
    
      A. W. Yongue v. D. H. Ruff.
    
    An order being without date, it is necessary, on the plea of the statute of limitations, to shew at what time it was given. The jury, from the evidence, are to determine whether it was within four years before tire writ was sued out.
    If the drawer of a bill or order, from the time of malting it to the time when it is due and presented for acceptance, has no funds in .the hands of the drawee, friana fade, he is not entitled to notice of non-payment.
    Funds in the hands of the drawee, payable to the drawer as executor, will not entitle the drawer to notice of non-payment, when he drew in his individual capacity.
    
      Before Richardson, J. at Fairfield, Extra Court, July, 1848.
    This was an action of assumpsit, brought by Alexander W. Yongue against David H. Ruff; tried at an extra Court, held for Fairfield district, in July, 1848, on the following order, to wit:
    Mr. John Cockrell,
    Will please to pay A. W. Yongue, Esq. two hundred and thirty-seven 78-100 dollars, and oblige, respectfully, D. H. Ruff.
    $237 78.
    The signature, as well as the order itself, was admitted to be in the hand writing of the defendant Ruff.
    There was no date to the order, and the statute of limitations was pleaded. The action was commenced on the 20th day of March, A. D. 1845. There was no proof of the time when the order was executed.
    David McDowell, Esq. proved that a settlement had been made in his office, between J. Cockrell and A. W. Yongue, in the early part of the year 1844, when A. W. Yongue presented the order to Jno. Cockrell for payment, and that Cock-rell refused to pay it. The order was afterwards presented by A. W. Yongue to D. H. Ruff for payment, and D. H. Ruff was informed that Cockrell had refused payment. Ruff then refused to pay. There was no proof that either of the parties interested recollected the time or circumstances under which the order was given. There was proof that D. H. Ruff, as executor of Wm. Kincaid’s estate, and also in his own right, had many settlements in the sheriff’s office, and that A. W. Yongue was the sheriff of Fairfield district in 1844, and for some time before.
    John Cockrell, examined by commission, denied that he had any funds in his hands belonging to D. H. Ruff, individually, when the said order was presented to him for payment, though it appeared that he was indebted to him as executor of the estate of Wm. Kincaid.
    The defendant moved the Court for a non-suit, on the ground that there was not evidence of notice to defendant, of demand and refusal to pay, according to law. The motion was refused, because there was evidence that ought to go to the jury; and because no notice was necessary, as Cockrell proved that he had no funds of Ruff’s in his hands.
    The jury were instructed, that if they believed from the evidence that the order was made within four years from the time the action was brought, they ought to find for the plaintiff ; otherwise, to find for defendant.
    The jury found the amount of the order, from the time it was presented for payment, by the plaintiff, to Cockrell, April 1st, 1844.
    The defendant moved for a non-suit, on the following grounds:
    1. Because there was no date to the paper on which the action was founded, and not a particle of proof to shew when it was executed; and the statute of limitations being pleaded, the plaintiff could not recover unless he had shewn by testimony that the paper was executed within four years next preceding the commencement of the action.
    2. Because the paper on rvhich the action was based, being in the form of an order, or bill of exchange, there should have been a demand upon the drawee, and notice of non-payment to the drawer, within a reasonable time, to entitle the plaintiff to recover.
    And for a new trial:
    1. Because there was no testimony on the part of the plaintiff, which could prevent the bar of the statute of limitations.
    2. Because the evidence was utterly insufficient to warrant the jury in finding for the plaintiff.
    Rutland, for the motion.
    Buchanan, contra.
   Fuost, J.

delivered the opinion of the Court.

The order being without date, it was necessary, on the plea of the statute of limitations, to shew at what time it was given. The evidence to shew that it was given within four years before the writ was sued out, was submitted to the jury, who, by the verdict, have negatived the defendant’s plea.

It is clear that if the drawer of a bill or order, from the time of making it to the time when it is due and presented for acceptance, has no funds in the hands of the drawee, prima facie, he is not entitled to notice. If, however, the drawer, not actually having funds in the hands of the drawee, has a reasonable expectation of assets in the hands of the 'drawee, as if the bill were drawn against goods forwarded to meet the draft, or if there were a running account between the parties, and the drawee had before accepted bills .on the general credit of the drawer, then he would be entitled to notice. But this law cannot avail the defendant. Cockrell proved that he never had any funds of Ruff. He had money payable to the executors of Kincaid, of whom the defendant was one; but the order was not drawn by Ruff at executor; nor did it contain any direction to Cockrell to apply that money to its payment. The order would not have discharged Cockrell from the demand of the executors. Ruff could not have had any reasonable expectation, nor, it would seem, any intention, that Cockrell should apply the funds of Kincaid’s estate in payment of his individual liability. The motion for a non-suit was therefore properly refused ; and the motion is dismissed.

Richardson, J. — O’Neall, X — Evans, J. — and Withers, J. — concurred.

Motion refused.  