The opinion of the Court was delivered by

The defendant below, in a suit like the present, is *256bound by the act of assembly passed in this behalf, in order to pre" vent a judgment being obtained against him by the plaintiff for the amount of his claim, to state in his affidavit or affirmation of a defence, if he makes and files one, not merely that he has or believes that he has a just defence, • but he must also state the grounds and nature of it, so that the Court may be enabled to judge how far it will avail against the plaintiff’s demand, if established by due proof.

The plaintiff in error being the defendant'below, his1 counsel here, for the purpose of overcoming the objection which he saw would be made to the sufficiency of the' defence set up by his client,- against the demand of the plaintiffs below, who claimed to recover the amount of two checks, which they allege came into their hands bona fide, in the ordinary course of business, for a valuable consideration, after they had been drawn by the defendant below, upon the Farmers and .Mechanics’ Bank of Philadelphia, payable to R. & J. Phillips, or order, and by him delivered to them, contended — first, that the checks were not transferable instruments according to the law merchant; and secondly, that if they were, the plaintiffs below received them for an antecedent debt, owing to therfi by the payees; which was not such a consideration as would entitle them to be placed on any better footing than the payees; so that in either case, the failure of the consideration for which the checks. were given, would be as available against the plaintiffs below as the payees.

As to the first position of the counsel, for .the plaintiff in error, though it may have been thought, at one time, that a check or draft on a banker or a bank in England, was not transferable beyond the bills of mortality, Grant v. Vaughan, 3 Burr. 1517, Chitty on Bills, 546; yet it has been well settled since, that they are as much so as bills of exchange: strictly speaking, however, they are not considered due until payment is demanded ; and in this respect they are .somewhat different from bills of exchange or promissory notes payable on a particular day. Per Lord Kenyon, in Boehm v. Stirling, (7 Term Rep. 430.) Chitty on Bills, 546. Hence the mere circumstance of a person receiving a. check a few days after its date, does •not necessarily, as in the case of an over-due bill, subject him to the •objections which would have affected it in the hands of the person to whom it was delivered by the drawer. Rothschild v. Corney, (9 B. & C. 388 ; S. C. Dans. & Lloyd Rep. 325.) Lord Tenderden, in this last case, said, “ it cannot be laid down as a matter of law that a party taking'a check after any fixed time from its date, does so at his peril; and therefore the mere fact of a party taking them six days .after they bore date, from a person who had not given value for them, would not necessarily invalidate his title. It is, indeed, a .circumstance to be taken into consideration by a jury, in determining whether the party took the checks under circumstances which -ought to have excited, the suspicion of a prudent man.” Chitty on Bills, 247-8. 546.

*257But, it is said, that the checks in question were received by the plaintiffs below before the days of their respective dates had'arrived, and thei’efore, even if it should be held that they were transferable at any time, they could not have been considered so before the days of their respective dates came around.

The affidavit of defence, however,.does not state the fact of the plaintiffs’ receiving .the checks to have been so, but merely that the payees informed the defendant, that they had parted with the checks to the plaintiffs before the day on , which either bears date. The mere declaration, however, of the payees, that the fact was so, is no evidence that it is so; nor can it be received as such. But admitting the fact to be so, still the result contended for by the counsel for the plaintiff in error will not' follow. There is no reason for permitting the drawer of the checks' to make such an objection to the transferability of them. They were not post-dated with any such view, as between the parties, but to prevent their being presented for payment before that day should come around on which each is dated ; so that the drawer might in the meantime make it more convenient for himself to have funds placed in the bank to meet the payment of them when presented. This question was decided in Passmore v. North, (13 East, 516,) in regard to a bill of exchange, between which and a check .there is no difference in this respect. The suit there was brought by the endorsee of the bill against the drawer of it; who drew it on the fourth of May, 1810, dating it on the eleventh of the same month : on the fifth, the next day after it was drawn and delivered to the payee, the latter passed it to the plaintiff for a valuable consideration, and afterwards died on the same day. It appeared that the .bill was drawn for seventy pounds more than the amount owing by the drawer to the payee. The drawer, therefore, the payee being dead without leaving funds iñ his hands of sufficient amount to meet the bill, advised the drawee before the date of the bill came around, not to accept or pay it.: accordingly, when it was presented for that purpose he refused; whereupon the endorsee sued the drawer; and it was held that he was entitled' to recover the whole amount of the bill, notwithstanding the1 objections that it was taken by the plaintiff before the day of its date had arrived, and the want of sufficient funds belonging to the payee, in the hands of the drawer, to discharge the whole amount of it.

Then, as to the fact of the checks in question having been received by the plaintiffs below for an antecedent debt, owing to them by R. & J. Phillips, the payees, the affidavit of defence does not contain the assertion that the fact is, or that the defendant below believes it to be so. And this of itself is a sufficient answer. The defendant below only alleges in his affidavit that R. & J. Phillips told him so ; and he concludes his affidavit by saying, “ the deponent believes that'he can establish the material allegations above contained, upon *258the trial of this cause.” Now, suppose he can establish that R. & J. Phillips told him so; he would not be permitted to make such proof, because it would be no evidence of the fact against the plaintiffs below, that they received the checks upon any such consideration. Neither can it be considered one- of the “ material allegations” which the defendant speaks of in the conclusion of his affidavit; for it is wholly immaterial, and therefore would not have been even provable on the issue, in case one had been joined.

But if the fact were so, that the plaintiffs below received the checks from R. & J. Phillips, in payment and discharge of an antecedent debt, as the language of the affidavit would rather seem to import, though as to that it may be thought by some doubtful, which would render it deficient, it would be a sufficient consideration to entitle the plaintiffs below to recover- the amount of the checks. If however the checks were only taken by the plaintiffs as a collateral security for the payment of an antecedent debt, it will be otherwise ;• because it could not be said that they had parted with any thing, or surrendered any right in consideration of their having received the checks. This however is not the allegation contained in the affidavit of defence. The defence therefore set out in the affidavit by the defendant below, had it been established, would not have availed him any thing. The judgment is therefore affirmed.

. Judgment affirmed..