Dissenting opinion of
Hon. THOS. T. LONG,Judge of the Suwannee Circuit of Florida,
setting in the place of Douglas, J.Since the investigation of this cause, at the time the decision was rendered, I have tried to persuade myself that the decision of a majority of the court was correct; but, being unable to do so, I am constrained to carry out the convictions of my mind, made known to the court at that time.
The record discloses the fact, that the check upon which the suit was brought in the cou^t below was drawn by J. H. Bull, Agent of the South Western It. K. Bank, on the 6th day of March, 1862; and that it was presented to the bank and payment demanded on the 17th day of September, 1866, four years and four months after it was drawn.
It is also made known to the court that the check was paid for in Confederate money, the existing currency of this State at that time, and that it was to be paid by the bank at Charleston in the like funds. It is also shown to the court that Bull, the agent of the bank, had, previous to the presentation of the check to the bank and payment der *284manded, ceased to be the agent of the bank, and liad, as such agent, a full settlement with the hank. These seem to be the material facts set out in the record.
The defendant in the court below pleaded: 1st, The general issue, and, 2d, Special pleas of laches on the part of plaintiff in not presenting the check for acceptance and payment in a reasonable time to the bank at Charleston.
It is contended in this cause that the drawer and drawee were the same parties, and that there were no obligations on the holder of the cheek to make a demand on the drawee for its payment, and to give notice to the drawer of its nonpayment, the act of the agent being the act of the principal. As a general rule, this doctrine may be very correct, and doubtless is.
Restricted agents of corporations, created for the purpose of facilitating commerce, must be governed by the Lex Mer-eatoria, which is but custom recognized and made so by mercantile usage, approved by the wisdom of the age.
I need not go beyond the decision of our Supreme Court to give credit to this proposition, and show that the doctrine of principal and agent., as assumed by a majority of the court, is utterly untenable. The case of Pitts vs. Jones, 9th Fla. Rep., 519, is decisive of this cause. In that case Pitts, the agent of Pierce & Son, purchased as agent, pine logs, for his principal, which he was authorized to do. (So was Bull authorized to make the draft, subject matter of this suit.) For the payment of these logs, Pitts drew a draft at sight on Pierce & Son, their principal, in favor of Jones, the vendor, for $168.32-100, which draft, Pierce & Son, the principals, refused to accept, and no notice was given to Pitts, the agent, of the non-acceptance by Pierce & Son, the principals. Jones, the vendor, afterwards brought suit against Pitts, the agent, to recover the amount of the draft which he had drawn upon the principals. Associate Justice Walker, in delivering the opinion of the court, says: "Although the *285drawer has no funds in the hands of the drawee, yet if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of any agreement or arrangement made with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party on the bill, then in every such case he is entitled to strict notice of the dishonor of the.bill.” See Story on Bills, 311.
The learned Judge goes further, and says: “It is indeed difficult to conceive of any class of persons more strictly entitled to notice than those acting as agents, even if they have no funds in the hands of the drawee, their principal.” The record shows that Bull, the agent, drew the check, and had in his own right no interest in the matter, and from his position as agent, he had the right to believe that the check would be accepted and paid by the drawee, in consequence of an agreement with the bank, and the notice of his agency.
How what protection could the South Western Railroad Bank have, against a profligate or dishonest agent, (which is not the fact in this case,) considering the check, as is assumed by a majority of the court, to be in the nature of a promissory note, and the drawer not entitled to notice? Such a doctrine would entirely destroy these facilities of trade, and clog the wheels of commerce.
The opinion of the majority of the court seems to pre-sup-pose the fact that under the old common law rule, “ that in exchange or commercial agencies, the principal and agent are one and the same person.” To the contrary, as in the case at bar, Bull was the agent of a foreign corporation, and his checks or drafts, by the law and usages of merchants, are to be regarded as foreign bills and subject to the customs and usages of merchants.
If to the contrary, no principal could protect himself against his agent, md vice versa ; for in the present case it cannot be doubted that if the check had been duly presented *286and payment refused, the holder could have given notice to Bull, the agent, and sued him for the amount of the check, and Bull in turn could have sued the drawee upon taking up the check.
