Cruger v. Armstrong. [*6] tion of their partnership, on the 2d July, 1798. It was also *proved, that the defendants never had any consideration for the check, which was lent to Ffister & Macomb, for their accommodation, and had been passed by them, through a broker, to the plaintiff. The jury, under the direction of the judge, found a verdict for the plaintiff. A motion was made, at the last term, to set aside the verdict and for a new trial, which was argued by Hamilton, for the defendants, and B. Livingston, for the plaintiff. RADCLIFF, J. Three objections are made on the part of the defendants: 1. That the check could not be given in evidence under any of the counts in the declaration. 2. That it was incumbent on the plaintiff to show that he came lawfully to the possession of it. 3. That the plaintiff ought to have presented the check and demanded payment at the bank. With respect to the first objection, considering the check either as a bill of exchange, or a draft of any other description, the plaintiff would be equally entitled to give it in evidence under the money counts. It appears to be settled in practice, (1 Salk. 283; Str. 725; Burr. 1516; 6 Term Rep. 123; Chitty, 190, 191. 197,) that the payee of a promissory note or bill of exchange may, as against the maker or drawer declare for money lent, and give the note or bill in evidence. In the present instance, the bill or check was payable to bearer, and the plaintiff, whether the first, or a subsequent bearer, stands in the same relation as the payee of any other bill Whatever may The second objection is also untenable. formerly have been supposed to be the rule on this subject, I think the necessity of showing that the possessor is lawfully entitled to the bill, has been properly *dispensed [*7] with. The holder must, prima facie, be deemed to be the rightful owner; (Chitty, 51; Burr. 1516,) and it has, acVOL. III. 2 Cruger v. Armstrong. cordingly, been held, that he need not prove a consideration, except where circumstances of suspicion appear. The third objection appears to be more important. A check, although generally received as cash, when given in payment, is, in form and in reality, a bill of exchange. It possesses all the requisites of a bill and has been treated as such. It has been held to be negotiable and may be declared upon as a bill of exchange. (Chitty, 16. 7 Term Rep. 424.) It is therefore necessary to be presented for payment, and is generally subject to the same rules. The draft itself implies that payment is to be demanded of the drawees. The person who takes it, receives it on that condition. It is not a direct promise to pay by the drawer, as by the maker of a promissory note; but the drawer undertakes that the drawee shall accept and pay, and is answerable only in case of his failure. It is accordingly considered not as due from him, until such demand be made, and the drawee refuses pay ment. The cases on this subject, it is true, relate to checks drawn on private bankers; but I see no difference in principle, between the case of an individual banker, and an associated corporation of bankers. The general reasons are the same although the probability of a loss by the failure of the latter is more remote. On the evidence, there may be a doubt whether the defendants had sufficient funds in the bank on that day, for the payment of the draft. The want of funds may excuse the want of notice of the non-payment; but it cannot be a reason to dispense with the presentment or demand of payment. The drawees, without funds, might have paid it for the honor of the drawers. A demand is still necessary, and it is after the dishonor of the draft only, that the holder can require payment from the drawer. It is unnecessary, in the present case, to decide, within what *time such demand ought to be made, or what would be the effect presenting the draft for payment, even at this day. If such had been the case other circumstances might come into view, [*8] Cruger v. Armstrong. and present a question which it is not now material to examine. On the whole, I am of opinion, that a new trial ought to be granted. KENT, J. Checks are, substantially, the same as inland bills, and are negotiable like inland bills payable to bearer. (Chitty, 16, 17, 109, et passim.) Lord Kenyon, in a late case, (Boem and others v. Sterling and others, 7 Term Rep. 423,) said, he was satisfied there was no distinction between checks and bills; and in that case the check was declared upon as a bill of exchange, and so it was, also, in the case of Grant v. Vaughan, (3 Burr. 1516; Bl. Rep. 485;) in which it is called a cash note or bill. A check has all the requisites of a bill of exchange. Coming within the general rule of bills, the holder of the check in question was bound to prove a demand, or due diligence to get the money of the bank on whom the check was drawn. The bank was first to be resorted to, and the drawers of the check were only to come in aid of the default of the bank. In the cases of Grant v. Vaughan, and Boem and others v. Sterling and others, to which I have already alluded, the holders of the checks first demanded payment of the bankers on whom they were drawn, and then they resorted to the drawer. It seems to be admitted, on all hands, that a bankers' check