By the Court,
Nelson, C. J.Whether the instrument in question is to be regarded as drawn upon the Oakland County Bank, or upon [ *675 ] *Wm. H. Griswold individually, it is quite clear the witnesses testifying to the commercial usage respecting such paper in the *515city of New-York, misapprehended its established character. They must have assumed it to be in effect, if not in form, a bank check or draft, and applied to it the usage in respect to that class of paper; instead of which it contains every distinguished characteristic of an ordinary bill of exchange. Chitty on Bills, 50 a; Chitty, Jr. 3. . It is essential to a check, eo nominee, or bank draft, that it be payable to leaver, and on demand. Chitty on Bills, 52, 322; Chitty jr. 24, 26 ; 21 Wendell, 337; and then days of grace do not attach, any more than to bills or notes payable on demand.
The effect of the proof of usage, as given in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange, in the city of New-York. We need-scarcely add, even if the witnesses were not mistaken, and the usage prevails there as testified to it cannot be allowed to control the settled and acknowledged law of the state in respect to this description of paper.
New trial granted; costs to abide event.