
    No. 1640.
    E. A. Yorke v. Ed. Allen.
    Wherp the evidence leaves the right of plaintiff in doubt, the Court, in the exercise of a sound discretion, should render a judgment of nonsuit.
    The law does not require the Judge a quo to randera judgment of nonsuit on motion of plaintiff.
    Appeal from District Court, Parish of East Baton Rouge, Posey, J.
    
      Emmet D. Craig, for plaintiff and appellant,
    
      Burgess & Chaney, for defendant and appellee.
   Hyman, C. J.

This suit is instituted on a draft, as follows:

“New Orleans, May 6th, 1865.”

“ A. Bbahn, Esq.:

Please pay to Edward A. Yorke or order the sum of two thousand dollars and charge the same to my account. Edward Allen. ”, •

There is proof that it was presented for payment on 13th July, 1865, when it was protested for non-payment, and notice of its dishonor given to defendant.

As the draft was not put in circulation, diligence has not been used in making demand on the drawee for its payment, but it does not. follow, that because of laches iu not presenting the.draft, that defendant is not bound to pay it.

Defendant might not have had any arrangement with the drawee to accept the draft, or dealings with him, and might have had no funds or expectation of funds with him. If so, defendant would be bound to pay the draft, notwithstanding the neglect in presenting it for payment.

The judgment appealed is m favor of defendant. We think it should have b.een one of nonsuit as against plaintiff. He should not have been concluded by the judgment.

... Plaintiff has called our attention to the ruling of the court, in his petition for a judgment of nonsuit. The Judge having overruled his motion..

, There is no law requiring the Judge to render a judgment of nonsuit on motion of the plaintiff. 6 Rob. Rep. 354.

Let the judgment of the District Court be annulled and reversed, and let there be judgment against plaintiff as of nonsuit. Let defendant pay costs of appeal.  