Townsend v. Wells , 32 Me. 416 ( 1851 )

Wells, J.

There is no evidence that any demand had been made on the drawee for payment of the bill, or that due notice had been given to the defendant of the non-payment. Nor is there any proof that the defendant had not funds in the hands of the drawee. The plaintiff must prove a demand and notice, or some excuse for the want of them. If he had shown, that the defendant had no funds in the hands of the drawee, it would then have been incumbent on the defendant, if the fact had been relied upon in his defence, to show that notwithstanding the want of funds in the hands of the drawee, he had reasonable ground to expect that his draft would be duly honored. The burden of proof is on the holder of a bill, who claims to be excused from proving notice to the drawer, on the ground of want of funds in the drawee’s hands. Bayley on Bills, 303. And we do not understand any different rule to be stated in Burnham v. Spring, 22 Maine, 495.

It is contended, that the evidence-should have been submitted to the jury, and that they might have inferred from the declarations of the defendant a waiver of demand and notice. But it does not appear that the defendant had any knowledge of the want of a demand. He should have had knowledge of the omission to make the demand before he could be holden upon a waiver of it. Davis v. Gowen, 17 Maine, 387; Hunt v. Wadleigh, 26 Maine, 271.

It cannot be implied from the language used by the defendant, that he was informed there had been no demand, and as such fact must be shown by the plaintiff, there was not sufficient evidence to justify the jury in finding a verdict against the defendant, and the nonsuit was properly ordered.

Nonsuit confirmed.