaration, and in the form now in use by the society. And I further declare, that, in the meantime, and until the delivery of the said policy, or in case the said Daniel Campbell shall die before such delivery, this B declaration shall, to all intents and purposes, be con- GeD-Acct.sidered as valid a contract as if a policy of assurance, in accordance with the said proposal, and in the form aforesaid, had been now delivered to said Daniel Campbell; and in such case, the sum assured shall be due and payable at the expiration of three cal- I>rJ™¡". endar months from and after proof of such claim, to “mm Mayólo, the satisfaction of the Directors of the United States Local Board.
    “Dated at the office of the said society, in the city toM|kcommencof New York, this 29th day of May, 1850. íoíay,di8Íi.28tá
    “ J. L. Starr,
    “ General agent for the United States.” ^ov^MnlS Agency.
    “ Note. This instrument is not valid, and is delivered conditionally, until the actual payment of premium, to an accredited agent or sub-agent of the above society, acting within the authority delegated to him, and paid within the time provided for in the note appended to the proposal.
    “ Conditions of Assurance.
    “ Policies, whether the premiums be payable yearly, half-yearly, quarterly, or in any other manner than by a single payment, will not be considered in force if the premiums remain unpaid beyond thirty days after becoming due; but on satisfactory proof to the directors, that the party or parties assured continue in good health, the policies may be renewed at any period within twelve months, on payment of a fine of ten shillings per cent (half per cent) on the sum assured.”

      Mctract from the printed application referred to in the foregoing statement.

      “ I do hereby declare that my age does not now exceed forty years; that I am' now in good health, and do ordinarily enjoy good health, and that in the above proposal I have not withheld any material circumstance or information, touching my i '.st or present state of health, or habits of life with which the National Loan Fund Life Assurance Society ought to be made acquainted.
    “ And I do hereby agree that this declaration, and the above proposal, together with the stipulations in the notes at foot hereof, shall be the basis of the contract ■ between myself and the said society; and that if any fraudulent or untrue allegation be contained herein, or in the proposal, all moneys which shall have ' been paid on account of such assurance shall be forfeited to the said society, and the policy become void.
    “ And I further agree, that the first premium shall be paid within one calendar month after the date' of this proposal, or that a new proposal, declaration and medical examination shall be furnished; and that the policy shall, under no circumstances, be in force until the actual payment, in my lifetime, of the premium, to an authorized agent or sub-agent of the society, within the time above prescribed.
    “Dated at Washington City, this 5th day of April, 1850.
    (Signed) ■ Daniel Campbell.
    “ Witness—
    “Pollard Webb, Agent.”
    “Notes. 1. Whenever the annual premium is payable by installments, the society reserves to itself, in case of the death of the party assured, the'right to retain, out of the amount payable under the policy, the balance unpaid of said annual premium.
    “2. In all cases the first premium, must be paid within one calendar month after the date of the proposal, or a new proposal, declaration and medical examination will be required; and agents and snb-agents have no authority to receive payment of premium after the expiration of the calendar month, or to bind the society by such receipt, without first transmitting a new medical examination of the party to the Society’s chief office, in New York, and the risk being again formally approved of by the General Agent, or Local Board of Directors, at New York. And the policy, under no circumstances, to be in force until the actual payment of premium to an accredited agent of the Societv, within the time above prescribed. But the Society in no case to be Iiablndn the event of the death, within said calendar month, of the party on whose life the assurance is proposed, unless the premium has been actually paid in the lifetime of said party.
    “ 3. In all cases a change of name in the life proposed must be stated.
    “ 4. The society grant wo LOAM'S to the assured, except when the insurance is effected on the withdrawal system. The premium must, in all cases, he paid annually, in advance, except when insurance is effected under the old system of tables, when it may he paid half yearly in advance.

      “ 5. If the proposed assurance be on joint lives or survivor-ships, the above particulars must be given with respect to each life, and must be signed by the parties whose lives are proposed to be assured.”
    Although the defendants, are described in the case as a corporation, it was agreed that they are unincorporated.

      M. V. B. Wilcoxson, for the plaintiff.
    I. The thirtieth day on which the premium for the year commencing May 29th, 1857, was payable, by the statement in the note of the general agents of the defendants, and by the plain import of the words of the policy itself, fell upon Sunday, the 28th day of June, 1857.
    II. The policy of insurance being for the term of life, and containing an agreement that the assured should be entitled to thirty days after the premium became due, to keep his assurance on foot and his policy in force, and the last of those thirty days having been a Sunday, the assured was entitled to pay the premium the following Monday. (Lewis v. Burr, 2 Caines’ Cases in Er., 199; Avery v. Stewart, 2 Conn., p. 69; Delamater v. Miller, 1 Cow., 75; Salter v. Burt, 20 Wend., 205; Staples v. Franklin Bank, 1 Metc., 47; Anonymous, 2 Hill, 375; Barret v. Allen, 10 Ohio, 426; Sands v. Lynn, 18 Conn., 18; Stebbins v. Leowolf, 3 Cush., 137; Hammond v. American Mutual Life Lns. Co., v. 10, No. 5, p. 275, Monthly Law R.; Chip. on Contracts, Supple by Eat., § 16, p. 237.)

