
    Benjamin F. Butler vs. Daniel R. Kimball.
    An action may be maintained upon a note, against the maker, where the writ Is made after sunset on the last day of grace, and is delivered to an officer on the next day, although there is no demand of payment before the writ is made.
    Assumpsit by the payee of a promissory note against the maker. The note bore date July 20th 1840, and was made payable to the plaintiff, or his order, in four months after date.
    It was agreed by the parties, that the writ was made on the 23d of November 1840, after sunset, and was put into an officer’s hands the next day, when it was served. No demand was made on the maker, before the writ was drawn.
    On these facts, it was submitted to the court whether the action could be maintained.
    
      Butler, pro se.
    
    The action, even if it is regarded as commenced when the writ was made, was not prematurely brought. Whitwell v. Brigham, 19 Pick. 117. Swift v. Crocker, 21 Pick. 241. The defendant could not have tendered payment after sunset of the last day of grace. Bac. Ab. Rent. I. Tender, D. Savary v. Goe, 3 Wash. C. C. 140. The plaintiff might therefore well commence this action, as soon as the time, within which a tender could be made, had expired. A plea of tender on the last day would be bad; it should be alleged to have been made on the last convenient hour of the day. But in case of negotiable notes, the maker is not entitled to the whole of the last day to tender payment. Shed v. Brett, 1 Pick. 401. Church v. Clark, 21 Pick. 310. City Bank v. Cutter, 3 Pick. 418.
    The action may be regarded as commenced when the writ was given to the officer. Seaver v. Lincoln, 21 Pick. 267. Bad
      ger v. Phinney, 15 Mass. 359. Robinson v. Burleigh, 5 N. Hamp. 225. Johnson v. Farwell, 7 Greenl. 373.
    J. £?. Abbott, for the defendant.
    The maker of a note is entitled to the whole of the last day to make payment, unless demand of payment is made at a reasonable ho ir of that day ; and the note “is not suable until the day of mri-,rity be passed, unless demanded on that day.” Greeley v. Thurston, 4 Greenl. 483. Lunt v. Adams, 5 Shepley, 230.
    The facts of this case do not show that the writ was made provisionally, as in the cases cited from 15 Mass, and 21 Pick.; and the action must therefore be considered as commenced when the writ was filled up. Gardner v. Webber, 17 Pick. 407.
   The Court ordered judgment to be entered for the plaintiff.  