must be presented for payment in a reasonable time, otherwise, the holder takes upon himself the risk of the banker's responsibility; and, then, says one of the cases, (1 Ld. Raym. 743,) if a banker will not pay it, it will charge him who gave the note. This universal admission seems to me pretty decisive, to show that it is the duty of the holder to present it for acceptance. Goldsmiths' or bankers' notes to which checks *have [*9] been likened, are seldom now used, but have been superseded by the introduction of checks, which, on account of their being payable on demand, are considered as cash, and, like bankers' checks, are transferable by delivery, and are governed by the same laws and rules as bills of exchange. So long ago as the time of Lord Holt, (7 Ld. Raym. 144; 1 Salk. 132, S. Cruger v. Armstrong. C.) goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be demanded in a reasonable time and not paid, it will charge him who gave the bill. A check is not due until demanded, and, even independent of authority, I consider this to be the import and nature of the agreement. The drawer undertakes specially that the money shall be paid by the person on whom the check is drawn, and the money is supposed to be appropriated for that purpose in the drawee's hands. It would be unreasonable, and contrary to the agreement, for the holder, instead of resorting to the fund in the hands. of the drawee, to make his demand promptly, and, in the first instance, of the drawer himself. The drawer may not have the means of payment, except from the fund pointed out, and that fund may be at a distance, and in the mean time his credit will suffer by drawing a check which he cannot instantly pay. He must not be understood as promising to pay, except upon the default of the drawee, and, as Ch. J. Holt observed, in the case of Tassell & Lee v. Lewis, (1 Ld. Raym. 743,) if the payee does not like the check, or that mode of payment, he ought to refuse it; but having accepted it, it is at his peril. In the present case, there is no such demand proved, nor is there any thing so peculiar in this case, as to take it out of the general rule. It cannot be considered as a check fraudulently drawn without effects in the hands of the banker. The presumption is, that the check would have been [*10] paid, if diligently presented. At least, there is not evi dence sufficient to justify a resort to the drawer, without having made the experiment. On the ground, therefore, of a want of proof a demand at the bank, I am of opinion, the evidence did not warrant the verdict, and that it ought to be set aside, with costs to abide the event, it having arose from the misdirection of the judge. LEWIS, Ch. J. dissented. New trial granted.(a) (a) Bank checks are substantially regarded as inland bills of exchange, and the rules which are applicable to the one are usually applicable to the Cruger v. Armstrong. other. (Smith v. Jones, 20 Wend. 192. Merchants Bank v. Spicer, 6 Wendell, 445. Murray v. Judah, 6 Cowen, 484. Johns. Cas. 259. Glea v. Noble, 1 Blanchford, 104. 2 Little, 299. Shrieve v. Duchham, 1 Little, 194. 2 Nott & McCord, 251. See 1 Steph. N. P. 766.) Conroy v. Warren, 3 Humphries v. Bicknell, Sutcliff v. McDowell, Woods v. Schroeder, 4 Harris & Johnson, 276. In the matter of Brown, (2 Story, 502) it was said that "The characteris. tics which distinguish checks from bills of exchange are, that checks are always drawn on a bank or banker; that they are payable immediately on presentment, and without days of grace; and that they are not presentable for acceptance, but only for payment." The holder of a check must make presentment within a reasonable time, and it has been held, that greater diligence is required in presenting checks than in presenting common inland bills of exchange. (Gough v. Staats, 13 Wend. 549. See Mohawk Bank v. Broderick, 10 Wend. 304; 13 Wend. 133.) Where all the parties reside in the same city or place, an omission to present a check for eight, (St. John v. Homans, 8 Missouri, 382,) or six days, has been held to discharge the endorser. (Gough v. Staats, 13 Wend. 549.) So where a check was received in S., on the 14th of January, drawn on a bank in A., distant 16 miles from S., and between which places there was a daily mail, and it was not presented till Feb 6th, the endorser was held to be discharged by the holder's laches. (Mohawk Bank v. Broderick, 10 Wend. 304. 13 Wend. 133.) So where a negotiable check, drawn in New York, upon a Mississippi bank, and payable on demand, was presented in Mississippi, ten months after date, and shortly after the bank had stopped payment, the bank being at the time indebted to the drawer, it was held too late. (Little v. Phenix Bank, 2 Hill, 425.) That as a gen eral rule an action does not lie on a bank check against the drawer until after notice of presentment and non-payment. (Harker v. Anderson, 21 Wend. 372;) and that notice to the drawer must be averred in an action against him. (See Sherman v. Comstock, 2 McLean, 19. See also Gough v. Staats, 13 Wend. 549.) But certain circumstances will dispense with a presentation within a reasonable time or at all. What these are will be considered infra p. 265, note to Conroy v. Warren. See also note to the same case as to proof of consideration. |