-i - UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY K THE LAW OF BANKS AND BANKING INCLUDING ACCEPTANCE, DEMAND AND NOTICE OF DIS- HONOR UPON COMMERCIAL PAPER WITH AN APPENDIX CONTAINING THE FEDERAL STATUTES APPLICABLE TO NATIONAL BANKS BY JOHN M. ZANE 51 Or THE CHICAGO BAB CHICAGO T. H. FLOOD AND COMPANY 1900 z 162 COPYEIGHT, 1900, BY JOHN M. ZANEL STATE JOURNAL PRINTING COMPANY, PRINTERS AND STERKOTYPBRS, MADISON, WI3. PREFATORY NOTE. It is the aim of this treatise to present all the law that can be properly considered as applicable to the business of banking. The work is expected to be of use not only to lawyers, but also to bankers; and on this account not only the law as to the right of banking, the methods of carrying on a bank, the rights of stockholders in banking corpora- tions, the liabilities of bank officers and their powers, as well as the law as to deposits, collections, securities, savings banks and clearing-houses, but also the law governing the duty of the holder of commercial paper as to demand for acceptance and for payment and notice of dishonor, has been included. The cases have all been consulted, it is thought, and their results have been included. No opportunity for compression has been omitted, but this result has not been sought at the expense of fullness of detail. Upon principles about which there has been no dispute it has not been con- sidered desirable to multiply citations. There has been no hesitation in condemning cases not properly decided, but the case itself has not been passed by on that account. The law as to national banks will be found fully treated in the course of the work. But it was not considered proper to divide the work arbitrarily into two parts, since the great mass of banking transactions, whether made by state or private banks, or by national banks, is governed by the same rules. For example, the law governing deposits or 740185 4 PREFATORY NOTE. collections, or the liabilities of bank officers, or their powers in binding the bank, does not differ, except in small details, whether the bank be a national or a state bank. The labor of the lawyer in consulting the work is merely doubled by such a division. But in order to save the practitioner or the banker the necessity of consulting the Federal statutes, the various sections of the Revised Statutes of the United States and the acts amendatory thereof, which have any bearing upou national banks, will be found in the appendix. The reasons that require a treatise of this description, the principles which render this particular department of the law distinctive, will be dwelt upon in the Introduction, which precedes the body of the work. In that connection the author will explain and refer to the considerations which indicate that there is something new to be said upon the topics treated. And while not desirous of impugning the truth of the wise man's statement that there is nothing new under the sun, yet the author has found that there may be a new reason given for an old doctrine a reason, too, which solves properly many a troublesome case likely to arise. CHICAGO, January 1, 1900. TABLE OF CONTENTS. INTRODUCTION . , , . . . . . . . Pages 15-25 CHAPTER L Sections. BANKS, ORGANIZATION AND PROOF OF EXISTENCE . . . 1-25 In general . 1 General definition ........ 2 Definition under revenue laws 3 Under constitutional and statutory restrictions . 4 Under charters . 5 Under penal and forfeiture statutes . . . 6 Right of banking ' .V 7 When a franchise . 8 Right of private banking . 9 The probable constitutional rule 10 Question on principle . . - . ' ^ . . . 11 Further constitutional questions 12 Formation of a private bank 13 Joint-stock companies 14 Corporations . 15 State banks of issue ........ 16 State bank tax . ." > .--. ..... 17 Delegation of power in forming banks . . . " . 18 Formation of corporations for banking .... 19 Conversion of state into national banks .... 20 Alteration of bank charter ...... 21 Power as to by-laws ........ 22 Proof of corporate existence 23 Power under charters as to branches .... 24 Conflict of national and state laws ..... 25 CHAPTER H UNAUTHORIZED BANKING 26-36 Scope of the subject . 26 Private banking unauthorized 27 Unauthorized partnerships or companies .... Conflict of laws as to private banking .... 29 Corporations formed under unconstitutional law . . 80 De facto corporations . ...... 81 6 TABLE OF CONTENTS. UNAUTHORIZED BANKING Continued. Sections. Statutory prohibitions ....... 32 Ultra vires acts. ........ 33 Banking powers . 34 Liability of corporators as partners . . . 35 Direct liability for unauthorized banking . . . 36 CHAPTER m. LEGISLATIVE REGULATION OP BANKING . . . . 87-45 General scope of the power ...... 37 License taxes . 38 Limitations on indebtedness ...... 39 Safety funds and deposits ....... 40 Requirement of reports ....... 41 Bank examiners . . 42 Other regulations of national banks ..... 43 State regulation of national banks . . . 44 State regulation of foreign banks . . . . 45 CHAPTER IV. STOCKHOLDERS 46-72 In general ... 46 Increase or decrease of stock ...... 47 Original subscription ....... 48 Stockholders by transfer ....... 49 Stockholders by estoppel 50 Executors, administrators, guardians and trustees . . 51 Right of stockholder to transfer . . . . . 53 Unrecorded transfers ....... 53 Bank's lien on shares .... 54 Statutory prohibition of transfers . . . . 55 Prohibition of transfers by agreement .... 56 Right of stockholders in bank ...... 57 Liabilities of stockholders ....... 58 Liability on stock subscription ...... 59 Statutory modifications ....... 60 Remedies upon stock subscriptions ..... 61 Other questions as to this liability . . . . 61 a Nature of statutory liability for debts . 62 General character of liability ...... 63 Joint or several liability 64 Who can enforce liability ....... 65 Who are liable 66 Remedy, whether at law or in equity .... 67 Where legal remedy obtainable ..... 68 Suit in equity 69 TABLE OF CONTENTS. 7 STOCKHOLDERS Continued. Sections. National banks ......... 70 Other questions as to this liability . 71 Dividends 72 CHAPTER V. OFFICERS AND AGENTS 73-112 Article I. Duties and Liabilities . . . . . 73-94 In general ... . . . . . . 73 Appointment of agents ...... 74 Corporate officers ....... 75 Bond of officers 76 Salaries 77 Board of directors ....... 78 Liability of officers to bank ...... 79 Liability of officers to stockholders .... 80 Suits by bank assignees and receivers against officers 81 Statutory liability of officers ..... 82 Liability of officers to creditors . . . . 83 Relation of officers to creditors . . 84 Liability to creditors for fraud 85 Liability to creditors for negligence and illegal acts . 86 National banks ........ 87 Release to directors ....... 88 Criminal liability of bank officers . . . 89 Receipt of deposits in insolvent bank . . . 90 Other offenses ........ 91 National bank returns ...... 92 Embezzlement and misapplication . . . 93 Other offenses against national banks ... 94 Article II. Representation of Bank by Officer . . . 95-112 General principle 95 General scope of authority ...... 96 Board of directors ....... 97 President ......... 98 Vice-president 99 Cashier . ,.' 100 Treasurer of savings banks and other general agents 101 Tellers and book-keepers . . . . . . 102 Place of acting . ...... . . . 103 Surrendering the bank's rights ..... 104 Special course of dealing 105 Officer agent for another . . . . . . 106 Officer acting upon his private affairs ... 107 Bona fide third parties ...... 108 Ratification . .. 109 8 TABLE OF CONTENTS. OFFICERS AND AGENTS Continued. Sections. Article II. Representation of Bank by Officer Continued, Admissions of bank officers ..... 110 Notice to a bank ......... Ill Agent with adverse interest ..... 112 CHAPTER VL DEALINGS OF BANKS 113-127 Article L Influence of Customs , . . . . 113-117 In general . \. , 113 Usage must be lawful . ' . . . . . 114 Usage must be uniform, certain and general . . 115 Usage must be reasonable ...... 116 Usage must be known ....... 117 Article IL Banking Powers 118-127 In general 118 Dealing in its own stock 119 Purchasing stock of corporations .... 120 Other mercantile and banking transactions . . 121 Dealings in real estate . 122 Dealings in mortgages on realty ..... 123 Dealings in negotiable paper 124 Borrowing money ....... 125 Lending of credit 126 Collections 127 CHAPTER VH. DEPOSITS 128-170 Nature of relation 128 Kinds of deposits ........ 129 General depositor's rights ....... 130 When the deposit is made 131 Entries on books 132 Deposit of other things than money .....* 133 Ownership of deposit . 134 Trust or partnership funds ...... 135 Liability of bank on trust deposits 136 Attachment and garnishment ...... 137 Death of depositor 138 Insolvency of depositor 139 Bank applying deposit to its own claims .... 140 Duty of bank to apply deposit 141 Right of bank to apply deposit on demands not its own . 142 Payment by bank of deposit ...... 143 Liability to depositor for set-off 144 Liability to drawer for dishonoring check' ... 145 TABLE OF CONTENTS. 9 DEPOSITS Continued. Sections. Liability to holder of check ..,.., 146 Rule in some states , 147 Order of payment of checks . . . . . . 148 Refusal of payment . . . . . . . . 149 Accepted and certified checks . . . . . . 150 Fictitious payees 151 Date upon checks ........ 152 Revocation of checks 153 Forged or altered paper 154 Forged paper as between banks . . . . - 155 Lost or stolen checks or certificates 156 Overpayment and wrongful payment .... 157 Effect of payment 158 Liability of bank for interest 159 Overdrafts . '. ,. 160 Certificates of deposit . "" ' ' . . . . . . 161 Special deposits 162 When special deposit created 163 Liability of bank for special deposit 164 Banks which may receive special deposits ... 165 Actions on deposits 166 Who may maintain action 167 Bank's rights when sued 168 Limitations upon actions 169 Presumptions and burden of proof 170 CHAPTER VIIL COLLECTIONS ' . . . 171-190 Nature of the relation 171 What law governs 172 Collection to be made at bank 173 Revocation of power to collect 174 Bank's lien on collections 175 Authority of collecting bank 176 Liability of bank in making collection . . . 177 When collection complete . . . . . . 178 Liability upon failure to collect . . . 179 Liability for its own negligence 180 Liability for correspondent bank 181 Liability for notary 182 Waiver of negligence ....... 183 Actions for negligence 184 Matters of proof 185 Measure of recovery for negligence 186 Proceeds of collection . . 187 10 TABLE OF CONTENTS. COLLECTIONS Continued. Sections. Rights of the owner ........ 188 Rights of banks between themselves . 189 Insolvency as affecting proceeds . . . 190 CHAPTER IX. LOANS AND DISCOUNTS 191-202 Validity of loan 191 Collaterals 192 Bank's general lien 193 Charging of interest ........ 194 What law governs 195 What constitutes usury 196 Effect of usury 197 Usury under national bank act ...... 198 Who may set up usury ....... 199 Matters of pleading and procedure 200 Rights and liabilities of bank in discounting ... 201 Payment of loans . . . . . . . 202 CHAPTER X. EXCHANGES, SECURITIES AND COLLECTIBLE PAPER ... 203-310 Article I. Exchanges and Securities .... 203-204 Powers and liabilities of banks as to exchanges and se- curities 203 Forged paper ........ 204 Article IL Acceptance 205-230 Collectible paper 205 Paper requiring presentment for acceptance . . 206 Paper which is not bill of exchange .... 207 Paper not requiring presentment for acceptance . 208 Waiver of acceptance 209 Law governing acceptance 210 Sufficiency of presentment for acceptance . . . 