#### *Clarke vs. Castleman.*

case.

Case23,

Error to the Fayette circuit; Jesse Bledsoe, Judge.

*Domestic bill of exchange. Notice. Non-suit. Instructions. Drawer and drawee. Allegation and proof.*

February 2.

b^ciarkeln favor of Castlemañ.

Presented & Proteste • ted^foríhe'amount of the order, and

The declara-’ ^ned^uffioient. '

Failure to shew notice the^rawerof a domestic bi'l of ex-lance or nonpayment; or {^failure *¡8 goud cause’ for non-suit.

Judge Underwood

delivered the Opinion of the Court.

On the 6th of May, 1820, the plaintiff in error drew the following order in favor of the defendant, dated at Lexington.

> “Mr. John Fisher, sir: Please pay to David Castle-man or order, three hundred dollars, the balance due for a negro man, named Jim, that f purchased of the Fayette paper manufacturing company', and this shall be your receipt for the amount.

> JOHN CLARKE.” .

On the 9th of June, following, the order was presented to Fisher by a notary, and protested. Castle man then brought his action on the case, against Claike, in the Fayette circuit court, to recover the amount of the order, in which he succeeded. To reverse the judgment of that court, this writ of error-is

The first error assigned, questions the validity of the declaration. We are of opinion that the declaration contains, substantially, a good cause of action. The case of Murray vs. Clayborn, 2 Bibb, 300, is very much like the present, and the declaration is of the same character. In that case, it was suggested, and we think correctly, that the objections now urged, came too late after a verdict and trial upon the merits.

The next error assigned, grows out of an exception to the opinion of the court, in refusing to instruct the jury, to find as in the case of a non-suit. From the evidence before the court, at the time the instruction was asked for, and upon which it was predicated, we think the instruction ought to have been given; for at that time, there was nd evidence to shew that Clarke had received due notice of the non-acceptance or nonpayment of the bill by Fisher, or to account for the delay in having it protested. As the case then stood, the law would presume he had effects in the hands of Fisher. Therefore, he was entitled to notice, and the exercise of proper diligence on the part of the payee. See Baxter vs. Graves, 2 Marshall, 152, *70But the court having refused the instruction, the defendant below,, and plaintiff here, introduced his proof, and has established by it to our satisfaction, that tie had no funds in the hands of Fisher, and no right to draw on him; and consequently that he was riot entitled to notice, and strict diligence from the payee. Laches in such a ease, will not be imputed to the holder of the bill, as the drawer cannot be prejudiced thereby. Chitty on bills, 257-8-9. By this proof introduced by the defendant below, we conceive the-error of the court, in refusing to give the instruction aáked, has been cured, and that we ought not now to reverse a case, in which it was shewn before the trial was over, that the opinion of the court, though wrong at the time, has worked no injury to the party against whom it was pronounced.

But if non suit refused, and plaintiff afterwards shews that drawee had no funds of drawers, the defect, is cured, and refusal to instruct, though at the time erroneous, no cause for reversal.

Drawee having no authority to draw, nor tunds in the hands of the drawer, is not entitled to notice.

The only remaining question, which arises from the instruction given by the court, on the whole evidence, to find for the plaintiff, if the jury believed the evidence on both sides, depends upon tfce right óf John Clarke, to draw on Fisher, and upon the ground shewn for maintaining the action, in the name of Cas- — - — - ° - - - - — — tleman. Had Clarke any right to draw the bill? Does the proof exhibit a right of action in Castleman? The' learned counsel who urged the case for the plaintiff in-error, contended for an affirmative- answer to the first-question, by attempting to shew that Fisher owed-James Clarke, and that John Clarke drew the bill as agent for James. Such is not the purport of the bilí on its face. Responsibility rests on John Clarke alone as drawer. There is no proof to shew that James Clarke ever promised, that Fisher might use his, James Clarke’s funds, to discharge drafts drawn by John Clarke. Such a presumption -cannot be indulged; because Fishefr, atone time, made the absence of his note to James Clarke, and the consequent inability to enter credit on it, a cause of his refusal to accept; nor does it appear, -what James Clarke has done with this note. He may yet collect it, if he has not already done so. John Clarke could not assume an agency,, and draw for his brother’s funds, although he might have designed a favor to his brother by it. We the drawer and James *71@larke together, so as to justify the drawer in making the bill, upon the idea of having funds in Fisher’s hands, subject to his control-. In respect to Castle-man’s right to sue, we have no difficulty; although the slave belonged to the Fayette paper manufacturing company, and the bill of sale was made to James Clarke, yet the transaction may have constituted a good consideration for the order or bill in favor of Castleman, drawn by John Clarke, and that order or bill so-drawn, may have been a complete satisfaction to the company, for the slave conveyed to James Clarke. A sells a slave to B, in consideration of which, C agiees to pay {.) so much money; D agreess to account to A, and B and C are to settle, C gives his note to D for the money,' and A makes a..title to the slave to B, we think it plain that D can collect the money from C. Such is the nature of the present controversy. It does not appear from the face of the bill, that Castleman was acting as mere agent for the Fayette paper manufacturing company. It seems to have been drawn in his favor, in his own right.

