has, in violation of his duty to that party, refused to honor his drafts. And this is true not only when the draft is a bill of exchange, but also when it is a check. Carr v. National Security Bank, 107 Mass. 45; Dana v. Third National Bank, 13 Allen, 445; Bullard v. Randall, 1 Gray, 605; Bank of Republic v. Millard, 10 Wall. 152; Case v. Henderson, 23 La. An. 49; Etna Bank v. Fourth National Bank, 46 N. Y. 32; Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325; Chapman v. White, 2 Seld. 412, 417; Nelson v. First National Bank, 48 Ill. 36; Loyd v. McCaffrey, 46 Penn. St. 410, 414; Foley v. Hill, 1 Phil. Ch. 399; s. c. 2 H. L. Cas. 28; Bellamy v. Majoribanks, 7 Ex. 389, 404; Story, Notes, § 489, and note to 7th ed. Nor is the case different by reason of the fact that the draft is for the entire amount of the drawer's funds, so long as it is a general draft, not against a specified particular fund. Mandeville v. Welch, 5 Wheat. 286 (bill of exchange); Bullard v. Randall, 1 Gray, 605; Winter v. Drury, 1 Seld. 525; Loyd v. McCaffrey, 46 Penn. St. 410. There was until recently some doubt as to the correctness of this proposition as applied to checks; but the doctrine (always applied to bills) as stated supra is now settled. See further, Morse, Banking, 525-530, 2d ed. Where the draft is drawn upon a particular fund by name, there need be no acceptance, at least where it is for the whole amount of the fund, since the draft amounts then to an assignment of property to the holder. Morse, ut supra. But in such a case the draft is neither a bill of exchange nor a check. See ante, p. 15. A check, according to the now accepted view, is only a request of the customer of a bank to pay the whole, or a portion of the customer's deposit to a particular person, or to order, or to bearer. Until presented and accepted, it is inchoate; it vests no title or interest, legal or equitable, to the fund. Before acceptance, the drawer may withdraw his deposit. The bank owes no duty to the holder of a check until it is presented for payment. Knowledge that checks have been drawn does not render it obligatory upon the bank to retain the deposit to meet them. Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325, 331, Church, C. J. In concluding this note concerning the various forms of acceptance, it may be added that when once an acceptance has been given, it becomes irrevocable; and this, whether the acceptance be made in ordinary manner upon the bill, or by a promise aliunde, or upon the paper conditionally, by certification, or supra protest for honor. Indeed, in the case of a promise to accept a bill in favor of any and all indorsees, the person to whom the promise was first communicated cannot release it after others have purchased the paper, upon the faith of the promise. The rule has been extended much further than this in England. It is there held that if the drawer of a bill, drawn on account of a consignment, has drawn the same, by request and direction of the consignee, upon a debtor of the latter or upon one with whom the consignee has an account in trade, and such person promises the consignee in writing to accept the bills of the drawer, the drawee cannot revoke his promise, even before it has been communicated to the drawer, by notifying the consignee of its withdrawal, though the consignee should consent to the revocation. If, when the promise is communicated to the drawer, the drawer has no notice of the professed revocation, the drawee is held liable, Grant v. Hunt, 1 C. B. 44; s. c. 14 Law J. C. P. 106; the short statement of the rule in which case in the 13th Eng. ed. of Byles, p. 194, is not satisfactory. As to the distinction between this case and Ex change Bank v. Rice, 107 Mass. 37, upon the right of the plaintiff to sue the drawee as acceptor, apart from the question of revocation, see ante, p. 51. LIABILITY OF MAKER TO PAYEE AND OF ACCEPTOR TO DRAWER. JOSHUA JENNISON v. CHARLES F. STAFFORD. (1 Cushing, 168. Supreme Court of Massachusetts, March, 1848.) Presumption of Consideration. — In a suit by the payee against the maker upon a promissory note, given in consideration of a promise to forbear to sue a third person for six months, the burden of proof is not on the payee to show that he has forborne according to his promise, but on the maker to show that he has not. THIS case came before the court on exceptions taken to the rulings and instructions of the judge of the Court of Common Pleas, before whom it was tried. The bill of exceptions is as follows: "This was an action of assumpsit. The writ contained the money counts, and also a specification of claim or bill of particulars, setting forth a note signed by defendant, dated February 19th, 1845, whereby, for value received, he promised to pay to the plaintiff, or order, the sum of $300 in six months. And at the trial the plaintiff offered the said note in evidence to prove his case. "The defendant then contended that said note was given without consideration, and introduced evidence tending to show that no consideration for said promise did in fact exist. "The plaintiff then, to avoid the effect of the evidence of the defendant, alleged and introduced evidence to support his allegation, that the defendant had agreed to pay him the con tents of said note at the time and in the manner therein set forth, if plaintiff would forbear to sue one J. C. Stafford, defendant's brother, on a demand for $300, until the expiration of six months from said 19th day of February. "There was evidence tending to show that such forbearance on the part of the plaintiff would have been an actual benefit to defendant. There was evidence tending to show that said J. C. Stafford had had some interest in property in New Hampshire, and also that said Stafford, during the whole of said term, was absent in Wisconsin, or some other of the Western States. "The court ruled that if the jury were satisfied, upon the whole evidence in the case, that there was such an agreement, and that such agreement was an actual benefit to defendant, it constituted a sufficient consideration for the note, and that plaintiff could maintain this action upon such agreement. "It also appeared that the plaintiff agreed that, if defendant would pay the note in suit, plaintiff would discharge his said claim against J. C. Stafford. "The defendant requested the judge to instruct the jury that the burden of proof was, in the first instance, upon the plaintiff to show that he had so forborne to sue the said J. C. Stafford for said term of six months. "But the judge refused to give such instructions, and ruled that it was for defendant to show that plaintiff had commenced a suit against said J. C. Stafford within said period." METCALF, J. Though these exceptions are not wholly free from obscurity, we understand that they mean simply this: That it was ruled by the judge that a promissory note, payable in six months from date, given in consideration of the payee's promise to forbear, for six months, to sue a third person on a just cause of action, is founded on a valid and sufficient consideration; and that in a suit by the payee against the maker, to recover the amount of the note, the burden of proof is not on him to show that he has forborne according to his promise, but that it is for the maker to show that the payee has not so forborne. Upon this understanding of the exceptions, we are of opinion that they cannot be sustained. The ruling as to the consideration of the note was clearly right. 1 Steph. N. P. 255. And we think the ruling as to the burden of proof was also right. It was, in effect, nothing more nor less than a ruling that, in a suit to recover the sum mentioned in a promissory note, the burden of proving a failure of the consideration of the note is on the maker, and not on the payee. Such a note is presumed to be founded on a valid and sufficient consideration, and the burden of proof is on the maker to establish the contrary. Chit. on Bills, 10th Am. ed., 68; Story on Notes, § 181. A fortiori, we think, is the burden on him to show a failure of the consideration. The argument of the defendant's counsel on this point would have been conclusive if the plaintiff had brought an action on a promise by the defendant to pay a sum of money, in consideration that the plaintiff would forbear to sue the defendant's brother. In such action, the plaintiff must have averred, and must have proved in the first instance, that he had forborne according to his promise. Exceptions overruled. |