211 Written acceptances 212 Oral acceptances 213 Implied acceptances 214 Promises to accept and letters of credit . . 215 Sufficiency of promise or authority .... 216 Construction of promise or authority .... 217 Promise as to existing bill 218 Reasonable time for acting on promise or authority . 219 Conformity of bill to promise or authority . . . 220 Revocation of authority or promise .... 221 Defenses to promise to accept 222 Revocation of acceptance made 223 TABLE OF CONTENTS. II EXCHANGES, SECURITIES AND COLLECTIBLE PAPEE Continued. Article II. Acceptance Continued. Sections. Necessity of acceptance as to drawee .... 224 Effect of non-acceptance ...... 225 Effect of acceptance . 226 Admissions by acceptance 227 Liabilities and rights of acceptor . . .*"*,, 228 Conditional and variant acceptances .... 229 Discharge of parties to accepted paper ... 230 Article III. Demand of Payment . . ... 231-268 Presentment for payment What law governs . . 231 Acceptance supra protest . . . . . . 233 Presentment for payment of accepted or non-accepted bills . . .... ... . . . 233 Parties entitled to require presentment for payment . 234 Drawer and indorser of bills . . . . . 235 Accommodation parties to bills 236 Drawer and indorser of checks ..... 237 Maker of note . 238 Indorser of note . 239 Accommodation parties to note ..... 240 Guarantors of bills or notes 241 Parties to non-negotiable paper 242 Certificates of deposit . 243 Forged, stolen or void paper . . . . 244 Sufficiency of demand of payment .... 245 By whom demand made on foreign bills ... 246 By whom demand made on domestic paper . . 247 On whom demand made ...... 248 Mode of presentation for payment .... 249 Hour of demand . 250 Demand upon bills of exchange ..... 251 Demand upon notes 252 Demand upon paper indorsed overdue ... 253 Demand upon checks . . . . . . . 254 Demand upon bank checks and certified checks . . 255 Holidays and Sundays . . .. . , . . . 256 Time of demand as affected by sickness or death . 257 Demand where place stipulated * -'.-." ' 258 Demand where no place stipulated . . . . 259 Demand where residence or place of business unknown 260 Customs and usages upon demand .... 261 Excuses for failure to make demand .... 262 Insolvency of maker or drawee ..... 263 Failure to provide funds 264 Change of residence ....... 265 12 TABLE OF CONTENTS. EXCHANGES, SECURITIES AND COLLECTIBLE PAPER Continued. Article III. Demand of Payment Continued. Sections. Absconding of maker or drawee 266 Pestilence and disease ....... 267 War and interruption of commerce . . . 268 Article IV. Notice of Non-payment 269-292 Notice of dishonor in general 269 Form and recitals of notice 270 Mode of serving notice . . . . ... 271 When service by mail permitted . . . 272 Sufficiency of mailing . 273 Personal service of notice ...... 274 Service at a place designated ..... 275 To whom notice to be given 276 Notice to successive obligors 277 By whom notice to be given . . . . 278 Place to direct by mail 279 Absence from home ....... 280 Change of residence 281 Due diligence in finding address 282 Time for service - . 283 What mail of the day 284 Time of service for successive obligors ... 285 Holidays and Sundays ...... 286 Notice as affected by death or illness .... 287 Customs and usages ' 288 Actual notice * . 289 Excuses for failure to notify 290 Effect of war or pestilence ...... 291 Effect of failure to notify 292 Article V. Waiver of Demand and Notice . . . 293-304 Waiver of demand and notice ..... 293 Wiio may make waiver ...... 294 To whom waiver given ...... 295 Express waiver in writing ...... 296 Filling up of blanks 297 Parol waiver 298 Promise to pay before maturity ..... 299 Indemnity as a waiver 300 Waiver after maturity 301 New promise after maturity 302 Part payment after maturity ..... 303 Acknowledgment of liability ..... 304 Article VI. Protest and Certificate 805-310 Meaning and form of protest . . . 305 Execution of the certificate . . 306 TABLE OF CONTENTS. 1& EXCHANGES, SECURITIES AND COLLECTIBLE PAPER Continued. Article VI. Protest and Certificate Continued. Sections. Certificate as evidence ...... 307 Recitals of certificate ....... 308 Facts of which certificate is evidence . . 309 Conclusiveness of certificate . . . . 310 CHAPTER XL CIRCULATING NOTES ......... 811-316 Power to issue ..... . . . . 311 Statutory prohibitions . ...... 812 State bank tax ......... 313 Payment of notes ...... .. 314 Stockholders' liability '. . . . . .. . . 815 Remedies for bank's refusal to pay ..... 316 CHAPTER DISSOLUTION AND INSOLVENCY ...... 817-347 Surrender of charter ...... . . 817 Reorganization and consolidation ..... 318 Forfeiture of charter ........ 819 Waiver on remission of forfeiture ..... 320' Proceedings to forfeit ....... 321 Declaration of forfeiture ....... 322 Effect of forfeiture or expiration of charter . . . 323 Insolvency ......... 324 Assignments for creditors ....... 325 Preferences ......... 326 Preferences by national banks ....- 327 Receivers or trustees for state banks ..... 828 Rights of state bank receivers and trustees ... 329 Right of set-off as to insolvent bank ..... 330- Allowance and payment of claims ..... 331 Holders of notes ........ 332 Receivers of national banks ...... 333 Effect of appointment ....... 334 Claims and assets ..... . . . 335 Preferences and attachments ...... 336 Payment of interest ........ 337 Agent of stockholders . . . . . . . 338 Priorities among creditors and claimants .... 839 General creditors ..... ... 340 Trust funds as a priority ....... 841 Special depositor's priority . . . . . . 342 Proceeds of collection as priority ..... 843 Deposits in insolvent bank as a priority .... 844 1-i TABLE OF CONTENTS. DISSOLUTION AND INSOLVENCY Continued. Sections. Public funds' .- \. 345 Liens upon particular funds ...... 346 Statutory preferences -. . . . . . . 347 CHAPTER XIIL ACTIONS AND JURISDICTION OVER BANKS .... 348-352 Summary remedy . . 348 Matters of procedure 349 Jurisdiction of courts over national banks ... 350 What court has jurisdiction 351 Injunctions and attachments against national banks . 352 CHAPTER XIV. SAVINGS BANKS 353-365 Nature of savings banks ....... 353 Illustrative cases 354 Officers 355 Stockholders 356 Powers of savings banks ....... 357 Ultra vires acts . 358 Powers of officers ........ 359 Contract of deposit ........ 360 Ownership of deposit . 361 Transfer of deposit 362 Payment of the deposit ....... 363 Actions for deposits 364 Forfeiture of charter and insolvency ..... 365 CHAPTER XV. CLEARING-HOUSES 366-371 Nature of clearing-house 366 Clearing-house certificates ....... 367 Rules of clearing-houso 368 Clearing agent 369 Clearing-house settlements 370 Clearing-house lien 371 APPENDIX L FEDERAL STATUTES IN REGARD TO NATIONAL BANKS. THE LAW OF BANKS AND BANKING, INTRODUCTION. In the history of the common law the conception of a bailment is much older than the conception of agency or trust. These three things, which are so distinctly differen- tiated at the present day, Have one attribute in common: a confidence is reposed by one man^ in another to whom he intrusts property or property rights. It is upon that ground that an equitable remedy can be applied to each relation. In a stage of society where the modern law of contract and of trusts was wholly undeveloped, because there was no occa- sion for it, the remedies given by the law for the enforcement of such obligations were bound to be more or less crude and inadequate. In process of time the courts of equity were to seize upon the idea of a trust, and out of it were to construct a large portion of their jurisdiction. But the common-law courts, while losing their control over trusts, were to retain jurisdiction over those other trust relations which are called bailment and agency. From remote times the notion of a bailment was familiar to the common law. Bracton had copied much of the Roman law upon the subject, and his borrowed learning was long afterwards to form the basis of Lord Holt's celebrated judgment in Coggs v. Bernard. For the relation of bailment the common law from an early period furnished a remedy, just as later it was to furnish a remedy for that other case of trust and confidence which we call agency or procuration. Remote as this fact seems, it 10 BANKS AND BANKING. has given to the business of banking certain characteristic legal features. The \vord deposit, misused as it novr is in banking, originally expressed the exact legal function of the banker; he was the bailee of money or property delivered to him for safe keeping, to be returned by him at the bailor's request. This is one of the well known species of bailments. But the English law, for reasons that would require too much space to enumerate, gave to the bailor a single remedy in the alternative. He could either recover his property or its value. If the bailee refused to deliver, he could obtain only its value. The law did not undertake to deliver back to him the specific thing. In banking the especial propriety of this remedy appears where the thing bailed was money, for one piece of money was as good as another piece of the same denomination. At the same. time the action of debt was originally for so much property, describing it, which the de- fendant unjustly detained. It is apparent that the direct effect of both these remedies was to transform the bailment or deposit of money with a banker into a debt arising out of the relation of debtor and creditor. 1 Business convenience, no doubt, did its part toward this result, but the remedy must have greatly assisted in this transformation. But the old idea of a bailment did not entirely disappear. The in- vention of the action on the case, of which assumpsit was a species, gave to the bailor his action for damages when the bailee refused to return the thing bailed, and those damages were held to include all the damages arising from the breach of the duty to return. The invention of checks adapted it- self to the remedies in existence, and hence it is that the depositor to-day has his two remedies: an action of debt, and an action on the case for damages for the banker's breach of duty in not returning the deposit. 2 But the history of the bunking relation teaches a valuable lesson to-day. It com- pletely justifies those courts which deny to the holder of the check the right to sue the banker upon the check; for suppose the bailor had delivered to his bailee twenty horses See g 128, post, 2 See 145, post. INTRODUCTION: 17 and had given some one an order to go and get one of the horses, the common law and common sense would both tell us that the holder of the order was simply the bailor's agent to demand a return, and that the bailor must sue. 8 But this historical development shows another thing, and that is that the duty annexed to the banker's reception of the deposit is, as the courts are bound to recognize, wholly a customary duty, and is therefore a duty arising out of a cus- tom so old that it is law. It is, indeed, a customary duty so old that the mind of man runneth not to the contrary. It is therefore a duty arising out of law, not out of agreement, and is quasi ex contractu. This most difficult subject in the law has lately received an able and long needed examination from those American jurists whose work has done so much for the law and whose labors have reflected so much renown upon our legal scholarship. This customary duty is enforced by the same action on the case that enforces the customary duty of the common carrier, where the duty was laid cen- turies ago always as founded upon the custom of the realm. This consideration also proves to us how wanting in histor- ical sense are those courts and text-writers who found the check-holder's right to sue upon a customary duty owed by the banker to the check-holder. 