delivered the opinion of the court:
The making of the bill as alleged in the declaration is admitted by the pleas, but the defendant claims that he is discharged from liability thereon because, he says, the bill was not protested for either non-acceptance or non-payment.
To this the plaintiff replies, first, by admitting that the bill was not protested, but says it was duly presented for acceptance and for payment, and that it was neither accepted nor paid ; of all of which defendant had notice.
Second. That when the bill was drawn defendant was largely indebted to the drawee, and had been notified not to draw on him.
Third. That at the date of the bill the cotton mentioned in the plea had not been shipped, and that it was subsequently shipped through the agent of drawee to be applied to a debt due by the defendant to the drawee.
Fourth. That the defendant had no sufficient reason to believe that the bill would be honored and paid when due.
Fifth. That the defendant had no funds in the hands of the drawee or in transitu to meet the bill when due.
Sixth. That the bill was given for a debt due by defendant to the payor named in bill, and that defendant suffered no injury from the non-protesting, want of notice of nonacceptance or non-payment of such bill.
The replications were demurred to, and the court sustained the demurrer as to all except the fourth.
We cannot see how any of these several replications answer the principal fact set up in the plea of want of protest and notice. It is certainly no answer to such a plea that the bill was duly presented for acceptance and also for payment, and that it was neither accepted nor paid. Or that *629the drawer, the defendant in this ease, was indebted to the drawee, Woolfoik, and had been notified not to draw more on him. Or that the cotton mentioned in the plea had not been shipped, or that it was afterward applied to the debt of the defendant owing to Woolfoik, or that the defendant had no funds to draw against, or that the bill was given to pay a debt due from the defendant to the holder of the bill. The evident object of the pleader in these several replications to the plea was to assert that although the defendant may have had cotton in transitu to the drawee as alleged in the defendant’s plea, yet he had no sufficient reason for believing that the bill would be paid at maturity, and this is sufficiently set up in his replication as number four, to which the demurrer was not sustained; and this whole question was tried and passed upon as appears by the evidence as embodied in the record. The five replications as to which the demurrer was sustained in fact contain nothing further as an answer to the plea than is contained in the fourth.
The defendant made the bill payable to the order of the “ Pioneer Stores.” It was subsequently endorsed to this plaintiff. The simple question is, were such necessary steps taken by the plaintiff as would render this defendant liable for its dishonor. The plaintiff to sustain his action proved by A. M. Doyle that as soon as this bill was received by the “ Pioneer Store ” it was presented to the drawee for acceptance, and he refused to accept. “ It was then placed in bank, ‘ Pioneer Store ’ thinking it might be paid when due, should Woolfoik receive any cotton, though they had no promise from Woolfoik that he would pay it.” The same witness further says that “ on December 17, 1880, the day of maturity of such draft, witness wrote Salomon at Marianna, Ela., informing him that the said draft was not paid, and that the bank had returned *630the same, and called on the £ Pioneer Store ’ for the money, it having been endorsed by ‘ Pioneer Store ’ and placed in the bank to their credit.” Daniel Joseph testifies that he knows the draft was presented for acceptance and payment, and that it was not accepted or paid. J. W. Woolfolk, a . witness for plaintift, says: “ The draft was presented to me for acceptance, and I declined to accept it; it was, when due, presented tor payment, and I declined to pay it. The reason why I declined was, Mr. Salomon was at the time largely indebted to me, and I did not care to increase his indebtedness. Salomon had a running account with me when the draft fell due. He had notified me per mail of the shipment of about twenty bales of cotton, but which had not been received up to that time.” “I had written Salomonto draw no more drafts on me, as he then owed me about $1,000.” Witness was not positive whether he notified Salomon of his non-payment of the draft or not, but thinks he did. Says Salomon knew it 'would not be honored, because he had written him before that to draw no more dz’afts on him. On his eross-examinatiozz this witness says: “ Twenty bales of cottozi were turned over to my agent, Mr. Alexander, at Haywood’s Landing, and shipped in name, nineteen bales of this cottozi was received on December 16, December 21, Januaiy 3; the last bale was never l’eceived.” Mr. Lewis for plaintiff testified that he was a shipping merchant at Haywood’s Landizig on the Chattahoochee. Defendant had at his landing in eai’ly part of December, 1880,18 or 20 bales of cotton with instructions to ship to J. W. Woolfolk, of Columbus, Ga. About December 14,1880, defendant and a Mr. Alexander came there and the cotton was turned over to Alexander as agezit of Woolfolk, and by him shipped to Woolfolk. Some of the cotton had remained there for some time, perhaps a month; could not be shipped on account of low water in the river.
*631The plaintiff here rested his case, and the defendant was sworn in his own behalf, and testified in substance as follows : When I drew the draft December 4 I expected it to be accepted and paid. I had cotton in transitu to the drawee. I did not receive a letter from Woolfolk notifying me of the non-acceptance or non-payment of the draft. Never received a letter from him telling me not to draw upon him before I drew this draft.
