and that it is payable absolutely and on demand to a certain person." It is of the very essence of the instrument to be payable on demand, because the contract between the banker and customer is that the money is payable on demand."

The instrument is to be treated as a check when it is drawn upon a bank, or a person engaged in banking business, and simply directs the payment to a party named of a specified sum of money, which is at the time on deposit with the drawee, without designating a future day of payment."

Wherein it is for the payment of a sum of money certain, a check is not a peculiar instrument, inasmuch as bills and notes have the same quality; and in the feature that it is payable to a certain person named therein, it is like a bill of exchange; but a check may be payable to bearer, and such was its original form, there being no common-law obligation, formerly, upon a bank to pay checks drawn in any other way. It is now the universal custom to make them payable “to order” and “to bearer.”

In the matter of form, a check should contain the essentials of date, address, payce, certain sum (the amount), and signature. A check in its most common, combined printed and written, form has a date line, and below that the name of the bank or banking house to which it is addressed, followed by “pay to. . . . . . .or order," or "to the order of. . . . . or simply "to bearer," and the amount to be paid expressed in words and figures, and, lastly, the signature.

3. The Date. The dating of a check is as important as it is usual, for if not dated it might never be payable, though it is doubted whether a bank could legally refuse to pay an undated check. It should bear a date, and it may be postdated, the last-named practice having become very common in the larger commercial centers."

A postdated check is one bearing a date subsequent to that of its actual issue. Such a check is payable on, or at any time after, the day of its date, being in effect the same

14 21 Wend. (N. Y.) 372 (1839). 152 Story (U. S.) 502, 512 (1843).

16 123 U. S. 105 (1887).

17 Dan. Neg. Inst. (4th Ed.), Sec. 1,577.

as if it had not been issued until that date.1 A check is not less a check because it is postdated, and thereby becomes, in effect, payable at a future and different time from that on which it is drawn or issued." What the drawer of such a check undertakes is that on the day named he will have the amount of the check to his credit in the bank.20 In the meantime, he wants the full and free use of his entire deposit. The contention is made that a check postdated, that is, one that shows upon its face that it is not payable until a day subsequent to its date, is an inland bill of exchange, and is entitled to days of grace," and judicial authority, in some states, seems to substantiate this claim;" but, as we have already seen, the weight of authority is against such contention," and instruments, in other respects similar to checks, are not changed in character by being made payable at a future date, but are postdated checks pure and simple."

It is often convenient to make a check payable at a future day and there is no valid distinction between postdating it and making it payable at a subsequent date. Therefore, an instrument drawn upon a printed form of bank check, and similar to an ordinary check in all respects, save that it is payable on a day subsequent to its date, is to be treated as a check, and not as a bill of exchange, and is not entitled to grace.25 For example, the question arose whether the following instrument was a check or a bill of exchange:

$200

The National Revere Bank
of Boston.

No. 9288.

Boston, Mass., Aug. 30, 1889.

Pay to the order of Geo. H. Fowle, Oct. 1, 1889,

This form was that of an ordinary bank check, the printed words being in roman and the written words and figures in

182 Story (U. S.) 511 (1843).

19 Ibid.

20 70 Pa. 474 (1872).

21 Zane B. & B., Sec. 152.

224 Cal. 35 (1854); 64 Ill. 321 (1872); 40 Ga.

487 (1872).

23 Zane B. & B., Sec. 206.

242 Story (U. S.) 502 (1843); 70 Pa. 474 (1872); 155 Mass. 374 (1892); 4 R. I. 30 (1856).

25 155 Mass. 373 (1892).

italic letters, and the instrument bore upon its back the indorsement: "Geo. H. Fowle." Being protested for nonpayment on October 1, 1889, when duly presented at the bank and payment refused, notice of non-payment was given to Fowle, who claimed that the instrument was not a check but a bill of exchange and as such entitled to days of grace; but the court declared the instrument to be a check, having all the characteristics of a check with the variation only of a later date for payment than its own date, and that it was intended as a check by the parties and so regarded by the bank on which it was drawn.”

A check postdated so that it falls due on a Sunday is not payable until the succeeding Monday, on which day it should be presented for payment, if it be intended to charge an indorser of the check." Dating a check on Sunday does not render it invalid, if it be not delivered on that day."

