¶1The State Bank of Indiana, for the use of
¶2the branch at Madison, sued the makers and indorser of *220a note dated February 25, 1848, payable at said branch ninety days after date. The note was protested for nonpayment, on Sakirday, the 27th day of May following, and notice was given to the indorser stating a presentment and non-payment on that day. The Circuit Court found for the plaintiff against the makers and indorser, overruled a motion for a new trial, and gave judgment for the amount of the note and interest.
¶3The question is, when did the note become due? If it matured on Sunday, the 28th of May, a demand of payment on Saturday, as the law then stood, was proper. If the 28th and 29th of February, in the bissextile year, are to be reckoned as one day, the demand was premature; otherwise it was not.
¶4This question was considered in the case of Swift v. Tousey, 5 Ind. R. 196, where it was held that they were to be counted as one day. The defendant in error insists that the 52d section of the act of 1838, p. 454, was repealed by the 4th section, chapter 59, R. S. 1843, p. 1023; but the 12th division of the 19th section of the same chapter, p. 1028, continued in force the act of January 2, 1818, (id. 1030,) adopting the common law of England, and the acts of parliament made in aid of it, prior to the fourth year of James I. By virtue of the latter statute, the act of 21 H. 3, referred to in the case of Swift v. Tousey, was in force at the time the demand of payment was made. It follows that the demand was premature, and that the evidence was not sufficient to charge the indorser.
¶5The judgment is reversed with costs. Cause remanded, &c.