
    John H. Harbeck and another v. James Craft.
    Quere — "Whether a' denial in a sworn answer of the reception by the defendant of a notice of protest is to be deemed since the Code, equivalent to a denial in an affidavit annexed to a plea ?
    The denial, however, of the reception of a notice, which is to exclude the certificate of a notary of its due service from being read in evidence under the statute, must, in all cases, be positive and unqualified — the evidence cannot be excluded where the terms of the certificate are consistent with those of the denial.
    It seems that when an unreasonable delay in the presentment of a check is meant to be relied on as a defence, in an action against the drawer, the fact of such delay ought to be so averred as to raise a distinct issue in the answer.
    No such delay, however, is to be deemed unreasonable as between a bond fide holder and the drawer of a cheek, unless it appears that it worked an actual injury or loss to the drawer.
    The rights of a bond fide holder of a check cannot be affected by a Becret agreement between the drawer and a third person, by which the latter agreed to ■provide funds for the payment of the check.
    The drawer of an accommodation check cannot set up any other defence against a bond fide holder than would be competent to him had he delivered the check for value.
    Judgment for-plaintiff affirmed, with costs.
    (Before Oakley, Ch. J., Düek and Campbell, J.J.)
    December 7; December 23, 1854.
    Appeal by the defendant from a judgment for the plaintiff.
    "The action was by the holder of a check against the drawer, to recover the amount of the check, with interest from the time of its dishonor.
    The complaint averred the making of the check, its transfer, demand and refusal of payment, and due notice thereof to defendant.
    The answer admitted the making of the check, but denied its transfer to the plaintiffs, and averred that its true owners and holders were the firm of C. & G-. Belden, who were the real parties in interest:
    It also denied the presentment of the check for payment to the bank on which it was drawn, and denied that a notice of its nonpayment had been received by the defendant, in the following words:
    
      “ Fifth. — And this defendant further answering, expressly and positively denies that he ever received any notice whatever of the presentment and non-payment of the said draft or cheek until after the Í4th day of December, A. D., 1853.”
    The answer then averred that the defendant had received no consideration for the check, but had made it for the sole benefit and accommodation of one Chas. P. Huestis, to- whom he delivered it, and by whom, on or shortly before the 5th day of September, 1853, it was delivered to C. & G-. Belden, who discounted the same at an usurious rate of interest, whereby it became wholly void in law. The answer was sworn to.
    The cause was tried before Duer, J., and a jury, on the 22d of May, 1854.
    Upon the trial, the counsel for the plaintiff read in evidence the said check, the signature of which by defendant was admit ted, and which is in the words and figures following, to wit:
    ^ “ No. New-Yokk, Sept. 5, 1853.
    ¾ Bowery Bank
    m pay to Cash or Bearer,
    ^ Three Hundred and Twenty-five dollars.” g ($325) JAMES CRAFT.”
    S [Endorsed,] “HARBECK & CO.”
    The counsel for the plaintiff then offered to read in evidence the notarial certificate of the presentment of the check for payment, and of the protest thereof for non-payment, and of the service of notice thereof on defendant. The certificate was objected to by the counsel for the defendant, who insisted that such presentment and non-payment and notice could only be proved by the production and examination of witnesses on oath. The objection was overruled by the court, and the certificate was allowed to be read in evidence. To which ruling and decision the counsel for defendant excepted.
    The protest and certificate were then read in evidence; and are in the words and figures following:
    
      ^ No. New-Yoke, Sept. 5, 1853.
    | BOWERY BANK.
    n Pay to Cash , or Bearer
    ¾ Three Hundred and Twenty-five Dollars.
    ^ ($325.) JAMES CRAFT.
    « [Endorsed,] HARBECK & CO.
    Uhited States op America, )
    
    State op New-Yore, ) ss'
    
