Doubtless the usage of the bank would be considered to determine the questions arising where there exists a general usage, but a usage strictly local would not prevail against the principle stated.1

In Ivory vs. Bank of the State of Missouri, 36 Missouri, 475, the paper in question was dated 12th October, 1860, was addressed to "The Southern Bank of St. Louis," and ran:

"Pay to M. C. Jackson & Co., or order, five hundred dollars, on 22d October." The bank receiving the draft for collection presented it on October 22d, and payment being refused, it was held liable for negligence for not presenting it on the 25th, allowing grace. The court said: "This bill is neither payable at sight nor on demand, but on a day certain; and it was therefore entitled to grace, and it was negligence to present it before grace had expired."

In Henderson vs. Pope, 39 Geo., 361, the following instrument was held to be a bill of exchange entitled to grace, and not a check: "Atlanta, Georgia, August 4th, 1866. Georgia National Bank, of Atlanta, Georgia. Ninety days after date, pay to F. R. Bell, or order, one thousand dollars.

(Signed.)

MASSEY & HERTY."

§ 23. It makes no difference (independent of any statutory regulation) whether a check be post dated or ante dated, and it is still payable according to its express terms. The drawing of post-dated checks is an every day occurrence in the commercial cities; and the uniform understanding of parties is, that when the check is postdated-say as of the 14th January, when actually drawn on the 1st -that it is payable on the day it purports to be, even though it be negotiated beforehand.2

§ 24. A check given for a debt is not considered as payment until cashed. Even presentment at bank and acceptance has been held no payment, and more evidence is required to prove that a check

'Bowen vs. Newell, 4 Seld., 190; 5 Sandf., 326; 2 Duer., 584; 3 Kern., 290; Morrison rs. Baily, 5 Ohio St., 13; Woodroof vs. Merchants Bank, 25 Wend., 673; 6 Hill, 174.

Taylor vs. Sip, 1 Vroom 284; Mohawk Bank es. Broderick, 10 Wend., 304; S. C. 13 Wend, 133; Matter of Brown, 2 Story, 502; Salter vs. Burt., 20 Wend., 205. Independent of the Stamp Act, the rule is likewise in England: Story on Prom. Notes, 490: Whister vs. Foster, 32 L. J; C. P., 161; 14 C. B.; N. S., 238, (108 E. C. L. R.); Austin vs. Bunyard, 34 L. J., 217; Allen vs. Keeves, 1 East, 435.

In England, the Stamp Act has led to much controversy as to post-dated checks, which it is unnecessary to discuss here: See 2 Parsons, N. and B., 69, 71; Byles on Bills, p.-, and numerous cases referred to.

The People vs. Baker, 20 Wend., 602.

Barnett vs. Smith, 10 Foster, 256.

given to take up a note is received in satisfaction and discharged, than is demanded where one note is given for another.' The holder of a bill or note is not bound to give it up on receipt of a check, until it is paid. In Taylor vs. Wilson, 11 Metcalf, 44, it was said: "Whether a check shall operate as payment or not depends upon two facts-First, That the drawer has funds to his credit in the bank on which it is drawn; and, Second, That the bank is solvent; or, in other words, pays its checks and the bills duly drawn upon it, on demand."

Receiving a dishonored check for a debt does not effect the creditor's original rights and remedies.3

In Russell vs. Honkey, 6 T. R., 12, it was held that a banker in London to whom Bills of Exchange had been sent for collection, by his correspondent in the country, was not guilty of negligence towards his correspondent in giving them, upon receipt of checks drawn upon a banker in London, though the checks were dishonored for want of funds. The decision was based upon the ordinary usages in London. But in Byles on Bills, (Ain. Ed.), 24, it is said not to be usual at this day with London bankers to exchange bills for checks, and it is doubtful whether they would now be protected in so doing.

In Whitney vs. Esson, 99 Mass., 310, it was held that, although it might be a common practice among men dealing on their own account to take checks in discharge of bills, such a practice fell short of a usage applying to the collection of drafts for absent parties. And that, by taking a check in such a case, the party receiving it, as agent, made himself liable for any resulting loss.

25. There is a class of checks which has recently sprung up in our commercial communities, of a peculiar character, and known as memorandum checks; in their form they do not differ from ordinary checks, and as to third parties who are holders bona fide, for a valuable consideration, without notice, they are affected with all the legal rights, and consequences of ordinary checks. But be

12 Pars., N. and B, 86, and cases cited.

2Hansard vs. Robinson, 7 B. and C, 90; Moore vs. Barthrop, 1 B. and C., 5; 2 Pars., N. and B., 85.

