#### JOHN BROWN v. J. W. TEAGUE.

The liability of the drawer of an order, is a,conditional one, dependant on presentation and notice of the drawee’s failure to pay; a promise by a drawer, therefore, to pay the payee of such order, without his having made such presentation and given such notice, is without consideration and void.

This was an action of assumpsit, tried before Heath, J., at the last Spring Term of Macon Superior Court.

Tlie plaintiff produced an order in the following words: “ Mr. ~W. T. Coleman, please pay John Brown thirteen dollars, 31 cents, and by so doing yon will oblige your friend, this 21st February, 1851. J. W. Teague.”

The plaintiff declared on this order, and on a new promise to pay the same. The defendant pleaded the “ general issue aud statute of limitations.” To the former plea there was a general replication ; to tlie latter, a special replication that the suit was brought within less than three years after a new promise to pay the order.

Th^ plaintiff proved the order and showed that less than a year before the bringing of this suit, the plaintiff asked the defendant to pay him the amount for which the order was drawn; to which the defendant replied: “ Produce the order and I will pay it;” that the plaintiff then took out his pocket-book and produced the order; that then the defendant said, “ I will not pay it;” that the plaintiff said, “ then I will sue you;” to which the defendant responded, “ if you sue me, I will not pay it, and if you do not sue me, I will not pay it,” whereupon this action was brought. There was no evidence of presentment, acceptance or protest of the order, and the defendant insisted that plaintiff was not entitled to recover, and asked his Honor so to instruct the jury, but he declined so to instruct, and told the jury, if the evidence was believed, it justified them in giving a verdict for the plaintiff. To which the defendant excepted.

Yerdict and judgment for the plaintiff, and appeal by the defendant.

*574 lleivry, for the plaintiff.

Merriman, for the defendant.

Manly, J.

We do not think the action can be sustained, either upon the count on the order, or the count upon the express promise.

The drawer’s liability upon the order is a conditional liability, dependent upon presentation to the drawee and notice of his failure to the drawer. Such a precedent action is indispensible to fix a responsibility upon the latter. As this has not been done, the count upon the order against the defendant, is not supported.

It follows that the express promise, taken in the strictest sense against the defendant, and regarded as an absolute promise to pay, is without consideration, and of no binding force between the parties to it.

It would seem unnecessary, therefore, to consider the ques■tions whether, what took place amounted to a promise at all, •and if so, whether it was such as would support the action. It will be perceived the alleged promise and ultimate refusal were one and the same conversation, with no other interruption to the parts than the time, necessary to get a paper from the pocket-book ; and it would, therefore, seem more consist■ent with established principles of interpretation to take it altogether, as one continued negotiation, and construe it accordingly. Defendant, at one time, says “ I will pay it.” In the next moment, for some reason not explained, but which might, probably, grow out of the exhibition of the paper, he reverses his declaration and says, “ I will not pay it.” The dealings of mankind with one another are not exactly in the nature of a game, in which a false move is irrevocable; but rather in the nature of a conference, where a party may, after all lights are thrown upon a matter, re-adjust his views and modify or reverse promises or undertakings made in the course of it.

But without relying upon this, or upon the lapse of time from the drawing of the order, until it was brought back, '•(which last, we should feel bound to give consideration to, *575were it necessary to the decision of the cause,) we are of opinion the action cannot be maintained on either count, for the reason that there is no consideration to support the assumpsit in either case' — the maker’s order, without proof, not importing any. The judgment below should be reversed, and a venire 'de novo awarded.

Per Curiam,

Judgment reversed.