      James W. Gerard, for the defendants.
    I. The policy, by its terms, covered a period from the 29th of May to the 28th of May for its original limitation, and for all extensions.
    It therefore expired on the 28th of May in each year, and the thirty days (allowed as a privileged extension of time to renew) began to run from the time of its expiration.
    Thirty full days from that date (the 28th May) would end on the 27th June, Saturday; and the assured not having renewed by that time, the policy became void.
    II. If, as a construction of the condition, it be urged in behalf of plaintiff that the premium did not become due until the 29th of May, (the day after the policy expired,) and that, excluding that day, the thirty days would begin to run with the 30th, the answer to such a construction, is, that by condition 4, annexed to the application, which is expressly made a part of the policy, “ the premium must in all cases be paid annually in advance," and consequently was payable on the 28th.
    III. The contract between these parties being, as above stated, and as above construed, the thirty days for renewal would commence on the 29th May, and end on the 27th June following, a Saturday; and the premium not having been tendered till the succeeding Monday, the policy lapsed, unless the note of the agent, to the effect that the premium would be due on the 29th of May, is construed as a waiver of the defendants’ rights to have their premium paid on Saturday.
    It was not a waiver, because,
    1. It was a mere gratuitous intimation or reminder from employees, and not a parol addition to the contract, and could not change the contract between the parties, which was plain and spoke for itself.
    2. It was not a waiver of a forfeiture, because no forfeiture had then occurred. It was written in April, the forfeiture occurred June 27.
    The dates and periods expressed, making part of the contract,' cannot be altered or varied by parol or extrinsic evidence. (Joseph v. Bigelow, 4 Cush., 82; Jackson v. Crysler, 1 Johns. Cas., 125.)
    IV. If the note of the agent is held to be a waiver of the time of premium being due, from the 28th to the 29th May, then the thirty days should include and commence with the 29th, and thus would still have ended on Saturday. From the nature of the contract in suit, the first day is included, for the risk commences on the commencement of the 29th, in the morning.
    In computing the time for the performance of contracts, Courts either include or exclude the first day of performance, as the propriety of the case seems to require, according to the context and subject matter and reason of the. contract. (R. v. Stevens, 5 East., 244; Pugh v. Leeds, Cowp., 714; Lester v. Garland, 15 Ves., 248; Glassington v. Rawlins, 3 East., 407; Presbrey v. Williams, 15 Mass. R., 193.)
    Y. In any aspect, this note was nothing but a license or privilege. If by it the thirty days were extended from Saturday to Sunday, it can be so far construed and no further. It cannot be extended to Monday by implication, and must be strictly pursued as a condition precedent to entitle the party to its benefit. As the party has no right or contract under it, exact compliance must be shown.
    All licenses are strictly construed. This license would be analogous to licenses in marine policies, which are strictly construed, and cannot be extended beyond the plain meaning of the words. (Arnould on Ins., Am. ed., vol. 1, pp. 394, 395 and 396.)
    YI. If, under the contract of insurance or otherwise, the last of the thirty days for renewal expired on Sunday, the 28th, as claimed by plaintiff, a tender on Monday was insufficient. There was nothing to prevent a tender on the Sunday. The agent lived in the same town as the plaintiff. The act was a mere offer or tender, and not a contract, nor the performance of a contract, and as such, not interdicted by common or statute law from being performed on Sunday. It could not have been held invalid or illegal if performed on that day, nor could it have been objected to by us on that ground. (Drury v. Defontaine, 1 Taunt., 131; Bloxsome v. Williams, 3 Barn. & Cres., 232; Scarf v. Magan, 4 Mees. & W., 270; King v. Inhab. of Whitnash, 7 B. & C., 596; Pearpoint v. Graham, 4 Wash. C. C. R., 232; Annis v. Kyle, 2 Tenn. R., 31; Story v. Elliot, 8 Cow., 27; Boynton v. Page, 13 Wend., 425.)
    YTT. If, under any aspect, the Court should be of opinion that Sunday, the 28th of June, was numerically the last renewal day, and that the renewal could not lawfully be made on that day; then the assured should have procured his renewal on the previous Saturday, and his tender on Monday was of no effect.
    This unusual privilege to renew an expired policy within thirty days after its expiration, must logically be either,
    1. A mere license or indulgence, for the benefit of careless policy holders, and not part of the contract; or,
    2. A part of the contract.
    If the former, viz., a mere license or indulgence, it cannot be extended by implication. A license to Sunday does not mean Monday. Ño Court has a right to extend it.
    If the latter, viz., a part of the contract, then it was a condition precedent, and must have been strictly performed within the time. Precedent conditions must be literally performed, i. e., to the letter. Here the right, ipso facto, ceased by the non-performance of the condition.
    To extend the period to Monday would be to make a contract not contemplated by the parties. (4 Kent’s Com., p 125, m. p.; Bacon’s Abridg., Phil. ed., vol. 2, p. 292, and cases cited.)
    Literal fulfillment of conditions precedent are essential to. recovery on policies. They cannot be extended by implication, ¡and nothing will excuse non-compliance. (Arnould on Insurance, vol. 1, p. 581 to 585.)
    VIII. There could have been no surprise here, from the fact ■of the last day falling on Sunday.
    It is not like a contract where the time from which the extension was to run, or the period of performance is uncertain.
    The dates were fixed from the very first, and the assured could have calculated whether his last day fell on Sunday or any other day for fifty years ahead.
    This case also differs from the case of Salter v. Burt, (20 Wend., 205,) and kindred cases, where the only day of performance is Sunday.
    The following cases show that where the last day of performance is Sunday, the party must perform on the previous Satur ' day. (Kilgour v. Giles, 6 Gill & Johns., 268; Pearpoint v. Graham, 4 Wash. C. C. R., 232; Annis v. Kyle, 2 Tenn. R., 31; Alderman v. Phelps, 15 Mass., 225.)
    .Judgment should be rendered for defendants on the case presented.

       “ Omnes judices urbaneeque plebes, et cunctarum artium ofiicia, venerabile die solis quieseant.” (Code of Justinian, de Feriis, lib. III, tit. 12-3; Van Espen jus Ecclesiasticum Universum, p. 486.)

   By the Court—Hoffman, J.

The question is, whether the tender of the premium on the 29th of June, 1856, being Monday, was sufficient to keep the policy in force. That question will be first considered, upon the terms of the policy merely, irrespective of the letter of the agent and other facts.

1. By one clause of the policy, it is provided that the yearly premium for such assurance is $65.40, and that the said Daniel Campbell hath paid the sum of $65.40, being the annual premium for such insurance, to wit, for the term of twelve months, ending the 28th day of May, 1851.

In the margin of the policy are these words: Risk commencing 29th of May, 1850, ending 28th of May, 1851.”

Thus twelve months is computed as beginning on the 29th, and terminating with the end of the 28th of May.

Treating, then, the time for payment of the premium as exactly commensurate with the duration of the risk, if a premium was paid on the 29th, the risk endured until the last moment of mid night of the 28th of the same month, in the ensuing year, and the new premium ought to be paid before the end of the last moment of the 28th.

But then is added this provision: “The policy will not be considered in force, if the premium remains unpaid beyond thirty days after becoming due.” We may properly say conversely, that the policy shall remain in force, if the premium is paid within thirty days after becoming due.

Upon these terms used by the parties, the premium undoubtedly became due at the endof the 28th of May. The first day of the thirty days for making the payment commenced with the first moment of the 29th of May, and ended with the last moment of the 27th of June. In the year 1857, this fell on Saturday; and in this view, the full thirty days allowed for the payment expired with the end of Saturday. That was the last day for performance of the engagement, and the tender on Monday could not be good.

This computation, it will be noticed, includes both the 29th of May and the 27th of June. The day when the premium became due was the 28th of May, and that is excluded. There is no rule which would also exclude the 27th of June.

The Revised Statutes (1 R. S., 606,) provide for the computation of time; and it is observed by the court in Pulling v. The People, (8 Barb. R., 384,) that according to this division of time, a day consists of twenty-four hours, and commences and ends at midnight. <>

This, then, is an adoption of the natural day, as distinguished from the artificial day from sunrise to sunset. (Id.) The first day of any number of days for doing an act, would not expire until the lapse of twenty-four hours from any moment, even the first second of that day. It would expire on the corresponding moment of the second day. This seems to produce the same result as the rule of excluding the first day in computing the time for doing an act.

The Code (§ 407) directs that the time within which any act is to be done, within its provisions, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. It has, therefore, furnished a definite rule for all cases within its own provisions.

There is no way of regarding the question, if we treat the premium to have been due on the 28th of May, which will not make the thirty days end on Saturday, the 27th of June.

2d. We are then to consider the point, whether there is not enough in the case to warrant the conclusion that the 29th of May was, by consent, the true day for payment of the premium.

The policy was dated the 29th of May. The first premium was paid on the 31st of that month, and the premium was paid annually in advance up to the 29th of May, 1857. The general agents informed the party that the premium would be payable on the 29th of May, by the note stated in the case. This note appears to have been conformable to the understanding and practice of the parties.

Again, the note of the general agents was sufficient to justify the assured in treating the 29th as the time when the premium was payable. It was their construction of the effect of the agreement, or of the habit under it, if it was not fully within their authority to vary the day. It justified the party in relying upon that representation, coming from those who were entitled to make a contract of insurance, and acting as the general agents in the United States.

Starr, as general agent, possessed the power of binding the association to an insurance. Whether a full policy was obtained within three months or not, his contract was sufficient.

In Wing v. Harvey, (27 Eng. & Eq. L., 140,) an agent of a company received a premium, knowing that the condition of a life policy had been broken. His knowledge was held to be constructive notice to the company of the breach, and acceptance of the premium was a waiver of the forfeiture.

Leeds v. The Mechanics' Insurance Company, (4 Seld., 351,) is a case which, I think, supports this view of the power of the general agents in this instance.

See, also, Brocklebank v. Sugrue, (5 Carr. and Payne, 21,) New York Central Insurance Company v. The National Prot. Insurance Company. (20 Barb., 468.)

I think we are justified in saying that the 29th of May was the true day for payment of the premium in 1857.

If this conclusion is right, the next inquiry is, can the 29th of May be excluded from the computation of the thirty days ? If it may be, then the thirty days expired on Sunday, the 28th of June; and the remaining question will be, had the assured the ensuing Monday on which to pay the premium ?

Besides the rule given in the Revised Statutes of 1830,. construed as before stated, I think that the cases of. Wiggin v. Peters, (1 Metc., 127,) Bigelow v. Willson, (1 Pick., 485,) Sands v. Lyon (18 Conn., 18,) Lester v. Garland, (15 Ves., 243,) and of Dowly v. Foxall, (1 Ball & Beatty, 193,) with the authorities there cited, are decisive to sustain an answer in the affirmative to the first question. The Court, in the case from Connecticut reports, justly commends the opinion of Sir William Grant, in Lester v. Garland, as the most instructive and able of any to be found in the books. That eminent judge says “that it would be more easy to maintain, as the general rule, that the day of an act done, or an event happening, ought, in all cases to be excluded, than any other rule.” In other authorities, this general rule is made applicable to the case of an obligation arising on a particular day, and its performance extended from that day.

