tiable if expressed to be payable in 'bank bills,' or 'in currency,' or if it lacked words of aegotiability, or were deficient in any of the characteristics in respect to certainty in fact and time of payment and party to whom payment is to be made." In the case of Bank of Mobile v. Brown, 42 Ala. 108, where an action is on a bank check by the indorsee against the drawer, it is held by the court, that a bank check payable in Confederate currency is not an instrument payable in money. § 186. A check must be signed by the drawer. The place of the signature is immaterial, provided it appears to have been intended as a signature. It may be written in pencil. Or it may be printed or stamped. Or it may be the drawer's mark. In which case, however, when executed by the maker by mark, it should be executed in the presence of an officer of the bank, or witnessed by a person who could, if called upon by the bank, verify the check. Coupons of bonds may be signed by the printed facsimile of the maker's autograph adopted by him for that purpose, though not expressly authorized by statute. The State Treasurer of the State of Calfornia refused to pay the interest on certain bonds, alleging that the signature of the party entitled to collect the same, had been printed upon the coupon and not written with his own hand. The court mandamused the treasurer, and he was compelled to pay.2 The place of the signature upon the check is properly at the bottom and below the written order to pay; but the place of the signature is immaterial, provided it appears to have been intended as a signature. § 187. Days of grace. The bank, upon presentment of a check, must pay the same upon demand, and cannot claim days of grace. No days of grace are allowed upon checks. A bill of exchange drawn on a bank entitles it to days of grace, and the bank may claim this time and is not liable to an action for non-payment until the expiration of the time; but a check must be paid when presented. This rule cannot well be changed. It would retard the progress of business and ex 2 Pennington . Baehr, 48 Cal. 565, 28 Ind. 18; 6 Hill (N. Y.) 443. changes to establish a custom allowing banks a fixed number of days in which payments could be made on checks. The refusal of a bank to pay a check when presented gives the drawer a right of action, in case he has funds in the bank to meet the checks.3 § 188. Checks negotiable when. A check is a negotiable instrument under the law unless by its written terms, it is made non-negotiable. A check payable on a contingency is not negotiable.* 189. Delay in presentment. A delay in presenting a check for payment will not discharge the drawer from his obligation on the check unless it is shown that he was prejudiced thereby.5 It must be presented within a reasonable time. If the holder fails to present it within a reasonable time and the bank becomes insolvent, the drawer will be discharged. § 190. What is a reasonable time. The rule is, that where the payee or holder is in the same town where the bank is located, the check should be presented the next secular day after it is received and during banking hours. In the case of Russell K. Bickford v. The First National Bank of Chicago, 42 Ill. 238, it is held that in order to fix the liability of the drawer of a check in case of non-payment, the holder should present the check to the bank on which it is drawn within business hours of the day next succeeding the receipt of the paper and give notice of the dishonor to the drawer. In the case of Smith c. Miller, 43 N. Y. 171, Held, that the check could be operative as payment only by express agreement; but that although as between the drawee and payee, the payee was not bound to present the check until the day after its receipt by him; yet, that between the drawer and payee, it was the duty of the payee to present the check at 3 Brooks 1. Tradesman's Nat. Bank, 22 N. Y. St. 633. 4 Little r. Bank, 2 Hill (N. Y.) 425. 5 Bull r. Bank, 123 U. S. 105. once and he was guilty of laches in not so doing and was chargeable with consequent loss. In the case of Hamilton v. Lumber Company, 95 Mich. 436, the court says: "It was held in Holmes v. Roe, 62 Mich. 199, that where the person receiving the check, and the banker on whom it is drawn, are in the same place, in the absence of special circumstances it must be presented for payment the same day, or, at latest, the day after, it is received; but if in different places, the check must be forwarded for presentment on the day after it is received, at the latest. It is also well settled that where the drawer has been discharged by the laches of the holder, and that fact appears, there must, in order to render the drawer liable, be clear proof that the promise was made with full knowledge of all the facts and circumstances." § 191. Diligence to