¶1charged the jury. The argument, founded on the idea of the plaintiff being the agent of Niblie, is ingenious, and would be sound, if the case would bear it out. If the plaintiff had not been the creditor of Niblie, we might have considered him as his agent. But, as the case is, it is nothing more than a promise by the defendant, to pay to the plaintiff, a creditor of Niblie, a debt due to him by Niblie, and the bill is evidence of this promise. It is of no consequence, if the defendant, instead of having paid a part, had previously ■discharged the whole of his debt to Niblie; he is still bound to fulfil his engagement to the plaintiff. Verdict for plaintiff, for his whole demand.
2 F. Cas. 461
Baker v. Gallagher
Decided October 15, 1806
United States Circuit Court · decided 1806-10-15
<p>Case No. 768.</p> <p>Negotiable Instruments—Demand, Notice, and Protest — No Funds in Hands op Drawee — Special Demurrer—Suit before Due.</p> <p>1. When the drawer of a bill of exchange has no funds in the hands of the drawee, neither protest nor notice of non-acceptance or non-payment to the drawer, is necessary to enable the payee to recover.</p> <p>[See Volk v. Simmons, Case No. 16,815; Cox v. Simms, Id. 3,306; Fenwick v. Sears, 1 Cranch, (5 U. S.) 259. For distinguishable case, see Mackall v. Gossler, Case No. 8,835.]</p> <p>2. The payee must either state that the bill was protested, or show that it was not incumbent on him to protest it, because the drawer had no funds in his hands to pay the bill; but this omission can only be taken advantage of by special demurrer.</p> <p>3. Where the drawer had no funds in the hands of the drawee, an action may be brought by the holder, upon the bill, before the time it would be payable, if it had been accepted. It may be brought immediately on non-acceptance.</p>
[Verdict and judgment for plaintiff · Decided 1806-10-15