Little v. Phenix Bank — 7 Hill & Den. 359

Majority

p. 359

J. & E. B. Little vs. The Phenix Bank.

Headnote

A check drawn in this state upon a bank in Mississippi, payable in current bank notes, is not negotiable.

Where a negotiable check, payable on demand, was drawn in this state upon one of the Mississippi banks, and not presented for payment until more than ten months after its date, the bank having suspended a few days before the presentment, and being at the time indebted to the drawer: Held, that the holder could not recover against the drawer, as the latter had sustained loss by the delay in making presentment.

On error from the supreme court. J. & E. B. Little brought an action against The Phenix Bank, in the superior court of the city of New-York, and judgment was there rendered in

p. 360

favor of the bank. The supreme court afterward affirmed the judgment; and thereupon error was brought to this court. For the facts of the case and the opinion of the supreme court, see 2 Hill, 425 , et seq.

J. Blunt, for the plaintiffs in error.

E. iS. Van Winkle, for the defendants in error.

delivered opinions in which they concurred with the supreme court in holding that the check for $1000 was not negotiable, and that the drawer was discharged from liability upon the other check by reason of injurious laches on the part of the holder. But they said nothing as to the point upon which the justices of the supreme court differed in opinion.^[1]

On the question being put, “ Shall this judgment be reversed Í” all the members of the court present who heard the argument, nineteen in number, voted in favor of affirming.

Judgment affirmed.

(a) (a) On this point, atid particularly as to the general doctrine advanced by Mr. Justice Cowen in Harker v. Anderson, ( 21 Wend. 372 ,) see Kemble v. Mills, (1 Mann. Grang. 757;) Matter of Ephraim, Brown, (2 Story’s Rep. 502; 6 Law Reporter, 508, S. C.;) Story On Prom. Notes, pp. 615, 616, § 489, note (4); id. pp. 624, 628 to 631, §§ 492, 496 to 498, and the notes.