4 But in another branch of banking law the idea of bail- ment has been fruitful of important consequences. It was once well understood that the deposit with a banker of busi- ness paper requiring collection was a bailment, to which custom had also annexed certain important duties. By the accident of the remedy furnished by a primitive age the bailor could hold only his bailee, while the bailee was owner of the thing bailed as to the rest of the world. Gradually the idea of the bailor's ownership was to gain ground, and his right of property as against the world became recog- nized. But side by side with it remained the old conception of the bailee's right to recover the thing bailed against the world. But in this country courts and text-writers have See 147, post. * See 147, post. 2 IS BANKS AND BANKING. become confused, just as the lawyers of the Middle Ages did, between agency, trust and bailment, so that to read the lucubrations of courts upon this question is like going back several hundred years and listening to some Elizabethan Clench or Gawdy ratiocinizing over these superficial resem- blances. "We have one court saying the deposit for collec- tion creates an agency; we have another court saying the banker becomes a trustee; yet the one court permits the agent to sue as owner, which he could not do if he were an agent, and the other court permits the owner of the collec- tion to sue his banker at law for negligence, which could not be done if he were a trustee. But the English courts by an unbroken tradition, and some of our courts by reflec- tion, have been enabled to see that the right of the banker to sue as owner at law and the right of the owner to sue the banker at law for negligence belongs only to the relation of bailment. 5 This historical development solves easily the question which so unfortunately divides the courts, and proves beyond question that the correspondent banks are the agents of the bailee, the bank to which the paper is intrusted for collection, where the owner does not himself select and treat with the correspondent bank. Astonishing and incredible as it may seem, one court the Supreme Court of Illinois at an early period held that a deposit of paper for collection with an express company was a bailment and made the first company responsible for its correspondents; yet the same court is heard later asserting in stentorian tones that the same deposit with a banker creates an agency, when the first bank is not liable for the defaults of its correspondents. 6 This idea of a bailment solves, too, the reasons why the owner of the paper can reclaim the proceeds from a correspondent bank. It shows what is the nature of the title that passes from the bailor to the bailee upon a deposit in a bank of paper which requires collection. Grossly erroneous, there- fore, is the holding of those courts which say an absolute title passes upon a deposit for credit of paper to be collected, and See 8 171, 133, post. See note 2, 186, post. INTRODUCTION. 19 of that other court which says that the banker cannot sue as owner. 7 Harsh, indeed, is the penalty the law is paying to-day for those generations of lawyers who were wholly unfamiliar with the banking business and thus lost touch with the conceptions of the common law. The disregard of these conceptions of the common law, both by courts and text-writers, has caused the many irrec- oncilable differences between courts upon ordinary ques- tions in banking law. Those generations " which knew not Jacob " have entailed the expiation of their sins upon us. And it is the idea of bailment which, properly carried out, will render banking law symmetrical and uniform the coun- try over. But in other spheres of law banking has caused a great development, especially in the law of agency and stockholders. A bank, being officered by men generally of wide interests and of large business connections, finds itself involved in transactions where its officer and agent is fre- quently acting for himself or for some one else. These ques- tions generally arise in the law of banking. And here again the common law comes forward with its principle of identity which it has borrowed from the Koman law a principle which an American juridical scholar has developed by his influence upon one court, and by his writings, which lend to our jurisprudence some of the glory which clings round an Ulpian or a Trebonian. In the blunt phrase of the Koman annotator this identity arises non rei veritate, sedfictione; it was adopted by our common law after the fullest considera- tion of its advantages, and after the experience of centuries of that system which knew it not; it solves many a trouble- some question in the law of agency, and stamps with disap- proval the lucubrations of those courts which seek for a basis of the identity of principal and agent, where the agent duly authorized is acting on the principal's business, in some such presumption as that the agent will communicate his knowl- edge to his principal. Such reasoning, as we shall see, is futile when applied to a transaction where principal and 7 See 133, 187, 188. post. 20 BANKS AND BANKING. agent are identical, and has bee,n productive only of confu- sion. 8 A correct appreciation of this principle is the only test by which questions of this character can be decided: The want of this appreciation has caused the text-writers to darken counsel upon this subject by words without knowl- edge. But in another phase of the law of agency the busi- ness of banking has offered much material for judicial exposi- tion. The relation of a director or officer to his corporation has been involved in a complete fog by the fact that some very able judges have been blind to the fact that the keep- ing open of an insolvent bank by directors, either wilfully or negligently, is one thing, and that negligent management of a bank is a totally different thing. On this subject, too, the text-writers have not given us any light, because they have not taken care to find that their light was but dark- ness. In the domain of the law of stockholders the usual liability of double the stock subscription imposed by statute upon stockholders has produced a great development; and here again, the conception of quasi-contr&ct explains for us that this liability is not a contract, though the supreme court of the United States, in days when a quasi-con tract was not well understood, has told us that it was. 9 This law of quasi- contract informs us that the quasi-con tract imposed by the statute is not a contract obligation; but nevertheless the ob- ligation and the duty of a man to perform the quasi-con tract gives a valuable and vested right to the man to whom the duty is owed, and as to past transactions cannot be taken away by statute, because to do so would be a confiscation of property a taking without due compensation. This concep- tion proves, as we shall see, that the supreme court of the United States gave a wrong reason for a very righteous de- cision, which is not an unusual phenomenon in the progress of the law. Again, the subject of banking law gives a wide sphere for the action of the healing and healthful doctrine of quasi-contrsLct in regard to acts done beyond the sphere of corporate power, than which no subject in the law has See g 111, 112, 106, 107, post. See 63, post INTRODUCTION. 21 been examined by our highest court with less perception of the effect of quasi-contra.ct upon legal obligations. 10 Fi- nally, the law of banking offers a wide and extended field for the operation of customs in adding terms to contracts or ^^m'-contracts, 11 in defining the duties of officers of banks as well as their powers, 12 and in circumscribing the appropriate sphere of banking transactions. It is then for the reasons stated above that the law of banking is distinctive. Its doc- trine o'f bailment runs a line of demarcation between it and other businesses as plain as the division which separates that of common carriers from other businesses, while the field of operation which it affords for an application of the doc- trines of quasi-contr&ct makes it no less distinctive. Being so distinctive, it is hoped that a work upon this subject may aid in showing the proper application of general principles in a peculiar field. Where a business which is so important as that of bank- ing is found exposed to contradictory rules of law, it is es- pecially needful to point out the better and safer rule. It needs especial emphasis in these times that a banker is of all men entitled to a certain and fixed rule of law, because he has confided to him the pecuniary interests of so many peo- ple. He is using and investing a fund with which all classes in the community have a direct connection. But when we find that in the same state the banker must conform himself to doctrines that are absolutely irreconcilable, and, if he fol- lows the one rule, another court in the same jurisdiction fol- lowing the opposite rule is bound to hold him for violating its rule, it is patent that the law needs some rectification in those jurisdictions. 13 The rules of law applicable to banking transactions are not of the character of those principles which have become rules of property. Those jurisdictions which have adopted an erroneous rule will find that the in- conveniences of the rule will cause it to be evaded by the business world, and a change in the rule would make the 10 See 33, post. 13 See note 30 to 147, post, note 26 11 See 113-117, post. to 138, post, note 22 to 140, post, 12 See 105, post. and note 2 to 139, post. 22 BANKS AND BANKING. law conform to the settled business practice, and would cause hardship to no one. The examination of cases upon the law of banking will convince any lawyer that there is hardly a single influential doctrine connected with the subject upon which courts of high authority have not reached precisely contradictory con- clusions. The evil is aggravated by the fact that such courts have in many cases concurrent jurisdiction, so that a man who has followed the rule of one court finds himself in the wrong, if his adversary can bring him before another court. One thing is certain, and that is one of the courts must be wrong. There is an anecdote which has been ascribed to Sidney Bartlett, the great practitioner, although the original is no doubt as old as the profession ; it runs in this way. He was seen one day reading a late volume of his state reports. Some one asked him: "Are you reading law?" "No," he replied, " I am reading the decisions of our Supreme Judicial Court." This story aptly illustrates the fact, which the his- tory of the law emphasizes, that the decisions of courts are not always correct expositions of the law. This failure in the administration of the law is aggravated, and in some in- stances, no doubt, is due to the inadequate presentation of a case by the lawyer. Added to the uncertainties of human evidence and the imperfections of a jury tribunal, the sum total of uncertainty becomes almost appalling. Justly or unjustly the whole blame for this condition is laid upon the practicing lawyer. In all ages of civilized society of which we have any record, wherever a legal profession has existed, there can be no doubt that its members have been exposed to the deepest distrust among the great mass of mankind. Sage and saint, poet and wit, dramatist and novelist, satirist and even lawyer, have all had their flings at the profession. The picture painted for us by Plato of the working lawyer and of his life of bondage, who has been stunted and warped and made small and crooked of soul, a poor broken and bent creature without a particle of soundness in him, although exceedingly smart and clever in his own esteem, gives us INTRODUCTION. 