#### The Boston Bank *versus*George A. Hodges *et al.*

In order t > charge the indorser of a note held by a bank, the presentment and notice must be conformable to the general law, or the substitutes for them must conform strictly to the usage of the bank.

It is the usage of the banks in Boston to send notice to the makers of notes on the last day exclusive of the days of grace, and on the last day of grace, *after*bank, hours, to send notices to the makers and indorsers of notes which are not paid. A bank, holding a note, had sent the first notice to the maker in the usual manner, and on the last day of grace, *before*banking hours commenced, sent another notice by mail to the maker, and immediately, *before*banking hours commenced, notified the indorser of the dishonor of the note; it was *held,*that the indorser was not to be charged, there having been no presentment of the note to the maker according to the general law, and the substituted notice to the maker not conforming to the usage of the bank.

This was an action against the defendants as indorsers oi a promissory note, made by W. C. Williams, dated January 6th, 1829, payable to the defendants in four months, and by them indorsed to the plaintiffs. On May 6th, 1829, the bank gave notice to Williams by a notification put into the post-office at Boston, addressed to him at Newburyport, his place of residence ; and on May 9th another notification, addressed to him as before, was put into the post-office in Boston at half past eight o’clock in the forenoon. Williams had stopped payment before the month of May.

The defendants had also stopped payment before May 9th, 1829, on which day, at 15 minutes before 9 o’clock in the forenoon, notice was given to them of the non-payment of the note by the maker, by giving them the usual bank notice.

The writ was dated May 9th, 1829, and was served on that day at 18 minutes after 9 o’clock, by an attachment of the defendants’ property. During the month of May the bank was opened at 9 o’clock, and the usual bank hours for doing business were from 9 A. M. to 2 P. M.; and it was the custom of the bank to give notice to the maker and indorser of notes' on the last day of grace, immediately after the bank had closed, when the note remained unpaid.

The defendants were defaulted, and judgment was to be entered on the default, or the plaintiffs were to become nonsuit, *428according to the opinion of the Court as to the sufficiency of

*Bassett,*for the defendants,

_ cited Bayley on Bills, (Am. ed.) 127, 128, 129, (and notes,) 135, 140.

*Sullivan,*for the plaintiffs,

cited *Shed*v. *Brett,*1 Pick. 401 ; *Stanton*v. *Blossom,*14 Mass. R. 116; *New England Bank*v. *Lewis,*2 Pick. 125.

Parker C. J.

delivered the opinion of the Court. So far forth as the demand upon the promisor was according to the usage of the bank, we think the defendants are bound by it, since they indorsed the note to the plaintiffs, of whose form of making a demand and giving notice they must be presumed to have had knowledge; but the difficulty lies in the plaintiffs’ having departed from their own practice in regard to the time of making the demand, and giving notice to the indorser of the non-payment of the note by the maker. It is stated to be the custom of the bank, to give notice to the maker and indorser on the last day of grace immediately after the bank is closed, and it also appears that the business hours of the bank are from 9 A. M. to 2 P. M. The notifications in this case were issued *before*the business hours commenced on the last day of grace. That which, according to the custom, was to serve as a demand upon the maker, then living in Newburyport, was put into the post-office early in the morning of the day on which the note became due. This was before it was due, according to the bank’s own practice ; which allowed the usual banking hours of that day for payment ; and even the notice to the defendant, as indorser, was left at his place of business before 9 o’clock on the same day, when there had been no default in the maker.

But it is said that the note being due on the 9th of May, a demand and refusal to pay on any part of that day, with immediate notice to the indorser, will give a right to an action against the latter.1 This is true where there is an actual demand upon the maker according to the general rule of law. But the bank *429has substituted a usage of its own, according to which a note is not considered dishonored until after the bank is closed, on the last day of grace. This constructive demand, which they have acquired the privilege of making, instead of the more formal and troublesome mode which the law imposes upon the rest of the community, must be made according to the rules of their own adoption, if they would avail themselves of their privilege ; they must not, as they did in the present case, enforce their custom as to the mode of demand, and depart from it as to the time.

We think therefore the plaintiffs cannot recover, there having been no legal demand upon the maker of the note, before the action was commenced.

*Plaintiffs nonsuit.*

1

 See *Greeley*v. Thurston, 4 Greenleaf, 479; *Flint*v. *Rogers,*15 Maine R. (3 Shepley,) 67; *Dennie*v. *Walker,*7 N. Hamp. R. 201; *Farmers' Bank*v. *Duvall, 7*Gill & Johns. 89; *Wilson*v. *Williman,*1 Nott & M'Cord, 440 ; *Church*v. *Clark,*21 Pick. 310 ; *Staples*v. *Franklin Bank,*1 Metcalf, 13.