O'Brien v. Smith

Mr. Davidge and Mr. Ingle, for plaintiff in error, argued: 1. That reasonable diligence was not used in presenting the check. Admitting that the demand might have been delayed until the next day, if that had not been Sunday, yet, as this check was received on Saturday, the custom of merchants required it to be presented the same day, and this custom is extended by analogy to the execution of all contracts. 2. The Bank of the Metropolis is not chartered, and the paper sued on is held by the defendant in error for the benefit of an unincorporated partnership. He has no legal title to the paper, and cannot recover in his own name. Olcott vs. Rathbone, (5 Wend., 490;) Sherwood vs. Rays, (14 Pick., 172.) Mr. Carlisle, for defendant in error. 1. The presentation of the check on Monday morning was in reasonable time. Story on Bills, § 419; Grant on Banking, 50, 200. 2. The plaintiff, as cashier of the bank and holder of the check for the use of the bank, can recover. It was so held in Law vs. Parnell, (7 J. Scott N. S., 282,) which was this very case. We think the decision of the Circuit Court was right upon both of the points raised in the argument. The authorities referred to by the counsel for the defendant in error are conclusive, and it cannot be necessary to discuss here questions which we consider as too well settled to be now open to serious controversy.