Thp rieht of John Clarke to draw upon. Fisher, and of Castleman to sue investigated.

John Clarke no right to draw.

Castleman’s cause of action was good against John Clarke; affirmance.

Petition for a re-hearing.

*Hoggin*and Loughborough, for plaintiff; *Richardson*and *Chinn,*for the defendant.

P. S. Loughborough, *counsel for plaintiff in error, presented a petition for a re-hearing.*

We see no cause, therefore, to reverse the judgment. It must be affirmed with costs and damages.

PETITION FOR A RE-HEARING.

The counsel for Clarke, respectfully ask of the court, a re-hearing of the cause.

In the opinion pronounced, it is conceded, that the circuit court should have instructed, as in case of a non-suit, when moved to do so by Clarke; but that this error was cured by the introduction of the proof, shewing that Clarke had no funds in the hands of Fisher. It is conceived, with much deference to the opinion of the court, that, in the state of pleading, upon which this cause was tried, the proof-alluded to could not have had the operation supposed.

The liability of the drawer of a hill of exchange, is secondary and conditioned; arising only in the event *72of the drawee’s default, and the use of due diligence by the holder of the bill, in having it presented for acceptance or payment, and notifying the drawer of its dishonor. Yet, if the latter have no funds in the drawee’s hands, he is liable upon the bill, without notice. His liability .in the two cases, though the same in its result, is yet, different in the' mode, ift which it is made out. In the one, it is the legal consequence of the due presentment and dishonor of his bil!, and of notification thereof to him, in the time and mode prescribed by law. In the other, it results from his drawing the hill in bad faith, and with no expectation of its being honored.

Petition for a ^-hearing.

In this case, the liability charged, is of the first kind. Payment is demanded of Clarke, because, after the use of due diligence by Castleman, he had failed to get the money from Fisher, and *because*Clarke- had received due notice of it. These are substantially the averments in each count in the declaration, and the court suppose them to make out a good cause of action. There is not, in any one of the counts, either an averment or a suggestion, that Fisher had no funds of Clarke’s in his hands, The many counts usual in these cases, are wanting; and the plaintiff proceeds against the drawer, wholly upon the ground of the liability deduced as stated.

The issue upon which the cause was tried, was upon the plea of *non-assumpsit.*This put the plaintiff upon the proof of every material averment in his declaration, In this he has failed; and the court say, that, had the cause rested here, be should have been non-suited. But the defendant himself is unfortunate enough, to furnish the proof upon which he i charged. The court think the depositions introduced by him, shew that he had no funds in Fisher’s hands. Suppose it admitted. Does this fact make out Clarke’s liability as charged? Is the declaration better sustained by the proof than before? Is the averment of due diligence in Castlemaq, or of legal notice in Clarke, supported by theevidencc? Certeinly not. But it is said, that upon the case as now exhibited, Clarke had no right to notice. This conclusion, it is readily admitted, is correct, if the evidence, as the court supposes, satis» *73fheforiíy establishes the want of effects in Fisher’s hai/ch. Still it is not perceived why if should avail Castlernan, as the pleadings existed. He supposed was incumbent upon him, to use due diligence, and give notice to Clarke, that the liability of the latter was consequent upon the performance of these duties, by him, and he has averred that performance. By so dbing he has deprived himself of the liberty he might have had, under a suitable allegation of shewing an excuse, for not giving notice. His pleading should have conformed to the fact. Clarke should not have been held to answer to a liability, made out in one mode in the declaration, and when be had succeeded in doing so, been made to fail, by proof, any way obtained of a fact, of which the plaintiff’s pleading gave himno notice, in no way connected with the liability stated, and indeed, wholly out of the issue.

