¶1THE petition presented in this case, asks for a rehearing, on the ground, that in the opinion rendered herein we were mistaken in supposing that HarVie> without proving notice to Frazier, of the protest of the hill of exchange, might haveentitled himself to recover, upon proof that Frazier had no funds in tlie hands of the drawer. It is not denied by the petition, that Frazier would be liable, although he might not have received nóticé of the dishonor of the bill, ifiri fact he had nojkmds in the hands of the drawee; but it is contended, that he should have been charged in the declaration on that ground, and that it contains nó allegation to that effect.
¶22. We would readily concede, that If there had been ¡no such allegation in the declaration, it would have been indispensably necessary for Harvie to have prov. ed the noticé óf the protest, as laid ; but we cannot admit, that the declaration does not contain a suffi cient averment of Frazier’s not having funds in the hands of the drawee, to charge him on that ground. The declaration, after setting out the bill, endorse ments and presentment óf the bill, states, the cashier, who was the drawee, was requested to pay the sum of money in the said bill of exchange specified, accord ing to the tenor and effect thereof; “ hut that the said cashier of the said United States’ Branch Bank then and there wholly refused and neglected to pay the same, or any part thereof, the said George W. Frazier. the drawee of the said bill, having no funds in the said bank.” The declaration then proceeds to state.the protest and notice, and concludes m the usual torm.
¶3The latter part of the quotation from the declara. tion, we understand to he a distinct averment, that Frazier had no funds in the bank; and, from the nature of the case, is equivalent to an averment that he !>ad none in the hands of the cashier, upon whom the bill was drawn; and although the averment is not as *186circumstantial as it might have been> it is, we apprehend, substantially good, and sufficient to let in proof of the fact, with all its circumstances.
¶4We are still, therefore, of opinion, that although Harvie did not prove on the trial, notice to Frazier of the protest, he might have entitled himself to recover, on the ground of the want of funds in the hands of the drawee; and as the bill of exception does riot purport to state all the evidence given on the trial, Wé cannot say that the circuit court erred in refusing to instruct the jury to find for Frazier.
¶5The petition must, therefore, be overruled.-