Contracts. A written order or request, addressed to a bank or persons carrying on the banking business, and drawn upon them by a party having money in their hands, requesting them to pay on presentment to a person therein named or to bearer, a named sum of money.
2. It is said that checks are uniformly payable to bearer Chit. on Bills, 411; but that is not so in practice in the United States. they are generally payable to bearer, but sometimes they are payable to order.
3. Cheeks are negotiable instruments
, as bills of exchange; though, strictly speaking, they are due before payment has been demanded, i$n which respect they differ from promissory notes and bills of exchange payable on a particular day. 7 T. R. 430.
4. The differences between a common check and a bill of exchange, are, First, that a check may be taken after it is overdue, and still the holder is not subject to the equities wbich may exist between the drawer and the party 'from whom he receives it; in the case of bills of exchange, the holder is subject to such equity. 3 John. Cas. 5, 9; 9 B. & Cr. 388. Secondly, the drawer of a bill of exchange is liable only on the condition that it be presented in due time, and, if it be dishonored, that he has had notice; but such is not the case with a check, no delay will excuse the drawer of it, unless he has suffered some loss or injury on that account, and then only pro tanto
. 3 Kent, Com. 104 n. 5th ed.; 8 John. Cas. 2; Story, Prom. Notes, 492.
5. There is a kind of check known by the name of memorandum cheeks; these are given in general with an understanding that they are not to be presented at the bank on which they are drawn for payment; and, as between
the parties, they have no other effect than an IOU, or common due bill; but third persons who become the holders of them, for a valuable consideration, without notice, have all the rights which the holders of ordinary cheeks can lawfully claim. Story, Prom. Notes, 499.
6. Giving a creditor a cheek on a bank does not constitute payment of a debt. 1 Hall, 56, 78; 7 S. & R. 116; 2 Pick. 204; 4 John. 296. See 3 Rand. 481. But a tender was held good when made by a check contained in a letter, requesting a receipt in return, which the plaintiff sent back, demanding a larger sum, without objecting to the nature of the tender. 3 Bouv. Inst. n. 2436.
7. A cheek delivered by a testator in his lifetime to a person as a gift, and not presented till after his death, was considered as a part of his will, and allowed to be proved as such. 3 Curt. Ecc. R. 650. Vide, generally,4 John. R. 304; 7 John. R. 26; 2 Ves. jr. 111; Yelv. 4, b, note; 7 Serg. & Rawle, 116; 3 John. Cas. 5, 259; 6 Wend. R. 445; 2 N. & M. 251; 1 Blackf. R. 104; 1 Litt. R. 194; 2 Litt. R. 299; 6 Cowen, R. 484; 4 Har. & J. 276; 13 Wend. R. 133; 10 Wend. R. 304; 7 Har. & J. 381; 1 Hall, R. 78; 15 Mass. R. 74; 4 Yerg. R. 210; 9 S. & R. 125; 2 Story, R. 502; 4 Whart. R. 252.