Foster v. Paulk

Tenney, C. J.

The check, the cause of action in the present suit, is dated Oct. 16, 1854, and payable to J. B. E., *428 or bearer, at tbe Exchange Bank, on Oct. 23, 1854, and signed by the defendant, as drawer.

Several objections are inade by the defendant to the plaintiff’s right to maintain the action.

Bank checks are, in form and effect, bills of exchange. They are not direct promises by the drawers to pay, but they are undertakings, on their part, that the drawees shall accept and pay, and the drawers are answerable only in the event of the failure of the drawees to pay. As between the holder and the drawer, a demand at any time before suit brought will be sufficient, unless it appear that the drawee has failed, or the drawer has in some other manner sustained an injury by the delay. Cruger v. Armstrong, 3 Johns. Cases, 5 ; Conray v. Warren, 3 Johns. 259 . The indorser of a check may be holden on proper notice, after payment has been refused by the drawee, upon a legal demand, or any state of facts which amounts to a dishonor of the same. Heylyn v. Adams, 2 Burr. 669; Rushton v. Aspinwall, Doug. 679. And a check, drawn on a bank in which the drawer has no funds, need not be presented at all, in order to sustain an action upon it. Franklin v. Vanderpool, 1 Hall, 78 .

The holder of a check must prima facie be deemed the rightful owner thereof. Cruger v. Armstrong, and Conray v. Warren, before cited.

A check on a bank, being payable to bearer, is transferable by delivery, and an action may be maintained in the name of the holder, if he is otherwise entitled to recover. Grant v. Vaughan, 3 Burr. 1526.

In this case, the plaintiff, being the holder of the check, could maintain an action thereon, in his own name, even if the initials of his name had not been inserted. And the check, having those initials, is an equally good cause of action. The initials can in no degree prejudice those rights.

The law is now understood to be, that the bearer of a bill of exchange, or a promissory note, payable to bearer, need not prove a consideration, unless he possesses it under suspicious circumstances; and that such paper stands on the same *429 footing with specialties, and prima facie imports a consideration ; and the rule is equally applicable to checks. Conray v. Warren, 3 Johns. Cases, 259.

The consideration of the check declared upon in this action is shown to have been the check of the defendant to the plaintiff, of the same date and amount; payable at the same time and place. The principles in relation to consideration, applicable to bills of exchange and promissory notes, from their analogy to those relating to banker’s checks, will equally apply to them. And the plaintiff’s check in favor of the defendant, was a good consideration for that in suit. Dockray v. Dunn, 37 Maine, 442.

Has the consideration of the check in suit failed ? This case is distinguished from those cited for the defendant, where the check was taken on account of a preexisting indebtedness of the drawer to the person to whom it was given. In this case no such relation is shown between the parties. Each had the other’s check, and no other consideration moved from one to the other.

The check of the defendant was in the bank on which it was drawn, at its maturity. No funds of the defendant were there at that, or any other time, to meet it. This fact, unattended by others suited to discharge or qualify his liability, would enable the plaintiff to recover in a suit thereon.

Did the withdrawal, by the plaintiff, of his funds in the Exchange Bank, after his check had matured, and the consequent failure of payment thereof two weeks after, when presented by the holders, take away the consideration of the check in suit, so that the action cannot be maintained ? The check of the plaintiff was indorsed by the defendant without date, and in blank, and was presented by the cashier of the City Bank, Bangor, and must be treated as negotiated to the bank on the day of its date. Funds sufficient to meet it, belonging to the plaintiff, having been in the Exchange Bank at its maturity and withdrawn so long afterwards, the defendant, who was indorser, was exonerated from liability, even if he had had notice of the non-payment, immediately after the present *430 ment of the check. But it does not appear that he had any notice. As between the City Bank, the holder of the check, and the plaintiff, the drawer, the latter will be holden, after a demand made, at any time, as we have seen; and, at the time of the commencement of this action, his liability had not ceased. And that of the defendant must continue.

It does not appear that the plaintiff’s check to the defendant was filed in set-off, and the offer to surrender it at the trial was no defence to this suit. Exceptions overruled. — Judgment on the verdict.

Hathaway, Appleton, and May, J. J., concurred. Goodenow, J., did not sit.