On his cross-examination he says: “ When I say I had cotton in transitu to Woolfolk I mean that I had sent it from here to Haywood’s Landing, on the river, to be shipped. I had at Haywood’s 17 to 23 bales of cotton. On December 14,1880, I turned the cotton over to Mr. Alexander to go on my debt to Mr. Woolfolk. Nothing was said about the draft. The cotton did not pay Mr. W. all I owed him. There is a small balance still due him. I included him in my assignment as one of my creditors to the extent of $300. I now owe the draft in suit, have never paid it. When I drew the draft I had between 17 and 23' bags of cotton in transitu consigned to Woolfolk, and never had the slightest doubt but that it would be honored and paid when due, and thought that it had been paid or accepted at the time I made my assignment on the 14th December, 1880, and therefore included Woolfolk in my assignment, supposing that on a final settlement there might be due him a few hundred dollars, as I had drawn another draft on him after the one sued upon. Had I known that Woolfolk had refused to accept the draft I would not have included him in the assignment, and would have taken steps to have stopped the cotton. I knew nothing about the non-acceptance of the draft until this suit was commenced. The draft was not protested, nor had I received any notice from any one that it had not been accepted and paid up to the institution of the suit, in fact have not yet *632received any notification from 4 Pioneer Store ’ or Isaac Joseph that it has not been paid: I had a running account with Woolfolk, and he frequently honored my drafts when I had no funds in his hands to meet them. I had notified Woolfolk of the shipment of the cotton at the time I drew the draft or before.”
“ There was no evidence introduced upon the part of the plaintiff to sustain the second count' in the declaration.
The charge of the court to the jury in this case is not embodied in the record, therefore it is presumable that the court gave to the jury correct instructions in regard to the law of the case.
This bill is a foreign bill, being drawn in Marianna, Fla., payable in Columbus, Georgia, the drawer being a resident of Florida, the drawee a resident of Georgia, and the payment to be made in Georgia. 1 Daniel on Neg. Inst., §9, 2d Edition, and citations ; Buckner vs. Finley et al., 2 Peters, 589 ; Phœnix Bank vs. Hussey, 12 Pick., 483 ; Hall & Co. vs. Davis, 41 Ga., 614; Wells vs. Whitehead, 15 Wend., 527 ; Ticonic Bank vs. Stackpole, 41 Maine, 302 ; Bank U. S. vs. Daniel, 12 Peters, 32 ; State Bank of Ind. vs. Hayes, 3 Ind., 400.
This being a foreign bill, was protest and notice necessary ? Kent Commentaries, Vol. 3,117, lays down the rule as follows: 44 The demand of acceptance of a foreign bill is usually made by a Notary, and in case of non-acceptance he protests it, and this notarial protest receives credit in all courts and places by the law and usage of merchants, without any auxiliary evidence, and it is a requisite step, by the custom of merchants, in case of the non-acceptance or non-payment of a foreign bill, and must be made promptly upon refusal. It must be made at the time, in the manner and by the persons prescribed, in the place where the bill was payable. It is sufficient, however, to note the protest *633on the day of the demand, and it may.be drawn up in form at a future period. The protest is necessary for the purpose of prosecution, and it must be stated and proved in a suit on the bill.” In Daniels on Neg. Inst., §7, it is said that “ the chief difference between foreign and inland bills is this: The former must be protested in order to charge the drawer, while the latter need not be.” Again in the same work in §579, the author says : “ But in respect to foreign bills which are dishonored by refusal of acceptance ór payment, the liability of the drawer and endorsers can only be preserved by a protest and notice. Notice alone being necessary in the case of inland bills.”
In the case of the Phœnix Bank vs. Hussey et al., 12 Pickering, 483, the court says: “ It is a well settled rule founded upon the custom of merchants that whenever notice of the non-acceptance or non-payment of a foreign hill of exchange is to he proved, a protest is indispensably necessary, and cannot be supplied by witnesses or in any other way.” See also 3 Ind., 400, supra.
The counsel for appellant insists that the drawer of a draft is not discharged from his liability thereon by want of notice of non-acceptance or non-payment unless he sustains injury thereby. The rule in such cases has been clearly established by this court in Pitts vs. Jones, 9 Fla., 519. In that case this court says: “We are satisfied we may safely adopt the rule as before quoted from Judge Story in his work on Bills, 311, as the. true rule on this subject. That ruling is, ‘ although the drawer has no funds in the hands of the drawee, yet if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawree in consequence of any agreement or arrangement with him, or if upon taking up the hill he would he entitled to sue the draicee or any other party on the bill, * * *634then in every such case he is entitled to stick notice of the dishonor.’ ”
The jury have applied the facts in this ease as furnished by the witnesses before them to this rule so laid down by this court. The evidence, as the counsel for the appellant admits in his argument, was conflicting, and the jury have found for the defendant. The defendant clearly testifies that when he drew the draft he had between 17 and 23 bags of cotton in transitu to the drawee, and never had the slightest doubt but that it would be honored and paid when due, and that he had no notice of its dishonor from any person up to the time of the commencement of the action upon it; that had he known that the drawee had refused to accept the draft he would not have included him in his assignment, and would have taken steps to have stopped the cotton. The jury have by their verdict said that the defendant came within the rule as laid down by this court in 9 Fla., supra.
¥e cannot say that upon the evidence the jury erred in their verdict, or that the court was in error in overruling the motion for a new trial.
The judgment is affirmed.