Smith v. Janes

20 Wend. 192

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the Court, Bronson, J.

In several particulars, checks ‘are governed by the same rules that prevail in relation to inland bills of exchange, payable either on demand, or at a given number of days after sight. The holder can recover against the endorser only when he has used due diligence in presenting the. check, and giving notice of the demand and non-payment by the bank. When the parties all reside in the same place, the holder should present the check on the day it is received, or on the following day: and when payable at a different place from .that in which it is negotiated, the check-should be forwarded by mail on the same or the next succeeding day for presentment. It has been said that greater diligence is necessary in presenting checks for payment, than is required in relation to bills of exchange. Gough v. Staats, 13 Wendell, 549. But I can see no good reason for making such a distinction. The fact that one instrument is drawn upon a bank, and the other upon an individual, can make no difference in principle concerning the duty of the holder; what will be due diligence in the one case will, I think, be due diligence in the other. Mohawk Bank v. Broderick, 13 Wendell, 133.

As the questions are substantially the same in relation to both checks, I shall only notice that for $2,000, dated July 17,1836. If this check was negotiated to Wood & Bogert on the day of its date, and retained by them ten or eleven days until it was passed to the plaintiff, the defendant would be discharged ; but it does not appear when, or to whom the check was first negotiated. It may have been transferred by the payee to Wood & Bogert, on the same day they sold it to the plaintiff, or if negotiated before that time it may haved passed through several hands before it was taken by Wood & Bogert. This is not a case where we can presume laches. The defendant is the payee of the check, and must know when and to whom it was first transferred; and the burden lies on him of making out a default in some holder of the check, before it came to the hands of the plaintiff.

The course of the mail between New-York and Buffalo, was only three days, and as seven or eight days elapsed between the time the plaintiff took the paper, and the day it was presented© to the bank for payment,- the plaintiff would be chargeable with a want of due diligence, if he had not put the check in circulation. But he sold it to Pepoon on the same day it was received, and there is no proof of neglience in Pepoon or any subsequent holder of the paper. If the defendant intended to rely on any default after the check passed from the plaintiff,, the burden of making out the case lay upon him. We cannot presume laches, especially in a case where the paper was in circulation for so short a period.. How long a bill or check, payable on demand, or at a given number of days after sight, may be kept in circulation before presentment, without discharging some of the parties, is not a settled question. Chitty on Bills, 276, ed. of 1826. It depends in- a great degree on the .circumstances of each particular case. In Robinson v. Ames, 20 Johns. R. 146, the bill was drawn in Georgia on merchants residing in New- York, and although 75 days elapsed before the piesentment, it was held that the drawers were not discharged. In Gowen v. Jackson, 20 Johns. R. 176, the bill was drawn in Antigua, on merchants residing in London, and having been put in circulation, it was held that the drawer was not discharged, although six months had elapsed before the presentment. In Aymar v. Beers, 7 Cowen 705, the bill was drawn in New-York on a house in Richmond, Va., at three days sight, and it was held that the drawer was not discharged by a delay of 29 days in presenting the bill for acceptance. The bill had not been put in circulation, but there were other special circumstances to show that the payee was not chargeable with negligence. In, the case at bar, three days were necessary for the transmission of the check from New-York to Buffalo, and it could not have been in circulation after it passed from the plaintiff, more than four or five days before it was presented at the bank for payment. There is no authority for imputing laches on such asíate of facts, and the judge was right in overruling the objection.

The official certificate of a notary is, in certain cases, declared presumptive evidence of the facts which it contains. Laws of 1833, p. 395, § 8. It is not denied that the certificate was properly in evidence, but it is said that the facts stated by the notary do not prove due notice. Several objections to the sufficiency of the proof were mentioned on the argument, but this is a bill of exceptions, and we cannot look beyond the particular objection taken on the trial. The defendant resided in New-York, and payment was demanded at Buffalo. The notary certifies that on the same day he " deposited in the post-office notices of the foregoing protest, for—Horace Janes, New-York.” The objection on the trial was, that the notary had not certified that the notice was directed to the defendant. When a public officer, in the course of his official duty, certifies that he deposited a notice in the P. O.fore. particular person, it is, I think, but a reasonable intendment that the notice was directed to that person. We cannot presume the contrary without imputing a gross dereliction of duty to the officer.

New trial denied..