If the jury believe the evidence in this case, my opinion is, that the plaintiff is entitled to recover. No notice is necessary where the acceptor has not in fact, or in the expectancy of the drawer, any funds in his hands at the- time of payment, nor had entered into any arrangement with the drawer at all events to pay the bill. In the present case, if the evidence is believed, the defendant, without any notice to Mott of the existence of this bill, withdrew all the funds in his hands before the acceptance, and has since intercepted all funds which might have come into his hands to pay it. What right can he then have to demand notice? He withdraws the fund without any notice to the drawee of the fact, that he has drawn on him; he prevents other funds from coming to his hands, and he provides no means of payment. He is then, to say the least of it, in the predicament of a party, drawing without funds, and having no right to expect his bill to be paid.
Verdict for plaintiff.