¶1Assuming that the defendants are justified n. treating the conversation that took place when the check was presented for payment as a refusal by the bank, they do not establish a defence to this action. As the drafts of the plaintiff were in the hands of the drawee by their act, it was their duty, upon the dishonor of the check received by them, promptly to tender it back and demand the drafts, or else to transmit it to the plaintiff, and thus enable him to do so.
¶2It could not be expected that Paul Sears, the drawee, would return the drafts, or would pay the money due the plaintiff so long as the defendants retained this check. While thus retained, he had a right to insist that its amount should be allowed in his account. By keeping possession of the check, the defendants therefore, in effect, kept the money of the plaintiff. The complication which thus arose was caused by their neglect to do what they should have done, and the plaintiff was not compelled to accept the tender of the check at the trial.
¶3Judgment for the plaintiff.