The plaintiffs sold defendant a bill of goods, for which they received defendant’s check, and gave a receipt on the bill. The check was sent to the bank with a request to certify the check, which was refused and the check returned. No demand of payment was made. On the return of the check, notice was given to the defendant, and the present action brought on the original cause of action. Upon the trial, the plaintiffs produced the check and offered to cancel it. The court held that payment of the check should have been demanded, and rendered,—-judgment for defendant. The plaintiffs appeal from this judgment.
There can he no doubt that merely receiving the chock was no payment of the original indebtedness, if it was not paid, unless specially agreed to be received as such payment; and if payment had been demanded and refused, there can be no doubt of the right of the plaintiffs to resort to the original cause of action, and surrender the check upon the trial. (Taylor a. Allen, 36 Barb., 214.)
The only questions, therefore, that arise in this case are, 1, whether presenting the check to be certified is equivalent to a demand of payment; and 2, if it is not, whether a creditor who *54has received a check may return .such check to the party, and sue on the original cause of action without making such demand. Presenting a check to be certified is not demanding payment. The bank was under no obligation to certify the check or to accept it. The instrument did not require acceptance, but payment; and the duty of the holder was not discharged until he demanded payment. This he could not do in this case, because the check was payable to the order of the plaintiffs, and was not indorsed by them.
A request to the bank to do to the check something which they were under no obligation to the holder or drawer to do, can never be considered equivalent to a demand for payment, which under the duty they owed to the drawer they were bound to make, if he had funds in the bank. Por a refusal to pay under such circumstances, the drawer would have a right of action against the bank, but not for a refusal to certify. Were the plaintiffs, then, under any obligation to present the check to the bank ? It was not received in payment. They held the check, as agents of the defendant, to draw the money from the bank and apply it to the payment of his indebtedness to them. That indebtedness was not discharged until the check was paid. (Cromwell a. Lovett, 1 Hall, 56.) Oakley, J., says, “ If they (the holders) were not guilty of any negligence in the transaction, whereby the defendant has sustained an injury, they may return or cancel the check and sue upon the original consideration.”
The check is drawn upon moneys in the bank belonging to the defendant. If not paid, the money still remains in the bank, the property of the defendant. He can at any time control it, and has sustained no loss by its remaining to his credit, unless the bank upon which it was drawn have failed. In the present case, no proof was furnished by either party as to the consequences of such neglect to demand payment.
The burden of showing that no injury had accrued from the neglect to demand payment rested upon the holder, before he could return the check at the trial, and recover for the original indebtedness. This was held in Little a. Phoenix Bank (2 Hill, 425), and affirmed in the Court of Errors (7 Hill, 359); viz.: that delay to present the check would not have the effect to discharge the drawer, if he had not suffered loss as a conse*55quence; this, however, to he shown by the holder in the first instance.
The same rule should be applied to this case. The plaintiffs received a check from the defendant for the bill of goods, which they should have presented for payment; not having done so, they must show that no injury resulted to the defendant from such neglect, before they can sue on the original indebtedness and cancel the check upon the trial.
As the plaintiffs have not brought themselves within this rule, the judgment appealed from was correct and should be affirmed.