
    SUPREME COURT.
    Tanner and others agt. Bank of Fox Lake.
    It never has been held that the check of a party hound to pay, is a payment, if the check is not paid.
    
    
      New York General Term,
    
      October, 1861.
   By the court,

Ingraham, Justice.

In this case it appears that the defendants, on being informed that the first draft was not paid, sent the draft on which this action is brought to take it up. This would be a good consideration for the draft, if there was no fraud or misrepresentation used in obtaining it. Such is the defence set up by the answer. On the trial the judge charged “ that giving the check was no payment.” To this the defendants excepted. There was no error in such charge. It has never been held that the check of the party bound to pay is a payment, if the check is not paid.

It does not appear whether the question of fraud was submitted to the jury. Wé are to presume it was, if no request was made to submit that question to the jury by the defendants. They should have asked to have that question passed upon.

Judgment affirmed, with costs.  