CHECK. Contracts. A written order or request, addressed to a bank or persons car rying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named, or bearer, or to such person, or order, a named sum of money.
The chief differences between cheeks and bills of exchange are—First, a check is not due until presented, and, consequently, it can he negotiated any time Wore presentment, and yet not subject the holder to any equities existing between the pre vious parties. 3 Johns. Cas. N. Y. 5, 9; 9 Barnew. & C. 388 ; Chitty, Bills, 8th ed. 546. Secondly, the drawer of a check is not discharged for want of immediate presentment with due diligence; while the drawer of a bill of exchange is. The drawer of a cheek is only discharged by such neglect when he sustains actual damage by it, and then only Tiro tanto. 6 Caw. N. Y. 484; Kent, Comm. Lee. 44, 5th ed. p. 104, note; 3 Johns. Cas. N. Y. 5, 250; 10 Wend. N. Y. 306; 2 11111, N. Y. 425. Thirdly, the death of the drawer of a check rescinds the au thority of the banker to pay it; while the death 'of the drawer of a bill of exchange does not alter the relations of the parties. 3 Mann. & G. 571-573. Fourthly, cheeks, unlike bills of exchange, are al ways payable without grace. 25 Wend. N. Y. 672; 6 Hill, N. Y. 174.
2. Checks are in use only between banks and bankers and their customers, and are designed to facilitate banking operations. It is of their very essence to be payable on de mand, because the contract between the banker and customer is that the money is payable on demand. 21 Wend. N. Y. 372; 20 id. 205 ; 10 id. 306 ; 2 Stor. C. C. 502, 512.
They ought to be drawn within the state where the bank is situated, because if not so drawn they become foreign bills of exchange, subject to the law merchant. This law re quires that they be protested, and that due diligence be used in presenting them, in order to hold the drawer and indorsers. It is not necessary to use diligence in presenting an ordinary check, in order to charge the drawer, unless he has received damage by the delay. 2 Pet. 586 ; 2 Hill, N. Y. 425 ; 3 Joffus. Cas. N. Y. 2 ; 1 Ga. 304 ; 2 Mood. & Rcb. 401; 3 Scott, N. R. 555. 3 Kent, Comm. 5th ed. 104, u. ; Story, Prom. Notes, 492.
3. In common with other kinds of negotia ble paper, they must contain an order to pay money, and words of negotiability. This en
ables a bond fide holder for value to collect the money without regard to the previous history of the paper. 16 Pet. 1; 5 Johns. Ch. N. Y. 54 ; 20 Johns. N. Y. 637 ; 3 Kent, Comm. 81.
They must be properly signed by the per son or firm keeping the account at the banker's, as it is part of the implied contract of the banker that only cheeks so signed shall be paid.
Checks, being payable on demand, are not to be accepted, but presented at once for pay ment. There is a practice, however, of mark ing checks "good," by tote banker, which fixes his responsibility to pay that particular check when presented, and amounts, in fact, to an acceptance. Such a marking is called' certify ing; and checks so marked are called certified checks.
Giving it check is no payment unless the check is Giving 1 Halt, N. Y. 56, 78; 4 Johns. N. Y. 296; 7 Serg. & R. Penn. 116 ; 2 Pick. Mass. 204. See 3 Rand. Va. 481. But a ten der was held good when made by a check contained in a letter, requesting a receipt in return, which the plaintiff sent back, demand ing a larger gum, without objecting to the nature of the tender. 3 Bouvier, Inst. n. 2436.
A check cannot be the Subject of a dbitatio oiortis mini, unless it is presented and paid during the life of the donor; because his death revokes the banker's authority to pay. 4 Brown, Ch. 286. But in such a case a check has been considered as of .a testa mentary character. 3 Curt. &el. 650.
There is a practice of Writing across cheeks "memorandum," or " niem." They are given thus, not as an ordinary check, but as a memorandum of indebtedness.; and• between the original parties this seems to be their only effect. In the hands of a third party, for value, they have, hOWeVei., all the force of checks without such word of restriction. Story, Prom. Notes, f 499. Set, generally, Sewell, Bank.; Shaw, Checks; 4 Johns. N. Y. 304; 7 id. 26; 6 Wend'. N. Y. 445 ; 13 id. 133; 10-id. 304; 2 Nott & M'C. So. C. 251 ; 1 Blackf. Ind. 104 ; 1 Litt. Ky. 194 ; 2' id. 299; 4 Harr. & J. Md. 276 ; 7 id. 381 ; 15 Mass. 74; 7 Serg. & R. Penn. 116 ; 9 id. 125 ; 4 Yerg: Tenn. 210 ; 30 N. H. 256; 2 Stor. C. C. 502 ; 5 Barnew. & C. 760 ; 10 Ad. & E. 449; 4 Bingh. 253.