23 the word of the sage upon the bar. The saint exclaims: " Woe unto you also, ye lawyers, for ye lade men with bur- dens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers." But even to satisfy a saint a lawyer 'could hardly be expected to pay the judg- ment when he loses a case. Addressed to a judge who has made an incorrect decision the remark has some relevancy. The wit tells us that "the law is a hocus pocus science: it smiles in your face while it picks your pocket; and the glori- ous uncertainty of it is of more advantage to its professors than the justice of it." The dramatist talks patronizingly and pityingly of "old Father Antic, the law." The novelists have exhausted their powers in picturing the rascal, the ped- ant or the buifoon in legal garb. The satirist adds for the benefit of the client: " There take (says Justice), take ye each a shell, We thrive at Westminster on fools like you. 'Twas a fat oyster, live in peace, adieu." Sir Thomas More, himself an example of professional recti- tude, banished lawyers from his Utopia. Even the gentle Melancholiast becomes incensed enough to say : " Our wrang- ling lawyers are so litigious and busy here on earth that I think that they will plead their clients' causes hereafter some of them in hell." He seems to insinuate that the bench will be found in that locality also, fully prepared to hear ar- gument. Lord Bacon, forgetting the fragile character of his legal residence, somewhere suggests that the courts are like the bush whereunto the sheep flies for refuge, but is sure to lose a large part of his fleece. This consensus of opinion is certainly trying to the profession, and lawyers, no doubt, feel this universal obloquy. They are consoled by the re- flection that whenever one of these various descriptions of people gets into trouble he invariably resorts to one of the long robe for -protection. But w.e cannot be wrong in ascribing much of this dis~ esteem to the uncertainties in the law created by erroneous opinions of courts. It is not strange that in a calling which demands the highest mental powers many should be found 24 BANKS AND BANKING. wanting. All men must recognize that upon the bench there may be found men without either the capacity or the indus- try to reconcile the law with the demands of justice ; yet it is no less certain that the case is very rare where such a re- sult is impossible. Those judges who cannot attain this result are those who preach the absurd doctrine of "less law and more justice," and commit waste upon the inheritance. The good judge is the rarest thing in the world, and he is as rare in appellate as in nisi prim tribunals. He must have not only a wide and profound knowledge of the law, but the capacity to call all his knowledge to his aid. Acuteness in discrimination he must have, but it will not avail him unless he adds to it the mental power which carries general prin- ciples with their applications through long and often com- plicated matters of fact. But to both those qualities he must bring the support of that constructive imagination which enables him to see the relation of particular instances to the vast body of doctrine which makes up the science of law. Just as necessary is it for him to have that vivid sense which amounts to an intuitive perception of justice. Yet quick- ness to apprehend, readiness in discrimination, luminosity of thought, are alike unavailing, if not united to that rarer power of suspending judgment until all the considerations the case offers may be fully and fairly presented. This ca- pacity to hear patiently without prejudgment is not often granted to mortals. Eare, indeed, is " The calm eye that seeks Midst all the huddling silver, little worth, The one thin piece that conies pure gold." It cannot be strange, then, that there are many erroneous decisions. And this fact imposes upon every one who ex- amines the adjudications for the law, the duty of never passing by an error. It may be that the exposure of the error will do little good. It is a melancholy fact that the demolition of the false dicta of Nichols v. Eaton in Gray's Restraints upon Alienation has not stayed for a moment the mistaken decisions of courts, following that most erro- neous deliverance of our highest court. But in good time INTRODUCTION. 25 we all must have faith to believe that the sound rule of law will prevail. To aid in this consummation every lawyer, and every law writer, however humble his efforts may be, owes it to the science which he professes, unhesitatingly to condemn error. ]STo right-thinking man, lawyer or judge, would wish his mistake to redound to the discredit of this " noblest of sciences," which has for centuries been waging the battle for human welfare, and will continue to wage it long after we are forgotten. Every one who is a true min- ister at the altar of justice (justitiam namgue colimus et sacra jura ministramus), every one who feeds that sacred flame, is doing his share to free the law from the reproaches that are uttered against her, the sins of maladministration which she is called upon to expiate. It is fortunate that men and their errors count for little in the life of the law. Steadily she moves on to her goal, casting off the false doc- trines laid thickly upon her. "Yes, we arraign her, but she The weary Titan, with deaf Ears and labor dimm'd eyes, Regarding neither to right Nor left, goes passively by; Bearing on shoulders immense, Atlantean, the load, Well nigh not to be borne Of the too vast orb of her fate." CHAPTER I. BANKS, ORGANIZATION AND PROOF OF EXISTENCE. 1. General classification. The terms lank and banker represent conceptions so commonly understood that a satis- factory definition or classification ought not to be difficult. But banks may be defined by reference to their mode of organization, their methods of doing business, or the func- tions which they perform. Thus, with reference to their mode of organization, banks may be separated into those which have a corporate form and those which have not such a form, *. e., corporate banks and private banks. Corporate banks would require a division into national banks, which are organized under the federal law, and state corporate banks, which are organized under state laws. Private banks would require division into individual bankers, partnerships and joint-stock companies. But such a division fulfills no useful purpose and is merely formal. Again, with reference to their methods of doing business, banks may be divided into commercial banks and savings banks; but this division is not useful, because the term " savings bank " no longer de- fines a bank which has no capital stock but divides its profits among its depositors, for many savings banks are now merely commercial banks. Other banks have two departments a savings counter and a commercial counter. A constantly increasing type of bank is now the trust company, so called. This term is sometimes applied to an ordinary commercial bank; at other times a trust company, besides carrying on a banking business, such as receiving deposits and discount- ing commercial paper and collecting exchanges, has a depart- ment wherein it receives and executes trusts of various kinds, which is not a banking business at all. Often the trust com- pany adds to its other functions a savings department. But this method of classifying banks fulfills no useful purpose, un- 1.] BANKS, ORGANIZATION, ETC. 27 less the term " savings bank " is restricted to the old type of savings bank, which shows tendencies toward obsolescence. Regarding banks with reference to their functions, the usual division would be banks of issue, banks of discount, and banks of deposit. Banks of deposit would include savings banks. But this division is not valuable, for the reason that there are no banks purely of issue or purely of discount. The national banks alone are banks of issue, but they are also banks of deposit and discount. State banks of issue no longer exist, but all commercial banks, corporate as well as private, are banks both of deposit and discount. Therefore this division fulfills no useful purpose, but it is advantageous as an aid in defining the meaning of the term "banking powers." Since this latter term is often used in statutes in a general way, it becomes absolutely necessary to define the term " bank," and thus, as incidental thereto, to define the phrase " banking powers." This definition must be sought for in the decisions. But in law as in every other science., where terms in com- mon use are utilized, the meaning of a word will often vary with reference to the circumstances in which it is used. From one point of view in the law, courts have found it neces- sary to define the word "bank" in terms which will not be satisfactory from another point of view. It is a truism, frequently disregarded, that the language of a court should never be considered apart from the circumstances of the par- ticular case in regard to which the language is used. Espe- cially is it true that the framers of statutes and constitutions have used legal terms without any accurate judgment of the result. The courts, in consequence, in order to do justice to litigants, have often been compelled to do violence to lan- guage. In construing a penal or prohibitory statute, the word "bank" has had in some instances a different meaning from that which it has borne to a court construing a revenue or a license tax law. It will therefore be sought to define the words "bank" and "banker" with reference to the lan- guage of decisions, keeping in mind the particular connec- tion in which the language is used. 28 BANKS AND BANKING. [ 2. 2. General definition. A learned and generally accu- rate judge, 1 attempting a general definition, has defined a banker to be " one who keeps a place for the traffic of money ; who there receives it from others and keeps it with his own, using the whole fund as his own, or remits it at request to^ other places; who repays it at the will and call of his cus- tomer; who furnishes money to others on the discount of their obligations, or on securities brought by them; and who buys and sells bills of exchange. To these is sometimes added the issuing of his notes to pass as money, when al- lowed by law to do so." 2 This definition ignores, however, savings banks as that term was originally understood. In a brief of D. B. Ogden, 13 Pet. 530, and in Bank v. Collector, 3 Wall. 495, repeated by the same judge, 3 with a historical summary, in Oulton v. Savings Institution, 17 Wall. 118, is the usual definition found in the encyclopedias: "Banks, in, the commercial sense, are of three kinds, to wit: 1, of deposit; 2, of discount; 3, of circulation." To this is added by the court the statement: "All or any two of these functions may, and frequently are, exercised by the same association, but there are still banks of deposit without authority to make discounts or issue a circulating medium." 