
    Sutcliffe and Bird v. John M’Dowell.
    Where the drawer of an inland hill of exchange informed the payee that he had withdrawn the funds, on which the hill was drawn, from the hands of the drawee : Held, that a presentment of the hill for payment was unnecessary, 
    
    The doctrine of inland hills applies equally to checks upon hanks.
    This was an action of assumpsit upon a check for $120, tried before the Be-corder of the Inferior City Court, July Term, 1819.
    The check, upon which this action was brought, was given by defendant to the plaintiffs for a horse purchased by him from them.
    The report of the judge (William Drayton,) is as follows :
    “ Mr. J. P. White, the plaintiff’s counsel, examined as a witness, deposed, that on the morning after the delivery of the check, the defendant informed him, that he had withdrawn his funds from the bank upon which it had been drawn, alleging as a reason for doing so, that the horse, which was the consideration *for it, bad not answered the description under wbicb be bad J been sold.
    “ Mr. Laval, called by the plaintiffs, said, that about ten o’clock in the morning after the date of the check, he called with it at the bank to obtain payment for it; that Mr. Galluchat, the book-keeper, told him that the defendant had drawn all his money out of the bank; the witness, therefore, did not present it to the teller. The witness further said, that the defendant expressed a desire to buy from him a horse, which he supposed the witness owned ; that he told the defendant he had sold the horse, but he believed the purchaser would part with him ; that upon being asked by the defendant to give the character of the horse, he replied, that he had bought the horse as being six or seven years old ; that he owned him about ten months; that he had sold him to the plaintiff, Sutcliffe, as being between seven and eight, and he believed that to be his age ; that he considered the horse as not to be equalled by one in a thousand. He drew two persons in a chair at the rate of a mile in eleven minutes ; and that he was gentle, active and healthy ; that the defendant after-wards complained to the witness, that the horse was old and unsound. The witness has owned a great many horses; has always paid much attention to them ; considers himself well capable of judging of the age of a horse, and deems it impossible for any one, after a horse is turned of nine, to tell his age.
    “ In this stage of the trial, the defendant’s counsel moved for a nonsuit, upon the ground that the plaintiffs had not proved a presentment of the check for payment to the proper officer of the bank, without 'which he could not recur to the drawer.
    “ The motion was overruled, upon the ground that the act of the defendant in withdrawing his funds from the bank dispensed with the necessity of that form, and rendered it unnecessary, after the communication of the fact by the book-keeper, and by the defendant himself, to present the check to the teller.
    mím *“ The defendant’s counsel then called Mr.-Stone, who proved J the signature of the plaintiff to the following receipt, signed by the plaintiffs, but in the handwriting of the defendant:
    “ ‘Received, February 8th, 1819, from John M’Dowell, one hundred and twenty dollars in full for a bay horse, seven years of age, which we warrant and defend against all claims whatever. Jambs Sutcliffe.’
    “ The witness then said, that the morning after the date of the check, he offered, as the agent of the defendant, to return the horse to Sutcliffe, because the character given of the horse had been incorrect; that Sutcliffe said he would not take him ; that witness then told Sutcliffe the horse would be sold on a certain specific day, who said he should not attend the sale ; that Sut-cliffe acknowledged to the witness the identity of the horse; that in riding the horse to Sutcliff’s, he started very much, found him very disagreeable under the saddle ; would not ride him ten miles for his value; considered him a very dangerous family horse; that after the horse had been sold, pursuant to notice, the witness told Sutcliffe he might receive the money the sale had produced ; Sutcliffe said he would not. The horse sold for $58; deducting incidental expenses, the net proceeds were $44 29.
    “ The certificate of Mr. Carver, a veterinary practitioner, was then produced and admitted in evidence, stating that the horse in question was nine years old the preceding spring; the certificate was dated on the 10th February, 1819.
    “ The plaintiffs called, in reply, Mr. Fawkes, who deposed, that he was present when the defendant bought the horse from the plaintiffs. Sutcliffe then said he had a very good character of the horse from Laval from whom he bought him. Defendant said he asked no questions about the horse from Sutcliffe, as Mr. Laval had already given his character. Sutcliffe said Laval sold the horse to him as being between seven and eight; that the defendant *2541 ^ke the horse upon trial for three or four days. The *witness J had rode the horse, found him gentle and pleasant; never drove him in a chaise, but has in a cart, in which he was so quiet that witness has left him with no person for three-quarters of an hour at a time, and he always found him standing where he was left.
    “ Mr. Laval, again called by the plaintiffs, said, that when he owned the horse he was in good order; when he was sold to the defendant he was rather poor ; that he has frequently left at a door his chair drawn by this horse, with the reins upon the dash board, and always found him quiet; that he has sometimes done this for three hours together; and sometimes when the females of his family were in the chair; that once, in consequence of a great noise occasioned by three negroes riding at full speed past the horse, whilst in a chair upon a wharf, he ran off as far as the head of the wharf, but ho was immediately brought back, and afterwards stood perfectly quiet.
    “ The defence was:
    “ 1. That the horse did not answer the description given of him.
    “ 2. That there had been a breach of warranty, as the horse, when sold, was near ten years old, whereas, in the receipt he was warranted as being only seven.”
    The judge then proceeds to state his charge.
    He says “I stated to the jury, that the testimony respecting the character of the horse was variant and apparently contradictory; that it was their province to decide upon it; that the weight of evidence, in my mind, was in favor of the plaintiffs. Mr, Laval, who had owned the horse nearly a year, and had used him in the chair and under the saddle; and Mr. Fawkes, who had rode him, and used him in a cart, were more competent to judge than Mr. Stone, who had never driven him in a chair, and had only rode him once, and then only a short distance; that the horse was represented to have been a good family horse ; a tame one, implying rather a draft than a saddle horse. That I did not think there had been a breach of warranty,* inasmuch as before r%n*x and contemporaneously with the sale, the defendant had declared he L bought the horse upon the representation of Mr. Laval, and that he required no character or description from the plaintiffs. And although the receipt expressed that the horse was seven years old, yet, the defendant, who acknowledged that he bought from Laval’s account, by whom he had been informed that the horse was between seven and eight, ought, when he wrote the receipt to have inserted in it, if the age were mentioned at all, that the horse was between seven and .eight, unless, which was probable, he considered seven, and between seven and eight, to mean the same thing; that whether the horse was as old as represented by Mr. Carver, or not older than as represented by Mr. Laval, it was difficult to determine ; judgment was set in opposition to judgment upon a fact, respecting which different opinions had been given by the two persons. If the jury believed the horse to be as old as Mr. Carver certified, I thought the defendant entitled to a verdict.
    “ The jury found a verdict for the plaintiffs.
    “ A notice of a motion for a new trial was served upon me, upon the grounds :
    “ 1. That the judge refused to direct a a nonsuit conformably to the defendant’s motion, notwithstanding the plaintiffs omitted to prove a presentment for payment to the proper officer of the bank on which the check was drawn.
    “ 2. That the verdict of the jury was contrary to evidence, inasmuch as it was proved, that the plaintiffs, at 'the time of the sale, in writing, warranted the horse to be seven years old, whereas, he was distinctly proved, immediately after the sale, by a scientific veterinary surgeon, to be near ten years old.
    “ 3. That the verdict was, in other respects, contrary to law and evidence.”
    
