The defence of payment in this case cannot be maintained. The draft by Mellen, Ward & Co. on Smith, Randall & Co. of New York was a check, or draft, on a firm of private bankers, payable upon presentation, at sight, without grace. It operated as a conditional payment only of the original debt. In such a case, if the check or draft is presented for payment *424within a reasonable time, and the bank or banker fails, the loss does not fall upon the holder, unless he has agreed to bear the risks, but he may return it to the party from whom he has received it, and maintain suit upon his original cause of action. A fortiori, this is true where, as in the present case, the draft was worthless when received. Even in the case of payment by bank bills, if the bank had failed before the bills were taken it is not a valid payment. Story on Bills, § 419. Whitney v. Esson, 99 Mass. 308. Small v. Franklin Mining Co. Ib. 277.
The draft was received towards the close of banking hours in New York, on March 1, the day of the failure of Mellen, Ward & Co. Presentment was made the next day, and payment was refused because of the failure of the drawers. It was immediately returned by the plaintiffs. Here was due diligence, and strict conformity with mercantile usages, on the part of the holders. The defendants suffered nothing by any delay, and no change of circumstances took place between the reception of the draft by the creditors' and its return to their debtors.
The receipt "of payment sent before the worthlessness of the draft was known to the plaintiffs is not conclusive evidence against them. It is common learning that a receipt not under seal is always open to explanation. Brooks v. White, 3 Met. 283. There was no evidence of accord and satisfaction between the parties, but only of a conditional payment, which the creditors had the right to rescind, and have rescinded.
Judgment for the plaintiffs on the agreed facts.