6 Wend. 443 | N.Y. Sup. Ct. | 1831
By the Court,
Checks are considered as having the character of inland bills of exchange, and the holder thereof, if he would preserve his right to resort to the drawers and endorsers, must use the same diligence in presenting them for payment, and in giving notice of the default of the drawee, that would be required of him as the holder of an inland bill. Cruger v. Armstrong, 3 Johns. Cas. 5. Murray v. Judah, 6 Cowen, 490. As the defendant is sued as an endorser, the plaintiffs must establish a due presentment for payment, and a notice of non-payment to the defendant, before he can be made chargeable for the amount of this check. If the evidence makes out a presentment, it will not be contended that it was not seasonably made. The defendant passed it to the plaintiffs between two and three o’clock, P. M., on the eleventh of July, and it was presented, if at all, by twelve o’clock the succeeding day. If we consider that the check was drawn on a bank, and that the usual hours of business at banks close at three P. M., there should not be the least hesitation to pronounce it as seasonable presentment. Indeed it has been expressly decided that a check need not be presented on the day on which it is drawn. Robson v. Bennett, 2 Taunt, 396. But it is urged on the part of the defendant that the evidence does not make out a presentment, and that the judge at the trial erred in refusing the motion for the nonsuit. The facts are shortly these: The check was handed to the porter of the Tradesmen’s Bank on the morning of the 13th of July, and was returned by the Tradesmen’s Bank about noon of that day, with information that it was not good. The porter who must have taken it, has no distinct recollection of this particular checkbut he speaks of his uniform course of business in relation to such paper. He was in the habit of receiving from other banks checks on the Tradesmen’s bank; he took them to the bank, and if not good, he returned them to the' banks from which they were received. It is clearly established that on the 13th of
I believe it was not contested on the argument that the writing of the initials of the defendant’s name was not sufficient to charge him as an endorser. Such an objection could not have gone to the right to recover on the money counts; nor do I view it a good defence to the count on the check against the defendant as an endorser. I am clearly of opinion that the proof on the part of the plaintiffs was abundantly sufficient to carry the cause to the jury, and consequently, that the motion for a nonsuit was properly denied.
The next ground on which the application for a new trial rests, is the decision of the judge in favor of the competency of the witness, who had given a guaranty to the plaintiffs for the payment of the check on which this suit was brought; and who, on his voire dire, admitted his interest by reason of such guaranty. It is supposed by the counsel for the defendant that the destruction of the instrument did not destroy its obligatory force, and that, without a release, the plaintiffs could maintain an action thereon against the witness. Where the party, to whom an instrumeut of guaranty is given, delivers it to the maker, with express permission to destroy it, there is an end, in my opinion, to the contract which was consummated by the execution of that instrument; it must be adjudged
New trial denied.