
    Bachus vs. Richmond.
    The drawee of an accommodation bill of exchange payable at eight, can sustain an action on the hill against the drawer, if he pays the same for the drawer’s credit, not having any funds belonging to the drawer in his hands at the time of presentment.
    This is an action on the case commenced in the county court. The declaration set forth, that Bachus, on the 26th August, 1829, according to the usage of merchants, made his bill of exchange and directed the same to Richmond, thereby requesting him at sight to pay to the order of the cashier of the office of the Bank of the United States in Lexington, the sum of two hundred dollars, and delivered said bill to J. Harper, cashier of said office of said Bank. Said Harper, cashier, endorsed said bill to John Som-merville, thereby ordering said sum to be paid to said Sommerville, and delivered the same to him.
    
      Averment; that afterwards said Sommerville presented said bill of exchange, on sight whereof he, Richmond, paid t0 sai(j Sommerville the sum of money therein specified, to wit, two hundred dollars.
    Further averment; that this was an accommodation bill, that said Richmond had no funds of said Bachus in his hands, nor had said Bachus any right to draw the same because of any understanding between them: by reason whereof the said Bachus became liable to pay to said Richmond said sum of money, paid as aforesaid; and being so liable, he the said Bachus, in consideration thereof, undertook and promised to pay said sum of money, when after-wards requested; yet, although requested, he has not paid, &c. Plea, non-assumpsit and issue. Verdict for the plaintiffs; motion in arrest of judgment; motion sustained, and judgment for the defendant. Appeal to circuit court; verdict and judgment for plaintiff; writ of error to this court.
    
      G. S. Yerger and G. M. Fogg, for plaintiff in error.
    Washington, for defendant in error.
   Peck, J.

delivered the opinion of the court.

Does the declaration state such matters of substance as will enable the plaintiff to maintain this action? To ascertain this, we must examine what are the grounds on which he predicates his right. It is not on the bill of exchange, but upon the fact that Bachus drew it without authority, there being no funds in the hands of Richmond at the time, and that it was drawn and paid by Richmond for the accommodation of Bachus. Then follows the cause of action well stated: In consideration whereof, he undertook and promised to pay, &c.

It may be true, that a count for money paid, laid out and expended, at the request and for the use of said Bachus, might probably have let in the proof, without the recital of the bill of exchange m the declaration, and the manner the money happened to have been advanced upon it. But certainly it does not lie with Bachus to object to this form of declaring; it gave him a better opportunity of knowing the grounds and nature of the demand; it obviated every thing like surprise upon him, by stating at large the transaction, and then concludes, certainly with substantial, if not with technical matter, to show the liability.

If there was want of form, then that should have been brought to the notice of the court by demurrer. The verdict cured a statement of a good cause of action, though that statement, as to form, be defectively made. The gist of the action being the advance of the money to save the credit of Bachus, and the payment at his request, it is well laid, and enables the plaintiff to have his judgment.

Judgment affirmed.  