he seeks to enable the payee to obtain payment. As a general rule, it does not acquit him of his indebtedness, but is only evidence of that indebtedness. It may be held, therefore, for any indefinite period, short of the running of the Statute of Limitations, by the payee or by any subsequent assignee, and if not ultimately paid by the bank upon presentment and demand, it still remains as evidence of the unsatisfied debt.9 This rule is subject only to one limitation; viz., that, if by the delay in presentment the drawer has suffered any injury, he shall be absolved at least to the extent of such injury. The most natural form for such injury to take is where the insolvency of the bank, intervening between the proper time of presentment and the actual time of presentment, has caused the dishonor of a check which would otherwise presumably have been duly paid upon demand.10 Where the drawers withdrew their deposit on the 10th, the bank failing afterward on the same day, the drawers were held to pay a check drawn on the 2d, though the funds had been sufficient all the mean time.11 (e) The true doctrine is that the check-holder has a right to the deposit wherever it goes, equal to that of the other creditors of the bank, and only subordinate to the right of a bona fide purchaser for value obtaining priority by possession or presentment. (f) The burden of proof on the holder to show that the drawer was not injured by delay is shifted, if it Burden of is shown that the drawer withdrew the funds, or proof. that the drawee was solvent at the time of presentment.12 Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, id. 259; Murray v. Judah, 6 Cow. 490; Mohawk Bank v. Broderick, 10 Wend. 306; 13 id. 133; Little v. Phoenix Bank, 2 Hill, 425; Pack v. Thomas, 13 S. & M. 11; Harbeck v. Craft, 4 Duer, 122; Bickford v. First National Bank of Chicago, 42 Ill. 238; Robinson v. Hawkesford, 9 Q. B. 52; Mullick v. Radakissen, 28 Eng. L. & Eq. 94; Alexander v. Burchfield, 7 M. & G. 1067; Serle v. Norton, 2 Moody & R. 401; Laws v. Rand, 3 C. B. N. s. 412; Story on Promissory Notes, Sharswood's ed., pp. 680, 683. 19 Willetts v. Paine, 43 Ill. 433; and cases in preceding note. Kenyon v. Stanton, 44 Wisc. 479 (1878). 12 Planters' Bank v. Merritt, 7 Heisk. 177. Protest. No funds. (g) A dishonored check need not be protested to bind the drawer.18 (h) If the drawer has no funds at the date of the check, or at the date of presentment, the drawer remains liable notwithstanding the lapse of time.14 Neither delay in presentment or notice releases the drawer, for he is not in such cases injured by it. To relieve the drawer when he has withdrawn the funds would be to allow him to keep both the deposit and the consideration of his check, and thus take advantage of his own wrong; 15 and to release him when he had no funds in the first place would enable him to make money by fraud, and give him the consideration of the check, when he has rendered no equivalent nor taken any risk on account of it. If the drawer stop payment of the check, he is not entitled to notice of nonpayment.16 (i) Neglect of the holder to present a check on the very day of its drawing is no defence to the maker, unless the holder knew the bank was in a precarious condition. A collecting bank retaining a check four days was held liable for the loss consequent, and the depositor's subsequent promise to pay the amount was nudum pactum.18 A holder who retains a check after it is refused payment, and fails to notify the drawer, must shoulder the loss himself.19 Delay of seven days in presentation of a debtor's check discharged the surety.20 A company's treasurer must present a check received from the State within a reasonable time, like any other 18 Henshaw v. Root, 60 Ind. 220; Griffin v. Kemp, 46 Ind. 172. 14 Foster v. Paulk, 41 Me. 428; Shaffer v. Maddox, 9 Neb. 205; Sterrett v. Rosencrantz, 3 Phil. 54; Fitch v. Redding, 4 Sand. 130; Bell v. Alexander, 21 Gratt. 1; Case v. Morris, 31 Pa. St. 100, 104; Fletcher v. Pierson, 69 Ind. 281; Bond v. Farnham, 5 Mass. 120; Franklin v. Vanderpool, 1 Hall, 78. 15 Moody v. Mack, 43 Mo. 210; Deener v. Brown, 1 MacArthur, 350. 16 Purchase v. Mattison, 6 Duer, 587. 17 First National Bank of Charlotte v. Alexander, 84 N. C. 30 (1881). 18 Bank of Greensboro v. Clapp, 76 N. C. 482 (1879). 19 Clark v. National Metropolitan Bank, 2 McArthur, 249 (1875). 20 Figley v. McDonald, 89 Pa. St. 128 (1879). holder, or bear the loss.21 Forty days in this case intervened between the reception of the check and the bank's insolvency. § 422. Indorser absolutely Discharged by Unexcused Delay beyond the above Period, though not Prejudiced thereby; Massachusetts contra as to the last Clause. — The rule as to presentment, as between the holder and the drawer of the check, is different in one respect from the rule as to presentment as between the holder and an indorser. For whereas presentment may be delayed for almost any length of time, and the drawer may still be held if he has suffered no prejudice by reason of the delay, on the other hand an unreasonable delay will discharge the indorser, even though he does not appear to have suffered any prejudice thereby. It was so held in the case of the Mohawk Bank v. Broderick, where the delay was from January 14 to February 6, there being a daily mail between the place where the check was delivered and the