4 The court also states that any one of the three functions makes a bank. 6 But this latter statement is not accurate, because a dis- counter of notes, who is often called a " note-shaver," is not ordinarily considered a banker, 6 nor is one who loans his 1 Foulger, J. Compare with this fully as accurate) as the phrase of definition the language of section Mr. Horn: A bank is "an office for 3407, Revised Statutes, and the de- the circulation of capital in the cision in Richmond v. Blake, 132 form either of accumulated labor U. S. 592. The decisions in Bank v. (money of all kinds), or of labor Collector, 3 Wall 495, and Oulton yet to be done (credit)." 1 Encyc. v. Savings Institution, 17 Wall 118, Pol. Science, 228. proceed upon the same general the- 8 Clifford, J. ory of defining the term by refer- * Bank v. Collector, supra. ence to the business functions 8 Oulton v. Sav. Inst., supra. which the banker performs. People v. Brewster, 4 Wend. 498. 2 People v. Doty, 80 N. Y. 225, 228. But this case is perhaps to be bet- This definition is not expressed in ter considered as a case of statutory terms so general (but which are construction. See People v. Bar- 3.] BANKS, ORGANIZATION, ETC. 20 own capital. It has been held that merely receiving depos- its was not banking; 7 but another court has said that, where a couple of attorneys own a private bank, which receives deposits, they are to be considered bankers Tinder the terms of a penal statute. 8 3. Under revenue laws. It is apparent that courts, in construing revenue laws, will give terms a wider meaning than when construing a penal statute, or a statutory or con- stitutional prohibition, when it is sought to bring an indi- vidual within the terms of the statute. The business of banking, under the license tax law, consists, among other things, in having a place of business where money is re- ceived on deposit and paid out upon checks or loaned upon security. 1 But a so-called loan company which did not re- ceive deposits, but loaned its own capital on realty security, and sold and guaranteed its mortgages, was not a bank under this statute. 2 It seems reasonably certain that a place of business performing either the banking function of de- posit or that of issue would be considered a bank. The same cannot safely be said of a business confined wholly to dis- counting. One court has held that a banker can be com- pelled to pay a license on the ground that he is a " money- changer." 3 This last decision is historically correct, because originally the sole business of the mediaeval prototype of the modern banker was exchanging the different varieties of money. 4 tow, 6 Cow. 290, and Curtis v. Leav- to deal in notes, drafts and bonds, itt, 15 N. Y. 9, 56. and buy and sell bills of exchange, 7 Corwin v. Insurance Co., 14 is not a money broker or exchange Ohio, 6. dealer under a license statute. State 8 Commonwealth v. Sponsler, 16 v. Field, 49 Mo. 270. This decision Pa. Co. Ct. R. 116. seems to be based upon the idea 1 Warren v. Shook, 91 U. S. 704. that it would be impossible to im- 2 Selden v. Equitable Trust Co., prison the corporation. 94 U. S. 419. The statute was 13 * 1 Encyc. PoL Science, 232. The Stat. at Large, 252, carried into sec. historical excursus in Oultou v. 3407, Rev. Stat. U. S. Sav. Inst, 17 WalL 118, is hardly 3 Hinckley v. Belleville, 43 111. accurate. 183. But a savings bank authorized 30 BANKS AND BANKING. [ 4 4. Under constitutional and statutory restrictions. The general restrictions against banking in constitutions have been without exception held to apply only to banks of issue. Courts have been compelled to apply harsh meas- ures to constitutional absurdities. Thus in California the constitution (art. 4, sec. 4) prohibited the grant of a char- ter for banking purposes. A later section (35) of the same article stated emphatically that the legislature should pro-- hibit any person, association or corporation from exercis- ing the privilege of banking or creating paper to circulate as money; yet these provisions were held to mean banks of issue, not banks of deposit or discount. 1 Similar hold- ings have been made in other states, where bank charters were prohibited or banking laws were required to be sub- mitted to popular vote. 2 The state of Illinois in its last con- stitution has insisted upon this species of referendum as to any law authorizing banking corporations, whether of de- posit or discount oi' issue, or amendments thereto. 3 A prohib- itory statute led to a very extraordinary ruling. A statute for- bade the establishment in the Territory of Washington of any branch or agency of a corporation whose charter granted it banking privileges. It was seemingly held that a corpora- tion whose charter gave it the power to " draw, accept, in- dorse, guaranty [sic], buy, sell and negotiate drafts and bills of exchange, inland and foreign; to receive coin, money, silver and gold in any form or other [sic], and any kind of valuables on deposit at its offices, and make orders for the payment and delivery of the same or an equivalent at any place whatsoever; to buy, sell and dispose of gold and silver, coin and bullion, gold dust, money and securities for money, and to do a general exchange and collection business, and 1 Martinez v. Hemme Co., 105 CaL 440; People v. Lowenthal, 93 III 370; Bankv. Fairbanks, 52 Cal. 196. 191; Dearborn v. Bank, 42 Ohio St. In the latter case the corporation 617. was organized for banking busi- *Art 11, sec. 5. Const, of 1870. ness, so far as under the laws of See also Reed v. People, 125 I1L California it could legally exist 592; Dupee v. Swigert, 127 111. 494. 2 Pape v. Capital Bank, 20 Kan. 5.] BANKS, OKGANIZA.TION, ETC. 31 to invest its surplus or unemployed funds," etc., was not a corporation with banking privileges. 4 This was decided in spite of the fact that the corporation was carrying on a very large banking business in various places. It shows how far the courts will go in trying to avoid a seeming in- justice. 5. Construction of charters. The court, in the case just cited, intimates that under such a charter the associa- tion might be exceeding its powers in doing a general bank- ing business. Courts, generally, in construing charters, con- strue them strictly as against the state, and more liberally where the objection comes in a collateral way. A corpora- tion engaged in loaning its own money upon notes and mort- gage security was held not to be a banking corporation. 1 A company investing its profits in loans secured by mort- gages would not be engaging in the banking business. 2 In another case the president of a trust company was being prosecuted as the officer of a bank receiving a deposit know- ing his bank to be insolvent. The trust company had been in the habit of receiving deposits of money subject to check. Its charter gave it the power of receiving money in trust and of accumulating the same, and to loan money on real estate and collateral, and to execute and issue notes and debentures, and to buy and sell all kinds of negotiable and 4 Wells, Fargo & Co. v. Nor. Pac. charter, not what business it was Ry. Co., 23 Fed. R. 469, per Deady, actually doing. The case refers to Dist. Judge. The case was man- an earlier unreported case of the damns to compel the defendant territorial court, railroad to furnish express facili- ] Oregon, etc. Investment Co. v. ties. The court apparently lost Rathburn, 5 Sawy. 32. The court sight of the statute altogether and went so far as to assume that the held that it made no difference corporation was loaning its own that Wells, Fargo & Co. were doing capital. But there was no proof a banking business elsewhere; the whatever to show that fact. The test would be whether they were question arose collaterally, doing such a business in Washing- 2 Life Ass'n v. Levy, 33 La. Ann. ton. The statute, however, made 1203. This case is apparently one the test to consist of the powers of construction of a charter, granted to the corporation by its 32 BANKS AND BANKING. [ 6 non-negotiable paper, stocks and other investment securities. Yet the court held that the president was not criminally liable as the officer of a bank. 8 But it is well known that many corporations called trust companies have banking powers, and carry on a general banking business thereunder. Such corporations from any standpoint would necessarily be considered simply as banks, so far as their character as banks was in question. But in quo warranto proceedings it was held that a corporation which was given the right to grant evidences of debt to be issued payable on demand would violate its charter by the issuance of evidences of debt payable on demand to circulate as money, where the violation charged was the illegal exercise of banking pow- ers. 4 6. Under penal and forfeiture statutes. The strictest rule in favor of the citizen is applied in this class of cases. Courts have gone quite far in verbal refinements in order to- mitigate penalties. The cases mentioned in the note below are more properly cases of statutory construction, but they show a very dextrous manipulation of banking statutes. 1 Coupon notes, where the coupons were payable to bearer, were held not to be, when issued, an act of banking. 2 Ne- gotiable bonds, as the case seems to represent them, issued J State v. Reed, 125 Mo. 43. The confessed and avoided the exercise court in its opinion refers to Mer. of banking powers. But the plea Bank v. New York, 121 U. S. 138, did set out just what the corpora- as holding that a corporation with tion was doing under its charter, such powers was not a bank. But Hence the opinion, though vague the illegality of the act ought not and rambling, must be taken to to have been permitted to be set hold that the charter did not per- up by the defendant The case is mit the issuance of circulating therefore wrongly decided. notes. 4 People v. River Raisin Co., 12 x Bristol v. Barker, Anth. N. P. Mich. 389. There was a demurrer 235; S, C., 14 Johns. 204; People v. to the replication. The replication Brewster, 4 Wend. 498. Compare was held bad, but, the plea being People v. Bartow, 6 Cow. 290; Peo- bad, judgment went against the de- pie v. Doty, 80 N. Y. 225. fendant The plea was considered 2 Barry v. Merch. Ex. Co., 1 Sandf- bad because it neither denied nor Ch. 280. 7, 8.] BANKS, ORGANIZATION, ETC. 33 by a railroad, were governed by the same rule. 8 The re- ceipt of money on deposit was considered no violation of a charter prohibiting banking, although it seems that the de- posits were treated as bank deposits. 4 Under a statute mak- ing bank stockholders personally liable for the debts of the bank, the stockholders were held not liable for debts arising from a business of negotiating and guaranteeing mortgages. 5 7. The right of banking. At common law, the vari- ous kinds of banking, whether of issuing notes, discounting paper, or receiving deposits, were the privileges of any one who chose to exercise the right. This would seem to be the necessary conclusion from the development of banking. Originally the relation between a bank and its depositor was not that of debtor and creditor. Some of the greatest of the old European banks received money strictly as a de- posit, to return the same money to its owner. But early in the history of banking it came to be a received notion that the relation of debtor and creditor was initiated by a so- called but misnamed deposit. Whether the bank issued to its depositor an evidence of debt in the form of a note or notes, the amount being made payable on demand, or whether the credit was given the customer in his pass book or on the bank book, the obligation was precisely the same, to wit: a debt payable on demand. It therefore seems reasonably certain that banking continued to be at common law a priv- ilege open to all. So the authorities agree. 