
    WILLIAM E. CLARK vs. THE PRESIDENT AND DIRECTORS OF THE NATIONAL METROPOLITAN BANK.
    At Law. —
    No. 12481.
    I. No negligence will be imirated to the bolder of a check upon a bank for the payment of money, if he demands payment on the day following that in which he received it.
    II. If the holder” of a bank-check unreasonably delays in presenting it, and in the mean while the bank fails, the loss will be his, and not that of the drawer.
    III. If payment of a bank-check is refused, and the holder retains it in his possession, and delays in communicating notice of non-payment to the drawer, and the bank fails, the loss ought to fall upon the holder.
    IV. A bank-check must be presented for payment, like a bill of exchange, before the drawer can be sued.
    V. The holder of a bank-check will discharge the drawer if it appears that the latter has sustained any injury by the delay or negligence of the former.
    STATEMENT OE THE CASE.
    This action was brought to recover the sum. of $3,599,. which the plaintiff claimed to have deposited in the bank of the defendant. The cause was tried by consent before the chief-justice without a jury. The facts proved at the trial appear to be as follows :
    On the 19th of September, 1873, the plaintiff, residing and doing business in Washington, D. C., had on deposit in the. Washington City Savings-Bank the sum of $3,599.
    On that day he arranged with the cashier of the defendant to transfer this deposit to the defendant. He drew his-check on the savings-bank in favor of the defendant for the above sum. It was thereupon credited to him as a cash deposit on the books of the defendant in an account marked. “ Special account,” and a similar entry was made in a passbook furnished by defendant to the plaintiff. On Saturday, the 20th of September, and the day. after the check was deposited, its payment was demanded of the savings-bank by the defendant, and was refused. No written notice of its non-payment was given to the plaintiff, but, on the following Wednesday, the 24th of September, the plaintiff’s cashier, book-keeper, and general agent, one Strickland, was in the defendant’s bank between 11 o’clock a. m. and 1 o’clock p. m., and was verbally notified by the paying-teller of the nonpayment of the check, and requested to give a check to square the plaintiff’s account, and he communicated the information to the plaintiff about 5 o’clock p. m. of the same day. The savings-bank closed its doors and stopped payment about noon on Thursday, the 25th of September. For three or four days before that time and up to the hour of suspension they were paying all checks presented at their counter, and could have paid this check if it had been presented. The check is still in the hands of the defendant.
    Judgment being entered for plaintiff, the defendant appealed.
    
      A. G. Riddle and Francis Miller for plaintiff:
    The brief for the appellant does not touch the case in hand. Its references apply to the case of a check taken for collection, and we think the learned counsel misapprehended the law in regard to the collection of checks.
    1st. The holder of a bank-cheek is bound to as great if not greater diligence as the holder of a bill of exchange or promissory note. Chitty on Bills, 433 and 386, note, 1, 337; Story on Promissory Notes, sec. 493; The Mohawk Bank vs. Broderick & Rowell, 10 Wend., 304; Harker vs. Anderson, 21 Wend., 372; Darbishire et al. vs. Parker, 6 East, 3; The Mohawk Bank vs. Broderick, 13 Wend., 133; Gough & Herring vs. Staats, 13 Wend., 549.
    2d. But in the case at bar the check was presented on Saturday, and, as the defendant says, payment was refused. The bank was known to be experiencing a “run” of unexampled severity and duration, but the defendant, instead of immediately notifying the plaintiff and giving him an opportunity to collect his money, waits four days, during which time the bank was honoring all checks, and then gives the notice. By any fair construction of law this was not “reasonable notice.” After such notice the plaintiff would certainly be entitled to the same time for collecting his own check, if it had been returned to him, that any other holder of it would have been, to wit, the whole of the next day; but the bank failed at noon of that day. Moreover, if the plaintiff could have collected the money from the savings-bank after the notice, a fortiori the bank could have done so, as it had contracted. If the bank could collect it, it should have done so; if it could not, the plaintiff could not.
    3d. But notice to Strickland was not notice to the plaintiff, unless Strickland had authority from Clarke to draw checks, «of which there is no proof whatever.
    
