The case was continued for advisement, and the opinion of the Court was subsequently drawn up by
WtostoN C. J.The direction given by the plaintiff to Dodd, the cashier of Kenduskeag bank, that all the necessary steps should be taken, to charge the parties to the draft, was quite immaterial. If proved to have been taken in behalf of the plaintiff, the defendant would be Iiolden, if there had been no such direction to him ; and if not taken, the direction would not help the case. The testimony being immaterial, its admission is no cause of exception.
On the 17th of December, 1835, being the last day of grace, the draft was payable at the Kenduskeag bank. On that day, but after banking hours, it having been given to a notary for this pur-^ pose, lie demanded it at the bank, when payment was refused by the cashier, the acceptors having no funds there. The law requiring a demand is satisfied, if the draft was in the bank, or was demanded there, on the day wlien it fell due. The objection is, tliat the demand was not seasonable, not having been made on that day, in banking boms. But the cashier, whose duty it is to attend to business of this sort, remaining there, and having returned a negative answer, and it appearing that the acceptors had provided no funds, we hold the demand to have been sufficient.
In Garnett v. Woodcock, 1 Stark. R. 475, it was ruled by Lord Kllenborough, that a presentment at a banker’s after business hours, is good, if the banker have left some one to give an answer; and his opinion was sustained by the court. Bayley in his text, says, no objection can be made to a presentment at a banker’s, at *70an unseasonable hour, if the banker, or any agent in his behalf, is there at the time of such presentment. And he adopts that principle, as decided in the case cited from Starkie, to which he refers. Bayley on Bills, 137. There, the answer was given by a boy. Here, the demand was made on the day at the bank, upon the cashier, its regular officer and organ, in the transaction of its business.
A seasonable demand having been made, it was incumbent on the holder, to use due diligence, to give notice to the defendant. This is proved to have been done in this case, by the agency of the notary, before the action was commenced. This having been done, it is well settled, that a right of action thereupon accrues, without waiting for the notice to reach its destination. Shed v. Brett, 1 Pick. 401. City Bank v. Cutter, 3 Pick. 414. Greely & al. v. Thurston, 4 Greenl. 479.
Exceptions overruled.