place where the drawee bank was established. Yet it appeared that the check would not have been paid had it been duly presented, since the drawer's account was then overdrawn, and continued so thereafterward until the presentment; nor was the drawer solvent at the time when the check was dated. The only intimation that the indorser might have suffered any loss by reason of the delay is to be sought in the statement that, though the drawer was insolvent at the date of the check, yet no other of his debts were due at this time. It is conceivable, therefore, that had the check been duly presented, and notice of dishonor duly given to the indorser, he might have exacted payment even from the insolvent drawer. But though this circumstance is noted in the statement of facts, it is not adverted to by the court in their opinion and cannot be presumed to have formed the basis of that opinion. On the contrary, the opinion is based, both in the Supreme Court and afterward in the Court of Errors, upon the broad statement of the principle of law, that the indorser of a check is discharged by unreasonable delay in presentment.' It is not to 21 State v. Gates, 67 Mo. 139. 1 $ 422. Mohawk Bank v. Broderick, 10 Wend. 304; s. c. in the Court of Errors, 13 id. 133. be supposed that the indorser intends to assume a liability indefinite as to time, and that he contemplates that the check will remain in circulation, keeping his responsibility alive for a period and circumstances not known to him and not anticipated when the liability was undertaken.2 This case followed the earlier case of Murray v. Judah,3 wherein Judge Sutherland had remarked, "As between the holder of a check and an indorser or third person, payment must be demanded within a reasonable time," contradistinguishing this from the case as between the holder and drawer. An indorser has a right to demand and notice within the same period as the drawer, but measured from the issue of the check by the indorser, and, unlike the drawer, the indorser is absolutely discharged by failure. The indorser of a check drawn for his own accommodation is really the primary party; he is the one who should provide funds to pay the check, and he may be held without notice of nonpayment unless injured by the neglect.5 A draft wherein some unknown person had altered the date, name of payee, and amount, was presented for sale at a bank by a stranger, accompanied by P., who wrote his name thereon as an accommodation indorser. The bank bought the draft. In an action by the bank against P.'s executor, held that P. had the rights of an indorser, and in absence of notice and demand was not chargeable. Mass. holds indorser not discharged by In Massachusetts, however, a contrary doctrine has been asserted, and the right of the indorser has been limited to having presentment made within such a period delay unless that he does not appear to have suffered loss by the damaged. delay. But who can ever say with certainty, that the indorser has not suffered such loss? In the case at bar it was assumed that he had not, because the check was not good 2 Little v. Phoenix Bank, 2 Hill, (N. Y.) 425. 8 6 Cow. 484. 4 Aymar v. Beers, 7 Cow. 705. 5 Williams v. Hood, 1 Phila. 205. Susquehanna Valley Bank ». Loomis, 85 N. Y. 207. 7 Small v. Franklin Mining Co., 99 Mass. 277. at the time he indorsed. But he then supposed it to be good, and had he speedily learned (as he would have done in case of diligent presentment and notice) that it was bad, it is impossible to say, and certainly is not for the court to undertake to say, that he might not have taken some steps to save himself. Mail infre quent. 7} A. M. un seasonable. The bank § 423. Special Circumstances excusing Delay. — A. received a check on Wednesday, the first mail closed Thursday morning at 7 A. M. (that was held an unseasonable hour at that time of year, February 23) and the next one went Saturday morning, arriving in Wheeling, where the check was payable, between 11 and 12 A. M. failed Saturday noon. Held that the payee was not bound to mail by the Thursday post, nor to cause the check to be presented before noon on Saturday, as if sent to a bank to collect by the Saturday mail they would not probably have presented it before noon, that being some time before the regular closing hour on Saturday. (See § 425.) A draft issued by a New York bank, and intended to circulate as money, was given to a ticket agent on deposit to secure certain excursion tickets until the depositor could decide whether or not he wished to go. The deposit was on the 9th, the excursion was to start on the 14th, and the agent forwarded the draft on the 15th, the morning after the decision was notified to him and Six days held not un reasonable delay in presenting draft in tended to circulate as money. the tickets bought. Held that the delay was not unreasonable under the circumstances, and did not discharge the indorser, although in the case of private drafts not intended to circulate as money such delay would be unreasonable.2 If the condition of the country, removal of bank, or other matter, prevent due presentment, the holder should notify the drawer, and offer to return check.3 Friday afternoon a small check was given to F., twenty miles from the bank. F. had to be at his business, twenty 1 § 423. Cox v. Boone, 8 W. Va. 500. 2 Nutting v. Burked, 48 Mich. 241 (1882). |