    On the nineteenth day of December, in the year of our Lord one thousand eight hundred and fifty-three, at the request of The Corn Exchange Bane, I, James W. Wilson, a Notary Public, duly admitted and sworn, dwelling, in the City of New York, did present the original check hereunto annexed to the Bowery Bank, to a paying teller thereof, and demanded payment thereof, which was refused.
    Whereupon, I, the said Notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawer and endorsers of the said check, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interest already incurred, and to be hereafter incurred, for want of payment of the same.
    Thus done and protested, in the City of New York aforesaid, in the presence of John Doe and Richard Roe, witnesses.
    In Testimonium Yeritatis.
    [l. a] (Signed) JAMES W. WILSON,
    Notary Public.
    United States op America, )
    State op-New Yore, j
    I, James W. Wilson, a Notary Publicf duly admitted and sworn, dwelling in the City of New York, do hereby Certify, that on the nineteenth day of December, 1853, Notice of the Protest of the before-mentioned check was served upon James Craft, in the City of New York, by delivering the same to him personally.
    [l. s.] JAMES W. WILSON.
    The counsel for the plaintiffs then called as a witness W. J. Stoutingbergh, who testified as follows:
    
      I am a clerk for tbe plaintiffs. I know tbe check wbicb is in suit in this case, and which is now produced to me. It is owned by the plaintiffs. On the fifth day of September, 1858, I deposited this check with the Union Bank for the plaintiffs, for collection. That bank returned it unpaid the next day, and I then presented it to the Bowery Bank myself, and it was not paid. The plaintiffs received that check from C. & G-. Belden. They gave their check for it; the one now produced to me, dated September 3d, 1853, for $879.65, is the check. It has the bank stamp of payment. It is endorsed by 0. & G. Belden. It was filled up by me, and was paid by the bank.
    The following is a copy of the said check:
    “New York, Sept. 3, 1853.
    “UNION BANK.
    “ Pay to Messrs. 0. & G. Belden or order Eight Hundred and Seventy-nine ⅛⅜ dollars.
    $879. ⅛⅞ ' “ HARBECK & 00.”
    [Endorsed] “ C. & G. BELDEN.”
    On his cross-examination, the said witness testified: The check of the defendant which is in suit, and a check of Mr. Schenck for $555.00 were received for the plaintiff’s check of September 3d, 1853. I was present at the transaction. I can’t tell when Schenck’s check was dated. I have no means of telling when it was dated. I can’t say whether it was dated that day, or dated ahead.
    ■ The plaintiffs do business -at No. 60 Wall street, in this city, in the third story. C. & G. Belden do business in the same rooms with the plaintiffs. O. & G. Belden do not follow any particular business. They are brokers. The plaintiffs are ship owners and stave merchants.
    I am not in the employ of the Beldens; but at times attend to their business for them. I do not know of whom the Beldens got this check of the defendant, which is in suit in this case.
    The plaintiffs here rested their cause.
    The counsel for the defendant then called William H. Robbins, who was sworn for the defendant, and testified that he was in August and September, 1853, a clerk in the employ of Charles P. Huestis; who is named in the defendant’s answer, in this case.
    
      The following question was then put to said witness, viz.:
    Q. State, if you know, the circumstances under which the check of the defendant, which is in suit in this action, was given; and what consideration; if any, was received by the said defendant therefor ?
    The counsel for said plaintiffs objected to such'question; and thereupon, upon the request of th'e counsel for said plaintiffs and of the said Judge, the counsel for the defendant stated that he offered and expected to prove by said witness, that the check was made by the defendant for the purpose of being lent, and that the same was lent by him to Huestis, solely for the benefit and accommodation of Huestis, and without any consideration therefor to said defendant: that Huestis agreed to pay and take up the said check; that Huestis had before that time borrowed other similar checks from the said defendant, and had provided for the payment thereof, by depositing money to meet the same, to the credit of the defendant’s account in the Bowery Bank; that at the time of borrowing from defendant the check now in suit, the said Huestis agreed to provide for its payment in that manner; that at the time of borrowing the check, and at the time of the maturity thereof, and for several weeks thereafter, the said Huestis was solvent and met all his obligations, and was able to have paid the check in suit to the defendant; but that shortly before the 19th day of December, A. D. 1853, he failed and became insolvent.
    The counsel for the plaintiffs objected to the giving of any such testimony, and moved the court tp exclude the same. The court granted such motion, and sustained the objection to the question so put to the witness, and refused to allow the matters so offered to be proved, to be given in evidence.
    To which ruling and decision, and every part thereof, the counsel for the defendant then and there duly excepted.
    The counsel for the defendant then moved that the complaint be dismissed, for the- reason that the check was not presented until the 19th day of December, A. v. 1853, and also for the reason that there was no sufficient or legal proof of the service on the defendant of notice .of the presentment and demand of payment of the check, or of the non-payment thereof; and also for the reason that no notice whatever of any such presentment and demand and non-payment of said check was shown, in any manner, to have been given to said defendant until the 19th day of December, A. D. 1853.
    The court denied the motion, — to which the counsel for the defendant then and there, excepted. The court also instructed the jury that there was no question of fact for them to pass upon; but that the plaintiffs were entitled to a verdict against the defendant for the amount of the check, with interest from the 19th day of December, A. D. 1853; and directed the jury to render such verdict accordingly. To all of which instructions, ruling and decision, the counsel for the defendant then and there excepted.
    The jury thereupon rendered their verdict for the said plaintiffs, for the sum of $335.75.
    Judgment was entered for the plaintiff upon this verdict for $437.60 damages, and costs on the 20th October, 1854.
    , From this judgment the defendant appealed, and the cause was heard upon a case containing the evidence and exceptions taken on the trial.
    