bind the indorser. Where a check is drawn on a bank located at a distant place, the rule is, that the check must be mailed to that place for collection during business hours of the next secular day after its receipt, and the person charged with its collection must present it during business hours of the next secular day after its receipt. In case of the Northwestern Coal Company v. Bowman and Company, 69 Iowa, 150, the court holds that this rule, however, may be varied by the particular circumstances of the case. The presentment, however, must be made in every case, with all the dispatch and diligence consistent with the transaction of other commercial concerns.7 $192. Stale checks. A bank is bound to honor and pay a check when not barred by the Statute of Limitations. If a check is not presented within a reasonable time, where the drawer, the payee and the 6 Edw. Bills & N., 652-654; 2 Daniel, Neg. Inst., 1149; Wade, Notice, 974; Parsons v. Dickinson, 23 Mich. 56; Miller . Hackley, 5 Johns. 375. 7 Mohawk Bank r. Broderick, 10 Wend. 304; Middletown Bank v. Morris, 28 Barb. 616; Smith v. bank are all in the same place, the bank will naturally look upon such a failure to present the check, with suspicion, and it is sufficient cause to put the bank upon inquiry, and if, failing to make a proper inquiry, it pays the check at its peril. In the case of Bull v. Bank of Kasson, 123 U. S. 105, the court holds that a bank check presented by a bona fide indorsee for payment six months after its date, the funds against which it was drawn remaining in the hands of the drawee, and the drawer having been in no way injured or prejudiced by the delay, is not overdue so as to be subject to equities of the drawer against a previous holder. § 193. Holder of check rights against bank. The weight of authority is, that the payee of a check, before it is accepted by the bank, cannot maintain an action upon it against the latter, as there is no privity of contract between them. The holder's remedy is against the drawer. The bank's liability, if any, is to the drawer. This question is fully and elaborately discussed in the case of First National Bank of Washington v. Whitman, 94 U. S. 343, and is of such importance as to here justify the giving of the opinion of the court in full. The facts are stated in the opinion of the court: "Opinion. This action is brought against the First National Bank of Washington to recover the amount of a check drawn upon it by Mr. Spinner, Treasurer of the United States, for $3,414, dated March 9, 1867. The check is in this form, "To the First National Bank of Washington, D. C." "It was indorsed in the name of Mrs. Kimbro without authority, and the amount of it was paid by the bank to an unauthorized holder. It appears from the testimony of Mr. Tayler, first Comptroller of the Treasury, that the funds of the Government deposited by the Treasurer in a national bank, are treated by the Government, for the purposes of keeping accounts, as in the Treasurer's own charge and custody; that they are charged to him, and that payments made are credited to him, and that he is chargeable precisely as if the funds had been in his own office, and that he had power to make the check in question. "We may, therefore, simplify the case by eliminating from its consideration, all reference to the United States, and consider the transaction as between Mr. Spinner, as an individual, and the bank, as his depository, and Mrs. Kimbro, as the payee of his check. "The question is this: Can the payee of a check, whose indorsement has been forged or made without authority, and when payment has been made by the bank on which it was drawn, upon such unauthorized indorsement, maintain a suit against the bank to recover the amount of the check? We think it is clear, both upon principle and authority, that the payee of a check unaccepted cannot maintain an action upon it against the bank on which it is drawn. The careful and well-reasoned opinion of Mr. Justice Davis in delivering the judgment of this court in Bank of the Republic v. Millard, 10 Wall. 152, leaves little to add upon this subject by way of illustration or authority. In that case a paymaster of the army made his check on the Bank of the Republic to the order of Captain Millard for $859, due to him for arrears of pay as an officer of the army. The bank paid the amount of the check upon a forged indorsement of Millard's name. Recovering the check and exposing the forgery, Millard demanded payment to himself, and, upon refusal, brought his action against the bank. This court held that the action could not be maintained, upon the principle that there was no privity between the bank and Millard. The bank's contract was with the paymaster only, and to him only was its duty. It received no money from Millard. It never promised Mil |