
    Woodruff vs. The Merchant’s Bank of the city of New-York.
    A bill of exchange drawn upon the cashier of a bank, and accepted by him in his official character, payable to the order of the payee, at a future day, is a bill of exchange, entitled to days of grace and is not a bank check or draft, falling due at the expiration of the time specified in it.
    It is essential to a check eo nomine, or bank draft, that it be payable to bearer, and on demand ; and then days of grace do not attach any more than to bills or notes payable on demand.
    This was an action on the case, tried at the Niagara circuit in October, 1839, before the Hon. Nathan Dayton, one of the circuit judges.
    
      The suit was brought for the omission of the notary of the bank in not duly presenting for payment and protesting a bill of exchange sent to the bank for collection, whereby the plaintiff lost his remedy upon the bill against the drawer, acceptor and endorser. The bill is in these words:—
    |1500. Detroit, Nov. 15, 1838. [ *674 ]
    Sixty days after date, pay to the order of Daniel Green, Esq. fifteen hundred dollars at the Phoenix Bank in the city of Hew-York, value received, which place to account.
    Your ob. serv’t,
    To Wm. H. Gbiswoed, Esq. L. GODARD.
    
      Cashier Oakland County Bank, Detroit, Mich.
    
      Mich.”
    
    It was accepted in these words, written across its face: “ Accepted. Wm. H. Griswold, cashier,” and was endorsed by the payee. The signatures of the drawer, acceptor and endorser, were duly proved, and it was admitted that on the third day of January, 1839, the Merchant’s Bank' received the bill for collection. It appeared in evidence that the bill was not presented for payment on the seventeenth day of January, the third day of grace; but was presented on the fourteenth day of January, and on that day protested, and notices of non-payment forwarded. The counsel for the defendants insisted that an instrument in the above form was a lank check or draft, and that according to the usage and custom of merchants in the city of Hew-York, it fell due at the expiration of sixty days, and was not entitled to the days of grace allowed on promissory notes and bills of exchange. This usage was proved by one president and four cashiers of banks in the city of Hew-York, and by a distinguished broker in that city: which evidence was objected to by the counsel for the plaintiff, but the objection was over-ruled and the evidence received: to which decision the counsel for the plaintiff excepted. The judge thereupon charged the jury that the plaintiff was not entitled to recover, and the jury under his direction found a verdict for the defendants; which the plaintiff moves to set aside. The cause was submitted on written arguments, by
    
      J. L. Curtenius, for the plaintiff.
    
      B. W. Bonney, for the defendants.
   By the Court,

Nelson, C. J.

Whether the instrument in question is to be regarded as drawn upon the Oakland County Bank, or upon [ *675 ] *Wm. H. Griswold individually, it is quite clear the witnesses testifying to the commercial usage respecting such paper in the city of New-York, misapprehended its established character. They must have assumed it to be in effect, if not in form, a bank check or draft, and applied to it the usage in respect to that class of paper; instead of which it contains every distinguished characteristic of an ordinary bill of exchange. Chitty on Bills, 50 a; Chitty, Jr. 3. . It is essential to a check, eo nominee, or bank draft, that it be payable to leaver, and on demand. Chitty on Bills, 52, 322; Chitty jr. 24, 26 ; 21 Wendell, 337; and then days of grace do not attach, any more than to bills or notes payable on demand.

The effect of the proof of usage, as given in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange, in the city of New-York. We need-scarcely add, even if the witnesses were not mistaken, and the usage prevails there as testified to it cannot be allowed to control the settled and acknowledged law of the state in respect to this description of paper.

New trial granted; costs to abide event.  