The case was continued for advisement, and the opinion of the Court was afterwards drawn up by
Emery J.This is a suit for money had and received, as stated in the first count. In the second count is set forth a check on the *37Cashier of the Commonwealth Bank, dated Nov. 6, 1830, directing the Cashier to pay to W. True, or bearer, one hundred forty dollars, signed by the defendant, and averring a demand, refusal of payment, and notice to the defendant. No proof of presentment of the check for payment, or notice of its non-payment was exhibited. A nonsuit was directed in the Court of Common Pleas. And the question now is, whether the plaintiff can sustain his action on the proof that he does exhibit in the testimony of the Cashier of that Bank — That ‘-'it doth not appear by the books of said Bank, that said Thomas had any funds therein on the 6th of Nov. 1830. That he should not have paid the check if presented at the Bank, if Thomas had no funds there deposited. That it does not appear by the books of the Bank, that said Thomas ever deposited any money in the Bank, and the deponent has not any recollection of his having done so at any time.”
Under these circumstances there is prima facie evidence, that there was no reasonable expectation that the funds were in the Bank on which the check was drawn, at the date of the check. On such a state of facts it is not necessary for the holder to present such a check at the Bank for payment, in order to sustain an action upon it. The drawing of it, unexplained, must be deemed a fraud, depriving the drawer of all right to require presentment and demand of payment. Franklin v. Vanderpool, 1 Hall’s R. 78.
The plaintiff ought to have been permitted to present his case to the jury. The exceptions are therefore sustained, and a trial may be had here.