Cashman

— This action is by the payee against the drawer of a bill of exchange, of which the following is a copy: —

Of the defenses pleaded, two are alternately insisted upon here, viz.: 1. That the instrument was intended to effect merely an equitable assignment of a portion of a fund, and therefore is not what it purports to be; or 2. That if it be considered and treated as a bill of exchange, there was no presentment of it to the drawee for payment, and no notice to the drawer of its dishonor.

To excuse the non-presentment for payment, it was alleged in the complaint, and found by the court: “ That the defendant, at the time of drawing said bill as aforesaid, had no reason to believe that R. S. Howland, the drawee therein named, would accept or pay the same, and defendant at said time well knew that said drawee had no funds in his hands due or owing to defendant.”

The court also found that “ the said bill was not *299 intended as an assignment of a portion of any fund whatsoever,” but that “ said bill was executed by defendant in settlement of a liability to plaintiff theretofore incurred by defendant under a certain bond, and said liability existed in full force as a cause of…