4. The Drawee. - The general rule is that the drawee of a check, the bank or banker to whom it is addressed, whether an individual, copartnership, or corporation, should be sufficiently expressed or designated upon it, so that the payee, or holder, may know upon whom to call for payment.

29

Uncertainty and ambiguity in naming the bank or banker addressed should be avoided; but in case of uncertainty as to the real drawer, or any ambiguity in the address of the check, then, as in all cases of written contracts and their construction, extrinsic evidence is admissible as to the subject-matter and the parties, to make both certain and show who and what was intended."

5. The Payee. -A check must name or indicate a payee impersonal or otherwise." An impersonal payee is sufficiently indicated by the words, "pay the bearer," or if made payable to a number or order, in which case the check will be considered as if drawn payable to bearer.

26 155 Mass. 373 (1892).

27 10 Wend. (N. Y.) 304 (1833); 20 Wend.

(N. Y.) 205 (1838).

28 111 U. S. 597 (1884).

29 45 Wis. 192 (1878).

308 Taunt. (Eng.) 739 (1819).

31 26 Minn. 336 (1880).

6. The Amount. - The amount of the check, or sum of money for which it is drawn, should be stated in words in the body of the instrument and repeated in figures in the margin or elsewhere in the instrument. In case of difference between written and printed words, the written words will control; and where marginal figures and the words in the body of the check are contradictory, the written words will control the figures," for the marginal figures are not absolutely an essential part of the check, but merely a memorandum, and, if omitted altogether, would not vitiate the check, though, as said before, they should be, and usually are, used.

The amount should be stated in the title of the currency of the country. In the United States, the word dollars is considered sufficiently expressed by the ordinary dollar mark; in England, the same is true of the well-recognized signs or marks for pounds, shillings, and pence.

7. The Signature. A check is usually signed by the drawer with pen and ink on a line at the bottom of the instrument, but the manner of making the signature and the place of signing are immaterial. The rules which govern the signatures in other commercial instruments, explained elsewhere in this title, and in contracts generally, apply to checks.

*

8. Memorandum Check. — In some communities, the memorandum check is in use. It is a contract by which the maker engages to pay the bona-fide holder absolutely, and not upon condition to pay if the bank upon which it be drawn should not pay upon presentation at maturity, and if due notice of the presentation and non-payment should be given. The word memorandum, written or printed upon the check, describes the nature of the contract with precision, indicating, as it does, the understanding between the immediate parties. A holder may sue upon a memorandum check as

=

321 Pars. Notes & B. 28; 1 R. I. 398 (1850);

69 Ind. 485 (1880).

33 39 Ill. 31 (1865).

L

upon a promissory note, and is not required to present the instrument at the bank for payment before instituting suit. If such a check be presented at bank, and the drawer has sufficient funds to his credit, it must be honored like any other check.**

The common use of a memorandum check is when it is given by a borrower as evidence of debt, but which the borrower does not intend shall be presented at the bank for payment, he proposing to redeem it himself."

CERTIFIED CHECKS

9. The certification of checks is an expedient and the outgrowth of modern commerce; it is of recent origin, compared with the common class of checks and other instruments, but it has grown out of the business needs of the country to be a practice in universal use." Thirty years ago an authoritative computation recognized by the United States Supreme Court fixed the average daily amount of certified checks in use in New York City at not less than one hundred millions of dollars."

10. Definition. - A certified check is one that has been marked with the word good, or with equivalent terms, by the proper officer of a bank or banking house; the act is a recognition by such officer as a valid appropriation of the amount of money therein specified to the person therein named." The term, as commonly understood, implies that the check certified has passed from the custody of the bank and into the hands of some other party." Such a check is aptly denominated "a shorthand certificate of deposit in favor of the holder, and payable to him, or to him or order, or to bearer, according to its terms."

11. How Certified. - The manner of certifying checks is: A holder presenting a check is entitled to immediate

34 16 Pick. (Mass.) 539 (1835).

35 Bouv. Law Dict., Vol 2, p. 396.

362 Dan. Neg. Inst. (4th Ed.), Sec. 1,602. 37 10 Wall. (U. S.) 648 (1870).

38 Bouv. Law Dict.

39 Ibid.; 155 U. S. 441 (1894).

402 Dan. Neg. Inst. (4th Ed.). Sec. 1,603.