      O. P. Kirkland for the defendant; appellant,
    contended that the certificate of the notary was improperly admitted in evidence, and that the denial in the answer ought to have been held sufficient to exclude it. He also insisted that the. evidence offered'to prove that the defendant had been injured by the delay in giving notice of the non-payment of the check ought to have been received, and that for these errors in law the judgment should be reversed.
    
      J. N. Platt, for the plaintiff,
    said that the certificate of the notary could not have been excluded since the statute makes such a certificate evidence of a presentment and notice in all cases, “ unless the defendant shall annex to his plea an affidavit denying the fact of his having received notice of non-payment.” (Laws of 1833, ch. 271, § 8; L. E. S., 2d ed., p. 212, § 46.) Then the only denial was the answer, nor was this such a denial as the statute requires; it did not contradict the certificate. As to the evidence offered to prove that the defendant had been injured by the delay in giving notice, it was plainly not admissible under the answer, nor were the facts offered to be proved any defence against the plaintiffs, who were bond fide holders for value.
   By the Court.

Duer, J.

My brethren concur with me that the jury upon the evidence before them were properly instructed to find a verdict for the plaintiffs. There was no disputed fact, and the law upon the facts proved entitled the plaintiffs to recover.

It is not necessary now to decide whether the denial in a sworn answer of the reception by the defendant of a notice of protest satisfies the statute which requires the denial to be made in an affidavit. Certainly, such a denial has no proper place in an answer under the code, which should be confined to a denial or averment of those facts, and of those only which are necessary to be proved, in order to maintain the action or defence. The reception of such a notice, it is plain, is not an issuable fact, for the plaintiff is not bound to aver it, and when a due service of the notice is proved, whether it was received or not by the defendant, is quite immaterial. Hence, the denial of its reception, in an answer, might very properly be stricken out as irrelevant, and whether a denial that ought not to be found in his answer at all ought to avail the defendant for any purpose may certainly be doubted.

But we may well pass over the question now, since it is very clear that the answer of this’defendant contains no denial whatever of his reception of the notice, which the complaint alleges to have been served. On the contrary, it admits by a necessary implication that the notice was received by him after the 14th of December, 1858, and is therefore entirely consistent with the certificate of the notary, which states the service to have been made on the 19th of the same month. ¥e add, that the denial of the reception of a notice of protest which is to have the effect of excluding the certificate of the notary and of imposing upon the plaintiff the necessity of proving the service, of the notice by the testimony of a witness, in our opinion, must be, in all cases, positive, unequivocal, and unqualified. A denial wbicb has no tendency to disprove the certificate is nugatory.

It has been urged, however, that the terms of the denial in the present case are, at least, a sufficient allegation that there was an unreasonable delay in the presentment of the check, and in giving notice of its dishonor, but this seems to us a very forced construction. Nor can we think that the terms of the denial were ever intended to raise such an issue. The laches of a plaintiff, when it constitutes a defence is an issuable fact, and when a defence is meant to be relied on, the existence of the fact ought to be distinctly averred. It cannot be said that there is such an averment in the answer before us; there is a possible suggestion, a remote inference, and nothing more.