So the Court in Massachusetts observe: “ we are warranted in saying, that when time is to be computed from or after the day of a given date, that day is to be excluded in the computation. No moment of time can be said to be after a given day until that day has expired.”

The contract, as we now analyze and construe it, was, that the policy should cease to be in force if the premium remained unpaid beyond thirty days after the 29th of May.

3d. Then arises the important question. As by this mode of computation the. last day of the thirty days was Sunday, could the tender of the premium be made on Monday ?

The argument which is used to prove that it cannot be, is substantially this: 1st. Whatever may be lawfully done on any other day of the week, may be done on Sunday, except so far as positive statutory regulations have prohibited a particular act. And next: What is so permitted to be done on Sunday, must be done on that day whenever, under a contract, the day for fulfillment falls upon it, or else it must be done before that day. I state this to be the substance of the argument as a general proposition ; not that it is contended that such a rule is absolutely exceptionless.

These important and interesting propositions may well warrant a careful examination.

In support of this view, my brother Pierrefont (who does not concur with the court) has referred to the opinion of Lord Mansfield, in Swann v. Broome. (3 Burr., 1596.) That great judge cited Sir Henry Spelman’s (Original of the Terms) to show “ that the Christians used all days for the hearing of causes, not sparing (as it seemeth) the Sunday itself.” He assigns as one reason of this, that by keeping their courts always open, suitors would be prevented from resorting to the heathen tribunals.

He cites also a canon of the year 517, forbidding any Bishop or any one under him, from judging causes on the Lord’s Day, and traces the regulation through other canons, until it became incorporated into the body of the canon law in the Code of Oratian. He states further, that it became part of the common law of England, by its confirmation by William the Conqueror and Henry the Second.

If such a practice existed, it was, as I shall clearly show, checked at a far earlier period than the year 517; and it seems to me there exists a much more satisfactory and probable reason for its prevalence for a short period, than the one assigned. There was an apostolic injunction that the controversies between the faithful should be left to the decision of some among themselves, and should not be brought before the tribunals of the heathen. (1 Cor. vi, 1-7.) The rule of judgment was to be one of persuasion, charity and forbearance; and it may well have been thought, that the holy day was not desecrated when litigants were brought to reconciliation or atonement by influences like these.

It is obvious that a scriptural custom, so benign in the early days of Christianity, could not remain without danger and inconvenience, when the ecclesiastical tribunals had nearly superseded the secular courts; and, as we may justly infer, the superior purity of the principles of the decisions, and the higher learning and equity of the administrators, made the people sustain and court them. (See Van Espen Jus. Eccl. Univ., p. 730-733, XXVIII.)

The canon of A. D., 517, referred to by Lord MANSFIELD, was not the earliest law upon this subject. Oonstantine the Great passed an edict, the date of which I have not ascertained, but it was between the year 306, the time of his conversion, and 331, that of his death. It may be thus translated: "Let all judges, and the inhabitants of cities, and the labors of all trades and arts, rest on the venerable day of the Sun."

So, in an edict of Valentinian the younger, between A. D. 375 and 392, we find, “ On the day of the Sun, which our forefathers rightly called the Lord’s Day, let attention to all litigations, to all employments, and to all agreements, utterly cease; let no one demand either a public or a private debt; nor let cognizance be had of any disputes before those who are to determine, whether appointed by law or voluntarily’ chosen.

The translation I havé given differs from that of the learned Bingham. (Antiquities of the Christian Church, Book XX, ch. 2, § 2.) For one important word, conventionum, translated, “ agreements,” I have the authority of Ulpian. (Digest, lib. 2, tit. 14, L. 1.) It is a general word relating to all things, in respect to which parties come together for contracting or transacting any business. See, the passage, also, in the Dictionary of Forcellini ecc cum Facciolati, in verlo.

'The Day of the Sun, Dies Solis, was used at a very early period as synonymous with Dies Dominions, the Lord’s- Day. It is spoken of by Justin Martyr, A. D. 140-148, as the Day of the Assemblage of Christians, and the Day of the Eesurrection. Dfam Dominicum is the phrase of Tertullian, before A. D. 218, and of Ignatius, before 107, whose acts are traced to the year 70. A late writer says: It was sometimes called Sunday, Dies Solis, in compliance with the common phraseology, and when it was necessary to distinguish it in addressing the heathen.” (Eiddle’s Christian Antiquities, p. 649-651; Pearson on the Creed, 391, n.)

In the beginning of the Diocletian persecution, (A. D. 303,) the magistrate asked, “ Have you kept the Lord’s Day ?” to which the Christian answered, “I cannot intermit it, because I am a Christian.” (Act. Martyr Barronius Ann., 303, n. 37.)

The 20th canon of the Council of Nice (A. D. 325) uses the Greek word, which is uniformly translated Dominicum or Lord’s Day, designating the day of the resurrection. The 29th canon of Laodicea (A. D. 305) provides “ that Christians must not Judaize. and rest on the Sabbath Day; but work on that day, and honor the Lord’s Day; and if they can, rest upon it as Christians.”

I cannot but add, that the argument of Bishop Pearson, as to the day of. the resurrection—the principal texts he cites (St. Mark, xvi, 2; St. Matthew, xxviii, 1; St. Luke, xxiy, 1; and St. John, xxi,) with the phrase, the Lord’S Day, used in Scripture (Eev. i, 10,)—the practice of assembling there recorded (1 Cor. xvi, 2), and the usage of Christians traced back to such remote antiquity, constitute an argument of irresistible force, to prove that the Jewish Sabbath was superseded; that the day of the resurrection was substituted, and that the great injunction of the ancient law to keep it holy, was applicable to this new day of a greater deliverance. Ecclesiastical history is uniform to show that its observance as a rule for all who profess themselves Christians, has been recognized and transmitted by the practice of apostles, the obedience of disciples, the recognition of canons, and the edicts of emperors, monarchs and states, from the earliest rise of Christianity through all the ages of its progress.

It would not be pertinent to pursue this inquiry further, except to remark, that in the early edicts, personal labor, and especially the labor of the field, seem to have been treated as less the objects of prohibition than in later days, when they have been chiefly aimed at. (Van Espen, ut supra.)

Coming down to the law of our English progenitors I cannot but dwell for a moment upon the rules laid down in the Liber PenitentiaMs of Theodore, Archbishop of Canterbury, between the years 668 and 690. (Ancient Laws and Institutes of England, published by the Record Commission of 1840, p. 298, XXXVIII, 6, 14.) It made a part of the general law of England, and was full, minute and comprehensive in its prohibitions.

Even before this, in the year 547, a Saxon King, Ida, had declared that the slave who was compelled to work on the Lord’s Day should be freed by his master.

So Lynwood, in his Provincial Constitutions, (p. 57, Ganonicis Institutes,) states the law thus: Abstinenduen est ab operis mechanicis, ah agricultura / a mercatis, et a placitis ; et hoc verum nisi guando contrarium exegit necessitas vel pietas.

One of the earliest statutes of England was that of the 27th Henry VI, (ch. 5.) Persons were commanded, at all fairs and markets to cease from showing goods on Sundays. The statute (5 and 6 Edw. VI, ch. 3,) recites in its impressive language, that “ to call men to remembrance of their duty, and to help their infirmity, it hath been wholesomely provided, that there should be some certain times and days appointed wherein the Christian should cease from all other kinds of labors, and should apply himself only unto the holy works properly pertaining unto true religion and after various enactments as to the days to be kept holy, and other matters, provides, in the 7th section, that it should be lawful for every person in harvest, or at any other time in the year when necessity shall require, to labor or work any kind of work on such days.

