18 Wis. 397 | Wis. | 1864
By the Court,
The simple question arising on this demurrer is, whether, in an action on a bank check, by the holder against the drawer, it is necessary to aver in the complaint presentment to the bank or drawee, and notice of the dishonor to the drawer, or at all events allege some facts which show an excuse for not making demand of payment and giving such notice, such as want of funds in the bank on which the check was drawn. There can be no doubt that it would be incumbent on the plaintiff to prove that the check had been duly presented for payment, and notice of dishonor given, in order to recover against the drawer. Upon this point the authorities are distinct and explicit. Harker v. Anderson, 21
We suppose there was the same necessity for alleging in this complaint presentment and notice, that there would be, had the action been upon a promissory note against an indorser. In the latter case the indorser would not be liable without demand and notice, and hence these facts must appear in order to show a right to recover. So in the case of a drawer of a bank check, his liability is conditional; it is an undertaking to pay the check providing it is duly 'presented to the bank, and payment is refused, and notice of this fact given to him. Therefore it is very obvious that the facts upon which his liability arises should be set forth in the complaint.
The order of the circuit court overruling the demurrer is reversed, with costs.