Scroggin v. McClelland. phrase, as applied to these proceedings, must be taken as meaning good grounds for having an order entered different from that which it was sought to set aside. It is probable that by direct proceedings the order of 1891 might have been reversed for want of such a finding. The failure to make such finding did not, however, oust the court of jurisdiction or open the proceedings to collateral attack. We think, therefore, that the referee erred in not receiving in evidence the record of November and December, 1891. The result of these proceedings is to reinstate the orders of May 17, and the referee should have found that the whole matter herein in controversy had been adjudicated in those proceedings adversely to the relator. We think the adjudication was erroneous, but the remedy for that was by appeal or by proceedings in error. It follows that the writ must be denied. THE other commissioners concur. WRIT DENIED. LEONARD K. SCROGGIN V. JOHN W. MCCLELLAND. FILED SEPTEMBER 20, 1893. No. 4270. 1. Bank Checks: THE STATUTE OF LIMITATIONS begins to run in favor of the drawer of a check at the latest after the lapse of a reasonable time for the presentment of the check. 2. Foreign Laws: FAILURE TO PLEAD: PRESUMPTIONS. The courts of this state will not take judicial notice of the laws of other states, and in the absence of proof such laws will be presumed to be the same as our own. ERROR from the district court of Nuckolls county. Tried below before MORRIS, J. Scroggin v. McClelland. John M. Ragan and S. A. Searle, for plaintiff in error. H. W. Short, contra. IRVINE, C. The defendant in error sued the plaintiff in error in the district court of Nuckolls county upon a check drawn by plaintiff in error to the order of defendant in error for $746.22 upon Scroggin & Son, bankers, Mount Pulaski, Ill., and dated November 10, 1882. He alleged presentment and dishonor of the check November 14, 1888. The suit was begun February 20, 1889. The plaintiff in error in answer pleaded, first, the statute of limitations; second, that the check was presented and paid at or about the day of its date; third, matter claimed to operate in estoppel, which it will not be necessary here to notice. The reply amounts to a general denial. The case was tried to the court, a jury being waived, and there was a general finding and judgment for the defendant in error. One of the errors assigned, and the only one which we shall notice, is that the court erred in not finding that the action was barred by the statute of limitations. This assignment raises the question as to when the statute begins to run upon a bank check in an action against the drawer of the check. A check is in some respects analogous to a bill of exchange or a note payable on demand. On notes payable on demand the statute of limitations has been held. to run from the date of the note. (Little v. Blunt, 9 Pick. [Mass.], 488; Wenman v. Mohawk Ins. Co., 13 Wend. [N. Y.], 267.) Where a drawer of a check had no funds to meet it, it was held that the statute began to run from the date of the check. (Brush v. Barrett, 82 N. Y., 400.) It is true that the last case was decided upon the theory that inasmuch as the drawer had no funds in the bank to meet the check, presentment immediately would have been unavailing, and a cause of action, therefore, arose in favor Scroggin v. McClelland. We can see, of the payee as soon as the check was given. too, that there is a distinction between a note payable on demand and a check, as an action lies at once against the maker of a demand note without actual prior demand. (Norton v. Ellam, 2 M. & W. [Eng.], 461; Burnham v. Allen, 1 Gray [Mass.], 496; New Hope Delaware Bridge Co. v. Perry, 11 Ill., 467.) Nevertheless a check is not designed for circulation, but for immediate presentment. (First National Bank of Wymore v. Miller, 37 Neb., 500.) The time within which presentment must be made is quite limited. Ordinarily, when the payee of a check and the bank upon which it is drawn are in the same town, a check must be presented before the close of banking hours the day after it is received. (See cases cited in note to Holmes v. Briggs, 17 Am. State Rep. [Pa.], 804.) Otherwise it should be forwarded for presentment the day after it is received by the payee and presented the day after it is received by the agent for collection. Special circumstances may excuse a greater delay, but no excuse is pleaded or proved for the delay in this case. We think that the statute should be deemed to have begun to run at the latest upon the expiration of a reasonable time for presenting the check, and that a delay for over six years would complete the bar of the statute beyond all question. It is claimed by defendant in error that delay in presenting the check does not release the drawer unless he has been injured. This is the rule where suit is brought within the period of limitations, but the statute in all cases bars relief. The statute runs in favor of the drawer as well as others. It is also claimed that the drawer has, during the whole period, resided in Illinois, and that the statutory period is there ten years. This may be true, but it is neither pleaded nor proved. The court cannot take judicial notice of the law of another state, but in the absence of proof it will be presumed to be like that of our own. (Lord v. State, 17 Neb., 526; Bailey v. State, 36 Id., Kavanaugh v. Oberfelder. 808.) Presuming the law of Illinois to be the same as our own, the action had been barred by the laws of that state at the time it was commenced here, and was, therefore, barred here. (Code of Civil Procedure, sec. 18; Hower v. Aultman, 27 Neb., 251.) Aside from the failure of proof upon this point the pleadings entirely failed to present the issue. Upon the face of the petition the action was barred, and a demurrer would have lain. REVERSED AND REMANDED. RYAN, C., concurs. RAGAN, C., having been of counsel in the case, took no part in its consideration or decision. DANIEL C. KAVANAUGH V. I. OBERFELDER & COMPANY. FILED SEPTEMBER 20, 1893. No. 4969. 1. Trover and Conversion: PLEADING. A petition in an action in the nature of trover averred ownership generally of certain chattels in the plaintiff. The defendant denied plaintiff's ownership and alleged ownership in one B. F. S., and a seizure by defendant under proceedings against B. F. S. Held, That the title to the chattels was properly put in issue by these pleadings, and that plaintiff's case was sustained by proof of ownership in Mrs. S., and a chattel mortgage made by Mrs. 8. to the plaintiff. 2 Voluntary Assignments: PREFERRED CREDITORS. The assignment law, Compiled Statutes, chapter 6, does not deprive insolvent debtors of their common law right to prefer creditors. The law merely prohibits preferences (with certain exceptions named in the act) when made in the assignment itself and preferences made within thirty days before an assignment actually executed, with notice upon the part of the creditor preferred that the debtor was then insolvent or contemplating insolvency. 37 647 45 140 37 647 50 419 Kavanaugh v. Oberfelder. ERROR from the district court of Platte county. Tried below before POST, J. Bowman & Smith and Pound & Burr, for plaintiff in error. Sullivan & Reeder and I. L. Albert, contra. IRVINE, C. This cause has twice before been in this court. It is reported in 21 Neb., 483, and 29 Neb., 427. The former opinions contain a full statement of the facts. A third trial resulted in a verdict in favor of Oberfelder & Co., the plaintiffs below, for $2,072, and the defendant, this time, prosecutes error. It is claimed that the court erred in giving certain instructions submitting to the jury the question as to whether B. F. Stump or Mrs. Stump was the owner of the goods in controversy. No exceptions were taken to the giving of these instructions, and they are, therefore, not presented to this court for review. If, however, the plaintiff in error is correct in his theory that the ownership of the goods was not put in issue by the pleadings, the point is probably preserved by the assignment of error that the verdict. was not sustained by sufficient evidence, and that it is contrary to law, the estoppel pleaded having been held bad in 29 Neb., 427, and not having been submitted to the jury upon the third trial. It is true that the plaintiffs below did not allege that the goods belonged to Mrs. Stump and that they derived their title through her. They do, however, allege ownership in themselves, and issue was joined by the answer's alleging ownership in Stump and a seizure upon process directed against him. We do not think it necessary for the plaintiff in an action of trover to trace in his petition the devolution of title to himself; and, while the evidence shows that Oberfelder & Co. claimed ownership |