The complainant having received from his Philadelphia correspondent, a bill of exchange on the defendant, payable at sight, presented it for payment on the 15th of May, 1845, received for it the defendant’s check on the Merchant’s Bank, and delivered the bill to the defendant. The check was presented for payment at the Merchant’s Bank, the next morning, and payment refused. It was thereupon protested, and it has never been paid. The complainant immediately demanded the bill of exchange from the defendant, who declined to give it up, although it remained in his possession. If the check had been presented at the bank, on the day of its date, it would have been paid. This bill is filed to compel the defendant to deliver up the" bill of exchange.
The defendant contends first, that the acceptance of the check Was apayment, the holder not having used due diligence to collect *278it. As to this, the acceptance was not of itself a payment of the bill, because there was no agreement that it should be deemed a payment or accepted' as such. (Cromwell v. Lovett, 1 Hall’s R. 56 ; Olcott v. Rathbone, 5 Wend. 490.)
The complainants used due diligence, in presenting the check for payment. (Story on Prom. Notes 625, s. 493, and the authorities there cited.)
It is further said that if not a payment between these parties, it was a discharge of the other parties to the bill of exchange, and the defendant cannot safely give it up, without a previous adjudication upon the rights of those parties.
This furnishes no defence here. The answer does not raise the objection, that the other parties should be brought in, and their rights are not at all in question in this suit. It suffices that the defendant has no cause for withholding the possession of the bill from the complainant. This also furnishes an answer to anotherobjection of the defendant, viz. that the actual possession of the bill, is not necessary to the complainant. If not necessary, (and I express no opinion as to that,) it will surely be very inconvenient for him to collect it without having its custody ; but this is of no consequence to the defendant, who has no pretence to retain it himself.
Nor was the complainant bound to enter into the controversy, between the defendant and the Merchant’s Bank. The latter were the defendant’s bankers and agents, and the holder of his check discharged all the duty thereby imposed upon him, by presenting it to such agents for payment.
The only remaining point taken, was that there was a full remedy at law, and this court has no jurisdiction of the matter.
The court has jurisdiction in general to compel the delivery up of securities wrongfully withheld, and in order to oust that jurisdiction, on the ground that the courts of law afford a sufficient remedy, the objection must be taken by demurrer, or in the answer. It comes too late at the hearing.
The complainant is entitled to a decree, with costs.