The act of 1st Car. I, ch. 1, prohibited assemblages of people out of their parishes on that day. That of the 3d Car. I, ch. 1, forbade carriers and waggoners from traveling on the Lord's Day, and butchers from killing; and the statute of the 29th of Car. H, ch. 27, in force to this day, provided, “ that no tradesman, artificer, workman, laborer, or other - person whatsoever, should do or exercise any worldly labor, business or work of their ordinary calling, upon the Lord’s Day, or any part thereof, works of necessity or charity only excepted, and no person shall publicly cry, show forth, or expose to sale, any wares, merchandise, &c., upon pain of forfeiture thereof.”

In our own legislation on this subject, it is to be noticed that the present statute, (1 R. S., 675, § 59,) omits the enumeration of persons, tradesmen, workmen, or other persons whatsoever, as well as the words “ of their ordinary calling.” It is as follows, “Nor shall there be any servile labor or working on that day except works of necessity or charity, or unless done by some person who uniformly keeps the last day of the. week called Saturday as holy time, and does not labor or work on that day, and whose labor shall not disturb other persons in the observance of the first day of the week as holy time.”

I consider that this provision treats “servile labor” as one distinct class of what is forbidden, and “ working,” without the adjective, as another; that it has adopted the latter phrase as the most comprehensive that the language can supply to cover the action and employment of mind or body in the pursuits of business. It explicitly recognizes the first day of the week as “ holy time.” And thus it has brought us back to the full, enlarged and absolute rule of interdiction, which we find prevailed in the earliest laws of Christian states, and which, as I shall show, the construction of the statute of Charles II has tended somewhat to narrow and impair. ,

Among the English authorities, Bloxsome v. Williams, (3 Barn. & Cress., 232,) is frequently cited, as well as Drury v. Delafontaine. (1 Taun., 131.) It was held in one of them that the sale- of a horse on Sunday, by private contract, ,the ordinary calling being to sell horses at auction, was not within the statute. But in Fennell v. Ridler, (5 Barn. & Cress., 406,) Justice Bailey, who in Bloxsome y. Williams doubted whether the statute applied to private sales, observed, that such doubt was removed. “ Labor may; be private and not meet the public eye, and so not offend against public decency, but it is equally labor, and equally interferes with a man’s religious duties.” He adds, that in truth the contract in Bloxsome v. Williams was made on Tuesday. In the principal case, a sale of a horse, by a horse dealer, privately made on Sunday, was held void.

In The King v. The Inhabitants of Whitnash, it was decided that if a sale or a contract is not in the line of a man’s ordinary calling, it is not within the prohibition of the statute. (7 Barn. & Cress., 596.)

Our own statute has received a construction in the following cases: Story v. Elliott, (8 Cow., 27,) Sayles v. Smith, (12 Wend., 57,) Boynton v. Page, (13 id., 425,) Watts v. Van Ness, (1 Hill, 76,) Delamater v. Miller, (1 Cow., 75,) Bissell v. Bissell, (11 Barb., 96,) ex parte Dodge. (7 Cow., 147.)

In Delamater v. Miller, upon an agreement to keep and deliver a watch, the promisor was held not bound to regard a demand made on Sunday- Story v. Elliott was the case of an award made on Sunday, and held void. Swann v. Broome, before Lord Mansfield,, is stated at length. The opinion contains the proposition, that acts not prohibited, may lawfully be done on Sunday.

In Sayles v. Smith it was decided that a statutory foreclosure was not void, because the day for the sale specified in the advertisement fell on Sunday. A postponement to a subsequent day was held valid. It is queried whether a sale on that day could have been good. Again the doctrine is stated, that what is not forbidden by statute may legally be done.

In Boynton v. Page it was determined that a private transfer of personal property made on Sunday was valid, and the distinction before noticed in some of the English cases was approved and acted upon, that there was no violation of the public order and solemnity of the day.

Watts v. Van Ness was the case of an attorney’s clerk, engaged at a weekly salary, doing extra work on Sunday, similar to that of his ordinary calling. It was held that he could not recover.

Bissell v. Bissell and ex parte Dodge were' decided upon the ground that, in the construction of statutes of our State, if the last day for doing the act falls on Sunday, it must be done on the preceding day. Judgment, therefore, which must be rendered by a Justice within four days after the submission of the cause, could not be entered on Monday, the fourth day being Sunday, but must be on Saturday. And so in the case of an appeal, the period being limited by statute.

Yielding to the force of what has been actually decided, we cannot but notice a marked line of distinction between what is suffered being not positively prohibited, and what is allowed to be omitted and deferred, because at variance with the principles and law of Scripture, because as much within the object of the statute, “the observance of Sunday,” as anything expressly prohibited, and because in some cases it is clear, and in others may be-inferred that contracts are made into which the law imports the qualification, and the parties are treated as entering into them with' that in view, that if the day of performance is Sunday, it may be done on some other day. ' We shall endeavor to see if such a principle, applicable to the present case, can be deduced from the authorities.

It is a settled doctrine of mercantile law, that a promissory note or bill must be demanded on the third day of grace, unless that falls on Sunday, and then upon the second day, or Saturday. (Bussard v. Levering, 6 Wheat., 102; Jackson v. Richards, 2 Caines, 342; Johnson v. Mathews, 13 John. R., 470.) .But if a check or note is without grace, and it falls due on Sunday, the party has Monday to make payment. (Salter v. Barl, 20 Wend., 205.)

The usage in regard to the days of grace is as old as the time of Lord Holt. (2 Caines, 344.) The contract, by such usage, so established as to be part of it, is to be fulfilled on a given day, which falls upon Sunday. The law interposes and says that it cannot be, or at least need not be performed on that day. It shortens the time of performance, and not merely requires payment on Saturday, but sustains notice of protest given on Monday. (2 Caines, 344; Cuyler v. Stevens, 4 Wend., 566.) “By general or universal custom, Sunday is not a day of business.” (See, also, Howard v. Ives, 1 Hill, 263.)

For a long time the Courts held, and finally embodied the decision in general rules or orders, that in all matters of practice, when a time was fixed for performance of an act, or the giving of a notice, and the time expired on Sunday, it could be done on the ensuing Monday. (Cock v. Bunn, 6 Johns. R., 326; Broome v. Wellington, 1 Sandf. S. Ct. R., 664; Bissell v. Bissell, 11 Barb. R., 96.)

The rule was stated in unqualified language by Justice Brow-sou in Salter v. Burt. (20 Wend., 205.) “ I agree to the doctrine laid down by Gould, J.,” (in Avery v. Stewart, 2 Conn. R, 69,) “ that Sunday cannot, for the purpose of performing a contract, be regarded as a day in law, and it should for that purpose be considered as struck from the calendar. In computing the time mentioned in a contract for doing an act, intervening Sundays are to be counted; but when the day of performance falls on Sunday, it is not to be taken into the computation.”

In Avery v. Stewart, (2 Conn. R., 69,) the Court (six Judges to three) held that when a contract was to be performed on a particular day of a month in future, and that happened to be Sunday, it was to be performed on the following day. The action was on a note not negotiable, payable in sixty days from date, in cotton yarn, to be delivered at a certain place. It was dated the 6th of December, 1816, and fell due the 4th of February, which was Sunday. On Monday, what was equivalent to a tender of the yarn was made. The debtor could not be required to pay, nor the creditor to accept payment before the time appointed.

The case of Sands v. Lyon, (18 Conn. R., 18,) "is an authority which covers the point fully and decisively. A testator devised lands to his son, on condition that he should pay A. $100 in one year after his decease. He died on the 2d day of October, 1841. The 2d day of October, 1842, fell on Sunday. A tender on the ensuing Monday was held good. The day of the death was to be excluded from the computation. By doing so, the day of the expiration of the year would be Sunday. The defendant had a full year allowed him for paying the money, and was not bound to pay it on the Saturday preceding the day on which the year expired.

It appears to me, from this review of the law, that the Court is warranted in saying that when, from accident or mutual error, the day of fulfilling an agreement falls upon Sunday, there is enough of principle and authority to justify the party in deferring his performance to the Monday ensuing, without impairing a right, or incurring a forfeiture.

