up to the time they notified Wilson of its non-payment by the bank, and demanded payment of him. It was proved that on the 1st day of April 1865, Confederate States treasury notes, as compared with gold, were worth at the rate of $60 of the notes for $1 of gold. Such being in substance the facts proved, the court gave to the jury the instruction excepted to. It is in these words: "If the jury shall believe from the evidence, that on the first day of April 1865, the defendant gave to the plaintiffs, in full payment for the tobacco mentioned in the bill of particulars, his check on the Farmers Bank of Virginia, which check was accepted by the plaintiff in full payment of the account; and the jury shall further believe that at the time of drawing the said check the said Wilson had good and sufficient reasons to believe that he had in hand funds to meet the said check, and the jury shall be satisfied from the evidence that in fact the said check would have been paid if it had been presented upon that day; the jury are instructed, that the receipt of said check by the plaintiff's extinguished their demand upon the account sued upon, and that they cannot recover in this action." Was any error committed in giving this instruction? It was a fact not controverted on the trial, or, if controverted, it was put beyond dispute by the proof, that in the latter part of March 1865 the plaintiffs sold and delivered to the defendant the tobacco mentioned in the account filed with the declaration, for the sum therein stated, to be paid in Confederate currency. The amount of the account was a debt owing by the defendant to the plaintiffs. It was a fact equally well established, that the check was given for this debt. The suit was upon the account, to recover the amount thereof; and evidence was offered by the defendant to VOL. XXVIII-22 1877. January Term. Blair & V. Wilson. Blair & V. 1877 show that the check had been given and accepted in January Term. full payment and absolute discharge and satisfaction of the account. The evidence was sufficient, I think, to authorize the court to submit to the jury the deduction of the facts upon which the proposition of law contained in the instruction was predicated. Supposing this deduction to be properly made, did the court in the instruction mistake or misstate the law arising upon the facts? Wilson. A check has been defined to be "a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds for the payment at all events of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand." 2 Daniel on Neg. Ins., § 1566. It is sometimes inaccurately described as "a bill of exchange payable on demand," or as, "in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer on demand." While it has many of the properties of bills, it has several peculiar characteristics. "Bank checks," says Mr. Justice Swayne, delivering the opinion of the supreme court of the United States in the case of Merchants' Bank v. State Bank, 10 Wall. U. S. R. 604, 647, "are not bills of exchange, but have many of the properties of such commercial paper; and many of the rules of the law merchant are alike applicable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee and payee. Without acceptance, no action can be maintained by the holder upon either against the drawee. The chief points of difference are, that a check is always drawn on a bank or banker. No days of grace are allowed. The drawer is not discharged pay by the laches of the holder in presentment for The giving of a check for an antecedent debt is not an absolute payment and extinguishment of the debt in the absence of an agreement giving it that effect. Ordinarily, it is only a means of payment, and the debt will not be extinguished unless and until the check be paid, or unless loss be sustained by the drawer in consequence of the laches of the holder, in which case the debt will be discharged in proportion to the loss sustained. If the check be not paid, and the payee is without fault, his right of action against the drawer for the debt, which has been merely suspended by the giving of the check, revives, and he may have recourse to the drawer either upon the debt or upon the check at his option. The holder is allowed a reasonable time after the check is drawn and delivered within which to present it for payment, and, as a general rule, it will be in due time if presented within the business hours of the bank on the next succeeding secular day, or if the holder is prevented from making presentment on that day by any impediment which in law will excuse the failure to make such presentment, 1877. January Blair & V. Wilson. Blair & V. Wilson. 1877. it will be sufficient if it be presented within a reasonJanuary Term. able time after such impediment is removed. Among the excuses for failure to make presentment deemed Hoge valid, and which apply as well to checks as to bills and notes, the following are mentioned by Judge Story: 1. Inevitable accident, or overwhelming calamity. 2. The presence of political circumstances, amounting to a virtual interruption and obstruction of the ordinary negotiations of trade, called the vis major. 3. The breaking out of war between the country of the maker and that of the holder. 4. The occupation of the country where the parties live, or where the note is payable, by a public enemy, which suspends commercial intercourse. 5. The utter impracticability of finding the maker or ascertaining his place of residence. Story on Prom. Notes, §§ 257, 261, 262, 264. See also 2 Daniel on Neg. Ins., §§ 1064, 1065. If the check be not honored on presentment, due notice of the dishonor should be given to the drawer. If the holder use due diligence in making presentment and giving notice of non-payment, the solvency of the bank on which the check is drawn is in the meantime at the risk of the drawer: if, however, the holder fail, without valid excuse, to make demand of payment at the proper time, after such default he assumes the risk of the solvency of the bank, and should 'the bank afterwards suspend business or become insolvent, the loss occasioned thereby will be the loss of the holder. The foregoing rules, applicable to checks given as conditional payment, I regard as sustained by the authorities. While, however, the giving of a check by a debtor to his creditor is generally presumed to be only a pro visional or conditional payment of the debt for which it is given, yet such check, by agreement between the parties, may be given and received in full payment and absolute discharge and satisfaction of the debt. I do not find this proposition controverted anywhere except in New York, where it seems to be held that such an agreement is invalid because without considertion. The authorities in all the other states seem to uphold such an agreement when made. In some of the cases it is said the agreement must be "express;" in others that it must be "special;" while in many others it is said that it may be either "express or implied." The authorities touching such agreement are collated and classified in 2 Parsons on Bills and Notes 159, 160, 161, 162, note (t), and as there given relate mostly to bills of exchange and promissory notes. I see no good reason, however, why the rule should not apply as well to a check as to a bill or note, nor why the agreement may not as well be implied as express. To make the agreement however valid, whether it be express or implied, it must, of course, be bona fide; and hence, to warrant the conclusion of law propounded in the instruction, it was not only necessary that the check should have been given and received in full payment of the account sued upon, but it must have been drawn against sufficient funds; and if the check was so given and received, and there was such sufficient funds to meet it, which would have been applied to its payment if presented on the day it was given, was not the debt sued upon extinguished by the check, and were the plantiffs entitled to any recovery in the action? As before stated, the declaration contained only the common counts. There was no count on the check. It is true, that although there was no special count on 1877. January Term. Blair & V. Wilson. |