delivered the opinion of the Court.

The appellee in this Court, having'abandoned his appeal from the ruling below, striking out the plea of limitation, the only question for our review is as to the instruction upon the appellee’s prayer, that there was no evidence in the cause upon which the plaintiffs could recover.

The cause of action was described in the short note-required, in a proceeding originating in attachment, which substantially alleged the non-payment of a check, for the sum of $128, bearing date at Clarksburg, West Virginia, 22nd May, 1861, drawn by the appellee, on the Bank of Phillippi, Virginia, and payable to John J. Davis, or order, and by him endorsed to the plaintiffs, for value, and which was unpaid by the Bank.

The defendant denied any indebtedness.

There was evidence that the check was drawn and endorsed, as alleged, and that the same was never paid by the defendant; that it was never presented to the Bank for payment, because the Bank, about the time the check was given, had been removed, and that by reason of the civil war at the time and the interruption of mail communication between Baltimore and Phillippi, the check could not be presented — that the check was given in payment of a debt due by the defendant’s brother, of whom he was said to be executor, with assets.

There was no proof that the Bank had not resumed business after the termination of the war, and might not have paid the check, but there was no evidence that the plaintiffs ever afterwards made any presentation of the check to the Bank, or that the defendant had no funds there to meet the check; nor was there any proof that notice of any sort was given to the defendant of the nonpayment.

In Moses vs. Franklin Bank of Baltimore, 34 Md., 574, it was decided that a check of this description possesses *491properly certain incidents of an inland bill of exchange, and could be protested for non-payment.

Notice.of non-acceptance and non-payment is required to be given that the drawer may take any necessary steps to protect his interest, under the circumstances, and if notice be not given, it is the presumption of lav? that he is injured by the omission.

In the application of the principle Courts must enquire into the liabilities of the respective parties to the check, for the purpose of ascertaining whether this injury, either actual or presumptive, could take place.

The drawer who has no effects in the hands of the drawee, is not entitled to notice. Clopper s Adm’r vs. The Union Bank of Maryland, 7 H. & J., 102; Eichelberger vs. Finley & Van Lear, 7 H. & J., 381.

The general rule is, that the holder in order to charge the drawer, is bound to present the check for payment, and to give notice to the drawer, within a reasonable time, unless these requisites are waived. Chitty on Bills, 379.

If due diligence is not used by the holder of a check, and loss ensues, it falls on the holder, by whose laches it has occurred. Story on Prom. Notes, sec. 493. If the plaintiff's could not present the check during the war, they might have presented it afterwards, or shewn some reasonable excuse for not doing so, and have given notice to the drawer. — Lex non cogit ad impossibilia.

If a bill cannot be presented in due time from some inevitable accident not involving the holder in any blame, as the occupation of the country in which the bill is drawn, by an enemy, rendering the presentment an impossibility, the delay will be excused; but the earliest possible presentment must be made when the impediment ceased, Chitty on Bills, 53.

Assuming that the circumstances relied upon in the proof were sufficient to excuse the plaintiffs for uon-pre*492sentátion of the check, certainly it was but just that they should give the defendant notice of the non-payment in reasonable time, before they brqught their action, or to ■have shown that the .defendant sustained no injury in consequence.

In the case stated in Woods vs. Schroeder, 4 H. & J., 276, although the drawers of the .check had given notice to the Bank not to pay the check ; from abundant caution and to guard against any inference of laches against the holders, it was alleged that the ¡drawers wqre notified of the dishonor of the check.

The case of Eichelberger vs. Finley, 7 H. & J., 381, very distinctly recognized the necessity of notice of the non-payment of the check to the drawer, unless some sufficient excuse .be shown for dispensing with it, as if the drawer at the time when presentment should be made, had no effects in the hands of the drawee, or having such effects, should withdraw them before presentment, and should have no reasonable grounds to expect that his bill would be honored. The .plaintiffs’ case-was fatally defective in failing to furnish the material evidence-to. show the defendant’s liability, and we therefore find no error in the instruction given by the Baltimore City Court.

Judgment affirmed.