The judgment must be for the plaintiff.

Pierrepont, J,, dissented.

Judgment for plaintiff.

        Solis die quern Eominicum rite dixere majares, omnium ommnino litium negotiorum, conventionum, quiescat intentio / debiiimi publicsm privatvmve nullus efflagiiet'; ne apud ipsos quidem arbitros vel in judiáis flagitatos, vel sponte dilectos sida sit agnitio jscrgiorum.


author: By the Court—Woodruff, J.

text:
    James W. Elwell and others, Plaintiffs and Appellants, v. Moses Chamberlain, Defendant and Respondent.
    1. A lender cannot avoid Ms own contract on the ground that it contains a usurious reservation in Ms own favor.
    2. A sale of a note valid in the hands of the vendor may be made for any price the vendor chooses to accept therefor, and it is not usury.
    3. Where a party being applied to by a broker to purchase a note having about three months to run, (which the maker has placed in the broker’s hands to raise money,) and not being willing to purchase the note, consents in good faith to exchange his own note for it, and receive a compensation of two and one-half per cent for such advance or sale of Ms credit, the transaction is (according to the weight of authority in New York) not usurious per se. Such a transaction may be usurious when it is resorted to as a cover for usury; but where the honest intent and meamng of the transaction is to give to another the use of one’s credit for a compensation, it is lawful. (Pierrepont, J., dissented.)
    4. On a sale of a promissory note, both parties dealing in good faith, and negotiating opeMy, one offering and the other requiring a discount, in view of the very risk of payment involved in the transaction, after the note has been delivered and accepted and the purchaser has given his check for the agreed price, the purchaser cannot stop payment of Ms check and resist its payment on the mere ground that the makers of the note had stopped payment before the sale. Such circumstances do not amount to a failure of the consideration of the check. (Pierrepont, J., dissented.)
    5. When a broker, who is employed by the plaintiff to sell a note, is guilty of a false and fraudulent representation, upon faith whereof the defendant buys the note, the defendant may rescind the contract and return the note, and refuse payment of Ms check given for the price. The plaintiff, seeking to enforce a contract made by Ms agent, is affected by the agent's fraud, although he never authorized the false representation, nor knew that it ■ was made down to the time of the trial.
    6. But to entitle a party to rescind a contract on'the ground of such fraudulent representation, it must appear not only that it was material and untrue but that he acted on the faith thereof; which imports not merely that he believed the fact to be as it was represented to be, but that such belief was.founded on the representation.
    <T. When there is a conflict of testimony in regard to the question whether the representation was made, or whether the fact reported was true, or whether the defendant acted in reliance on the representation, or sought and acted on other information, it is error to direct the jury to find for the defendant. Such a direction is not proper, unless the case be such, upon the pleadings and proofs, that a verdict of the jury for the plaintiff would be set aside as against law or against evidence.
    (Before Slosson, Woodruff and Pierrepont, J. J.)
    Heard, October 5, 1858;
    decided, March 12, 1859.
    This action was brought against the defendant as drawer of a bank check for $2,215.20, dated October 14th, 1856, drawn on the Nassau Bank, payable to the order of O. N. Mills, and by him indorsed to the plaintiffs; payment whereof was duly demanded, and being refused, the defendant had notice thereof.
    The answer sets up, by way of defense, that on and before the 13th day of October, 1856, the defendant held and owned a promissory note made by the firm of Lane, West & Co., which was payable on the said 13th day of October, 1856, and which ■ had been placed in the Central Bank of Brooklyn, for collection ; that before the said note became due, the plaintiffs having in their hands another note for $2,240.20, due October 23, 1856, made by Lane, West & Co., employed a broker to sell it for them; that such broker placed it in the hands of another broker, O. N. Mills, to sell for the plaintiffs; that Mills applied to the defendant to purchase the note, and that the.defendant refused to buy it until the first named note already held by him should be paid; that on the 14th day of October, Mills stated to the defendant that such first named note had been paid, and thereupon the defendant, not knowing whether such first named note had been paid or not, but relying solely on the statement of Mills, purchased from Mills the note which he offered for sale, for the price of $2,215.20, and gave him the bank check in question, which check Mills indorsed to the plaintiffs; that Mills acted as the plaintiffs’ agent; that the said first named note had not been paid, and that Mills’ statement was entirely untrue; that Lane, West & Co. failed on the 9th of October, of which the defendant was ignorant. The answer then further alleges that the note of Lane, West & Co., so sold by Mills to the defendant, was made by them for the purpose of being sold in the market to raise money, and for no other cause or consideration; and that the same came into the hands of the plaintiffs “ without any legal consideration paid therefor whateverand that the plaintiffs, through the same brokers, sold it to the defendant under ,an illegal and usurious agreement, by which the defendant deducted therefrom a sum greater than the legal discount for the time the note had to run, viz.: $25 for nine days, and gave the check in question for the balance.
    The action was tried in January, 1857, and on that trial the defendant gave evidence tending to prove that he was, on the 14th day of October, 1856, induced to purchase the note for which the check was given by the unqualified representation of C. H. Mills, that the note of Lane, West & Co., due the previous day, was paid, and that the purchase was made in sole reliance upon the truth of that representation, as distinctly understood between the defendant and Mills at the time. That the check in question was given upon that purchase, and that the representation of Mills was untrue, and the note in truth was not paid, but was protested for non-payment.' That Mills was expressly informed that the defendant would not become the purchaser of another note of Lane, West & Co., while holding the first note unpaid, and that the negotiation and purchase proceeded upon that understanding.
    On that trial, however, the jury were instructed peremptorily to find a verdict for the plaintiff.
    The General Term, on appeal from the judgment, ordered a new trial on the ground that Mills, although not directly employed by the plaintiffs to make the sale, was their agent therein. That they could not insist upon the sale made by him, and claim the benefit thereof without being affected by his misrepresentations. That if the sale was made and the check in question was procured by Mills from the defendant by such misrepresentation, the defendant acting in known reliance upon the truth of what Mills stated it was erroneous to charge the jury that the plaintiffs were entitled to recover. 2 Bosw. 230.
    The action was again brought to trial on the 20th of May, 1858, before Mr. Justice Pieebepost and a jury.
    On this second trial, the testimony of the defendant was the same as on the first, viz.: That Mills offered the note of Lane, West & Co., to the defendant, a few days prior to the 13th of October, and defendant told him he already had as much of Lane, West & Co.’s paper as he wanted; that defendant then had a note made by them for the same amount, due on the 13th, in a bank in Brooklyn, and if that was paid at maturity defendant would then buy the note in question. That Mills called again on the 14th of October, and said: “Your notéis paid; Lane, West & Co., paid it yesterday; now, according to your promise, you must buy this note.” That defendant replied: “I do not know whether my note is paid or not; but if you say it is paid, I will take your word for it and buy your note.” Mr. Mills rejoined, “ it is paid;” and that accordingly he (the defendant) took the note, deducting $25 from the face of the note, and gave the check in question for the consideration money. That he learned the next morning, by notice "of protest received through the mail, that the note in the Brooklyn Bank was not paid, and he then stopped the payment of his check and sent the note back to Mills.
    Mills, on the other hand, testified that on the morning of the 14th, he had heard from a third person that the note of Lane, West & Go., due the previous day, had been paid, and supposed it was so; and that he told the defendant that it was paid. That the defendant would not then buy the note, but said that he had received no news of that note, and then said that he would not take the note offered by Mills. That just before three o’clock in the afternoon, he met him near the steps of his office; that defendant was coming from the north and said, “ I believe that note is paid, and I have made up my mind to buy this.” That they then went up stairs and defendant gave Mills the check. That at that time he (Mills) did not tell the defendant that the other note was paid.
    This testimony of Mills is in some degree corroborated by that of the plaintiff, who testified that he asked the defendant, on the 15th, why payment of the check was stopped? “He said he had received a notice of protest of a note of Lane, West & Co., which he had deposited in the Nassau Bank, which bank kept an account with the Central Bank of Brooklyn, where the note was payable. He said he had presumed the note was paid, for that up to three o’clock on the 14th, on going to the Nassau Bank, they had told him they presumed it was paid as they had received no notice of protest. He did not say anything about Mills having assured him that the note was paid.”
    “ I think he said he went to the bank; he said they told him that if the note was not paid they should have received notice of protest before three o’clock.” * * * * “He said, up to three o’clock of the day before, they had received no notice of protest at the Nassau Bank, andhehad presumed from that the note was paid.”
    It was also proved that a note of Lane, West & Co., was protested on the 6th of October, through an oversight; that they paid some $60,000 between the 9th and 13th, and that the 13th was the last day on which they paid; and that they stopped paying notes on the 13th of October, and made an assignment on the 17th; but that they could have obtained $20,000 on their credit on the 15th. without difficulty.
    In relation to the plaintiffs ’ title to the note so sold to the defendant, it was testified that it was made by Lane, West & Co., payable to their own order, and-placed in the hands of a broker, “to be sold in the market.” That their broker delivered it to another who testified, “I exchanged that note with the plaintiffs for their note for the same amount; I allowed them two and a •half per cent on the face of it on the exchange.” This was in July, 1856; that the plaintiffs’ note was paid; that two and a half per cent is a customary charge-for such a transaction: and the plaintiff-testified, “ Hotchkiss ” (the broker) “came tome and wanted me to buy the note; not having the money I declined; he proposed that -we should give him our credit for it; I told him when we sold our credit we charged two and half per cent; he said I might have it at that, and he gave me a check for that amount.”
    The, Judge thereupon directed the jury to find a verdict for the defendant, and the plaintiffs’ counsel excepted.
    From the judgment entered upon the verdict rendered for the defendant under this direction the plaintiffs appeal to the General Term.

