
    * The President, Directors, and Company, of the Lincoln and Kennebeck Bank versus Edward H. Page.
    Where a banking company have established usages and by-laws, respecting demands on makers of promissory notes, and notices to endorsers thereof; the dealings and contracts of those doing business with such company are to be understood and enforced according to such usages and by-laws.
    This was an action on the case against the defendant, as endorser of a promissory note, dated November 7, 1808, for the sum of 3349 dollars 16 cents, made by Jones Of Noyes, payable to the defendant, Page, at the Lincoln &f Kennebeck Bank, in fifty-seven days from the date, with customary grace, and duly endorsed by the. defendant to one Abraham Hammatt, and by him to the plaintiffs.
    At the trial, which was had before Thatcher, J., upon the general issue, at the last September term in this county, the making and endorsements of the note were agreed as declared on; the only questions made were respecting a demand on the makers, and notice of non-payment by them to the defendant.
    The cashier of the bank testified that he had always made it a practice to make out notices to endorsers of notes in the bank on the day they became due, in case they were not paid or renewed; and that he remembered making out notices to the defendant, and to the said Hammatt, when the'note in question became due, and had no doubt that he put the notice directed to the defendant into the post-office at Wiscasset; but he had no distinct recollection of this last fact. It was also proved that the defendant had agreed, in writing, that all notices directed to him should be left at the said post-office. The said cashier also testified that it had been his practice to make out all notices to promisors at the bank on the discount day, previous to the time their respective notes became due, informing them of the time when their notes would fall due, and requesting payment; which notices were usually sent by some director, when any such lived in the town with such promisors; that P. Tollman, who lived * in the same town with the said Jones &f Noyes, the promisors, was a director, and was present at the bank on the discount day, previous to the note in question becoming due; that he, the cashier, had no doubt of his making out the usual notice to Jones f Noyes, and delivering it to Tollman on that day, although he had no specific recollection of that fact; and that he was at the bank during the usual hours of business on the day the note in suit became due, ready to receive payment of the same.
    The said Tollman testified that he had generally taken notices to Bath; that he was present at the discount day above named, and had no doubt, if said notice was delivered to him, that he delivered it to Jones & Noyes, or left it at their store, though he had no distinct recollection of it, but had always been careful to deliver notices as directed, when intrusted to him.
    There was some other evidence, tending to fortify the presumption that a demand had been duly made on the promisors in the note in question, 
    
    And it was in evidence that, by a by-law of said bank, the cashier was required to notify all promisors on notes, one day, at least, before they became due, of the time of their becoming due.
    The counsel for the defendant contended, at the trial, that the plaintiffs had not proved notice to the said Jones Noyes, and a demand of payment from them, agreeably to law, and the custom and usages aforesaid.
    But the judge, who sat in the cause, directed the jury that, if the cashier of the bank was present at said bank, at the usual bank hours on the day the said note became due, and there was no money paid or deposited in said bank by said Jones &/■ Noyes, a demand upon them, or any previous notice to them, according to the custom aforesaid, was not necessary. To which direction the defendant’s counsel excepted, a verdict being found for the plaintiffs, * and the action stood over to this term upon the said exceptions.
    
      Lee for the plaintiffs.
    
      Wilde for the defendant.
    
      
      
         [The testimony seems to show but little more than a total want of recollection of the facts which were considered to be essential to support the action. — Ed.]
    
   Sewall, J.,

delivered the opinion of the Court. The usages adopted by individuals concerned in any course of business, — for instance, in the negotiation of promissory notes, by which loans are obtained and renewed at banks, — become, as to those parties, rules by which their contracts are to be construed; and in any circumstance not ascertained by express stipulation, and especially as to privileges depending on legal implication and construction, and understood to be reserved for the particular benefit of the individual, what is' known among the parties to be usual in their course of business, is to be taken as consented to, and to have the same effect as if inserted in their contracts.

It is incumbent upon the holder of a negotiable note for money," to prove, in maintaining an action against an endorser, a demand upon the promisor as soon as the note became due, and a notice to the endorser, if it then remained unpaid. The endorser is liable after due diligence employed to obtain payment of the maker, and upon notice that payment has not been made'; and this being understood as the condition of the contract implied in his endorsement, he is not liable, until these circumstances are substantially proved. But, as privileges reserved and implied for his special benefit, he may waive or modify them. When this is done by an express stipulation, there can be no doubt; and when- he continues to endorse notes, and to deal with a bank, where, by known usage, or the by-laws of the bank, these privileges have been taken to be waived or modified, his dealings and contracts are to be understood and enforced with the constructive effect of such usage or by-laws.

In the case at bar, there is not only evidence of a known usage, from which a consent may be implied, but also of an * express - agreement, on the part of the customers of the bank, — those who dealt with the plaintiffs in this action, as the defendant did,—in drawing, endorsing, and negotiating notes for discount, and in the renewal of notes discounted, as to the notice to drawers and endorsers, the mode of giving it, and the effect. And, according to this consent, when the defendant is charged as an endorser of a negotiable note, a demand upon the promisor, the day before the note became due, is to be considered as the diligence required of the bank; and notice to the endorser, on the day when the note was payable, is seasonable; and letters from the bank, containing a demand or notice of this kind, left at the post-office in fViscasset, are equivalent to an actual demand and notice.

We do not perceive that the title of the plaintiffs to recover depends on the facts, that the cashier had been present at the bank during the usual bank hours, on the day when the note in question became due, and that no money had been then paid or deposited by the promisors in the note.

The general rule of law requires a demand and notice, to charge an endorser. This had not been altogether dispensed with by any usage or stipulation, but modified as to the time and manner; and whether a demand and notice were proved, or are provable, according to the fair expectations of the parties concerned and considering the confidence specially reposed in the directors of the bank, belonging to the same town, are questions for the jury to determine. Their verdict may be, and probably will be, the same, upon the evidence stated, as it now is; but the verdict found was not directed by those principles which are to be observed in cases of this kind. It is, therefore, to be set aside, and a new trial granted. 
      
      
         [The note was, by the terms of it, payable “ at the Lincoln & Kennebeck Bank.” Was it necessary to make a demand elsewhere? —Woodbridge vs. Bingham, 13 Mass. Rep. 556. —12 Mass. Rep. 403.— Sebree vs. Dorr, 3 Wheat. 558.— Sanderson, vs. Bowes, 14 East., 500. — Hodge vs. Fillis, 3 Camp. 463. — Rowe vs. Young, 2 Bro. & Bing. 165. — See Ruggles vs. Patten, 8 Mass. Rep. 480. — Carley vs. Vance, 17 Mass. Rep 389. —Beeching vs. Gower, Holt, 313 —Sprowle vs. Legge, 1 B. & C. 16. Quiere, if any usage was shown, sufficient to control the plain import of a written contract, the meaning whereof, in this particular, at least, was well settled in the mercantile law, and the legal effect whereof was generally well understood ? — See Homer vs. Dorr, 10 Mass. Rep. 26. —Lewis & Al. vs. Thatcher & Al., 15 Mass. Rep. 431. — Murray vs. Hatch, 6 Mass. Rep. 477.—Hogg vs. Snaith, 1 Taunt. 347.— Dawson vs. Walker, 1 Stark. 361.— Greaves vs. Ashlin, 3 Camp. 426. — Frith vs. Barker, 2 Johns. Rep 327. —Thomson vs. Ashton, 14 Johns. Rep. 316. — Coit vs. The Com. Ins. Co., 7 Johns. Rep. 385.— Sleght vs. Rhinelander, 1 Johns. Rep. 192. —Ed.]
     