
    Perry Cohea vs. Fidelio S. Hunt, et al.
    A note payable at a bank, having regular business hours, must, as a general rule, be presented for payment within those hours. Still there are exceptions to this general rule, and it is the duty of the court instructing the jury as to the general rule to explain to them the exceptions.
    The notary went to the bank, upon the proper day, immediately after the close of banking hours, presented the note and demanded payment of the cashier, who replied “ that the note would not be paid, and that no funds were deposited in the bank for that purpose.” Held, to be a sufficient demand. The case of the Commercial and Railroad Bank of Vicksburg v. Hamer, et al., cited and confirmed.
    Parties to a note made payable at a bank, are bound by the established customs of , the bank.
    This was an action of assumpsit, brought to the November term, 1839, of the circuit court of Hinds county, by Perry Cohea against George Finucane, George W. Amos, and John Long, as the makers, and Fidelio S. Hunt as the indorser of a promis*. sory note. The defendants pleaded the general issue. On the trial the plaintiff’s counsel' read to the jury the note sued on, and then proved by the notary that on the day the note fell due he went to the office of the Planters Bank, in Jackson, Mississippi, where it was payable,, immediately after the close of the banking hours, and presented the note, and demanded payment of the cashier of the bank, who answered “ that the note would not be paid, and that no funds were deposited in the bank for that purpose; ” that he then protested the note for nonpayment, and on the same day gave notice to Hunt, the indorser, in person, that the holder would look to him for payment, &c. And here closed his evidence. The defendant then introduced Robert A. Patrick, who testified that the office of the Planters Bank, at Jackson, Mississippi, had, in the mouth of January, 1839, regular hours of business, which he believed were from about the hour of eleven until three, but he was not certain ; that he did not know at what hour it was customary for notes to be presented at the bank by the notaries ; he never saw a note, presented, and he did not know whether any formal demand >vas generally made, but he believed that notes were considered by the officers of the bank as dishonored, unless paid during banking hours; that at one time he had a note payable in said bank, which he called to pay a few hours after the bank was closed, and the notary demanded his fees for protesting it, and he had to pay them. This being all the evidence offered, the plaintiff’s counsel asked the court to charge the jury^ “That a presentation made immediately after the close of the banking hours, is evidence of the dishonor of the note, if the cashier of the bank was present and returned for answer to the demand, that there were no funds,” which the court refused to give, and charged the jury, at the request of the defendant’s counsel, “ that if they believe the Planters Bank, at which the note was made payable, had regular hours of doiug. business, and that notes payable there were, by the custom of the bank, considered dishonored unless paid within such hours, it is not sufficient evidence of presentment and demand to charge the indorser in this case.” The defendants’ counsel excepted to the decision of the court refusing the charge asked by himself, and also to the charge given. The jury found for the plaintiff against the drawers, and in favor of Hunt. The plaintiff moved for a new trial, his motion was overruled by the court, and he again excepted, and brought the case to this court by writ of error.
    
      D. Shelton, for plaintiff in error.
    The only question involved in this cause is, was the presentment a good one ? It is proved to have been made immediately after the close of banking hours to the cashier of the bank, who answered that the note would not be paid, and that no funds were deposited in bank for that purpose.
    1. The necessity of presentment during banking hours, grows out of the custom of the Lank to pay only during those hours ; Avhen, therefore, such custom is proved, prima facie, a presentment out of those hours is bad. But if the banker, or any agent is there at the time of the presentment, and makes any answer which shows that the nonpayment is not a consequence of the unseasonable presentment, but of a want of funds, such a presentment is valid. Bailey on Bills, 212. Chitty on Bills, 421,422. 1 Stark. Rep. 475. 6 M. & S. 44. 2 Ch. R. 125. Railroad Bank v. Hamer & Co. Opinion Book, B. 278.
    2. There is no proof of such custom in the present case. The deposition of R. A. Patrick, does not show but that it was the custom of that bank, and its notary, (who was an officer of the bank) to present notes immediately after the close of banking hours. In the absence of proof to the contrary, the presumption is, that this note, which was presented at the request of the cashier, and by the notary of said bank, was presented in conformity to the custom of that bank.
    
      W. Yerger, for the defendants in error.
    The facts presented by the record are as follows: Cohea sued the defendants, as makers and indorser of a promissory note, payable at the Planters Bank, in Jackson. The notary proved that on the day the note fell due. he presented it immediately after the close of the banking hours, for payment at the bank, and was answered by the cashier, that the. same could not be paid, as no funds were deposited for that purpose. The sole question presented by the record is, whether or not, this is a good presentment to charge an indorser. The general rule of law is well settled, that a bill must be presented within a reasonable business hour-of the day on which it falls due, or it will not be good, and when payable at a particular place, as a bank, having particular hours of business, it must be presented within those hours. 1 M. & S. 28. 2 Barn. & Adol. 188.
    The only controversy which can arise in this case is, whether it be good, if any person after those hours, be at the bank and give an answer.
    In Elford v. Teed, 1 M. & S. 28, it was decided not to be good to charge the acceptor. In Garnett v. Woodcock, 6 M. <fc S. 44, it was held to be good.
    Whether it be good, according to the English law, to charge an acceptor, I think it is clear, upon principle, that it is not sufficient to charge an indorser in this country.
    
