O'Brien v. Smith,
66 U.S. 99 (1861)

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U.S. Supreme Court

O'Brien v. Smith, 66 U.S. 1 Black 99 99 (1861)

O'Brien v. Smith

66 U.S. (1 Black) 99


1. Where a check drawn in the afternoon is presented for payment on the morning of the next Monday, there is no negligence or delay which will discharge the drawer.

2. The holder of the check being the cashier of an unincorporated banking association and holding it for the use of the concern may recover upon it in his own name.

James O'Brien, the defendant below, on the 18th of September, 1858, drew his check on Chubb & Bro. for $1,150, and passed it to the Bank of the Metropolis in part payment of a debt which he owed there, and which was due that day. The drawee's place of business was in the same street with the Bank of the Metropolis, and only eighty feet distant. The Bank of the Metropolis took the check on a Saturday, about two o'clock in the afternoon, and presented it for payment on the following Monday at eleven o'clock in the morning. Chubb & Bro. had failed in the meantime, and payment was refused. The check was duly protested, and notice of its dishonor was regularly given to the drawer.

The Bank of the Metropolis was not an incorporated institution, but a private partnership, carrying on business under that name. Richard Smith, its cashier, held the note for the use of the concern, and brought assumpsit in the circuit court to recover the amount of the check from O'Brien, the drawer.

The defense was that the Bank of the Metropolis ought to have demanded payment of the check on the day it was received, and that the postponement of the demand from Saturday until Monday was a want of diligence which discharged the drawer from all liability on the paper.

The circuit court instructed the jury that if the plaintiff took the check on the 18th in the afternoon, and presented it for payment on the morning of the 20th, the intervening day being Sunday, there was no delay or negligence which would have the legal effect of discharging the drawer. To these instructions the defendant excepted, and upon the verdict and

Page 66 U. S. 100

judgment being rendered against him, he took this writ of error.

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