The next question presented under the pleadings, is the plaintiff entitled to recover from the defendant, or has he lost his remedy by laches ? T think clearly so. For the drawee owes no duty to the holder until after the bill is presented and accepted. See 2 Seldon’s Rep., 412; 21 Wend. Rep., 373 ; 8 English Law and Eq. Rep., 523.
It is also held “ that the holder could not sue the drawee unless he had accepted the check; that a demand of payment of a check must be made of the drawee before the holder can sue the dra-wer.” See case decided in 6 Cowen’s Rep., 448; 3 Johns, cases, 260.
The drawee of a check is not responsible to the holder until he accepts it. Hor can the holder resort to the drawer until he has used due and legal diligence to obtain payment from the drawee. 6 Wend. Rep., 445. The same principle that applies to bill of exchange and drafts applies to checks, and the drawee owes no duty or responsibility to the holder until after the bill, draft or check, is accepted. Edwards on Bills of Exchange, 396; 2 Seld. Rep., 412; 21 Wend. Rep., 373 ; 2 Hill., 425.
Checks in law must be considered as bills of exchange, and the holder, if he would preserve his right to resort to the drawer or endorser, must use the same diligence in presenting them for payment and giving notice of the refusal or default of the drawee as would be required of him as the holder of a bill of exchange. 6 Wend., 445. See 3 John^ ^ases, 5. It was held that the holder'of a check was bound to demand payment of the drawee before he could resort to the drawer. Judge Kent, in commenting upon this cause, said, “ I consider it a settled rule that a check must be presented for payment in a reasonable time. The question of *287reasonable diligence fully arises under the special pleas. 4 And the true rule’ both as to cheeks or bills of exchange is that the holder must use reasonable diligence according to the course of business in cases of a similar nature. The question now arises, what is reasonable time, and this depends upon the circumstances of the case. See Story on Promissory Notes; 493,-’4,-’6,-A ; also upon the custom and usage of merchants. 2 Hen. & Back., 565, 570; 7 Taunt., 570; 2 Bacon, 676, 678; 1 Saund. Pld.. and Evidence, 29.
We are advised by all the authorities that the holder oí a cheek must use clue diligence in presenting it to the drawee for payment, and in the event of refusal, in order to bind the drawer, he must give notice of the non-payment by the drawee; and whenever there is an innovation made upon this rule, it must be shown by the record to relieve the laches affirmatively, that no damage has been occasioned by the delay, otherwise the law presumes injury to the drawer of the check. 2 Hill’s Reports, 427 ; 3 Johns, (/ases, 5 and 259. In these cases the court held that a demand on the drawee must be shown, and that no liability occurred until after the demand. The plaintiff being non-suited in the court below upon action brought upon check four years after the making of it, the Supreme Court affirm the de. decision on the case. 3 John, cases. The cheek was not presented for seven months, and the court held that it was incumbent under these circumstances to show affirmatively that the defendant had sustained no damage.
To a void the plea of laches, the plaintiff must show clearly and affirmatively that the defendant has sustained no dam age by the delay.
Injury and damage is presumed by the delay, and this presumption must be overruled by affirmative proof on the part of the plaintiff.
In the case now before the court, the plaintiff did not *288even attempt to make such proof, and the record shows laches of four years and four months, and that said check was paid for by the payee in Confederate money, and was to have been discharged upon presentation to the Bank at Charleston in like funds; that Bull, the agent, who drew the check on the Bank, long before the check was presented for payment, had settled his accounts and ceased to be its agent.
This court will, to some extent, take judicial notice of the time when the Confederate government ceased to exist as a government and its money became valueless. It is a violent presumption to say that the South Western Railroad Bank, after being notified by its agent, from his return of his doings as agent, that it did make provision for this debt in the then existing currency, and that it -would have been paid if presented, and that the failure to present within a reasonable time, or even before the Confederate government ceased to exist as a government, and that from said failure to present the said check, did produce damage and injury, and that by said laches. The case of the Phoenix Bank clearly sustains the principle. Being guarded in my opinion by almost innumerable authorities of the highest courts, and principles in the text books recognized for ages by the most learned Judges, I am satisfied that the decision of the court below should have been affirmed.