
    [Philadelphia,
    Dec. 30, 1822.]
    LEVY against PETERS and another Executors of SPROGELL.
    IN ERROR.
    Payment of part of a check by the drawer, after it becomes due, dispenses with the' necessity of proving’ a demand on the bank, in a suit against him.
    So, it seems, would a payment of part, before the check becomes due.
    Tile plaintiff cannot, by voluntarily giving credit for a part payment, evade the necessity of proving a demand on the- drawee, if the defendant disclaims such credit,, and insists on the .want of a demand. But if the defendant acquiesces in such credit,and insists that the whole has been paid,1 and relies on length of time, and other circumstances,to discharge him altogether,he thereby admits a part payment,
    ON a writ of error to the Court of Common Pleas of the County of Philadelphia, in assumpsit; brought by Joseph Levy against Richard Peters, and Betsy K. Sprogell, executors of David Sprogell deceased, a bill of exceptions was returned, which stated, that on the. trial, the plaintiff gave in evidence a check for 400 dollars, drawn by the testator on the Mechanics’ Bank, in favour of the plaintiff, dated the 12th Jime, 1815, on.which he claimed as due, a balance of 50 dollars, with interest from the date thereof, giving credit for the 350 dollars, which he said had been paid by the defendants testator in his life time. The defendants insisted, that the check had been wholly paid, and had been cancelled by the said testator, or some person who had it; and gave evidence to prove'that it had been cancelled. The defendants then insisted, that the said evidence so exhibited by them, together with the great length of time that had elapsed sinee the date of the check, were sufficient to entitle the defendants to the verdict of the jury, and to go acquitted and discharged. And the plaintiff then and there insisted, that the said evidence, as given, was insufficient to entitle the defendants to the verdict of the Jury, but that'the plaintiff was entitled to recover.
    The President of the court delivered the’ opinion of the court to the jury as follows, to wit: ‘‘That the jury must judge as a matter of factj whether’ the check had been cancelled, and of the other questions of fact arising in the cause; but that the plaintiff could not recover, because he had not proved a demand upon the bank on which' the said check -was drawn. That there was no evidence of the payment of 350 dollars in part of the amount; and if there had been, it would' .not have altered the case in this respect; a check on the bank being in the nature of an inland bill of exchange, and'subject to all the rules which regulate'the negotiation of such an instrument. ” The jury gavé their verdict for the defendants. .Whereupon the plaintiff excepted to the opinion of the said court.
    
      E. S. Sergeant and Phillips., for the plaintiff in error,
    now contended, that the court below had charged the jury 'erroneously. They informed the jury, that a demand on the bank was indispensable, to enable the plaintiff to recover; whereas payment of part by the drawer, dispenses with the necessity of making á demand. Either want of funds in the hands of the drawee, a payment in part by the drawer, or an acknowledgment of the debt, and a promise to furnish funds for the balance, dispenses with the necessity of a protest and notice, in the case of a bill of exchange, or promissory note. Read v. Wilkinson, Cir. Court, Whart. Dig: 8T. It would have been fruitless to present the check at bank, in order tó receive 50 dollars upon it. No bank would pay a portion of the amount of a check. The court, however, say, that there was no evidence of the payment of the 350 dollars, in part of the amount. Yet this was a fact admitted on both sides. The plaintiff stated it explicitly, and demanded only the balance: the defendants insisted, that the check had been wholly paid, and relied upon the evidence they had given of that fact, and on the length of time to excuse them. They never pretended to disclaim the credit given by the plaintiff, and the court below ought to have considered that as a fact admitted on both sides. The court go still further, and say, that even part payment would not have altered the case: in which there is manifestly, error, because, even in the' case of bills of exchange, to which the court assimilate the check, the rule is well settled, that part payment dispenses with the proof .of a demand on the drawee: since' it is an admission by the drawer of his liability to pay.
    