1 8. When a franchise. All the courts seem to have recognized that the power to issue notes to circulate as money could be made a franchise. 1 No, one ever seems to have questioned the right of the legislature to make the power to issue currency a franchise grantable by the state. a Hubbard v. N. Y. R. R. Co., 36 1 Bank of Augusta v. Earle, 13 Pet. Barb. 286. 519, 596; Curtis v. Leavitt, 15 N. Y. 9; 4 Corwin v. Insurance Co., 14 Nance v. Hemphill, 1 Ala. 551. Ohio, 6. ! Bank of Augusta v. Earle, suprai 6 Kiggins v. Munday, 19 Wash, Myers v. Irvine, 2 S. & R 36& 233. 8 31 BANKS AND BANKING. [ 9. It is put on the ground that the government has the power to protect its subjects from a worthless currency. 2 If the legislature can take away one branch of banking from pri- vate citizens for the public good, it would seem to follow as a matter of strict logical deduction that all branches of the business could be made franchises.* 9. Right of private banking. Originally banking in all its branches was a common-law privilege, as we have stated. The fearful evils of unrestrained banking in its branch of issuing notes caused the privilege to be curtailed. The New York statute forbade all kinds of private banking, and restricted the right to associations authorized by the state. The power of the legislature to do this was chal- lenged in the case of Attorney-General v. Utica Ins. Co., 15 Johns. 358, in an ingenious argument by T. A. Emrnett. But his argument was wholly unsound in his case because he was arguing for a corporation, whose rights and privileges were not those of individuals, but simply what the legislature granted it. The court held that, while banking was a com- mon-law right, it had become a franchise under the statute. This ruling was necessary to the case, which was quo war- ranto. It should be noted that in the New York constitu- tion in force in 1818, when this case was decided, there was no clause against depriving a person of life, liberty or prop erty without due process of law. That was first inserted in the constitution of 1822. The clause in the federal consti- tution l was binding, of course, only on the general govern- ment, and the court assumed the power of the legislature by analogy to the action of the English parliament. But this case seems to have settled the law in New York, and the question was not raised under the new constitution. The case of Bank of Augusta v. Earle, 13 Pet. 519, admitted the right of the legislature to make issuing notes a franchise, but * Myers v. Irvine, 2 S. & R. 368. 299; Attorney-General v. Utica Ins. * State v. Woodmansee, 1 N. D. Co., 15 John. 858. 246; State v. Stebbins, 1 Stew. (Ala.) l Fifth Amendment to the Fed- eral Constitution. 10.] BANKS, ORGANIZATION, ETC. 35 seems to doubt the right to make other branches of bank- ing a franchise. But since the court was dealing with a cor- poration's rights in that case, the statement would have been dictum. The two earlier Alabama cases seem to have as- sumed the right of the legislature to make all banking a franchise. 2 The point at last came before the supreme court of North Dakota, and that court, in an opinion not very well considered, held that the state legislature could prohibit all private banking; 3 but a little later the supreme court of South Dakota held such an act to be unconstitutional. 4 Other states will probably settle the question for themselves in the near future. The supreme court of the United States will also be required to pass upon the question under the fourteenth amendment. If that court should decide against the legislative right, the question will be completely settled for the whole United .States as to any law subsequent to the fourteenth amendment. But should it hold in favor of the right, it is perfectly possible that some states will, never- theless, hold that such an act would be repugnant to the state constitution, which decision as to that point would be final for that state. 10. The probable rule. The objection to such statutes is that they deprive the citizen of a valuable property right, to wit: the right to pursue a lawful calling. 1 It is claimed to be in violation of the due process of law clause of the state and federal constitutions, as well as the privilege and immu- nity clause of the federal constitution. The sole question is this: Is the evil of unrestricted banking so great that the police power can take it wholly away, or is the legislature 2 Nance v. Hemphill, 1 Ala. 551; * State v. Scougal, 3 S. Dak. 55. State v. Stebbins, 1 Stew. (Ala.) 299. * The usual authorities are cited Chief Justice Taney, in Bank of in the cases above noted. For dis- Augusta v. Earle, says that the case cussions of the general subject, not of State v. Stebbins could only be confined to banking, see 25 Am. considered as applying to banks of Law Rev. 871, and 27 Am. Law Rev. issue. 857. 3 State v. Woodmausee, 1 N. Dak. 246. 36 BANKS AND BANKING. [ 10. required, the business not being a nuisance, 2 to prevent the evil by proper regulation ? It is not impossible, it would seem, by requiring the capital stock of a private banker to be paid in, and by providing in some safe way for the double liability of that capital stock, by a deposit of securities to make private banking as safe as corporate banking. But it is apparent that, if this were done, and the private banker required to deposit securities, to make his responsibility equal to the double responsibility of the stockholders of a corporation, the private banker would cease to exist. This is, perhaps, the easiest way for a legislature to accomplish indirectly such a result, *if it is so desired. The objection of class legislation, and of a discrimination against the private banker, would need to be met and overcome; but it could be said that the law, applying to all private bankers alike, could not be class legislation. If the legislation attacked consists, however, of a positive prohibition against private bankers, the constitutional question must be fairly met. It is likely that the decision will depend upon the private views of the members of the court upon the proper system of political philosophy. If they are devotees of the laissezfaire doctrine of government, they will adopt the rule of non-prohibition. If, however, they belong to the opposing school of political thought, they will follow the opposite rule, for the question belongs far more to politics than it does to law. It will re- quire a very accurate knowledge of the general opinions of the judges composing a court of appeal to form any con- jecture as to the probable decision. "We are likely to have much judicial exposition upon this question in the near future. 1 2 Attorney-General v. Bank of literary taste, has already begun. Niagara, 1 Hopk.Cn. 403; Attorney- "Whence, then," the justice writ- General v. Insurance Co., 2 Johns, ing the opinion in State v. Scougal, Ch.871. Both these oases held that supra, indignantly exclaims, "did an injunction would not lie at the the legislature of this state derive suit of the state against the unlaw- its power to farm out these priv- ful exercise of banking privileges. ileges to corporations, and to deny 1 The flow of judicial rhetoric, to individual citizens the right to which is not always in the best exercise them, which he and hi 11.] BANKS, ORGANIZATION, ETC. 37 11. Question considered on principle. It may be con- ceded that to take away the business of a private banker, who has for many years carried on a lucrative and hon- orable business, seems a wholly unwarranted proceeding. Everything that can be urged in favor of the citizen's right to enjoy property can be urged in his favor. But many other kinds of business have been treated in this way, and the step justified by an appeal to the right of the public as against the individual. It is claimed with some reason that the history of private banking shows no more failures than corporate banking; that the worst of bank failures have been those of corporations. But it seems plain that if the right be conceded to the legislature to prohibit private banks of issue, the right to prohibit private banks of deposit nec- essarily follows. We have shown that both businesses are at common law the rights of the citizen. The issuance of a note payable on demand in the place of a sum of money deposited or borrowed does not differ in the least from a book account payable on demand for a sum deposited. In fact the issuing of the note is the older banking transaction. It is true that the note can circulate as money, and the book account can- not. But certificates of deposit and savings books can so circulate in theory, although the form of the latter is too cumbrous for practical use, and the courts deny to them negotiability. Yet the currency does not become demoral- ized as long as the banker's credit is perfect. If a bank of issue fails, the notes become, of course, practically worthless, ancestors have from time imme- tively recent thing. See Anderson morial possessed? " This is a some- v. Alexander, 7 Am. Law Reg. 173. what clumsy sentence, but if it is The question is one to be considered meant to assert that we and our calmly and without the aid of bun- ancestors from time immemorial combe, which never shows in a have enjoyed the right to have a worse light than in the permanence bank, the learned justice is only of a judicial opinion. The opinion making a phrase. It cannot be seems to think that the federal con- asserted that from time immemo- stitution made note-issuing a fran- rial our ancestors have reveled in chise, but that is a mistake. It the unrestrained right of private merely prohibited state bills of note issues. That is a compara- credit. 38 BANKS AND BANKING. [ 12. unless secured. The same result follows upon a bank failure as to the deposit accounts. Just as much will be paid on the notes as on the deposits. Rather fewer people are affected by the depreciation of the notes than by the depreciation in the value of the deposits, for the deposit account will gen- erally be much larger than the note issue. The direct and indirect effects of a bank failure on its depositors would per- haps be as large as the same effects upon the note holders. So, therefore, no reason can be urged in favor of the legis- lative right to suppress private banks of issue that cannot also be urged in favor of the right to suppress private banks of deposit. This consideration does not apply to private banks solely of discount. But such a bank cannot in any proper sense of the term be called a bank, as the word is understood either from a business or a politico-economical standpoint. We do not call a note-shaver or a pawn-broker a banker, but both may be discounters of paper. Yet, even pawn-broking, it is conceivable, might be reduced to a fran- chise for public convenience. But every one must concede as to banks of deposit that people in general know little of a private banker's responsibility, and are prone to accept the fact that a man is a banker as a guaranty of his perfect financial responsibility. That may be their own fault, but it is none the less a fact. Much could be said, however, against the possibility of any man finding out anything from published bank statements. The loans and discounts may be good or bad ; the fact can only be ascertained with much trouble. It is found that bank supervisions and examina- tions do not insure good banking, and that the ultimate guaranty against loss is the double responsibility of stock- holders, which can be secured from private bankers only on terms that would lead to the discontinuance of the business. So that the weight of reason is decidedly in favor of the leg- islative right to suppress private banking. 