But passing over this objection, that the defence of an unreasonable delay is not raised by the answer, we are satisfied that the allegation itself is founded on a mistaken view of the existing law. It may be true, as a general tule, that a check payable on demand ought to be presented for. payment at the bank on which it is drawn, if not on 'the day, yet on the day next after that on which it is dated.—(Moule v. Brown, 4 Bing., N. C. 268, 5 Scott, 694, 2 Taunt. 388, 2 Camp. 539, 10 Wend. 304; Mohawh Bank v. Broderick, 13 Wend. 133.) But it is not true that the omission so to present it, or even a delay in its presentation, of several months, if not years, ever operates of itself to discharge the drawer. The cases very clearly show that the rules that govern the presentment of a check, and notice of its dishonor, as between a holder and the drawer, are far less stringent than those that apply to the relation of a drawer and an endorser. To charge an endorser, at least the same diligence is required as in relation to bills of Exchange, (20 Wend. 192; but, as between a bond fide holder and the drawer of a dishonored check, no delay in demanding its payment is deemed to be so unreasonable as to bar a recovery by the holder, unless it appears that it worked an actual injury or loss to the drawer. Such is the rule that was laid down by the Supreme Court at an early day in Conroy v. Watson, (3 John., Ca. 258, 264,) and which, with full approval, was adopted and followed by the same court in Murray v. Indal, (6 Cow. 484,) and sucb appears now to be tbe established law in England, (Serle v. Norton, 2 Mood, and Rob. 401; Alexander v. Burchfield, 3 Scott, N. R. 585, 9 Mann. and Grang. 1067, S. C.) Hence, although in the present case there was a delay in demanding payment of the check, from the 5th of September to the 19th of the following December, we cannot say upon the evidence before us that the delay could operate to discharge the defendant— there is no evidence of a laches by which he was prejudiced.

We are thus brought to the last and most important question in the cause. Evidence to show that the defendant was prejudiced by the holder’s delay in giving notice of the non-payment of the check we are told was offered on the trial, and was rejected by the Judge. He therefore rejected evidence which it is admitted would have shown a valid defence, and for this error, were there • no other, the judgment should be reversed. It certainly appears Rom the case, that evidence tending to show that the defendant was prejudiced by the imputed laches of the plaintiffs, was offered to be given, and was rejected; but when we look at the nature of the offer and of the facts which it embraced, we are satisfied, upon "the fullest reflection, that the evidence was properly rejected. It was properly rejected not only because the answer contains no allegation, nor pretence of an allegation, that the defendant had been injured by an unreasonable delay, but because the facts offered to be proved, had the proof been admitted, would have created no bar to the plaintiffs’ recovery. In other words, were in reality no defence.

The facts offered to be proved are briefly that the defendant received no consideration for the check, but lent it to a third person, one Huestis, who promised to deposit to the defendant’s credit, in the bank upon which the check was drawn, the necessary funds for its payment. That Huestis, shortly before the 19th of December, the day on which notice of the protest of the check was served, became insolvent, and that, bad payment of the check been demanded, and notice of its non-payment been given before his insolvency, the defendant might and would have obtained security from Huestis that would have saved him from the loss, that, if the judgment stand, he must incur. To these facts another must be added, which although not distinctly offered to be proved, the offer made of necessity embraced, namely, that Huestis made no deposit of funds for the payment of the check, to the credit of the defendant, for had this deposit been made, as it could not have been withdrawn by Huestis, the defendant would have sustained no loss from his insolvency. Having the funds, he would require no security. Hence it is plainly to Huestis’s breach of promise that the defendant’s loss must be ascribed.

In considering the question whether the facts thus stated constitute a defence, it must be remembered, that it is not pretended that the plaintiffs knew or had any reason to suspect that the check was an accommodation check when they received it, and also that they received it and paid full value for it on the very day upon which it is dated. In other words, it must be remembered, that they are bond fide holders for value. And the question is, whether the rights of such a holder to enforce the payment of a check, can be defeated'by proof of a secret agreement between the drawer and a third person, and of the consequences that from the breach of the agreement resulted to the drawer? Is the holder to lose the moneys, that he advanced upon the name and credit of the drawer, because the latter was deceived and cheated by the person to whom the check was originally issued? We apprehend not. We apprehend that reason, policy and the law,- alike reject the supposition.

