dissenting. The petitioner alleges, that the defendant is indebted to him $370, with five per cent damages and interest, because the said defendant, in April, 1842, drew a bill of exchange on Barnard, Adams & Co., residing in Boston, payable one hundred days after date, to the order of said petitioner, which, when it became due, was not presented for acceptance, in consequence of an agreement made by said defendant, prior to its maturity, that said bill would afterwards be paid by him, or that he would authorize the drawees to pay it, they having, at the time the bill became due, and long afterwards, a sufficiency of funds belonging to the defendant to pay the same, which he had deposited there for said purpose, and which he, (petitioner,) considers *281as belonging to him. The petitioner further represents, that some time after the maturity of the bill, it was presented for acceptance and payment, but the drawees refused to do either, because the defendant had, between the time of the maturity of said bill, and its presentation, received the balance of his account, whereupon it was protested for non-payment, and notice given accordingly. The plaintiff attached property of the defendant’s, who is a non-resident, and prayed for a judgment.
The real facts of the case are : that on the 6th of April, 1842, the defendant drew a bill in favor of the plaintiff, at one hundred days after date, for $370, to be charged to account of pork and lard. The bill was not presented for acceptance, or payment, previous to maturity, nor on the day of its becoming due. About fifteen daj^s after the day of payment, the plaintiff met the defendant in New York, when the former told the latter, that the bill had not been forwarded for acceptance ; whereupon the defendant said, that he had recently returned from Boston, and had drawn out of the hands of the drawees all the funds they had realized up to that time, on the produce they had in charge for him ; but if he, (plaintiff,) would hold up the bill, without presenting or protesting it, as it could not then be legally done, he, (defendant,) would pay it as soon as he could spare the funds ; but no unconditional promise was ever made to pay. It is not denied, that at and previous to the maturity of the bill, the defendant had funds in the hands of the drawees.
There was a judgment for the plaintiff, and the defendant has appealed.
Chitty, in his Treatise on Bills, 6th ed. p. 245, says : “ it is settled, that the holder of a bill must present it to the drawee for payment at the time when due, when a lime of payment is speci-. tied ; and when no time is expressed, within a reasonable period after receipt of the bill; and if he neglect to do so, he shall not afterwards resort to the drawer or endorsers, whose implied contracts were only to pay in default of the drawee, and not immediate and absolute, and who are always presumed to have sustained damage by the holder’s laches,” which the law abhors. The doctrine is well established, that the holder of a bill must present it for acceptance before, or on the day of its maturity, or for pay*282ment on that day; and if not accepted or paid, that notice must be given to the drawer to hold him responsible. There are some circumstances which will excuse the presentation and notice of nonacceptance or non-payment, which the holder must establish, to make the drawer or endorser responsible. This court, in 12 La. 386, says “ where a bill of exchange is not presented for accep* tance, nor for payment, until two days after the expiration of the last day of grace, the drawer is released, unless the holder shows that the drawee had no funds of the drawer in his hands. The drawer of a bill is presumed to have funds in the hands of the drawee, and has a right to require that the payee should present it for payment on the last day of grace, and, on failure of payment, to have it protested, and legal notice given.” At page 402, of the same volume, the same principle is reiterated, and the court say, that the irregularities of the mail, which prevented the bill from arriving in season, will not excuse its non-presentation for payment, on the day it is due. In that case, the bill was received and presented two days after maturity, yet the drawer was held not liable. There are other cases which settle the jurisprudence of this, and all commercial countries, in relation to this question; (9 Johns. Rep. 121. 12 Ibid. 423. 4 Mass. Rep. 341); but it is unnecessary to cite them all. It 'is very certain, that if the drawer of a bill has no funds in the hands of the drawee, nor any reasonable expectation of having them at the time of maturity, he is liable, without presentation and notice ; but if he have funds, or if funds, or a consignment of goods, are on the way, and a reasonable expectation of their arrival in time, or if he has been in the habit of drawing bills on the drawee, although he have no funds, the drawer is discharged, unless a presentation at or before maturity, and a notice of dishonor is established. 3 Campbell, 217. 16 East, 43.
If the drawer of a bill withdraw his funds, previous to maturity, from the hands of the drawee, for the purpose of preventing payment by the drawee, neither presentment or notice is necessary to charge him. 3 Mason,. 113. 2 Nott & M’Cord, 254. Bailey, on Bills, 304. So, if he forbids the drawee’s paying it; or if he intercepts funds.which the acceptor expects to receive to pay it. But it cannot be now doubted, that if the drawer has funds in the *283drawee’s hands at the time of -maturity, that he is discharged, if the bill is not presented at that time, and, if not paid, protested, and notice given.
In this case the defendant had ample funds in the hands of the drawees, at the maturity of the bill, and, it not having been presented for payment, he was discharged from all responsibility, and being so discharged, he had a right afterwards to settle his account, and withdraw all his funds from the hands of his correspondents. Ne was not bound to leave funds in the hands of the drawees, to pay a bill for which they were not responsible, not having accepted it, and from all liability for which he had been discharged by the negligence of the holder. If the defendant was bound to leave his funds in the hands of the drawee in such a case, it seems to me, there is very little necessity for presentment and notice. The legal discharge from all responsibility is of little value, if the money is to be left to pay the bill, whenever it may suit the holder to call for it. It is, in fact, saying, that a man must leave his money to pay that, which the law says he is not bound to pay.
The case put by the counsel for the plaintiff, of an acceptor not being discharged by the bill not having been presented on the day of maturity, is not, in my opinion, applicable to the one before us. The acceptor is absolutely bound; he has funds ready; no notice, or protest is required to bind him ; and yet we see that if he sustained any damage by the delay, for instance, by a bank failing, or by a depreciation in the funds provided to pay with, it is the holder’s loss.
The counsel for the plaintiff, in his written argument, says, “that he does not rely on the defendant’s subsequent promise to pay, as supposed, but on his liability, because he received the funds of the plaintiff here, for his own funds in Boston, and afterwards took those funds, which he had sold, and now keeps them. That which he had assigned for value received, he afterwards appropriates to his own use, and says he will pay nothing.” This argument assumes, that, as the bill directs the amount to be charged to the account of pork and lard, it is an assignment of a portion of the proceeds of those articles in the hands of the drawees. It is, I believe, admitted by all, that a bill of exchange *284is not an assignment of a portion of a fund in the hands of the drawee ; and this court, in 13 La. 101, says, “ it is well settled, that where an order is drawn on a particular fund, for a part only, it does not amount to an assignment of that part, unless the drawee consents to the appropriation, by an acceptance of the draft.” 5 Wheaton, 285, 6. If it were true, that the drawing of a bill of exchange constitutes an assignment of so much of the fund drawn on, as is expressed in the bill, all the provisions of the law in relation to presentation and notice would be idle ceremonies.
My opinion is, that the plaintiff, by failing to present the bill for acceptance or payment previous to, or at its maturity, and by not having shown any sufficient cause to excuse his negligence, has lost all right to recover on it; and as his counsel admits, that he does not rely on the conditional promise to pay, I see no alternative but to give a judgment for the defendant.
Judgment affirmed.