      
       Stephen Limey v. James A. Miller.
      
        Where the drawee of a bill of exchange has been forbidden by the drawer to pay it when it should be presented, of which the drawee informs the payee before it becomes 
        
        payable, it is not necessary that the payee shall present it for payment to the drawee, when it becomes due, and give the drawer notice of nonpayment.
      
      Summary process, tried before the Recorder (Williaji Dkayton, Esq.) of the Inferior City Court, July Term, 1819.
      The Judge reports as follows:
      “This suit was brought to recover $20, the amount of two orders drawn by the defendant upon Mr. Roach, the city treasurer, in favor of the plaintiff. The plaintiff proved by Mr. Roach that the defendant was a city officer, receiving a salary from the corporation; that the orders drawn by the defendant had been presented to the witness shortly before they were payable; that he refused to accept them, at the same time informing the plaintiff that they would not be paid, as the drawer had expressly forbidden him to pay *them at whatever time they should be presented. The defendant’s counsel contended, that L the plaintiff could not recover, because he had been guilty of laches in not presenting the orders for payment when they became due, and because he had given no notice of their nonpayment to the drawer. The plaintiff’s counsel left the case to the Court without argument.”
      The Judge then notices his charge as follows :
      He says, “ I stated to the jury, that, according to the general rule, the drawer was entitled to notice of non-acceptance and non-payment; but where he has no effects in the hands of the drawee, between the time when the order is drawn and its becoming due, he is not entitled to such notice ; Chitty on Bills, 151. That a drawer’s giving express orders to the drawee not to pay, furnished a stronger reason for dispensing with notice : because, although the drawee had no effects, he might nevertheless pay for the honor of the drawee; but in the present case, all chance of payment was out of the question ; that drawing a bill upon another, and directing him not to pay it, amounted to a fraud, and disen-titled the drawer to the protection of those rules which were only intended for the benefit of those acting bona fide. Clegg v. Cotton, 3 Bos. & Pul. 241, 242, and 243. I was therefore of opinion that the plaintiff was entitled to 'a verdict.”
      “The jury found for the plaintiff, and a notice of a motion for a new trial was served upon me, upon the following grounds :
      “1. Because the plaintiff did not prove that the said orders were presented to the drawee for payment, when they respectively became payable; although he proved by the drawee, that the de/endant forbade him (the drawee) from accepting the orders, yet that was not sufficient in law to exonerate the plaintiff from the obligation of presenting the orders for payment.
      “2. That the plaintiff was guilty of laches, inasmuch as he proved no notice to the defendant of non-payment of the said orders by the drawee, which notice he was legally bound to have given, as it appeared in evidence by the plaintiff’s own testimony, that when the orders became due, the defendant had effects in the drawee’s hands, which were soon after drawn out by the defendant.
      “3. That the verdict was, in other respects, against law and evidence.”
      The opinion of the Court was delivered by Mr. Justice Richardson.
      I cannot add to the reasons given by the Recorder ; and we need not, to the law and adjudications he has cited.
      Can a man, who has forbidden the payment of his own bill, complain of a want of notice of its dishonor with more reason than the drawer, who, for the same purpose, withdraws his funds in order that payment may be refused, which this Court decided, but a few days since, in the case of Sutcliffe and Bird v. McDowell ? The moment the defendant forbade the payment, he took notice of the true situation of his money in the hands of his cashier, which is the object of notice ; and any application for payment afterwards would have been idle ánd unmeaning. If the drawer still intended his bill to be paid, after his prohibition, he should have notified the drawee and holder of his reconsideration; but until doing so, he cannot take advantage of a seeming laches, which he caused himself, and which could do him no injury. The motion is refused.
      Colcock, Nott, Johnson, Huoee, and Bat, JJ., concurred.
      Post. 433.
    
