England v. Bricken ( 1873 )

Opinion by

Judge Hardin :

Admitting the general principles that where there were no funds of the drawer of a bill in the hands of the drawee, and there was no indebtedness from the latter, or other circumstances from which payment by the drawee might reasonably be expected, at the maturity of this bill — a failure of notice of nonpayment, as a failure to present for payment would not release the drawer; yet we are of the opinion that the mere allegation of “no- funds” in the hands of Bricken or in the bank belonging to‘ Lyon & Claver, was not suffi< cient to dispense with presentment and notice, for the averment might be strictly true; and yet Bricken has been under some obligation to Lyon & Claver to pay the bill which made it essential to their interest that they should have notice of nonpayment, as in that event, they might have protected themselves by timely action against Bricken.

It seems to us, therefore, that the demurrer to the petition was properly sustained as to Lyon and Claver.

Wherefore the judgment is affirmed.