
    Samuel W. Church versus Hervey Clark.
    If a note is made payable at a bank, there is no default of payment on the part of the maker until the close of the usual banking hours, on the last day of grace, at such bank.
    If no particular bank is named, the hour will be determined by the usual banking hours at the bank or several banks, in the place where the note is payable.
    Assumpsit for money had and received. The writ was dated on April 5, 1837, and was served by an attachment of the defendant’s personal property at one minute past twelve o’clock, in the morning of the same day.
    The trial was before Dewey J.
    To maintain the action the plaintiff produced in evidence a promissory note made by the defendant, for the sum of $247'67, dated January 2, 1837, and payable in ninety cays from date, at bank.
    The defendant objected, that there could have been no default of payment on his part until the expiration of the business hours of the bank, on April 5, 1837, and therefore that the action was prematurely brought.
    
      
      Oct. 26th.
    
    If the Court should be of opinion, that this objection was well founded, the plaintiff was to become nonsuit; otherwise, the defendant was to be defaulted.
    
      Warren and W. A. F. Sprout, for the plaintiff.
    
      A. Bassett and Coffin, for the defendant.
   Shaw C. J.

afterward delivered the opinion of the Court. In general it is considered, that a note is payable at any time on demand on the last day of grace, or day it becomes due. But where the parties have, by the terms of their contract, fixed an hour, before which it shall not be deemed payable, that agreement will govern. By making a note payable at a bank, the effect of the contract is, that the note shall be paid at some lime during the usual bank hours at such bank ; and there is no default, on which an action can be commenbed, until the close of such bank hours. If no particular bank is named, the hour will be determined by the usual banking hours at the bank or several banks, in the place where the note is payable. As no bank is open for the ordinary transaction of business immediately after twelve o’clock at night, and as the maker is not m default till the close of the usual bank hours, there was no cause of action when this attachment was made ; and therefore the action cannot be sustained. This case differs essentially from that of Whitwell v. Brigham, decided in Suffolk in 1837.

Plaintiff nonsuit.  