Petition tor a re"^uar*n®‘

If the defendant had pleaded specially, that he had not received due notice, and the plaintiff had replied, that there were no effects in the drawee’s hands, it would, according to all rule, have been a departure and ill. The court would not have»permitted the plaintiff to have changed his ground.

If the plaintiff allege, that the bill was presented, and payment refused, he cannot support it by proof, that the maker could not be found when the bill was payable. 2 Phil. Ev. 19: Starkie Ev. part 4, page 254.

When notice is averred to have been actually given, it must be proved as laid; if in fact it lias not been given, the declaration should state the reason why it was not done. 6 Mass. Rep. 306; 2 Phil. Ev. 34 note.

If no demand is made of the maker, and a sufficient excuse exists, that "excuse and not an averment of due presentment, should be averred in the declaration. 5-Mass. Rep. 170.

This court, in Frazier vs. Harvie, 2 Litt. 180-5, fully recognize the principle here maintained. The declararon there presented the liability of Frazier, the drawer, upon both the grounds of due diligence and notice, and of want of effects in the drawee’s hands. The bill of exceptions stated, that Harvie *74failed in proving notice as alleged; but the court refused to instruct the jury to find for defendant. Yet, because the bill of exceptions did not purport to contain all the evidence given, this court presuming that proof had been given, of the want of funds in the hands of the drawee, affirmed the judgment in favor of the plaintiff. Upon re-consideration, the court said, that if there had been no allegation of the want of effects, “it would have been indispensably necessary to have proved the notice of the protest “as laid.” And they adhered to- the opinion affirming the judgment, because they considered the declaration to contain the necessary averment. This case, then, establishes the rule, that, to enable a plaintiff to rely upon the want of funds, he must aver it.

Petition for a re-hearing.

Here there is no such allegation. Castleman, therefore, it is believed, could not have introduced testimony upon the subject. It was not proper for enquiry; and the reason is not perceived why, when the law, thus authoritatively pronounced by its highest expounders, forbids the party to introduce evidence of a fact not in issue, the court will permit that fact to avail a plaintiff who has frame,d his declaration wifhout a proper view of his case, and has utterly failed in the opinion of the court, in making out by proof, the cause of action set forth in it.

If these views are correct, the declaration was no better supported by proof, at the closing of the testimony, than when the non-suit was moved; for as the bill of exceptions gives *all*the evidence, the court can know, that, so far as regarded the proof of diligence and notice, it was insufficient to maintain the issue on the part of the. plaintiff, pnd that as regarded the matter of excuse, for the want of notice, it was irrelevant.

Hence it is conceived, that the error in refusing a non-suit, was not cured; and that the court erred in instructing the jury upon the whole case, to find for the plaintiff.

As to this last instruction, it is believed to have been erroneous, when tested by the case of M’Pherson vs. Hickman, 1 Monroe, 170. By the principles *75there laid down, the court, in this case, had no right to give the instruction, that if the jury “believe the whole evidence on both sides, they must find for the plaintiff.”

The allegations in the declaration, did not permit the proof of no fund *in,*the hand» of drawee; the admission of such proof erroneous.

Judgment & mandate.

LOUGHBOROUGH.

Upon which the court delivered the following opinion.

In the opinion heretofore delivered in this case, the varience between the-proof upon which the judgment of the circuit court was sustained, and the allegations of the declaration escaped the attention of the court. The proof shewed that there was no funds of the drawer in the hands of the drawee. There is no averment'in the declaration, which properly admits the evidence on this point. Whether the drawee had funds or not, was not in issue; and therefore, the defendant might well- allege surprise by the admission of testimony, as to a point not in issue, when such testimony is made the basis, on which to support the verdict and judgment against-him. The verdict and judgment ase not defensible, unless they can be aided by the proof, that the drawee had no funds. We are. now of opinion, they cannot be so aided. The case of Frazier vs. Harvie, 2 Littell, 185, is in point, and shews that evidence ought not to be received, proving a want, of funds in the hands of the drawee, unless it be so. averred in the declaration. i

The judgment of the circuit court,, must, therefore, he reversed, and the cause remanded, with directions that the plaintiff have leave to amend his declaration, so that new proceedings may be had, not inconsistent. • with this opinion.

The plaintiff in error must recover, his costs.