
    William W. Stewart v. George W. Smith.
    The drawer of a negotiable bank-check is not discharged from liability by the delay of the holder to make presentment and give notice [of dishonor, unless he has suffered loss thereby, and then only pro tanto. If the drawee remains solvent and the fund upon which the check is drawn is unaffected by the delay, the liability of the drawer continues, ordinarily, in full force. And a bona fide holder for value, is not affected by secret equities existing between antecedent parties. ■
    Error to the Superior Court of Montgomery county.
    The original action was brought, in the court below, by the defendant in error as the holder, against the plaintiff in error as the drawer, of a draft or order of the following tenor:
    “ Dayton, O., June 1,1861.
    “ Dayton Branch, State Bank of Ohio, pay to cash or bearer one hundred dollars.
    “$100. W. W. Stewart.”
    *The petition of the plaintiff below designates this instrument as a bank-check; alleges that it was drawn by Stewart, and delivered to a firm doing business under the style of Davis & Cuppy, by whom it was transferred to the plaintiff for value; that he afterward presented it to the drawee for payment; that payment was refused because the drawer had no funds in the bank at the time of presentation; that the plaintiff thereafter, on the same day, presented it for payment to the defendant Stewart, giving him notice of its dishonor, and that he refused payment. He thereupon asks judgment for the amount of tho chock, with interest.
    Stewart, by answer, avers that said order was in fact drawn on 
      the 1st day of May, 1861, and post-dated June 1,1861, to fix the time of its payment; that it was drawn without consideration, for the accommodation of the said Davis & Cuppy, who promised to provide for its payment at maturity; of all which the plaintiff had notice when it was transferred to him. He denies that it was presented to the bank for payment at its maturity, and also denies due notice of non-payment, and alleges that he had funds in the bank for its payment at maturity.
    The plaintiff below replied, traversing the averments of the answer as to the time when the check was drawn, and the alleged purpose for which it was post-dated, and denying notice of the other facts set up in the answer.
    Upon the issues thus joined, the court found for the plaintiff below, the intervention of a jury having been waived by the parties.
    Stewart, the defendant below, moved for a new trial,'for the reason that the finding of the court was not sustained by sufficient evidence, and was contrary to law.
    This motion was overruled, and Smith had judgment.
    A reversal of this judgment is now asked, on, the ground that the motion for a new trial should have been .granted, and for the supposed errors alleged in the motion.
    A bill of. exceptions was taken, upon the trial, embodying the evidence, which shows the following facts:
    The order in suit was drawn by Stewart about the 1st of May, 1861, and post-dated June 1,1861, without valuable *consideration, and for the accommodation of Davis & Cuppy, to enable them to raise money upon it by negotiating or pledging it as security; they promising Stewart that they would provide for its payment, when the time of its date should arrive. It was negotiated on the 8th of May, 1861, to Smith, as collateral security for $100 loaned by him at the time to Davis & Cuppy. There was an understanding that it was to be returned by Smith to Davis & Cuppy for payment; but it was received and held by Smith until after suit brought, in ignorance that Stewart was an accommodation drawer, and of the agreement for its payment by Davis & Cuppy.
    Smith presented it for payment, or redemption, to Davis & Cuppy about one month after its date, and, at their instance, agreed to retain it another month, upon their paying the interest due. A month thereafter he again presented it to the same parties, who failed to pay it. Davis & Cuppy failed in business August 27,1861. About a week thereafter Smith presented the order to the Dayton Branch Bank for payment, and upon its refusal to pay, demanded payment on the same day from Stewart.
    From the 1st day of May, 1861, till the 20th day of September following, Stewart had on deposit in said bank more than sufficient funds to pay the order, though he did not expect the check to be paid from these funds. The continued solvency of the bank was not drawn in question.
    J?. S. Young, for plaintiff in error:
    1. The j>aper is not a check, but a bill of exchange. Morrison v. Bailey et al., 5 Ohio St. 13; Andrew & Wilson v. Blachly & Simpson, 11 Ohio St. 839
    2. Regarded as a bill of exchange, the plaintiff in error has been discharged, for there was no demand of payment until September, when the bill was due in June; and no excuse for failure of demand and notice is alleged or proved.
    
      James M. Smith, for defendant in error:
    The paper in question is a check, and being so, the delay which occurred in the case does not discharge the drawer. *Andrew & Wilson v. Blachly & Simpson, 11 Ohio St. 93 ; Edwards on Bills and Prom. Notes, 151; Brewster v. McCardel, 8 Wend. 478; Passmore v. North, 13 East, 516.
   Scott, J.

The instrument on which, this suit is brought is, on its face, a bank-check, and not an ordinary bill of exchange. No different form or terms could have impressed that character upon it more clearly. And it does not lose that character by being postdated. Such checks are familiar to the commercial world. Whether they are post-dated to suit the convenience of the drawer or that of the drawee, they are still bank-checks, and the law applicable to them is the same. The check in this, case was intended to be negotiated, and was accordingly made payable to cash or bearer.” One of the characteristics of bank-checks is, that they are always supposed to be drawn upon a fund existing at their date in the hands of the drawee, and they are therefore payable on presentation without grace. Such a check is an. appropriation of a specific sum, in the hands of the drawee, to the absolute use and control of the holder.

The rights and obligations (as between drawer and holder) of the parties to a bank-check differ from those of the parties to an ordinary bill of exchange. In the case of a check, the drawer is treated as, in some sort, the principal debtor; his position is assimilated to that of the maker of a promissory note, payable, at a particular place; and he is not discharged by any laches of the holder in failing to make due presentment and to give notice of dishonor, unless he has suffered loss or injury thereby, and then only pro tanto. Story on Prom. Notes, sec. 492; Edwards on Bills, 397, 398 (star paging); Mullick v. Radakissen, 28 E. L. & Eq. 94, 95; Morrisons v. Bailey and Burgess, 5 Ohio St. 18. And ordinarily the only loss arising from delay in presentment, for which the holder of a check is held responsible, is that arising from the insolvency of the drawee. Story on Prom. Notes, sec. 493; Robinson v. Hawkesford, 9 Q. B. 52; 4 Kent’s Com. 549; Morrison v. McCartney, 30 Mo. (9 Jones) 183; 2 Story, 516.

In this case, the continued solvency of the bank is not drawn *in question. It is not claimed that the drawer has lost any portion of the fund drawn against by the delay in presentment. The fair inference from the evidence is, that payment was refused by the bank at the instance of the drawer. At least, the drawee being solvent, no loss can accrue to the drawer.

If any damage has been sustained, it arises from the failure of Davis & Ouppy. Of the arrangement between them and Stewart for the payment of the check, Smith had no knowledge till after this suit was brought. He was a bona fide holder of the check for full value. He had a right to rely upon it as a valid check, drawn upon valuable consideration, and can not be affected by the equities of antecedent parties, of which he had no knowledge.

The judgment of the court below is affirmed.

Day, C. J., and White, Welch, and Brinkerhofe, JJ., concurred.  