   The opinion of the Court was delivered by

Kjohaudson, J.

For the reasons of the city judge, contained in the *report, it would be sufficient to say, that the motion for a new ¡-*256 trial is dismissed by the unanimous concurrence of the Judges *- in this Court. But lest erroneous conclusions should be drawn, I will notice, that there can be no question that the doctrine of inland bills applies equally to checks upon a bank. These are, in fact, inland bills. Ckitty on Bills, 18, 200, says, that as a general rule, where the drawer has effects in the hands of the drawee, at the time of drawing, a demand must be made, and notice of refusal to accept or pay, by the drawee, duly given to the drawer and endorsers. 1 Bast, 360; 2 Camp. 503.

But it seems now well settled, that notice to the drawer is not required, if there were no effects in the hands of the drawee, either at the date of the bill, or from that time till it becomes due. 1 Term, 405; 2 Term, *113 ; 1 Bos. & Pul. 655 ; 1 Bay, 291; Swift, 290. And this rule clearly applies to foreign and inland bills. 12 Bast, 111. Yet it should be strictly observed, that this exception to the general rule requires that there should be a total absence of all effects at the date, and thence to the time of payment. A mere fluctuating balance in the hands of the drawee; or the drawers, owning to the drawee drawing a greater amount than the effects in his hands, and the like, are not sufficient. 2 Camp. 503 ; 12 East, 119. I apprehend that the general rule is not dispensed with, where, by misfortune or accident, the effects of the drawer failed to reach the drawee; for the exception, as introduced in Bickerdike v. Bollman, 1 Term Rep. 410, and since amply confirmed, 2 Term Rep. 113, establishes no more than that where the drawer knew at the time that he had no effects to answer the bill, notice to him is unnecessary. And as to the endorser, there can scarcely be a case in which notice to him may be dispensed with. 1 Bay, 177, Scarborough v. Harris. See, also, note in Wilks v. Jacks, Peake’s Cases, 202.

I have noticed these rules, and cited the authorities which support *2511 ^em, lest it might possibly appear, *from the particular decision J in this case, that we do not acknowledge their full force. It is of great importance that commercial nations should be uniform in the use of them, and understand each other in that regard. But in the case before us, the defendant withdrew his effects in order that his own bill might be dishonored. How then can he complain of want of demand or notice, when he himself purposely fixed the refusal; and of course by his own act had notice of the consequent dishonor of his bill, even in anticipation of the demand and refusal of payment ? It would, too, be permitting a man to take advantage of his own unjust device.

As to the question made upon the facts in the case, that has been disposed of by the verdict under a just charge to the jury, if, in the least degree, erroneous, it was in admitting that there was any warranty of the age of the horse, but that was in favor of the defendant. Upon this point, the attempt has been to make the plaintiffs liable for a supposed error in the age and description of the horse given by Laval; and that description, too, if not the age, judging from the evidence adduced, is probably correct.

The motion is refused.

Bax, ColcocK, Huqee,, Nott, and Johnson, JJ., concurred. 
      
       1 N. & McC. 188; 1 Strob. 312.
     
      
       Ante, 251,
     