The opinion of the Court was by
Whitman C. J.— The case shows that the defendant, at the time he drew the draft declared upon, had no funds in the hands of the drawee, so that the plaintiff has realized no part of his demand from that source. In such case a demand on the drawee, and notice of non-payment by him, need not be proved; unless the drawer had reasonable ground to expect that his draft would, nevertheless, be duly honored; and this, if relied upon by the drawer in his defence, should be shown by him. For this purpose, at the trial, he introduced an agreement in writing, signed by the drawee and himself, dated Sept, 10, 1835, in which the drawee stipulated, upon certain terms and conditions, to transfer the one half of certain “ notes and cash, received by him of Asa Hanson and others.” He did not show that, at the time of drawing the draft, or within a reasonable time thereafter, he had complied with any of those terms and conditions; and therefore did not show that he could reasonably have expected the draft would be paid.
The letters which were introduced, probably, as tending to show something of the kind, bear date, July 14 and 23, 1836, *497nearly six months after the time, when the draft might have been expected to be presented for payment; and therefore show nothing of the kind; but rather the contrary ; for no allusion is made, either in the letter of Irish, the drawee, or in the reply of the defendant, to any receipt of money by the former. They both refer solely to certain notes of which a division was proposed. There does not, therefore, seem to be any ground upon which the defendant can honestly or legally resist the payment of the amount due on the draft.
Exceptions overruled — Judgment on the verdict.