Argument for the appellant.

tice to the drawer; and this legal diligence can only be dispensed with by proof (on the part of the plaintiff, of course) that the drawer had no funds or effects in the hands of the drawees at the time the draft was payable." (Cole v. Wintercost, 12 Texas, p. 120.) "Whether it be a commercial instrument or not, the undertaking of the parties is that the payee will make some attempt at collection." (Pridgen v. Cox, 9 Texas, p. 368.) "There was in this case no acceptance, and no necessity for presentation for acceptance, the bill being in legal contemplation payable on demand. Presentment for payment alone was necessary." (Campbell v. Wilson, 6 Texas, p. 396.)

This last is just our case. The above authorities are certainly sufficient to establish our position as to the necessity of a presentation. This being established, the next question that arises is, when should a presentation have been made? The payees and drawees to this bill lived in the same city. The law requires a presentation within a "reasonable time." What was a reasonable time in this case-both parties living in the same city? The authorities all say twenty-four hours after the delivery of the bill, unless there are usages of trade or other circumstances to justify a longer delay. No such usages or circumstances were proven or appear in this case. To sustain this position it is sufficient to cite the following authorities: Chitty on Bills, p. 380; Byles on Bills, p. 259; Chambers v. Hill, 26 Texas, p. 473.

The next question that occurs is, were the appellees in this case exempt from the necessity of exercising "legal diligence?" It may be claimed by appellees' counsel that the failure of Hoffman, Musick & Co., on the eighth of November, 1869, thirty-eight days after they received the bill, would exempt them from the necessity of presenting

Argument for the appellant.

it for payment, that it would have been a useless formality.

We have shown that "legal diligence" in this matter required them to present it for payment within twentyfour hours after its delivery, which would be, by a liberal calculation, on the second day of October, 1869. Did they know on that day, or any time up to the eighth of November, that the drawees were insolvent? Mr. Scott testifies that after he became the assignee of the drawees he then saw from an examination of their books that they had been insolvent many months before the eighth of November, but the public did not know this. The appellees had no reason to doubt the solvency of the drawees. Mr. Scott, from whom the only testimony on this point was obtained, says he had never heard of their failing condition until the eighth of November, nor had he ever heard anything to that effect-not even a rumor. The deed of trust was not of record. Then how can the appellees claim this as an excuse for not exercising "legal diligence?"

Even the failure or insolvency of the drawee, when known (except probably in the case of a bank), will not exempt the payee from the necessity of a presentation. (Byles on Bills, 252, and cases cited in note c.) We have shown in the case of Cole v. Wintercost, 12 Texas, p. 120, that this "legal diligence," to-wit, "presentation" and "due notice to the drawer," can only be dispensed with by proof (on the part of the plaintiff, of course), that the drawer had no funds or effects in the hands of the drawee at the time the bill was payable. We will quote still further from the same case, page 123: "Now it is the law that when the holder of the bill undertakes to excuse himself from the rule requiring strict notice of non-acceptance and non-payment, on the ground that the bill was drawn without funds, the burden of proof is upon him,

Argument for the appellant.

and he assumes the laboring oar to bring himself within the exception. And it is a presumption of law that the drawer had funds in the hands of the drawee when the bill was drawn."

The appellees have made no such proof, and of course are not exempt, for this reason, from the legal consequences resulting from their failure to exercise "legal diligence" in the premises. What are those consequences? The relief and discharge of the appellant from all liability on account of the bill of exchange sued upon. The law in this matter wisely reasons, that because of the laches and negligence of the appellees in the premises the appellant has been damaged—has been caused to lose the sum of money called for by the bill of exchange executed and delivered to them.

Second. Even had a demand or presentation for payment been made and proven, due notice of the dishonor of the bill should have been given to appellant, in order to fix his liability. The necessity of giving notice of the dishonor of a bill we have sufficiently and clearly shown in the discussion of the first point made by appellant, and we need only refer to the authorities there cited. Notice is a part of the "legal diligence" imposed by the law in such matters as this under discussion. The necessity of due notice being established, the question occurs, how and when shall it be given, and what constitutes "due notice?" Under our statute the liability of the drawer of a bill of exchange is fixed by giving notice in two ways, first, by suing the acceptor at the first term of the court, etc. (Paschal's Digest, Art. 229.) This method cannot apply to the case at bar, since there is no acceptor to be sued, the bill being payable upon demand. The other method is by protest and notice (Paschal's Digest, Art. 232), and there can be no doubt but that the appellant should have had notice by

Argument for the appellant.

this method. At what time should it have been given? We have shown above, that when both payee and drawee live in the same city, demand for payment should be made within twenty-four hours. The law requires notice of dishonor to be made within the same time, to-wit, twenty-four hours after dishonor. (Byles on Bills, pp. 327 and 328, and cases cited in note 1.)

We have now conclusively shown what constitutes "legal diligence" in the matter of "demand" and "notice." The record discloses the fact that this suit was instituted eighteen months after the delivery of the bill of exchange. The appellees prove neither "demand” nor "notice." What then must be the inevitable and legal conclusion in the premises? It can be nothing else than that the appellant is and must be discharged and relieved of all liability on account of this bill of exchange, he having been damaged and forced to lose (as the law, after ages of experience, wisely presumes) the sum of money called for by it.

This loss the law presumes (vide last quotation from Cole v. Wintercost, 12 Texas, 123; numerous other authorities could be cited, but it is not necessary, so elementary is the principle), but we are not compelled to rest alone upon this legal presumption (although it is amply sufficient to give us the case), for it is in proof that more than ten per cent., probably as much as twenty per cent., could have been secured at any time up to the trial of this cause, and afterwards, but for the negligence of the appellees. The appellant could not secure it; he had transferred his right to the appellees. The facts in this case amply vindicate the wisdom of the law in presuming damages under such circumstances a presumption that lies at the very foundation of all commercial transactions, and which, more than any other principle of the law merchant, begets and engenders and keeps alive that vigi

Argument for the appellees.

lance and promptness so important and so vitally essential to commercial success.

Third. The appellant having been relieved of all liability on the bill of exchange because of the course of conduct pursued by the appellees, can it be possible that they have the right to recover the same money under their count in assumpsit for lumber bought and sold, which transaction was the foundation of the bill and in payment of which the bill was given, and which gave rise to and was the cause of its execution and delivery to the appellees? Why did the law exempt the appellant from paying the bill of exchange? Because it presumed that he had been damaged that much-that he had lost that much. Now, will the law compel the appellant to pay the same amount, the same debt (changed only in name), to the appellees when they ask it upon an open account, thereby causing the appellant to suffer a loss of double the original debt, to-wit, loss sustained on bill of exchange by negligence, and amount paid on open account? The law will do no such thing. It would be a mockery of justice; it would be a contradiction. The law would be made to say, "you are relieved of all liability in this matter, and you are not relieved." It would be announcing in one breath the appellant's discharge, and in the next directing, upon the same subject matter, his rearrest. The cases cited by the appellees to sustain their view of 'the case in this particular all show that the plaintiff had never by his laches (as in this case) lost his right to recover upon the draft or bill, and therefore they have no pertinency or applicability to the case at bar. Counsel for appellant respectfully submit that this case should be reversed and dismissed.

Spencer & Stewart, for appellees, cited 6 Texas, 163, McNeill v. McCamley; 6 Harris & Johnson, Maryland