Payment is also often made by the debtor's check upon a bank. A check is a draft, and the law of bills and notes is generally applicable to it If given in the ordinary course of business, and unattended by especial circumstances, it is not presumed to be received as absolute payment, even if the drawer have funds in the bank. The holder is not bound by receiving it, but may treat it as a nullity if he derives no benefit from it, provided he has been guilty of no negligence which has caused an injury to the drawer. (m) l Nor is it necessary to preserve the payee's rights that it should be presented on the day on which it is received. (n) And if drawn on a bank in which the drawer * has no funds, it need not be presented at all in order to sustain an action upon it. (o) The drawing of such a check knowingly is a fraud, which deprives the drawer of all right of presentation or demand.

(m) Cromwell v. Lovett, 1 Hall, 66. The holder of the check in such a case becomes the agent of the drawer to collect the money. And certainly if the check is conditional, as if it is stated to be for the "balance due" the creditor, this would be no payment, and the creditor need not return it before commencing suit on the original cause of action. Hough v. May, 4 A. & E. 964. And if a creditor is offered either cash, in payment of his debt, or a check of the debtor's agent, and he prefers the latter, this does not discharge the debt if the check is not paid; although such agent afterwards fails with a large balance of the debtor's funds in his hands; for the check of the agent is considered, in such a case, as the check of the principal debtor. Everett v. Collins, 2 Camp. 616. See also Tapley v. Martens, 8 T. R. 451; Bolton v. Richard, 6 T. R. 139; Brown v. Kewley, 2 B. & P. 618.

(n) The Merchants Bank v. Spicer, 6 Wend. 443; Robson v. Bennett, 2 Taunt. 396; Rickford v. Ridge, 2 Camp. 637; Gough v. Staats, 13 Wend. 649. Checks are considered as inland bills of exchange, and the holder must use the same diligence in presenting them for payment as the holder of such bill. Marcy, J., in Bank v. Spicer, 6 Wend. 443.

(o) Franklin v. Vanderpool, 1 Hall, 78.

1 A check is said to be a particular form of cash payment, and if dishonored the seller may resort to his original claim, on the ground of failure of the condition on which it was taken. Hodgson v. Barrett, 33 Ohio St. 63; Phillips v. Bullard, 58 Ga. 256; Blair v. Wilson, 28 Gratt. 165. Where a check is lost by or fraudulently obtained from the creditor and is paid to the finder or fraudulent holder on a forged indorsement of the payee, the debtor may be again called upon unless the check was taken in absolute payment. Thomson v. Brit. No. Am. Bank, 82 N. Y. 1. See Syracuse, etc. R. Co. v. Collins, 3 Lansing, 29; First Bank v. Leach, 52 N. Y. 350. That a check is but conditional payment, see Marrett v. Brackett, 60 Me. 524. Where a payee's collecting agent neglected to collect a check given in payment of the draft by the drawee, who subsequently became insolvent, the record of a judgment in an action by the payee against the drawer to the effect that the check was a payment which discharged the drawer, is conclusive evidence as between the payee ana the agent that the former has suffered damage to the fall amount of the draft. First Bank v. Fourth Bank, 89 N. Y. 412.