12. Further questions. Even if private banking be absolutely prohibited by the state constitution, the question remains whether the state constitution is opposed to the fed- 13.] BANKS, ORGANIZATION, ETC. 39 eral constitution. If the state constitution were older than the fourteenth amendment, it is difficult to see how that pro- vision would apply, and it is not conceivable that under the privilege and immunity clause of the original constitution (art. 4, sec. 2) the question could arise. But even in states with constitutions adopted after the fourteenth amendment was passed, if the act prohibiting private banking were held in consonance with the federal constitution, the question arising under a state constitution requiring banking acts to be submitted to popular vote, and the state court of final resort holding that the act prohibiting private banking was unconstitutional under the state constitution, the further consideration would require decision, whether a popular vote gave the law any efficacy as against the state constitution. Since the constitution is binding upon all the people, it would seem to follow that such a law would be held unconstitutional where a law would be so held if adoption by popular vote were not required. 1 It is possible that the supreme court of the United States might hold, even in the case of a constitu- tion adopted prior to the fourteenth amendment, that an act suppressing private banking was contrary to those funda- mental principles of government which are spoken of in Loan Ass'n v. Topeka, 20 Wall. 655. 13. Formation of a bank. -Where private banking is lawful and a private bank is started by an individual or in- dividuals, there appear to be no special circumstances requir- ing notice whether the bank is formed by an individual or a partnership. But one question deserves notice. It seems to have been held that since a partnership can be formed as be- tween the partners on other terms than the joint and sev- eral liability of the partners, it follows that the partners will not be "jointly and severally liable as to third parties who have notice of the terms of the partnership. 1 It would seem 1 State v. Hastings, 12 Wis. 47, v. Allin, 35 III App. 336; Riggs v. seems to hold otherwise, but is not Swan, 3 Cranch, C. C. 183; Hess v. sound. Werts, 4 S. & R. 356. And see 209, 1 Hastings v. Hopkinson, 28 Vt. post, note 2. 108. Contra, Manhattan Brass Co. 40 BANKS AND BANKING. [ 14. to follow, if that be the law, that a partnership limited as to the liability of partners can exist as to persons having notice, even at common law. This result shows the absurdity of the rule. But all the states that permit limited partnerships for- bid such a partnership for banking purposes, 2 with few ex- ceptions. 3 There seems to be no question that a limited partnership that fails because of a failure to comply with the statute becomes a general partnership, 4 or, if the particu- lar partnership be not permitted to be limited, such a part- nership, although otherwise formed in accordance with the statute, becomes general. 5 It is said that a limited partner- ship formed in a state permitting such a partnership, but in order to do business in another state, would be a general partnership in both states. 6 But this would appear not to be true as to a limited partnership formed in a foreign coun- try to do business in a state permitting limited partnerships. 7 The discussion as to the conflict of laws as to limited part- nerships is reserved for the subject of " Unauthorized Bank- ing." 8 i 14. Joint-stock companies. In states permitting joint- stock companies to be formed for banking purposes the stat- ute must be strictly followed. 1 If this be not done the joint-stock company is a general partnership. 2 The rule as to de facto corporations cannot be invoked to make a de facto joint-stock company. 3 If the liability is limited, such joint-stock companies would be generally considered corpo- rations. 4 If they are to be so considered, the fact would 2 See George on Partnership, 424 8 See g 29, post. et seq., for full references to stat- 1 Maloney v. Bruce, 94 Pa. 249; utes. Elliot v. Himrod, 108 Pa. 569. 1 Expressly permitted in Mary- 2 Same cases as in last nota land; by implication in Illinois by 8 Eliot v. Himrod, supra. not being forbidden. 4 Liverpool Ins. Co. v. Massachu- 4 Bates on Lim. Part. 49. setts, 10 Wall. 566. Contra, Curtis 8 McGehee v. Powell, 8 Ala. 827. v. Leavitt, 17 Barb. 309. See also 6 George on Partnership, 428. Bates on Lim. Part., sec. 208 et seq. ; 7 Jacquin v. Brisson, 11 How. Pr. Robbins Electric Co. v. Weber, 172 885. Pa. 635. 15.] BANKS, ORGANIZATION, ETC. 41 have an important bearing upon the conflict of laws as to private banking, which will be noticed later. 5 15. Corporations. A corporation can be formed only under authority from the sovereign power. In the divided sovereignty as between the general government and the states, it was early settled l that congress had the power to charter a United States bank. A state court has given en- couragement to congress by deciding that it had power to pass the national bank act. 2 The state legislatures have, of course, power to charter banking corporations. This power, in the absence of constitutional restrictions, may be exer- cised either by a grant of a special charter, a proposition never disputed, or by the passage of a general law permit- ting the formation of such corporations. . But the granting of special charters is now forbidden in almost all the states, and congress has forbidden such a power to the territories. In some of the states the legislature is forbidden to pass any banking law unless the law is ratified by a vote of the people. If the law is passed, it ought not to be amended except by a law ratified by popular vote. 3 Under such a provision it is questionable whether additional powers not of a banking character can be given to banks unless the law be referred to the people and adopted by them. 4 6 See 29, infra, powers, whether of issue, deposit or 1 McCulloch v. Maryland, 4 discount, nor amendments thereto, Wheat. 316. shall be in force unless ratified by 2 Pollard v. State, 65 Ala. 628. a vote of the people. An act rati- See Farmers' Bank v. Bearing, 91 fied by a vote of the people (1 U. S. 29. Starr & Curtis, ch. 16a, sec. 4) pro- 3 Porter v. State, 46 Wis. 375, vides that banking corporations citing earlier cases. Contra, Smith organized under the act shall have v. Bryan, 34 111. 364, citing earlier power " to accept and execute cases. These last decisions have trusts." An act not so ratified (1 been condemned by the provision Starr & Curtis, ch. 32, sec. 89 et in the Illinois constitution of 1870, seq.) authorized all trust compa- which applies to amendments. nies, and all companies authorized 4 The Illinois constitution pro- to accept trusts, to be appointed to vides (art. 11, sec. 5) that no act execute such trusts as assignee or authorizing or creating corpora- trustee by deed, or executor or tions or associations with banking guardian or trustee by will; and 42 BANKS AND BANKING. [10. 16. State banks of issue. It is too plain for argument that a bank note is a bill of credit, and that no state under the federal constitution can issue a bill of credit; 1 yet our federal supreme court has decided that the state may do so by the simple expedient of incorporating a bank with such power. 2 It is also too plain for argument that, under the same section of the same article of the federal constitution, no state can make anything but gold and silver a legal ten- der; yet our highest court has practically decided the exact contrary, 3 although the opinion says it does not. If the pro- hibition was to be made effective, a state was enjoined from creating corporations with power to emit bills of credit; yet in the same case the court held that the state might create a corporation with the power to issue its notes as currency.* claimants, and also that a deposit is required from trust companies, nevertheless, the trust claims being preferred (see 235, post), the as- sets would leave perhaps little for the depositors in case a crash carna But as to banks organized before the constitution of 1870 it would have no retroactive application. Henderson Loan Ass'n v. People, 163 IlL 196. Trust companies with- out banking powers would not come under the provision. Roane Iron Co. v. Wisconsin Trust Co., 74 N. W. R. 818. But as to banks with trust powers, a statute defin- ing the powers ought to have a popular adoption. See the princi- ple of the decision in Van Steen- wyck v. Sackett, 17 Wis. 645; Rusk v. Van Nostrand, 21 Wis. 161. 1 Art. 1, sec. 10, Fed. Const See 311, notes 14 and 15, post. 2 Briscoe v. Bank of Common- wealth, 11 Pet. 257. 8 Briscoe v. Bank of Common- wealth, supra. 4 Briscoe v. Bank of Common- the statute further contained nu- merous provisions as to the perform- ance by such companies of their trust duties. This later act, so far as it applies to banks with trust powers, is amendatory of the bank- ing act. The one statute gives the power, the other defines the man- ner of its execution. As to a bank- ing corporation given trust powers after the constitution of 1870, it seems a palpable evasion to give the bank trust powers by a statute ratified by popular vote, and then to define those powers and the man- ner of their execution by a statute not so ratified. There is reason in the idea, because the trust opera- tions of a bank might bring upon it liabilities that would destroy the security of the depositors. We may suppose a case where the capi- tal of a bank is $100,000. This with the statutory liability would make the capital $200,000. Suppose the bank becomes trustee for claims aggregating a much larger sum. Conceding that the statutory lia- bility would not go to aid the trust wealth, supra. 16.] BANKS, ORGANIZATION, ETC. 4:3 In fact the state gave the bank a franchise to issue bank notes. A franchise is a part of the power of the state given to the corporation. The opinion seemingly concedes that the state could not emit a bill of credit, yet it could give to- a corporation part of the power which it did not have. A more perfect non seguitv/r cannot be imagined. Yet this opinion has been acquiesced in ever since; 5 but the suppres- 5 The decision was made by a packed court, and overruled Craig v. Missouri, 4 Pet. 410, a most pow- erful decision by Chief Justice Marshall. The case was first argued in 1834, before a court composed of Marshall, Story, Thompson, Mc- Lean and Baldwin; Duvall and Johnson were absent. Three of those judges concurred in holding the state bank notes bills of credit, but no decision was pronounced, because the majority was not a majority of the whole court. A re- argument was ordered. Marshall and Johnson had died, and Duvall had resigned; Wayne, Taney and P. P. Barbour had taken their places, which made the last three, with McLean and Baldwin, all Jackson's appointees. The reargu- ment was had, and the cause de- cided in a singularly foolish, inept and futile opinion by Justice Mo- Lean. McLean afterwards died in the odor of sanctity because of his action on the slavery question, but this decision ought never to be for- gotten. The evils of a worthless paper currency that cursed this country for so many years were all made possible by this reckless po- litical decision. Sumner's Jack- son, p. 363. The case was argued by Mr. White and Mr. Southard for the plaintiff in error, and by Mr. Hardin and Mr. Clay for the de- fendant. The really valuable part of Mr. White's argument the re- porter has left out. Mr. Southard speaks of the change of the per- sonnel of the court, and the prob- able change of opinion, and says: "Misera est servitus, ubi lex aut vaga aut incognita est." Judge Story's dissenting opinion, with its splendid eulogy of the great Chief Justice, is a masterpiece. The "wild-cat" banking from 1837 to 1860, and the debauching of the public mind as to paper money* would not have been possible if the opinion of Marshall and Story had prevailed. " Jackson's appoint- ments introduced the mode of ac- tion, by the executive, through the selection of judges, on the interpre- tation of the constitution by the su- preme court. Briscoe's case marked the victory of Kentucky relief finance and states-right politics over the judiciary. The effect of political appointments to the bench is always traceable, after two or three years, in the reports, which come to read like a collection of old stump speeches. The climax of the tendency which Jackson in- augurated was reached when the- court went to pieces on the Dred Scott case, trying to reach a decis- ion which should be politically ex- pedient rather than one which should be legally sound." Sum- 44 BANKS AND BANKING. [17. sion of state banks of issue is achieved by the national tax of ten per centum upon state bank issues. This power can- not be successfully questioned. 