      The contract of the indorser is, that the maker of the note shall have the money at the place of payment on the day the note falls due, and if there be particular hours of business, that he will have it there during all those hours. The business hours of a bank are its day, and if a presentment be not made during those hours, it is the same as if made on the fourth day of grace, in ordinary cases, because the indorser did not contract that he should have it all day, but only during those hours. After the bank is closed, and its hours of business are over, the maker of the note has a right to withdraw his money from the bank. He is not bound to leave it there after the hour fixed for its payment, aud consequently a presentment made afterwards is not good, because the maker was not bound to be there, either with his money, nor to leave an agent to make payment. If made within the proper hour, who shall say that the maker would not have been there ready to pay I
    The case of The Railroad Bank v. Ray, is distinguishable from this, in the answer given; there the answer was, “ no funds, nor had there been any on deposit during the day,” consequently. the indorser received no damage from the failure to present. Here the .cashier says he has no funds, after the bank is closed, left to pay. He does not say, there had been no funds there during the hours of business.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit against the makers and indorsers of a promissory note. The defence offered was that there was no proper demand to charge the indorser Hunt. The note was payable at the branch of the Planters Bank, in Jackson. The evidence, as to the demand, was that the notary went to the bank upon the proper day, and immediately after the close of banking hours, presented the note and demanded payment of the cashier, who replied “ that the note would not be paid, and that no funds were deposited in the bank for that purpose.” The court, at the request ofi the counsel of Hunt, charged the jury, “if they believed the bank had regular hours of doing business, and that notes payable there were by the custom of the bank, considered dishonored, unless paid within such hours, it is not sufficient evidence of presentment and demand to charge the indorser in this case, if the note were not presented and demanded, until after the close of the banking hours.”

The rule upon this point was recently considered by this court in the case of the Commercial and Railroad Bank of Vicksburg v. Hamer, et al., Opinion Book, B. page 278. It is there stated to be, “that if a note be presented for payment at a bank at which it is payable, on the day it falls due, but after banking hours, still if the officers of the bank be in attendance, and give answer that there are no funds on deposit, and have been none during the day to pay the note, it is a sufficient demand.” Such circumstances constitute an exception to the general rule, that the demand must be made during bankmgs^@ííí^Saj«That decision we believe to be correct. Nor are *pfe.mstances which would have that effect, if tie motary receiwcjpthe same answer, and secured the same ben^ft,|which he would have done, if the demandghad been máae atfan earlier hour. In this case the court sf&uEJ|giJigij.^|;^aii#d to the jury that there were exceptions to tfi^spneral rule^sfiould have stated the nature of the exceptions, so far^i^K'e’evidence in the case pointed to any, and then have left them to apply the testimony to the law.

It is attempted, in argument, to distinguish this case from the one above cited, in this, that the answer of the cashier in this case does not as in that, negative the idea, that funds had been on deposit during the day, and before the close of banking hours, to pay the note. Here the answer was, “ that the note would not be paid, and that no funds were deposited in the bank for the purpose.” This language, “that no funds were deposited,” may refer not alone to the precise moment when the demand was made, but to the whole preceding part of the day, and it may as well express the one idea as the other. Where the testimony may admit of different and distinct constructions, it must be the province of the jury to adopt either construction which is most satisfactory to their minds. To determine otherwise, would transfer to the court the power to decide upon the weight of evidence, and the effect of testimony.

As a general rule the demand must be made within banking hours, but there are certain well-settled exceptions. The plaintiff was endeavoring, by his proof, to bring himself within one of the exceptions, and a part of the evidence introduced was with a view to that end. The charge goes too far. The result might have been different, if the jury had been informed of the exception to the rule, instead of having that rule laid down as a general and inflexible proposition.

The charge of the court is, in its terms, founded upon the custom of the bank. It has express reference to the custom of considering notes as dishonored, which were not paid within ' the business hours. This custom was proven by a witness intro- ' duced by the defendant, and he stated that he did not know that j any formal demand was generally made. If this was the custom ! of the bank, the defendant in error is bound by it, just as the plain- : tiff is by the custom as to the business hours. Boston Bank v. Hodges, 9 Pick. This should likewise have been explained to' the jury, if the note were in the bank on the day it fell due.1; We think that justice and law require a new trial to be granted,; and we therefore reverse the judgment and direct it to be done. •  