      E. C. Benedict, for the plaintiffs (appellants).
    I. This transaction was in perfect good faith in -all parties. There is no ground for even a suspicion of fraud.
    H. Elwell gave value for the note when he gave for it his own note of equal amount.
    Elwell gave value for the check when he gave the note of Lane, West & Co. for it. That note was not valueless. The nature of the transaction shows that there was no warranty.
    He was a bona fide holder for value, in both cases, without notice of any defense.
    III. The previous conversation between Mills and defendant, about a previous note of Lane, West & Co., did not affect the plaintiff.
    I. Mills was not the agent of plaintiff, in that conversation.
    2. The plaintiff expressly refused then to take the note, till he should be satisfied by his own inquiries. He purchased on" his own information. .
    IY. Lane, West & Co. were in good credit at the time, nor had any of the parties any suspicion of a failure.
    Y. If the proof is not clear that the transaction was fair; that the defendant in fact took the risk of the note being paid; that Mills did not, at the time of selling the note, make any representations as to payment of the previous note; that Mills was not the agent of the plaintiff, then the Court should have allowed the case to go to the jury.

      Wm. M. Allen for the defendant (respondent).
    L The purchase of the note for which the check was given, was on condition, and the condition having failed, a recovery could not be had, and Mills making a false representation to obtain the check, no action will lie; fraud vitiates everything.
    See the opinion of the Court in this case. (2 Bosw., 230.)
    II. The plaintiffs, having adopted the acts of Mills, are responsible for all he did. (Story on Agency, §§ 249, 250.)
    III. The makers of the note having failed at the time, is a good defense. Ontario Bank v. Lightbody, (13 Wend., 101,) Colville v. Besly. (2 Denio, 139.)
   By the Court—Woodruff, J.

The defense set up in this action embraces four grounds upon which the. defendant insists that he is not liable upon the check in controversy, which, though not separately stated as distinct defenses, as required by section 150 of the Code, are found in facts which are averred in the answer.

1st. That the check was obtained from the defendant by representations made to him by the plaintiffs’ agent, which representations were of a material fact, known to the agent to form an inducement to the giving of the check, and which were relied upon by the defendant, but which representations were false.

2d.- That the sole consideration of the check was the sale to the defendant of a promissory- note of Lane, West & Co., and that that firm had failed when the sale was made, and so the defendant had a right to rescind the contract, return the noté and refuse to pay the check.

8d. That the plaintiffs paid “no legal consideration for the note so sold,” which averment the defendant now claims to have been sufficiently established by the evidence that the note was made by Lane, West & Co., to be sold in the market, and the plaintiffs received, the note in exchange for their own note and received two^and a half per cent for making the exchange, and the defendant claims that this rendered the note usurious in the plaintiffs’ hands and void, and therefore that the defendant could not recover thereon, and so the consideration for the check has failed, or that in truth there was no legal consideration for the check.

And 4th, That the defendant having himself bought the note at a discount greater than the lawful discount at 1 per cent, the transaction between him and the plaintiffs was void by reason of the usury which the defendant reserved, and he may repudiate the transaction on that ground.

If either of these defenses is sufficient in law, and the facts constituting such defense are either admitted or are clearly proved without contradiction, then the direction to the jury was proper; there was nothing in dispute which ought to have been submitted to the jury in any other form.

On the other hand, if these defenses are insufficient in law, or the state of the proofs was such that the Court could not properly hold as matter of law that a defense was established, then so far as material facts were in dispute the case should have been submitted to the jury under appropriate instructions. Unless the pleadings and proofs presented such a case that a verdict for the plaintiffs would have been against law or against evidence a peremptory instruction to find a verdict for the defendant was not warranted.

To consider, then, the grounds of defense relied upon, reversing the order of the'foregoing statement,

1. It is insisted that the defendant having purchased the note of Lane, West & Co., from the plaintiffs, at a greater discount than the legal rate for the time it. had to run, is not bound to pay the check given for the consideration of that purchase. This assumes that the transaction between Mills (the broker) and the defendant was usurious, and that the transaction between them was in substance a loan by the defendant upon usury. And it argues that the lender upon usury may avoid the contract on the ground of his own reservation to himself of more than legal interest.

This is a novel view of the design and effect of the laws against usury. They have heretofore been regarded as designed for the protection of borrowers only, and so far as they are punitive in their nature are said to be intended to punish the usurious lender. We think -he cannot allege his own violation of the statute as a reason for not paying his check. (La Farge v. Herter et al., 5 Seld., 241.)

Again, as between the defendant and the plaintiffs, (or Mills, the agent,) if the note was a valid note in the hands of the plaintiffs there was no usury. Ever since the final decision in Cram v. Hendricks, (7 Wend., 569,) it is settled in this. State, that the holder of a promissory note which is valid in his hands may sell it for any price he thinks proper; and where, as in the present case, the vendor does not indorse the note, it was not before that time, doubtful that the transaction was perfectly valid. A promissory note is as much the subject of sale as any other species of property. (3 Wend., 62; 8 Cow., 685; 15 J. R., 44, and cases cited in the notes to the 2d ed.)

Whether the note sold to the defendant was or was not valid in the hands of the plaintiffs will be presently considered. That is the subject'of another ground of defense, viz., failure of consideration. But in regard to the claim that there was usury between the defendant and the plaintiffs, it must suffice to say: that the defendant cannot set up his own usurious reservation as a defense; that if the note was valid in the hands of the plaintiffs, there was no usurious reservation; and if the note was void in the plaintiffs’ hands so that they could convey no title, that amounted to a failure of consideration, and we will inquire into it when we discuss that point, which is next in order, viz.:

2. It is averred in the answer that the note which was sold to the defendant “ came into the hands of the plaintiffs without any legal consideration paid ■ therefor, whatever.” Under this averment the defendant claims that he may properly insist that the plaintiffs received the note from the makers'upon a usurious contract with them, and so acquired no legal title. It requires very great liberality in the construction of the pleadings to warrant such a defense under such an averment. We have, however, considered the question so raised upon the merits as if the averment were sufficient to raise the question. The note, for which the check, now in. suit, was given, was made by Lane, West & Co., for sale in the market to raise money for their use. It was placed in a broker’s hands to be sold. He took it to the plaintiffs, in July, before its maturity, and the plaintiffs declined purchasing it. But after some negotiation the plaintiffs consented, as the broker testifies, to exchange their note, for the same amount, for the note referred to, the broker allowing them two and a half per cent on the face of it on the exchange. The testimony of one of the plaintiffs, is, that after he had declined buying it, the broker proposed that the plaintiffs should give him their credit for it, and being told that when they sold their credit they charged two and a half per cent, the broker assented and paid the two and a half per cent for the exchange of notes.

