
    Kohler v. Montgomery.
    gu¡(. Up0n a promissory note made payable in a bank, against the m ker and indorser, aveiring due presentment, protest and notice. The note was dated February 3, 1860, and was payable one hundred and twenty dnys after date. The indorsor answered by general denial. It appeared in evidence, on the trial, that the note was presented for payment, and protested for non-payment, on Jane 5, 1860.
    
      Held, that the presentment and protest were premature by one day, as the month of February, commercially speaking, never has more than twenty-eight days.
    
      Held, also, there being no allegation or proof as to whether the makers had money, or not, at the place of payment on June 6, that a case was not made out against the indorser.
    
      Held, also, that if the protest and notice v ere not regarded as part of the complaint, then the averment of due presentment and protest was good; if they were so regarded, then the complaint did not show a legal demand and notice of non-payment, and the defect might be taken advantage of by the indorser on appeal.
    APPEAL from the Floyd Common Pleas.
   Perkins, J.

Lutz dé Lpjjiler made a note, payable at a bank, to Kohler. The note was dated February 3, 1860, and was payable one hundred and twenty days after date. Koh'er indorsed the note to the plaintiff. The complaint, which is against the maker and indorser, avers that the note was duly presented for payment, &c., but does not name the day when, &c. Lm1z c6 Tjpffler made default. Kohler put in the general denial. Trial; judgment for the plaintiff.

The proof was that demand of payment, and notice of nonpayment, so far as there were any, were made on June 5,1860. This was premature, by one day. Commercially, February never has but twenty-eight days. Iud. Dig., p. 763. See Story on Bills, § 320, as to excluding the day of date in the computation of time.

There were no allegations nor proofs as to whether the 'makers had money at the place of payment on June 6, the day when payment was to be made, or not. A case, there-fore, was not made out against Kohler, on the trial. See Spangler v. McDaniel, 3 Ind. 275.

But it is contended that as no demurrer was put in to the complaint, the question of the proper time of making demand of payment cannot be raised on appeal.

John II. S.otmiburg and T. M. Brown, for the appellant.

W. T Otto, for the appellee.

If the protest and notice are not a part of the complaint in this case, (and it was not necessary to make them so,) the complaint does not show the day when demand was made, as it simply avers that it was duly made, and hence a demurrer would not have raised the question. If, on the other hand, the protest and notice were, in this case, made a part of the complaint, they did not cause it to show a legal demand and notice of non-payment, and this defect may be taken advantage of on appeal, by the indorser. Blacklege v. Benedick, 12 Ind. 389.

Per Curiam.. — The judgment is reversed, with costs. Cause remanded, with leave to amend, &c.  