      Peters contra.
    The plaintiff gave no evidence but the check. He credited the defendants with 350 dollars: but of this they knew nothing: they were not bound to deny or admit it, nor called upon to do so. Surely the plaintiff, by voluntarily giving a credit for part payment of a cheek, or bill of exchange, cannot exempt himself from the necessity of proving a demand on the drawee, and notice to the drawer. Otherwise, the rules established for the security of parties to commercial instruments, may be easily evaded. But, supposing there was a part payment, we contend, that the court was right in saying, that a demand on the bank was necessary. It is always necessary, unless it be proved, that the drawer had no funds there.
   The Opinion of the court was delivered by

Tilghmajnt, C. J.

This is an action On a check for 400 dollars, drawn by the defendants’ testator, Edioard Sprogell, on the Mechanics’ Bank, payable to the plaintiff. On the trial, in the court below, the plaintiff gave credit for 350 dollars, which he said, was paid by Edward Sprogell, -and demanded only the balance of 50 dollars, with interest thereon. The defendants insisted, that the whole had been paid fay the testator, and that the check had been cancelled. The president of the court submitted to. the jury, the fact of payment, but remarked, “ that there was no evidence of the payment of 350 dollars in part, of the amount, and if there had been, it would not have altered the case, in this respect; a check on the bank, being in the nature of an inland bill of exchange, and subject to all the rules which regulate the negotiátion of such an instrument.”

If the defendants had put their case on the necessity of a demand of payment from 'the bank, before the drawer could be resorted to, and had disclaimed the payment of any part by their testator, the court might then, with great propriety, have charged the jury, that as no payment was proved, and no demand proved, the plaintiff could not recover. It would not be sufficient for the plaintiff to give credit for part — he should prove it. For if the bare giving credit, were sufficient, the holder of a bill, who had been guilty of laches, might always get over it, by giving credit for a small payment. But this cause appears to have taken a different course. For the defendants alledged, that the whole had been paid; and their counsel requested the court to charge the jury, that payment should be presumed from length of time, and other circumstances. The jury might well have supposed, from the conduct of the defendants that they admitted the credit given by the plaintiff. Indeed, the plaintiff himself, might have been induced to suppose so, and therefore have omitted the production of evidence of payment. The question will be then, whether the court was right in its opinion, that even- supposing payment of part to be proved, the plaintiff could not recover, because he had not proved a demand of the bank. In general, there cannot be a recovery, without proof of a demand, and notice to the drawer, that payment has been refused. But there. are exceptions to this general rule: Whenever the drawer acknowledges himself to be liable to payment, the necessity of proving a demand of the drawee, and his re- , fusal to pay, and notice to the drawer, is dispensed with. Because such acknowledgment carries with it internal evidence, that the drawer knew, that due diligence had been used by the holder, or even if it had not, that still the. drawer confessed he was under an obligation to. pay. And it is imfnaterial, whether there be proof of an express promise to pay, or of other circumstances from which it may be inferred, that the drawer acknowledged himself liable. And I'take it, that payment of part,-is such a circumstance. It was so said, by. Judge Washington, in the case of Read v. Wilkinson, cited in Whart. Dig. 87, from a M. S. report. And .there is good reason for it. For why should part be paid, unless the payer acknowledged the obligation of paying the whole. I am speaking now, of payment of part, after a bill has become .due. It does not appear, by the bill of exceptions in this case, at what time the part payment was credited. But if one draws a check on a bank, payable some time after date, and before the time of payment, the drawer pays part, I should suppose it must be,the intent of the parties, that the check should not be presented. I doubt whether the bank would pay the balance in such case, without a special order from the drawer, or some written explanation. On this point, however, I give no positive opinion, as the case does not require it. But I am of opinion, that there was error in that part of the court’s charge, in which it was said, that supposing the payment of part of the check to have been proved, still the plaintiff was not entitled to recover, because he had not proved a demand of the bank on which it was drawn. The judgment is therefore to he reversed, and a venire de novo awarded.

Judgment reversed and a venire facias de novo awarded.  