The defendant-is sued as an indorser of a promissory note. Pursuant to section 923 of the Code of Civil Procedure, the defendant served on the plaintiff an original affidavit to the effect that he had not received notice of the nonpayment of the note. It was therefore incumbent upon the plaintiff to prove by common-law evidence that the note was presented for payment and was not paid, and that it had been protested for nonpayment, and that due notice of protest and nonpayment was given to the indorser. With this requirement the plaintiff failed to comply. No proof that notice of protest was given to the indorser was offered. The plaintiff’s testimony that he told the defendant over the telephone that the note *730had not been paid was not a compliance with the negotiable instruments law.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.