Smith & March v. Paul , 8 Port. 503 ( 1839 )

ORMOND, J.

— The argument, in this case, is founded on the supposition, that the declaration is against the plaintiffs in error, as drawers of the bill of exchange on which the action is founded, and that the failure tb allege presentment for payment and notice of refusal, is a defect available on error. If the assumption were correct, the defect would be cured, after verdict, by the statute of Jeofails. But, on looking into the declaration, it is quite clear, that the defendants are charged as acceptors. ' The averment in the declaration is, that the defendants (plaintiffs in error) drew the bill on themselves, and accepted it; and if it were true, that .they were charged as drawers of the bill, in default of payment, they would be liable, without notice of non-payment, as it was their duty to provide for the payment of the bill, .and they must have had knowledge that it was unpaid. The reason of the law, in requiring notice, fails, in such a case—(See Chitty on Bills, 355, and cases there cited.)

The last assignment of error is not sustained by the record. The motion for a new trial is refused, on condition that the plaintiff below enter a remittiter, which, from the record, it appears the plaintiff agreed to.— Should the clerk issue execution for the whole amount of the judgment, the remedy would be, to supersede the execution.

The judgment is affirmed.