
    SAMUEL A. TOOTHAKER, Respondent, v. PIERRE B. CORNWALL, Appellant.
    
       Pbomissoiíy Note — Notice op Non-Payment. — Whether a note is or is not payable at a bank, notice of its non-payment may be given to an indorser on the evening of the day on which it is payable; in the first ease, after the close of banking hours; in the second, after the close of the usual hours of commercial business.
    Idem. — In places where there are no regular hours of business, the notice may be given after sunset of the day of its dishonor.
    Appeal from the Sixth Judicial District.
    The plaintiff brought suit against Pierre B. Cornwall, as indorser of a promissory note, drawn by Barton Lee, dated Sacramento, November 8th, 1850, for the sum of $500, and payable to the order of said Cornwall, on the 1st day of July, 1851, with interest, at the rate of one per cent, per month. After the usual allegations, as to the making and indorsement of the note to plaintiff, the complaint further alleged that, “when the said note became due and payable, viz: on the 1th day of July, 1851, at the place aforesaid, diligent search and inquiry was made after Barton Lee, the maker of said note, in order to present the same to him for payment; but that neither the said Barton Lee nor was any other person on his behalf found ready and willing to pay the said note, said Barton Lee not being a resident of Sacramento, and having no place of business therein; of all which the said defendant afterwards, * to wit, on  the day and year aforesaid, and at the place aforesaid, had notice, by reason whereof,” etc.
    The defendant answered, denying every allegation of the complaint, and specially, that a demand was made of Barton Lee, the drawer of the note sued on; that he (the defendant) had notice of the non-payment of said note, by said Lee; and further alleging that, by the negligence of the holder of said note to make such demand, and give such notice, he, the defendant, was discharged from all liability.
    On the trial, the plaintiff offered the note in evidence, and called Mr. Hyer as a witness, who testified that he knew the handwriting of Lee, the maker, and of Cornwall, the indorser: that on the 4th of July, 1851, the said note was placed in his hands for protest; that he took the note, and inquired generally for Lee and his place of business; that he found Cornwall in front of the Orleans House, and presented the note to him; told him he was unable to find Lee, and asked him if he knew where Lee was; thinks Cornwall told him Lee was in-the mines; he then informed Cornwall that he had the note, and presented it to him; made formal demand on him as indorser; asked him if he would pay it; Cornwall replied, he intended to avail himself of every advantage; that, if he escaped its payment, it would be the first he had ever indorsed that he had not had to pay. He gave Cornwall regular formal notice of his inability to find Lee, or bis place of business; thinks this was about 4 or 4J o’clock P. M. The note was handed to him (for protest) at the dinner table at the Sutter Hotel; it was in the afternoon. Cornwall had a place of business in the city (he thinks), opposite the Orleans House. Lee had before that made an assignment, and (he thinks) had also revoked it. On this evidence the plaintiff rested his case. The defendant moved the Court for a nonsuit, on the grounds that the notice to Cornwall, if a notice of the non-payment of the note was insufficient and premature. The Court entered judgment for the plaintiff for debt, interest and costs, whereupon defendant appealed.
    
      J. B. Hag gin, for Appellant.
    The notice was premature. Notice of non-payment  is not good, if given on the last day of * grace, unless after an actual demand and refusal to pay. (Story on Prom. Notes, See. 330; Chitty on Bills, 11 ed. 481; '7 Gill & J. 79; 1 Johns. Ca. 328; 6 Whart. 102, 104.) The notice was insufficient. (Smith’s Mercantile Law, 247; Story on Promissory Notes, § 348.)
    
      Winans & Hyer, for Respondent.
    Lee’s absence, and the improbability of finding him, after diligent search, and his having no place of business, superseded the necessity of presentment altogether. (Story on Prom.' Notes, 237, 264.) No presentment being necessary, notice could be given to the indorser, on the day of dishonor, after reasonable business hours. (Ib. 226, 235.) Oral notice may be given personally. (Ib. 341, 348, and notes, § 313.) Lee, whether present or absent, had only the reasonable business hours to pay the note, and, if dishonored within them, notice might be given to the indorser after their expiration. (Ib. § 320.)
    
      
       Disapproved in McFarland v. Pico, 8 Cal. 630.
    
   Mr. Justice Heydenfet/dt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

If a note is payable in' bank, notice of non-payment may be given to the indorser, on the evening of the day on which the note is payable, after the close of banking hours, and such notice will not be premature, because it is commercially dishonored, if not paid within those hours.

As to a note not payable in bank, notice may be given on the evening of the day it is payable, at the close of the usual hours of commercial business; and, in places where there are no regular hours of business, the notice may be given after sunset.

In this case, the record discloses that the notice was given at from 4 to 4-¿- o’clock P. M., of the day on which the note was payable. It does not show, however, that the time specified was after the expiration of the usual hours of business, and we necessarily know that, in midsummer, the hour named was far from sunset.

The proof is, therefore, insufficient to make out proper notice.

Judgment reversed, and cause remanded.  