
    Jacob Weld versus Stephen Gorham.
    Of the necessary evidence of demand and notice oh negotiable notes.
    [In a suit by the holder against the endorser of a note, testimony by the runners of the bank, of which defendant at the time was acting director, that they gave notices, according to the usage of the bank, to the defendant, and the maker, conformably to the minutes of a note contained in a book kept for entering all notes becoming due at that bank, the description of which note corresponded exactly, and was the only minute, corresponding with the note produced on the trial, which the runners had never before seen;—held, this was a sufficient evidence from which the jury might find a legal demand and notice. — Ed.]
    Case on several promises. The plaintiff declares, 1st, as endorsee of a promissory note for 6000 dollars, made by William Smith to the defendant, payable to him, or his order, in four months, &.C., and avers the requisite demands and notice to the defendant; 2dly, that the defendant being indebted to the plaintiff 7000 dollars, for money laid out and * expended, &c.; 3dly, [ * 367 ] as endorsee of a promissory note for 6000 dollars, made by William Smith to the defendant, payable to him or his order, and by him endorsed to Crowell Hatch, and by him to the plaintiff; and avers the requisite demands and notice.
    At the trial of the cause, which was had at the sittings here aftei the last October term, before Sewall, J., the plaintiff’s evidence was a note payable to the defendant, or order, for 6000 dollars, endorsed by the defendant and by Crowell Hatch. The signatures were admitted. The note was dated 1804, Oct. 12, payable in four months and grace. Edward Newhall testified that he was the runner of the Union Bank in February, 1805, and before and after that time ; that, on the 12th of the same February, he left upon the cashier’s desk a formal notice to W. Smith of a note for 6000 dollars then due at the bank, payable and endorsed as the note in dispute appeared to be; that he had never seen the note, but had given the notice according to a minute in a book kept at the bank, containing a minute and description of notes becoming due there; and that this book contained no minute of any other note in which W Smith was the promisor, and which became due at that time 
      A. White, sworn also for the plaintiff, testified that he left a notice to the defendant, on the 15th of February, according to the same minute, of a note by W. Smith, payable to the defendant, or order, and by him endorsed; that the notice was left at the bank; that, by the usage of the bank, notices to the directors were to be left at the bank, on the cashier’s desk; that promisors were notified when notes were due, exclusively of the days of grace,  and endorsers at the expiration of the days of grace; and that, in February, 1805, W. Smith and the defendant were directors of the Union Bank, acting in that office.
    The defence was, that the evidence did not authorize any conclusion of a demand and notice, as to this particular note; there being no direct evidence that this note had ever been negotiated or deposited at the bank.
    
      
      * The judge left the case to the jury, upon the corre- [ * 368 ] spondence of the minutes proved, with the particulars of the note demanded, — the defendant producing no evidence of any other note answering to that description, — and directed them to find for the plaintiff, if they believed the demand and notice to have been of this note, and no other, and if they were satisfied of the usage and practice of the Union Bank, at the time, as to the mode of notifying promisors and endorsers, and of leaving notifications to directors; and if W. Smith and the defendant had been proved to have knowledge of the usage and practice, and to have been consenting thereto, of which their being directors, and the long continuance of the usage and practice, proved, was presumptive evidence.
    The jury finding a verdict for the plaintiff, the judge consented to save the case, for the opinion of the Court upon the effect of the evidence reported.
    
      J. S. Williams for the plaintiff.
    
      T. Williams for the defendant.
    
    
      
      
         [The defendant, being an acting director of the bank at the time, was conusant of, and perhaps ought to be considered as bound by, the usage in their dealings and business, in which he was, in fact, a party. This makes the case differ from some other decisions in respect to the effect of bank usages. Where a note or bill of exchange is by its terms payable at a bank, or, by the agreement of the parties to be bound, discounted there, or deposited there for collection, the usages of the bank may become a part of the contract. — Parker vs. Gordon, 7 East, 385. — Elford vs. Teed, 1 Maulé Sf Selw. 28. — Jameson vs. Swinton, 2 Taunt. 224. — Smith vs. Whiting, 12 Mass. Rep. 6. — Pierce vs. Butler, 14 Mass. Rep. 303.— Hartford Bank vs. Stedman fy Ml. 3 Conn. Rep. 389. — Bank of Utica vs. Smith, 18 Johns. 230. — Rabourg vs. The Bank of Columbia, 1 Har. Gill, 231. — Bank of Columbia vs. Fitz Hugh, 1 Har. Gill, 240.—Renner vs. Bank of Columbia, 9 Wheat. 582.—Bank of Columbia vs. M'Gruders, Mdmr. 6 Har. Johns. 172. — It is now too late, perhaps, for any useful end, to question, in Massachusetts, the correctness of the numerous decisions, giving effect to bank usages, upon promissory notes and bills of exchange, neither payable to nor at any bank, nor, by any express or implied agreement of the parties, to be left or negotiated there. — See Whitwell vs. Johnson, 17 Mass. Rep. 449. — City Bank vs. Cutter, 3 Pick. 414. — Jones vs. Fades, 4 Mass. Rep. 245.— Widgerry vs. Munroe, 6 Mass. Rep. 449. — Blanchard vs. Helliard, 11 Mass. Rep. 85. — But they are anomalies. They have no analogy to any principles of the law merchant upon this subject Upon what principles of law, or reason, a promissory note, made without any express or implied reference to any bank, becomes, at the will of the holder, payable at and subject to all the usages of any particular bank, where, in the course of negotiation, it may happen that it shall be lodged, is inconceivable. By all the decisions, such a note, if it happen to be in the hands of a private person when it falls due, must be presented to the maker at his dwelling-house, or place of business, (Freeman vs Boynton, 7 Mass.'Rep. 483. — Hartford Bank vs. Barry, 17 Mass. Rep. 94. — Shed vs Brett, 1 Pick.— Coore vs Callaway, 1 Esp. 115. — Hansard vs. Robinson, 7 Barn. $,■ Cresw. 90,) for payment, by some one authorized and ready to deliver it up on pay ment, on the day when it becomes due, (Henry vs. Jones, 8 Mass. Rep. 451.— Farnam vs. Fowle, 12 Mass. Rep. 89;) and reasonable notice, according to law, must be given of non-payment to the endorser. Yet by the decisions in this commonwealth before referred to, if the same note happen to be lodged in any bank in the commonwealth for collection, when it falls due, instead of being in the hands of a private holder, the nature of the contract is thereby essentially changed. It becomes, in effect, a note payable at that bank; no presentment to the maker by any one is necessary; and notice, to the maker and endorser, whether on the first or the last day of grace, is sufficient, if given conformably to the usage of the bank. The extent of the obligation of either the maker or the endorser cannot be known or conjectured when he becomes a party to the instrument. There is, indeed, one solitary nisi prius decision to the contrary, (Wentuurth vs. Clapp, 11 Mass. Rep. 87, in note,) and it is to be regretted that it has never been acted upon. — Ed.]
    
   Curia.

The jury have determined the only question that could arise in the case, upon evidence which was properly left to them, and upon which they might lawfully presume a demand and notice such as the law requires, to render the defendant'liable as endorser. The verdict is correctly found upon this evidence, and judgment is to be entered accordingly.  