6 Wend. 369 | N.Y. Sup. Ct. | 1831
The following opinions were delivered in the superior court:
The questions arising from the facts of this case will be, first, whether proof of the presentment and demand of the check, and notice of its dishonor, were, under the circumstances of the case, indispensable prerequisites to a recovery on the check; and secondly, whether the balance for which the check appears to have been given, was recoverable on the count upon an account stated or not. [These questions were considered at large upon the general principles of law applicable to the case ; but the opinion upon the point they involved is omitted, and that portion of the observations of the chief justice alone given, which relates to the legal effect and operation of the injunction upon the rights of the parties.] But if the general rules of law, or the usage of merchants, required the presentment of
This case does not stand upon the insolvency of the bank, or its suspension of payment solely. The stronger ground is that the bank was under a legal restraint, and disabled by process of law from applying the deposits of the drawer to the payment of the check; and if such was the case, a demand could not have been of any possible avail to the drawer, and the reason given for requiring a demand upon a bankrupt fails, since the officers of the bank could not be expected, under such circumstances, to interpose with their own monies to pay the drafts of the dealers. How far a mere temporary restraint, by an injunction at the suit of a party praying for it as a precautionary measure, and liable to be dissolved or modified, would excuse the necessity of a demand, may perhaps be questionable; for in such case the deposits of the drawer on which he values, remain entire, and it may be that the obstacle to their application to the payment of the check will be speedily removed. But was this such an injunction, or was it not the remedial process, authorized by the act of the 21st April, 1825, “To prevent fraudulent bankruptcies by incorporated companies, and to facilitate proceedings against them, and for other purposes'!” By the 17th section of that act, the court of chancery is authorized and required, upon the application of the attorney general, or a creditor of any incorporated bank or company, and upon proof that such bank or company is insolvent, or that it has violated any of the provisions of the act incorporating it, or of any other act which shall be binding upon it, to issue an injunction restraining such company and its officers from exercising any of the privileges or franchises granted by the act incorporating such company, or by any other act, from
Can a demand be necessary under such circumstances ? or, must not the entire change in the state of things, absolve the holders of the check from the obligation of presenting it for
I think that the plaintiff has a right to recover upon the count in his declaration on an insimul computassent. It is well settled that the giving of the check in question was no payment of the debt arising from the sale of the timber. Porter v. Talcott, 1 Cowen, 359. Everett v. Collins, 2 Campb. 515. If the check was unproductive without any fault or negligence on the part of the plaintiffs, they may resort to the original indebtedness as the ground of the action; not having received the check in payment of the account for the timber, they were merely agents of the defendant in drawing the money from the bank for the purpose of applying it to the satisfaction of the debt; and if they were not guilty of any negligence in the transaction, whereby the defendant has sustained an injury, they may return or cancel the check, and sue on the original consideration. It is clear that there was no negligence on the part of the plaintiffs, in not presenting the check at the bank before it stopped payment. The bank was open but half an hour after the giving of the check, and the rule appears to be well settled, that no laches can be imputed to the holder, if the check is presented at any time during the day after that on which it is given. Chitty on Bills, 274, 5. It does not appear in the case that any notice was given to the defendant that the bank had stopped payment, or that the
The cause was argued here by
P. A. Cowdrey fy S. P. Staples, for plaintiffs .in error.
D. P. Tallmadge, for defendant in error.
Judgment affirmed.