The holder to whom a check has been passed for value, has certainly a right to believe that it was made on a valuable consideration, and that the drawer has, or in due season will, provide funds for its payment in the bank upon which it is drawn. It is this duty that the law imposes on the drawer, and which, when he issues the check, he undertakes to perform; and we cannot believe that the innocent holder is to suffer because, without his knowledge, at the instance and for the benefit of a third person, this duty has been violated. There is doubtless an equity beween the drawer of an accommodation check and the person, to whom it is lent. As between them, tbe latter is bound to pay it; but it is an universal rule tbat tbe rights of a bolder for value of negotiable paper can never be impaired or affected by a secret equity, —an .equity of wbicb be bad no knowledge or suspicion, or in legal pbrase, actual or constructive notice. It is upon a strict adherence to this rule tbat tbe value of such paper, as negotiable, mainly depends, and hence tbe most enlightened Judges have said tbat tbe strongest reasons of public convenience and policy demand its observance. Tbe rule is at least as applicable to checks as to promissory notes and bills of exchange, and when thus applied, it follows tbat .the drawer of an accommodation check can never be permitted to set up a defence against a bolder for value, and without notice, that would not be competent and available bad be received value for tbe check when be delivered it. He can found no defence upon tbe fact, tbat as between him and tbe person to whom be delivered the check, it was without consideration. It is, however, upon this foundation tbat tbe de-fence wbicb was offered to be proved in tbe present ease, plainly rested, and I therefore retain tbe opinion, in wbicb my brethren fully concur, tbat tbe evidence offered to support tbe defence was properly excluded. There is no pretence for saying tbat bad tbe defendant received value for tbe check when be delivered it, be could now be discharged from its payment.

It may be doubted whether there is any case in wbicb tbe drawer of a check, who delivered it for value, would be exonerated from its payment by a delay in its presentment, except when it appears tbat, from the failure of the bank upon wbicb it was drawn, be sustained a loss of tbe funds tbat, but for tbe delay, would have been applied to its payment; in other words, it is doubtful whether tbe bolder, by delaying bis demand of payment, takes upon himself any other risk than tbat of tbe continued solvency of tbe drawee. But, admitting tbat other cases may be stated, in wbicb, from a delay of presentment, a drawer for value would sustain a loss tbat would operate to discharge him, it is still true tbat it is in those cases only in wbicb be would be discharged, tbat an accommodation drawer would be allowed to defeat tbe claim of a bond fide bolder. It is still true tbat a distinction in bis favor can never be raised upon a fact of which the bolder was ignorant and tbe existence ,pf wbicb be bad no reason to suspect and was not bound to presume. Checks which, being without consideration between the immediate parties, receive their first value from an usurious discount, may seem to be an exception from the doctrine that no other defence is competent to an accommodation drawer than to a drawer for value, but this is an exception created by statute, and, considered with attention, is more apparentthan real. Such checks are void in their origin; but those to which the doctrine, properly understood, applies, are valid when received by the holder, and the transaction by which he acquires his title is free from any taint of illegality. It is the doctrine thus explained and limited, which, as fully sustained by principle and by authority, we hold ourselves bound to follow.

We have now considered all the exceptions that, it appears from the case, were taken on the trial, and as for the reasons that have been given, we deem them all to be groundless, the judgment appealed from must be affirmed with costs.

Judgment accordingly 
      
       The court, at June term, in a subsequent case in which it was necessary to decide the question, held that such a denial in an answer is to be wholly disregarded.
     
      
      
        Vide, also Etting v. Brinkerhoff, (2 Hall, 465,) and Little v. Phœnix Bank, (2. Hill. 426.) The head note of the reporter in this last ease states that it -was held by the court that the holder is bound to prove affirmatively that no loss was sustained by the drawer; but this is hardly justified by the language of the opinion, and it is difficult to believe that the court meant to say that the plaintiff was bound to prove a negative, nor did any such question arise in the case. — R
     