Where a transaction is in substance a loan of money, goods or things in action, a reservation of a greater sum than the legal discount makes the transaction void, whatever device is adopted to conceal its true nature, or by whatever form the object is accomplished.

Two and one-half per cent, deducted in July, from the face of a note, which was payable in October, is a greater deduction than after the rate of seven per cent per annum.

It was held in Dunham v. Dey, (13 J. R., 40,) that where an exchange of notes was made for the purpose of raising money, at a greater rate of interest than seven per cent per annum, and the transaction was so understood, and the plaintiff charged under the name of commissions, for advancing his notes and making such exchange, a greater sum than the legal rate of interest, the transaction was intrinsically a loan and usurious and void.

In Dey v. Dunham, (2 John. Ch., 192,) where the defendant gave his note in exchan'ge for another of the same amount, both having six months to run, and charged two and a half per cent commission for his risk, Chancellor Kent held that this was .not usurious, because the commissions did not exceed the legal rate of interest for six months. And the Chancellor adds, “if he had taken more than at the rate of 7 per cent per annum for the amount of his notes for the time they had to run it would probably have been usury in disguise.” (Referring to 13 J. R., 40, and 1 Camp. N. P. R., 177.)

In Dunham v. Gould, (16 J. R., 367.) the plaintiff exchanged his own notes for others and charged two and a half per cent commission, that being more than after the legal rate of discount for the time the notes had to run, and the jury found that this exchange was for the purpose of raising money at a greater rate of interest than seven per cent per annum, and the Court of Errors unanimously affirmed a judgment for the defendant. The verdict'was deemed to establish that it was a shift or contrivance to get rid of the statute of usury.

In Fanning v. Dunham, (5 Johns. Ch., 122,) the transaction was similar, and the Chancellor being of opinion that the transaction was an exchange of notes for the purpose of raising money by the one party, and for the purpose of exacting a premium of two and a half per cent for the loan of his paper by the other, held the transaction void for usury.

In Steele v. Whipple, (21 Wend., 103,) a charge for indorsing and procuring the note of another to be discounted in the bank had been made which exceeded the rate of seven per cent per annum, and the Supreme Court held, such indorser having taken up the note, that the note was void in his hands for usury. Mr. Justice Cowbn says: “If one man give his acceptance or note for another, on an agreement for a compensation, it has long been settled that this is usury per se.” * * * “I have no hesitation in saying that a man can no more lend his indorsement for a compensation beyond seven per cent, than his money.” ■

On the other hand, it was held 'by the Supreme Court in Trotter v. Curtis, (19 J. R., 160,) that a charge by a commission merchant of two. and a half per cent, in addition to interest, for advances made (without funds in hand) to pay the-drafts of' his principal, was not usurious, if not intended as a cover with a usurious intention; and in Suydam v. Westfall, (4 Hill, 211,) the Supreme Court held that an agreement by the principal to keep his commission merchant in funds by shipments of produce, and to pay him two and a half per cent on all advances met by the commission merchant otherwise than with produce, was not necessarily usurious; and the jury having found that the charge was a reasonable compensation for trouble, and warranted by the usage of trade, the transaction, was sustained.

In Ketchum v. Barber, it was held by the Supreme Court, (4 Hill, 244,) that the bona fide sale of one’s credit by way of guaranty or indorsement, though for ■ a compensation exceeding legal interest, is not usurious, if the transaction be unconnected with a loan between the-parties. The plaintiff had charged two and a half or three per cent for indorsing the paper of another. In the opinion in this case, Chief Justice Nelson repudiates the idea that the question- of usury or no usury depends on the inquiry whether the per centage charged exceeds seven per cent per annum for the time the credit is to continue, and holds that an extravagant charge for a guaranty purely as such, is no more usury than if exacted for goods or stocks, or any other species of property, and he reviews the previous cases bearing on the question. (See Oakley v. Boorman, 21 Wend., 588.)

But in the Court of Errors, although the judgment of the Supreme Court was affirmed on another ground, a majority of the judges appear to have been of opinion that a charge for merely indorsing another’s paper constitutes usury if it exceed the rate of seven per cent per annum for the period of credit.

Assistant Vice-Chancellor Sandfobd, in The New York Dry Dock Co. v. The American Life Insurance and Trust Co., (3 Sand., Ch. R., 256,) reviews the doctrines applicable to an exchange of paper and a sale of credit, and he also repudiates the idea that when a charge of commission for lending one’s credit is tolerated at all, it is to be limited to the legal rate of interest; and his conclusion, from an examination of the cases, is, that wherever a commission is charged by the lender, unless it be for some real service distinct from the loan itself, and then be a moderate and reasonable charge, it must infallibly be referred to the use of the credit loaned, and would constitute usury. Upon all the facts in that case, however, he finds that the transaction was a loan, intended to enable the borrowers to obtain money, for which they, in the first instance, applied to the defendants, and that the various reservations could not be referred to anything but a compensation for a loan, which at first consisted of certificates of deposit, and when they were paid by the defendants, the transaction was in truth a loan of money.

If the question were to be determined according to the weight of authority resulting from the cases above mentioned, it would seem that a reservation of a commission upon an advance of one’s credit, whether by way of indorsement upon paper made to be discounted by a third party, or by way of exchange of notes, if not invariably usurious, whatever be the rate, is so when the commission charged exceeds the rate of seven per cent per annum for the time the credit is to run, unless it is shown that the commission was not charged as and for compensation for the advance of credit and the risk of loss, but for some other and distinct consideration, as for services or trouble to be taken or performed.

And when the case last cited came before the Court of Appeals, Mr. Justice Cady in his opinion insists strenuously upon the law as in substance thus stated, and holds that an exchange of credits with a reservation of more than seven per cent per annum to one of the parties, is usurious arid void.

But we are informed by the report of the case in the Court of Appeals, (3 Comst., 362,) that a majority of the court concurred in the reasons, and placed their judgment upon the grounds stated in the opinion of Mr. Justice Gardiner.

In that opinion he begins with dissenting from the views of Mr. Justice Cady on the very point we are now considering. He defines credit as “ the capacity of being trusted“it cannot be loaned.” “ When A., for a consideration paid by B., executes a promissory note and delivers it to B. to be used for his benefit, it is not a chose in action in the hands of B., and yet he has received precisely what he contracted and paid for, namely: the privilege of availing himself of A.’s credit with third persons. When the credit is used and a trust obtained, its whole office is fulfilled; it becomes functus officio, and in the nature of things, can never be returned. The credit of one person may be rendered available to ■ another by gift or sale, and in no other way. This may be done * * as an exchange of notes, which is a sale of one promise for another. * * When the responsibility is incurred gratuitously, it is, in popular language, a loan; and when for a consideration, a sale of credit. In this sense, a sale of credit is no more within the prohibition against usury than a sale of merchandise. It is sometimes asked, Why should a man be permitted to receive ten per cent on an exchange of notes, when, if he advanced money on the same security, he would get but seven? The answer is, Eor the same reason that he is permitted to receive $20 for six months’ use of furniture valued at $100. The one is prohibited and the other not.” After further like propositions and a review of some of the cases, he says: “ Neither sales of credit nor loans or sales of property other than money are touched by the statute. It is not enough that the vendee wants money and that this is known to the opposite party. Neither the necessities of the vendee nor the use he contemplates making of his purchase will deprive the vendor of his right to determine for himself the terms on which he will part with his property.”

“It follows that in every instance where the contract is in form one of sale or exchange, * * * if the Court, in looking at -the whole transaction, can see that the value secured to the vendor was in good faith but the price of the thing sold or exchanged by him, there can be no usury whatever the price may be or the mode in which it may be reserved.”

