each, the obligation of the sureties is several; either one of them may be sued singly, and recovery may be had from him to the full amount of said lesser sum, provided this is not greater than the amount of the loss or injury sustained.1 Answer by defendants that the officer had made and executed his promissory note in full satisfaction, and that it had been accepted and received in full satisfaction, was held to be sufficiently met by a denial only of the making and executing. Where the obligation of the officer and his sureties is joint, and they are jointly sued thereon, the admissions and declarations of the officer are admissible in evidence against all the defendants alike. But the language in the American case cited points directly to the important qualification that this joint character of the obligation and of the suit must be taken to be essential to the operation of the rule; and that if the undertaking of the surety were a separate and independent one, and probably even where it was joint and several and he alone was sued upon it, precisely the opposite doctrine would obtain.3 This view of the law is hardly sustained by the Kentucky case cited; and Grant says that the English principle is, that "whatever is evidence available against the principal is available against the surety." But though he makes this statement so broadly he cites no authority which sustains it to quite its full extent. The case which he gives declares simply that in a suit against the surety after the death of the principal, entries by the latter, in his official books, of receipts of money, were evidence in behalf of the bank that these sums had been received, since the bond itself also guarantied the faithful keeping by the same officer of these very books. It cannot be set up in defence to a suit upon a bond that the Stetson v. City Bank, 12 Ohio St. 577. 2 Morris Canal & Banking Co. v. Van Vorst, 3 Zabr. 98. 3 Amherst Bank v. Root, 2 Met. 522; Pendleton v. Bank of Kentucky, 1 T. B. Monr. 171. 4 Grant on Bankers and Banking, p. 257; citing Whitnash v. George, 8 Barn. & C. 556. bank commenced operations in a manner contrary to its charter; neither that it has failed to perform its public duties in redeeming its circulating notes. Such matter cannot be introduced thus indirectly, neither is it available for the purpose of absolving a debtor from his liability.1 Two or three English cases should be noticed in this connection before dismissing the subject. A clerk who had fraudulently misappropriated considerable sums, died before discovery, leaving considerable personalty and no will. His widow deposited the personalty with the banking-house and took out letters of administration. She then sought to recover the personalty, which the bankers sought to retain. She sued them, and they filed a bill against her asking for an injunction and for leave to administer on the estate. It was held to be no answer to the bill to reply that it alleged a felony and that no civil remedy lay in respect thereof.2 The father of a banker's clerk transferred stock into the name of the banker, in order to cover defalcations of his son. Held, that this was a composition of a felony to prevent a prosecution. Semble, that the father could not recover the value of the stock nor obtain an order for its transfer back to himself.3 A clerk, who had embezzled, prior to conviction deposited with the banking-house certain title-deeds which he possessed and transferred to them some policies of insurance upon his life, as security, so far as they would go, for the money taken. The bankers however thereafter pushed the prosecution to conviction. The court said that the amount which the clerk had embezzled was a debt owing from him to his employers; that it constituted a good and sufficient consideration for his 1 Hughes v. Bank of Somerset, 5 Litt. 45. 2 Wickham v. Gatrill, 2 Sm. & G. 353. transfer to them of the aforesaid securities; and that they were entitled to hold and realize upon these.1 Surety's Right to Demand and Notice. No demand need be made upon a surety prior to bringing suit against him.2 Neither is he entitled to prompt notice of a loss covered by his obligation. Indeed it would seem that he is not positively entitled, as matter of strict right, to claim any notice at all before suit is begun against him.3 He might perhaps lose the opportunity of recovering his payment from the principal in the bond by reason of the delay in notification. But there seems to be nothing in his contract with the bank which puts it under any obligation to look after his interests in this respect. He incurs no risk on the ground of being deprived of the opportunity to at once withdraw and annul his suretyship; for we have already seen that no new liability can accrue against him if the bank continues to employ the officer after knowledge of his misconduct. And even if this last rule should ever be construed, as is within the bounds of possibility, to apply only to cases where the officer's misconduct has been fraudulent or otherwise wrongful in its character, and not to apply where his default has been simply the result of incompetence, ignorance, or carelessness, still it would seem that if the sureties wish to secure the right to be notified even of such acts, they must insert express stipulations to that effect in their undertaking with the bank. If they neglect to take such precautions in their own interest, the law cannot be expected to interfere to protect them from the results of their own laches, except in cases which are tainted with actual wrongdoing. 1 Chowne v. Baylis, 31 Beav. 351. 2 Grant on Bankers and Banking, p. 260; citing Pierce v. Williams, 23 L. J. Exch. 322. 3 Grant, p. 259, citing Peel v. Tatlock, 1 Bos. & P. 419. CHAPTER V. CHECKS. Description and Elements of a Check. A CHECK is the instrument by which, ordinarily, a depositor seeks to withdraw his funds, or any part thereof, from the bank. It is a draft or order on the bank requiring it to pay a sum named. It may be made payable "to bearer," or to "A. or bearer," or to "A. or order," or "to the order of A." In the two latter forms it must be paid to A. in person, or to one deriving title from him through his indorsement. It is customary to indorse even when the payee makes the presentment and demand. The rules governing in cases of bills of exchange, promissory notes, and other business paper made payable to order govern this description of check also. Thus it may be indorsed in blank, or to the order of B., who again may indorse in blank, or to the order of C. Any bona fide holder of the check indorsed in blank may fill in a special direction above the indorsement, making it payable to himself or order; and in suing thereon, though he has not written in such direction, he may declare upon it as indorsed to himself, and will sufficiently support his declaration by showing that it was Note. In using this chapter it should be borne in mind that it does not profess to treat exhaustively the entire subject of checks considered as a species of commercial paper. To do so would be to trespass more largely upon the domain of works on Promissory Notes, Bills, &c., than our space permits. It is of the law of checks so far as banks are parties to them, and owe duties, assume obligations, or enjoy rights in respect to them and to transactions into which they enter, that we design to treat. Beyond these limits this chapter does not pretend to state indorsed in blank, and that he is the holder for value and in due course of business. If a bank refuses, without sufficient excuse, to pay a check of its depositor, it is liable to him in substantial damages. It is therefore of the first importance that it should be clearly understood by the paying officers of banks what are essential requisites going to the validity of a check, and what are merely customary formalities which may yet be legally dispensed with. For if the check be lacking in any of the former class of characteristics the bank is not only justified in refusing to pay it, but if it does pay it and there turns out to have been any thing wrong about it, rendering the payment improper, the bank must bear the loss and restore the amount paid to the drawer's credit. But, upon the other hand, though some of the latter class of characteristics may be wanting, yet the bank is not thereby excused from its obligation to pay; for the order being good at law, though in an unusual form, is competent to draw the money of the depositor. If the bank refuses to pay upon such an order, it must still, in strict law, be held to answer in damages. Clearly this is the logical sequence of the reasoning, and yet though there is now no judicial authority for saying so, it seems highly probable that in cases where this rule would operate with excessive and unreasonable severity upon the bank it may be relaxed. There is no question but that a bank is entitled to exercise great care and caution to avoid being imposed upon and robbed by fraudulent and irregular orders. There is no question that it ought to have the right to demand of its depositors reasonable assistance, and a conformity to some moderate degree of consistency of conduct in drawing their orders, in order to render this difficult task of the bank at least a practicable possibility. It cannot be said that because a depositor ordinarily uses a certain form of blank check, therefore, the occasional use of a check of a different form would authorize the bank in rejecting it, or in suspending payment till it could satisfy itself of the authenticity of the instru |