delivered the opinion of the Court.
As to the bill of Exceptions — The last part of the instructions to the Jury, “ that, if from the evidence, they be- “ lieved that the defendants had assumed the payment of the “ money, without any mistake as to their legal liability,”.we conceive to be correct: but to this part of the charge only, the many authorities cited for the defendants in Error apply. On the issues joined and evidence given, the implied as well as express assumpsit was to be tried, and the Court could not determine whether the verdict would be found on the evidence of one or the other. Admitting that the drawer is chargeable without notice, if at the time of drawing he has no effects in the hands of the drawee — what were here the effects of Andrews and Harrison in the hands of the drawees ? Not the Company’s funds which their agents or Trustees might then have in possession — but the money which the Company owed to the drawers. Andrews and Harrison endeavour by the Bill to transfer a part of this money into the hands of Baggs, Cochran and Co. If their Bill was not paid, notice was surely as necessary as in any other case, in order that they might take the necessary steps to collect the debt due to them from the drawees. (Chitty on Bills, 257. 2 Bos. and Pull, 280.)
The case seems to have been considered as if the effects of the drawers in the hands of the drawees, and the funds of the Company in the hands of their Trustees, were here convertible terms. The Bill does not appear to have been drawn with reference to the circumstance of the Trustees having or not having funds of the Company in hand. If the drawee be wholly insolvent, the drawer, for obvious reasons, is still entitled to notice. The holders were not bound to receive the conditional acceptance ; having received it, they must abide by its terms. If they would have charged the drawers as in case of non-acceptance, they should have given them immediate notice of the terms of the acceptance offered. (Chitty on Bills, 235, 271, &c.) *176For these reasons we think that the Circuit Court erred in instructing the Jury — “ that if from the evidence they “ believed that the Trustees had not funds of the Company “ in their hands when the order was drawn, or at any time “ since, the plaintiffs were not bound to demand payment “ of the acceptor, or give notice to the defendants.” Nor should, we think that instructions, as asked by the defendants, would have been correct, inasmuch as by such charges, the Jury might have been induced to lay out of view all the evidence as to the promise of Andrews, and to consider the demand and notice of non-payment as the sole grounds of liability. As to this, the charge should have been — That the plaintiffs, to recover solely on the implied assumpsit (and independent of the express assumpsit charged) must have proved that after the acceptors had received funds of the Company sufficient to pay the Bill according to the terms of their acceptance, the holders had demanded payment, and given to defendants legal notice of non-payment. In this opinion the Court are unanimous.
The judgment must be reversed and the cause be remanded.
Judge Ellis not sitting.