delivered the opinion of the court.
The plaintiffs’ claim part of the price of a steam-boat sold to the defendants, and they-allege, that as evidence of the debt thus contracted, one of the. defendants gave to them drafts oh the other, payable at different periods; and although the day of payment of one of them is passed; it lias neither been accepted nor paid.
The defendants pleaded severally the general issue. There was a -judgment of non-suit against the plaintiffs, and they appealed.
The record does not show that the bill was presented for . n . .. , „ r , . -acceptance nor for payment, until two days after the expiration of the last day of grace. It is, therefore, clear, that the plaintiffs, by neglecting to use that legal diligence which the 1 • . IT „ , ° , law imposes on every holder of a bill of exchange, has lost all claims against the drawer, on whom he has now no greater right to-recourse, than if the bill had been paid; unless he had alleged and proved, that the drawer had no funds in the hands of tbe drawee. The drawer is always presumed to have funds in the hands'of tbe person on whom he draws, and has a right to require that the payee should present the bill for payment on, the last day of grace, and on failure of payment have it protested, and legal notice given. The plaintiffs, therefore, failed to establish any claim on the bill against tbe drawer. They failed also to show that the drawer had any authority to purchase the boat for his co-defendant, tbe drawee. They were, consequently, correctly non-suited.
They had caused the boat to be sequestered, in order to secure their claim. Other claimants intervened and claimed privileges on ber ; she was sold, and some of those interve-*392nors obtained judgment for the payment of their claims out of the proceeds of the sale. From these judgments the plain tiffs-have also appealed.
Where the ven-boat tíkeí mi of exchange for me price, reset-ving a privilege on\he1 boatfato anT^he^UMs not paid, by the holders to use the*1 mortgage’ which is hut an accessory to the debt, is extin-gnished with it.It appears to .us. the plaintiffs have no right to do so. ‘ ,1 , ' , , 1 hese judgments are against the proceeds of the sale. I hese proceeds were, until these judgments were -rendered, the property of the owner or owners of the boat. He or they, alone, are entitled to attack these judgments,
The record shows, that the plaintiffs were once the owners of the boat, and all their interest in it passed by their 7 1 ^ sale to the defendants. It is true, the plaintiffs reserved to themselves a privilege or mortgage for seeming the payment °f bill of exchange, which they received for the first instalment of the price. This privilege or mortgage being an accessory of the debt, ceased to exist when the ^ebt itself was extinguished, by the plaintiffs’ neglect to use legal diligence in regard to the' bill. They are, therefore, . , , , . _ , . without any interest in the boat, or the proceeds or the sale,
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.