      Walter S. Cox for defendant:
    The question of law presented, upon the facts found by the court, is whether the defendant was g’uilty of laches in the presentment of the plaintiff’s check for payment and giving notice of its dishonor.
    The holder of a bank-check is not bound to exercise the same diligence in demanding payment and giving notice as is required in regard to promissory notes and bills of exchange The drawer of the check is considered the principal debtor to the holder, and is not discharged by any laches of the latter, in the particulars mentioned, unless actual loss results from it. Thus, if the bank still remains solvent, payment need not have been demanded for months. The question of promptness is only material where the bank became insolvent after the giving of the check. In that case, it must appear that the check was presented within a reasonable time. And its presentment within business hours of the day after it was received is sufficient, though the bank may have closed its doors meanwhile. (See Story on Promissory Notes, sec. 492 et seq.) In this case there can be no question about diligence in presenting the check, for it was presented on the day after its receipt, and five days before the stoppage of the bank.
    The same general principles apply to the notice of non-payment. If such notice had been given on Monday, its sufficiency could not have been disputed on the score of promptness. It was given on Wednesday, when the bank was still solvent, at such an hour that plaintiff had twenty-four hours’ time within which to take the check himself and collect it. It was not the work of thirty minutes to do so. And by the finding of facts, it appears that if presented at any time before noon of the next day, after notice was received, it would have been paid. How can it be held, then, as a conelusion of law, that the loss of the money was the result of defendant’s laches % If not, it is not responsible.
    That the notice to the plaintiff’s agent was sufficient, see Story on Promissory Notes, sec. 307.
   Mr. Justice Mao Arthur

delivered the opinion of the-court:

A jury was waived in this case, and a statement of the facts proved at the trial has been made by the court.

It appears the court found the fact to be, that the check in question was presented the day after it was received, and payment refused. It is now well settled that, in respect to a check on a banker, no negligence can be imputed to the-holder if he demands payment on the day following that in which he received it. According to this rule, the defendant used all the dispatch and diligence required by the law in regard to the matter of presentment. In Deener vs. Brown, 1 MacA., 350 ; this court decided, that if the holder of a check delays in presenting it, and in mean time the bank fails,, the loss will be his, and not that of the drawer. By an application of the same principle it ought also to be held that if payment is refused, and notice is not given to the drawer,, and if the holder retain possession of the check and meanwhile the banks fails the loss should also fall upon the holder. In the case under consideration it is stated that the savings-bank did not close its doors for three day after such refusal, and during that period was paying all checks presented at its counter, and would have paid this check if it had been presented. If the fact of dishonor had been communited to the plaintiff on the day when payment was demanded,, or on the one following, it would have afforded a reasonable opportunity to make arrangements for the protection of the deposit. A bank-check is said in many of the cases to resemble a bill of exchange. Harper vs. Anderson, 21 Wend., 372 ; Deener vs. Brown, 1 MacA., 350; Cruger vs. Armstrong, 3 Johns. Cases, 5; Boehm vs. Sterling, 7 T. R., 419, where Lord Kenyon said that the same rules apply to both.

It is therefore necessary that the check should be presented for. payment, like a bill, before the drawer can be sued. Indeed they are not due at all until payment is demanded. The drawer of a bill of exchange is entitled to notice of presentment and non-acceptance or non-payment; and the same principle is applied to the drawer of a check when the latter seeks to protect himself from the laches of the holder. In Gough vs. Staats, 13 Wend., 549; the old supreme court of New York said: “The general rule, as laid down in Murray vs. Judah, 6 Cowen, 490, is recognized, that a check is not due from the drawer until payment had been demanded from the drawee and refused by him; and that, as between the holder and the drawer, a demand at any time before suit is brought is sufficient, unless it appears that the drawee has failed, or the drawer has in some other manner sustained injury by the delay.” And the same court, in Ranker vs. Anderson, decided that an action does not lie on a bank-check against the drawer until after notice of presentment and non-payment.

It is, therefore, a recognized principle that the maker of a bank-check and of a bill of exchange stand in a position of liability that is quite similar, and that the holder of such instruments will discharge the drawer if it appear that the latter has sustained any injury by his delay or negligence. In the present case the demand was made on Saturday, but notice was not given until Wednesday of the following week, and even then only verbally, to the book-keeper or general agent of the plaintiff, who happened to be in the defendant’s bank on that day, and he communicated the information to the plaintiff, after banking-hours, in the evening. Next day, about noon, the savings-bank closed its doors and suspended business. There can be no doubt that the laches which occasioned the loss is to be imputed to defendant. Good faith required that notice should at once be given to the plaintiff. A run was made upon all the banks, and it was a period of great financial embarrassment. Under these circumstances the delay in giving notice of the non-payment of the check, and the loose and irregular manner in which it was communicated, indicate very great, if not gross, negligence on the part of the defendant. The loss then occasioned must be borne by it. Without expressing an opinion as to whether the defendant made the check its own in the first instance, we all think that plaintiff is entitled to j udgmeut.

Judgment, affirmed.  