These views were re-affirmed in Leavitt v. DeLauny, (4 Comst., 363,) which was affirmed in the Court of Appeals, “for the reasons stated in the opinion of Gabdineb, J.”

In More v. Howland, (4 Denio, 268,) the plaintiffs had consented to advance their own notes to the defendants, which the latter should pay or provide for at maturity, and for this the plaintiffs were to receive a commission or compensation of two and a half per cent (which was more than seven per cent per annum for the period of credit.) Bronson, Ch. J., says “ it was a sale of credit and nothing more;” “ there was- no usury in the case.” “ As the law now stands, a man has as good a right to sell his credit as he has his goods or his land; and if he deal fairly, he may take as large a price as he can get for either of them.”

In Schermerhorn v. Talman, (4 Kern., 117-119,) the opinion of Mr. Justice Selden does not in all respects harmonize with the reasoning of Gardiner, J., above referred to, but the decision in the cause does not involve any conflict with that reasoning.

It seems to us, therefore, that we are now bound to say, that the mere fact that the present plaintiff received 2| per cent commission for exchanging his note for that of Lane, West & Co., did not make the latter' note so wholly void in their hands, that the defendant can say or that we can say as matter of law, that the check was without consideration; and if not, then this ground did not warrant an unqualified direction to the jury to find for the defendant.

3. Another ground upon which the deféndant’s counsel insists that the instruction given to the jury was proper is, that Lane, West & Co. had failed when their note was sold to the defendant, and for that reason the defendant had a right to rescind the contract, return the note and reftise to pay his check.

This claim is, we think, answered by the suggestion, that although the case shows that Lane, West & Co. stopped paying their notes on the 13th of October, it was not proved that they were unable to pay anything, or that the note was worthless. In so far as this point is concerned, the parties were dealing with each other at arms-length. Even the defendant had so little confidence in the responsibility of Lane, West & Co., that he was not willing to buy the note unless the note he already owned was paid. He received just what he bargained for. No fraud or deception was practised in respect to the question of the solvency or insolvency of the makers of the note. W e find no warrant for holding that he had any right to refuse to. pay his check upon this ground. The cases to which we were referred do not go so far. The payment of a debt in the notes of an insolvent bank, which it is held may be treated as no payment, furnishes no illustration of the claim to rescind under such circumstances as the present. Nor do the cases, which hold where a contract is wholly executory (e. g., an agreement to sell goods for the ndte of a third person,) and the makers of the note become insolvent before the contract is performed, the party is not bound to receive such note, apply to this case. Here the contract was fully executed, the note delivered and accepted, and the check was given in payment. The defendant could afterwards, in the absence of fraud or warranty, no more rescind than the purchaser of goods or chattels when he finds, after delivery and acceptance, that the goods, &c., are not so good or so valuable as he supposed they were when he made the purchase. (Des Arts v. Leggett, 16 N. Y. R., 582, 588; Benedict v. Field, id., 595.)

And for like reasons, the suggestion that' there was a mutual mistake—that the parties both supposed that they were dealing with the note of a solvent firm—fails to warrant the recision of the sale. From the very nature of the transaction, the solvency and credit of the makers of the note were before the minds of the parties, and the very question in agitation was, whether, the defendant would or would not take the risk of the payment of that note by the makers. The plaintiffs were proposing to avoid that risk by selling the note without indorsement. The defendant was consenting voluntarily to assume that risk for a consideration to be paid to him. I can hardly conceive a plainer case for the application of the maxim, caveat emptor. The defendant and the makers both were in the city; very slight diligence would have informed the defendant of the state of the firm of Lane, West & Co., the makers. If he thought proper to make the purchase without further inquiry he ought not here to be permitted to allege his mistake. (Milner v. Duncan, 6 Barn. & Cres., 671.) In Van Winkle v. Commercial Insurance Company, in the Court of Errors and Appeals of New Jersey, November 3d, 1858, the defendants having issued a policy of insurance insuring a building against fire from a day already past, were held liable, although at the time of issuing the policy the building had already been burned, upon the ground that such was the risk they had voluntarily assumed.

The defendant here was a volunteef assuming to take the risk of the payment of the note of a third person; he received just what he bargained for, and if the note was not so likely to be paid as he supposed he had bargained for the risk.

Aiken v. Short, (1 Hurlst. & Norm., Exch. R., 210; 37 Eng. L. and Eq. R., 592,) where the plaintiff sought to rescind on the groun d that there was no title to the mortgaged premises upon which he had wholly relied in paying the defendant a debt which was supposed to be secured thereby, is a much stronger case than the present, and yet the court held that he was not entitled to rescind on the ground of mistake. (See, also, Gompertz v. Bartlett, 2 Ellis & Bl., 849; 24 Eng. L. and Eq. R., 156.)

4. Finally: The question remains whether it was so clearly ' proved that the check was obtained by Mills by false representations, that the case should not have been left to the jury ?

We incline rather to the opinion that the weight of the evidence preponderates against the defendant’s claim in this respect. We of course assent to the decision heretofore made in this case, that the plaintiff cannot claim the benefit of the transaction without being affected by the misrepresentations of Mills, if such misrepresentations would have entitled the defendant to avoid the check had Mills himself been the party in interest and claimed to recover on the check.

All pretense of actual or intended fraud or falsehood on the part of Mills, in representing that the previous note was paid, is, we think, .fully disproved.

It is settled, we apprehend, that, to entitle the defendant to avoid his contract on the ground of misrepresentation, it must appear not only that the representation was made, that it related to some material fact, and that it was untrue, but it must also appear that the defendant relied upon the representation, that he acted on the faith thereof; and this imports not merely that he believed the fact to be as it was represented to be, but that his belief was founded on the representation.

If the defendant refused to rely on Mills’ representation, sought information for himself, and finally acted on belief founded on information derived from other persons, or resting in circumstances not connected with Mills’ statements, then he was not misled by what Mills said; he did not act in reliance thereon, and he was not deceived by that, if he was deceived at all, and he cannot avoid his contract. (2 Kent, 484, n. d.; 1 Story Eq. Jur., § 191; and cases cited, n., 3; id., §§ 197, 200, 202.)

Now it is'true that the defendant’s testimony in his own behalf tends to show not only that he relied upon Mills’ statement, but that that formed the very ground of the purchase of the note and the giving of the check, and. was so understood by Mills at the time.

But this is contradicted by Mills, who testifies, in substance, that, at the time the representation was made, the defendant refused to rely upon it,, and refused to buy the note; that after-wards, when he saw him again, the defendant’s language indicated that he had satisfied himself on the subject; having previously refused to buy the note, stating, as a reason, (and notwithstanding Mills’ statement,) that he had received no news of the other note, he now said, “ I believe that note is paid, and I have made up my mind to buy this.” These circumstances indicate, with no little distinctness, that the defendant did not rely on Mills’ statement made, as Mills says, in the morning, but sought information for himself, and acted in reliance upon what he had learned elsewhere, and on the fact that he had received no notice of protest. This is strongly corroborated by the plaintiff’s testimony to his declarations: “ That he had presumed the note was paid; for that up to three o’clock on the 14th, on going to the Nassau Bank, they had told him that they presumed it was paid, as they had received no notice of protest“ that they told him that if the note was not paid they should have received notice of protest before three o’clock.” And again.he said, “Up to three o’clock of the day before, they had received no notice of protest at the Nassau Bank, and he had presumed from that that the note was paid.” This it is testified he stated in explanation of what he did, and “ he did not, in this conversation, say anything about Mills having assured him it was paid.”

Upon this state of the proofs, if the evidence does not so greatly preponderate against the claim that the defendant purchased the note and gave the check in reliance on representations of Mills, which proved untrue, that a verdict for the defendant on that ground could not be sustained, it is at least clear, we think, that the unsupported testimony of the defendant himself did not, in the face of the contradiction, warrant an instruction that he was entitled to a verdict. It seems to us that the case should have been submitted to the jury.

For these reasons the judgment should be reversed, and a new trial be ordered; costs of the appeal and of the former trial to abide the event.

Pierrepont, J., dissented.

Judgment reversed, and new trial granted.