In this case, we do not consider the acts of courtesy between the parties, in forwarding receipts on the one part and checks on the other, as constituting such legal contract between them, that the plaintiff must be held, from that cause, to have' received the check from the defendant in payment; nor, on the other hand, that the defendant, from the mere fact of remitting the check was legally entitled to the plaintiff’s receipt. While we respect the courtesy which existed between them, we cannot give it effect as controlling the legal rights of either party.
We are of opinion that the remittance of the check to the plaintiff was not in itself payment of the demand. A check is merely evidence of a debt due from the drawer. Whether it shall operate as payment or not, depends on two facts; first, that the drawer has funds to his credit in the bank upon which it is drawn; and second, that the bank is solvent, or, in other words, pays its bills and the checks duly drawn upon it, on demand. The receipt of a check, therefore, before presentment, if there is no laches on the part of the holder, is not payment of the debt for which it is delivered. But if the party receiving it is guilty of laches in presenting it, or in giving notice of non-payment, after presentment, and the bank in the mean time suspends payment, he thereby makes it his own, and it shall operate as payment of his debt ; the drawer having funds in the bank at the time of drawing the check, and not having withdrawn them.
In cases of checks, which bear a strong resemblance to bills of exchange, the party receiving one is not chargeable with laches, though he does not present it the day it is drawn. He is under no legal obligation to run with it immediately tc the *52bank. A reasonable time is allowed for that purpose, and the next day is held to be such reasonable time.
In the present case, the check, though bearing date September 30th, was not received by the plaintiff till the evening of Saturday October 1st, and consequently could not have been presented by him before Monday the 3d; and if the plaintiff had been in Charlestown, and had received the check on the 1st, the day on which he was entitled to demand his pay, he would not have been obliged to present it before the 3d; on the morning of which day the bank suspended payment.
A check may be either payable to bearer or order. The payment to order does not change its distinctive character; and it may be payable at a future time. It differs from a bill of exchange in this, that it is drawn upon a bank, or on the house of a private banker, is payable on presentment, and the bank or banker is not entitled to days of grace upon it, although payable on some other day than its date. It may also be passed from hand to hand, and a reasonable time is allowed to each party receiving the same to present it for payment. Rickford v. Ridge, 2 Campb. 537. Williams v. Smith, 2 Barn. & Ald. 496. Story on Notes, § 489. 3 Kent Com. (5th ed.) 104, note. Matter of Brown, 2 Story R. 512.
The check in this case was payable to the plaintiff’s order, was sent to him at Newport, and was by him negotiated on the 3d of October, at a bank in that town. The bank forwarded it, in the usual course of their business, and when it reached Boston it was presented for payment; and upon refusal, notice was immediately given to the drawer. In any view of the facts, therefore, the plaintiff is not chargeable with laches.
Again ; the defendant alleges that he was a public officer, known as such by the plaintiff, and that he was acting in his public capacity, in the discharge of the plaintiff’s claim, by the remitting of the check, and that whether the plaintiff is entitled to relief from the government or not, the defendant *53is not personally responsible to him. In regard to the general principle of the law, as to the responsibility of public officers for contracts made in the conducting and management of their official duties, we have no doubt that they are not personally liable. But, after due consideration, we think the present case is not embraced within that rule, so that the defendant can justly avail himself of it in answer to the plaintiff’s demand. The check was not payment, and the plaintiff was guilty of no laches in presenting it; the bank was insolvent, and the defendant had in fact received the plaintiff’s receipt, for which, as it turned out, though without fault on either part, the plaintiff had received no consideration. Before the defendant sent on the receipt of the plaintiff to the department at Washington with which he accounted, and while the receipt was within his own control, the plaintiff gave him notice of the facts, and requested him to return his receipt and receive back the check. But the defendant, acting, it is admitted, in good faith, and under advice of counsel, refused the plaintiff’s request, and sent on the receipt to the department, and claimed credit for the payment to the plaintiff, which payment was allowed him by the government. By this transaction, we are of opinion that the plaintiff’s claim on the government was barred, and that his remedy is on the defendant. Freeman v. Otis, 9 Mass. 272. The claim is an equitable one, and we are not aware of any stringent rule of law to defeat it. The defendant, after notice, instead of retaining the receipt, and stating the facts to the department, varied his relations to the plaintiff, as a public agent, and claimed the remittance of his check as payment ; intending thereby to release himself from responsibility to the amount of such check, and to make the plaintiff the petitioner to the government for relief. But we think he could not, as between himself and the plaintiff, claim an allowance by the government of payment to the plaintiff, without an actual payment to him ; the plaintiff having been guilty of no laches.
*54A question has been raised and argued, whether "the defendant was; justified in depositing the government funds in the Phœnix Bank; and a correspondence with the department on the subject has been introduced into the case. But, from the view taken of the transactions between the parties, it is unnecessary to determine this question. It is sufficient to say, that if the money was rightfully deposited and kept there by the defendant, the government should bear the loss; but if the defendant went beyond the line of his duty, in using that bank as the place of his deposit, then it will be a subject for consideration, as between him and the government, whether he has not made the bank his debtor, and taken the responsibility of its solvency upon himself. But in this question we think the plaintiff is not called upon to participate, as the check sent to him was not a payment of his services, whether the deposit be considered as made by the government, through its authorized agent, or by the defendant in his private capacity ; because the bank was insolvent when the check was available to the plaintiff.
We think, therefore, that the defendant, to whose credit the money remains in the bank, is the party to claim as the creditor of the bank, in behalf of the government, or in his own right; and if his act was justifiable, in making the deposit, (in regard to which we intend to raise no doubts,) then his claim upon the government is valid. But if not, then we think he must sustain the loss, rather than the plaintiff, as his relations to the bank were not changed by the mere remittance of the check, while the defendant’s claim upon the government was discharged by the giving of his receipt, and the transmission of it by the defendant to the department.
Judgment for the plaintiff.