Ex parte Blackburn, 10 Vesey, 204; Brown vs. Kewley, 2 B. and P., 518; Barnet vs. Smith, 10 Foster, 256; 2 Pars., N. and B., 85-6, and cases cited.

Dykers vs. Leather Bank, 11 Paige, 612, in which it was said: "The weight of the testimony is, that this memorandum, 'which was the insertion of the word 'mem,' amounts to nothing more than an indication of an understanding that the check is not

tween the parties thereto, they seem designed as a mere memorandum of an indebtment, generally for money borrowed, and are in the nature of the common due bills I. O. U.1

The difference in form between the ordinary and the memorandum check is, that the latter usually has the insertion of the word "mem," which is used to indicate the understanding between the immediate parties. Sometimes the name of the bank is cancelled; but whether the word "mem." constitute the only mark on its face, or the bank's name be cancelled in addition, the effect of the memorandum check is to create an absolute contract of the maker to pay the bona fide holder, unconditionally, and not upon the condition of presentment at the bank, non payment and notice, the formalities being regarded as waived.

In Franklin Bank vs. Freeman, 16 Pick, 535, the check sued on was in form as follows:

"1000 dolls.

cts.

"Market North Bank, Memo:

BOSTON, Aug. 27, 1833 "Pay to payable, Friday, 30 inst., or bearer, one thousand dol"lars,

"To the Cashier,

BENJ. FREEMAN."

The word "North" had two lines run through it. The Court said: "A memorandum check is a contract, by which the maker engages to pay the bona fide holder absolutely, and not upon a condition to pay if the bank upon which it be drawn should not pay upon presentation at maturity, and if due notice of the presentation and non-payment should be given. The word 'memorandum,' written or printed upon the check, describes the nature of the contract with precision." According to the Massachusetts cases, the erasure of the name of the bank destroys the presumption of consideration which attaches to an ordinary check; but proof of value given, and bona fides,

to be presented immediately for payment, so as to destroy the drawer's credit with the bank, when he has not provided funds to meet the draft:" Franklin Bank vs. Freeman, 16 Pick., 535.

'Language of Story on Promissory Notes, 2 499.

Dykers ts. Leather Bank, 11 Paige, 612; Franklin Bank vs. Freeman, 16 Pick., 535. 'Ball 8. Allen, 15 Mass. 433; Ellis vs. Wheeler, 3 Pick., 18.

'Franklin Bank vs. Freeman, 16 Pick, 535; Dykers vs. Leather Bank, 11 Paige 612. Ball vs. Allen, 15 Mass., 433.

authorizes a recovery against the drawer of a regular memorandum check, in which the name of the bank is cancelled.1

A check in the ordinary form cannot be shown by parol evidence to be a memorandum check, and not intended for presentment; and so excusing the holder from presenting before he charged the drawers.2

Ellis vs. Wheeler, 3 Pick, 18.

Kelley vs. Brown, 4 Gray, 108.

Rights of a bona fide Purchaser, or Holder of a Negotiable Instrument.

§1. It is a general principle of the the Law Merchant, that, as between the immediate parties to a negotiable instrument-parties between whom there is a privity-the consideration may be inquired into; and that as to them the only superiority of a bill or note over other unsealed evidences of debt is, that it prima facie imports a consideration.

We propose herein, to consider the relations of the purchaser or holder of the instrument, who has acquired the instrument from or through an original party, and to show when, and under what circumstances, he may be affected by fraud or illegality in, or failure of the original consideration.

By "purchaser" and "holder" of a negotiable instrument is included any one who has acquired it in good faith for a valuable consideration, from one capable of transferring it, and the following propositions may be considered as settled principles of Commercial Lawprinciples which have been reiterated by the Supreme Court of the United States, and prevail throughout the Union.

First. That the purchaser or holder of a negotiable instrument who has taken it bona fide for a valuable consideration in the ordinary course of business, when it was not overdue, and without notice. of facts which impeach its validity as between antecedent parties, has a title unaffected by those facts, and may recover on the instrument although it may be without any legal validity as between the antecedent parties.

Second. That the possession of a negotiable instrument, carries title with it to the holder. The possession and title are one and inseparable.

Third. That the burden of proof lies on the person who assaile the right claimed by the party in possession.

Fourth. That suspicion of defect of title, or knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title.