
    *Edwards & Haig v. Myer Moses.
    Although the drawer of a hill of exchange, between the making and the time at which the hill becomes due, draws all his funds out of the hands of the drawee, this, alone, will not dispense with the necessity of the payee’s presenting the bill for payment when it becomes due, and giving the drawer notice of nonpayment.
    If the drawer of a bill of exchange has no effects in the hands of the drawee from the date till the time of payment, demand and notice are dispensed with. But there should be a total absence of all effects during all that time.
    And it should appear that the drawer knew that there would be no effects ; and that where the effects failed from accident, and did not reach the drawee, demand and notice are not dispensed with, ut semble.
    
    The Recorder of the Inferior City Court reports the case as follows : The check in this case was drawn by Brown and Moses, upon the Planters’ and Mechanics’ Bank, for $ — , in favor of the plaintiffs. It appeared from the evidence, that the plaintiffs had ascertained that at the time when the check ought regularly to have been presented, Brown and Moses had drawn all their funds out of the bank, so that had the check been presented, it would not have been paid. It was stated, nevertheless, that the check had been presented, but this fact was not proved. The action, conformably to the provisions of the Insolvent Debtor’s Act, was brought against Myer Moses alone, as between the date of the check and the commencement of the action, Joshua Brown had taken the benefit of the Act for the relief of insolvent debtors.
    The defendant’s counsel moved for a nonsuit on the grounds :
    1. That no proof had been exhibited to show that there were no funds in the bank at the time when the check ought to have been presented.
    2. That it should have been proved that a demand had been made upon the drawer for payment, even admitting no funds in the bank.
    3. That the fact of there being no funds in the bank when the check was payable, was not proved to have been known to the defendant.
    *4341 *Under the special circumstances of this case, the motions for a non--I suit were overruled, and the case being submitted to the jury, they found a verdict for the plaintiffs. Notice was served upon me that the defendant’s counsel would move, at the Constitutional Court, for a nonsuit, upon the ground that there was no evidence of a presentment, or a demand made for the payment of the check in question.
    Wii. Drayton.
    It was admitted that at the trial of this cáse in the Inferior City Court, the plaintiffs produced in evidence a copy of the account of Brown & Moses, as it stood in the books of the Planters’ and Mechanics’ Bank, at the time when the check given to the plaintiffs should have been presented, and that by the said statement, it appeared that the check drawn by the said firm of Brown & Moses, in favor of I. 0. Moses, for $ — , and some cents, had been paid, and which said check had drawn out of the bank the funds of the said firm, to the last cent.
   The opinion of the Court was delivered by

RichardsoN, J.

It does not expressly appear whether there were funds of the drawers in the bank at the date of the check, though it seems implied that they were afterwards drawn out by another check, the date of which doth not appear.

It is now well settled, that if the drawer has no effects in the hands of the drawee, from the date to the time of payment, demand and notice are dispensed with. 1 T. ft. 405. 2 T. R. 113. Swift, 290. But this exception requires that there should be a total absence of all effects during all that time. 2 Camp. 503. 12 East, 114. And I apprehend, it should appear that the drawer knew that there would be no effects, (2 Term, 113,) and that where the effects merely failed by accident, and did not reach the drawee, demand and notice are- not dispensed with.

Axson, for the motion. Bentham and Parker, contra

By the decisions of this 'Court, in the case of Sutcliffe *and Bird v. M’Dowell, and in Lilly v. Miller, demand and notice <- are also dispensed with, where the drawer purposely withdraws his effects in order to defeat his own bill; and where he forbids the drawee to pay, as in the latter of those cases. But the case before us comes within neither of these exceptions. It is the common case of an overdrawing, which, if permitted to. form another exception, would fritter away the established rule requiring notice generally; and would very frequently introduce very complex collateral issues. As whether any and what balance was in the hands of the drawee, or whether the drawer favored one bill more than another, and the like. Such consequences growing out of the case of Sutcliffe and Bird v. M’Lowell, would be unfortunate.

In the case before us, it is certain only that the check given to I. C. Moses, swept the balance of money in the bank belonging to the drawers. But does it appear that I. C. Moses was not a real creditor, or that the money was purposely withdrawn by defendant to defeat the plaintiff’s check ? By no means.

The general rule, then, applies in all its force ; demand should have been made, and notice given.

The motion is, therefore, granted.

Bay, Nott, and Johnson, JJ., concurred. 
      
       Ante, 257.
     