6 17. State bank tax. The state bank tax of ten per cent, upon the notes issued by all state banks and private bankers is the method by which the national government preserves the country from unrestrained note issues. 1 Our political institutions, even when at their worst, fit us so easily that we rarely stop to consider how narrow is the barrier which separates us from the condition of " wild-cat " There are many constitutions which prevent a banking. 2 net's Jackson, p. 363. Later in- stances of this sort could be easily found, but the same result is often obtained through the election of judges. The whole chapter is a fruitful lesson for all lawyers. A case contra to the one above is Linn v. State Bank, 1 Scam. 87. where the state court was right. Briscoe v. Bank has been affirmed in Wood- ruff v. Trapnall, 10 How. 205; Dar- rington v. Bank of Alabama, 13 How. 12; Curran v. Arkansas, 15 How. 317. It has been overthrown in Veazie Bank v. Fenno, 8 Wall. 533, by holding that the national government can tax the power out of existence. 6 Veazie Bank v. Fenno, 8 Wall 533, holding *that such a tax was not a direct tax, but an excise tax. 1 Statute of Feb. 8, 1875, ch. 36. sees. 19-21; 18 Stat at Large, 811. J One of the curious legacies of the days of vicious banks of issue is the idea that the issuance of notes is a source of profit to the banker. This idea really lies at the bottom of the jealousy which exists among a certain class against na- tional banks. So far is it from being a source of profit that many national banks do not keep their notes in circulation. There is a school of continental economists who think that unrestricted pri- vate banking is a good thing that it regulates itself. See the trans- lation of an article of Adolph Wag- ner found in 1 Encyc. Pol. Science, 239. It is lamentable to see that this idea has some following among bankers, and that a secretary of the treasury has actually proposed to allow banks to issue notes of hand against their assets. The folly of this proposition is that such is- sues cannot be successfully super- vised. A failing bank would al- ways resort to note issues to pre- vent bankruptcy. The ignorance of legal conditions involved in the suggestion is appalling. But in this country we have seen the effects of such a system, and it is not likely to be revived. See 29 Am. Law Rev. 94, 459. Whenever there has been any talk of reviving it, "Terruit gentes, grave ne rediret Seculum." The effects of such a system are likely to prove incalculably disas- 18, 19.] BANKS, ORGANIZATION, ETC. 45 state bank from issuing notes, or which provide for security ; but there are many states wherein there is no provision of law that would prevent a private banker 3 from flooding the country with worthless currency in the form of unsecured notes. Until such a provision exists in every part of the United States, it is not too much to say, even in a legal trea- tise, that an advocate of the repeal of the state bank tax is a public enemy. 18. Delegation of power. The national legislature has delegated to the different territorial legislatures the power to incorporate banks. 1 In practice, the duty of passing upon due incorporation, both under the national bank act and under state and territorial legislation, is usually delegated to ministerial officers. 2 No good reason can be urged why jurisdiction ought not to be given to certain courts to pass upon the question of the propriety of the articles of incorpo- ration and the regularity of the steps taken. 19. Formation of corporations. A corporation may be formed either by the grant of a special charter, where such a course is permissible, or by incorporation under a general law. A bank formed under a special act becomes, by implication, a corporation, although the term is not ap- plied to it in the act. 1 A special authority or franchise given trous. A case which, when read them. The first banker received between the lines, shows the evils the package, but let it lie unopened of this system is Cushman v. Car- for a week, and it was held he ver. 51 111. 509. One banker wrote could not recover because it was a to another to send him the balance great act of negligence to wait one due him at the other banker's in week! bills of certain kinds. He evi- 3 A private banker is not a corpo- dently did not know that some of ration. those bills were likely to depreciate. l People v. Marshall, 6 111. 672; The other banker, who seems not Bank of Michigan v. Williams, 5- to have had a fine sense of honor, Wend. 480. There are a number of or perhaps it had become de- other cases to the same effect, bauched through contact with 2 Such delegation has always been wild-cat money, gathered a lot of upheld whenever attacked, the bills which had depreciated 1 Mahoney v. State Bank, 4 Ark. after receipt of the letter and sent 620. 46 BANKS AND BANKING. [ 19. by a charter remains conditional until the requirements of the act are fully carried out. 2 Where a banking corporation is attempted to be formed under a general law, it is often said that the requirements of the law must be strictly fol- lowed. But this is only relatively true. It will apppear that objections of this character, as a general rule, can be urged only in favor of the state in a direct proceeding to attack the incorporation. 3 The statutes require a name for the corporation and forbid the use of the same name by two corporations, 4 and a bank whose name is infringed may have the remedy of injunction. The location of the bank must be specified, and it would seem to have been held that one state cannot charter a banking company for the purpose of doing business in another state; 5 and when located in one county a bank cannot est-iblish a branch of itself in another county without authority from its charter. 6 An extreme case that worked a great injustice, and cannot be approved, will be found in the note. 7 In the absence of express statutory authority the corporation cannot begin business, except as a de facto corporation, until the whole capital stock is sub- scribed, 8 but sometimes the statute permits it. 9 The statute governs as to how the capital stock shall be paid, whether in money or otherwise. 10 If the statute is silent on the sub- 1 Williams v. State, 23 Tex. 264 national bank the right to have a J See 31, post. clearing agent 4 International Trust Co. v. Inter- 8 See 1 Thompson on Corp., sec. national Loan & Trust Co., 153 1235. Masa 271; In re Bank of Attica, 12 9 Reese -v. Bank of Mont. Co., 81 N. Y. Supp. 648. State banks can- Pa. 78. See Gray v. Portland Bank, not call themselves national Sec. 3 Mass. 364. 5243, Rev. Stat U. S. "It seems to be held in an old 6 Atterbury v. Knox, 4 B. Mon. 90. case that the capital stock must be 6 People v. Oakland Co. Bank, 1 paid in money (King v. Elliot, 5 Doug. 282. But this defense is not Smedes & M. 428), where a creditor pleadable to the cashier's bond, of the bank garnished a stock- Morehead Banking Co. v. Tate, 30 holder for his unpaid subscription. 8. E. R. 34L See on the general proposition, 7 Armstrong v. Second Nat Bank, Moses v. Ocoee Bank, 1 Lea, 398; 38 Fed. R. 883. The decision is Marr v. Bank of West Tennessee, 4 wrong because it would deny to a Lea, 578. 20.] BANKS, ORGANIZATION, ETC. 47 jectand the doctrine of payment "in money's worth " is held in the particular jurisdiction, there seems to be no reason why payment for the capital stock should not be made in prop- erty, provided such property was proper for use in the busi- ness. 11 The statutes usuall} 7 require the issuance of a certificate by proper authority where the organization is made under general laws, which certificate is always evidence of due in- corporation, but it will be seen that it is not the only evi- dence thereof. 12 The effect of the failure to issue a certificate will be noticed in a later chapter. 13 20. Conversion of state into national banks. The national bank act gives the right to convert any bank or- ganized under a special act or general law of a state into a national bank upon the certificate of the directors that two- thirds of the stockholders have agreed thereto. 1 This au- thority is all that is necessary for the conversion of a state into a national bank. 2 Under another statute, banks in the District of Columbia are authorized to convert themselves into national banks. 3 The directors of the state bank con- tinue to act until their successors are elected, and they are not required to take a new oath, but a majority of the old directors is required to perform any corporate act. 4 If the state bank has voting and non-voting stock, the non-voting stock cannot participate in the voting upon the change of organization, 5 and the act of the voting stockholders trans- fers the non-voting stock as well. 6 The new bank succeeds to all the property of the old bank, and a suit upon an ob- ligation held by the old bank can be brought in the name of the new bank, although a state law provides that the old H The Illinois banking act does 1 Sec. 5154, Rev. Stat, U. S. See not require, except by a weak im- 212, post. plication, the payment of stock in 2 Casey v. Galli, 94 U. S. 673. money. See on the general subject, 8 Act of Congress June 30, 1876. 2 Thomp. on Corp., sec. 1562 et seq. 4 Lockwood v. Mechanics' Nat See also Pacific Trust Co. v. Dorsey, Bank, 9 R. I. 308, 11 Am. R 253. 72 Cal. 55. State v. Phoenix Bank, 34 Conn. i*See 23, post. 205. 13 See 31, post. State v. Phoenix Bank, supra. > 4:8 BANKS AND BANKING. [ 21, 22. incorporation shall continue to exist for three years for the purpose of prosecuting and defending suits. 7 Even if the national bank was not in form converted from a state bank, yet, if such was the fact, the new national bank is merely the successor of the former state bank and may hold its assets. 8 21. Alteration of bank charter. After a charter has been granted to a bank the charter becomes a contract under well settled rules, and is not subject to amendment by a state legislature, unless the amendment is immaterial or of a remedial character, or unless the power to amend has been reserved. 1 Whether the doctrine of Munn v. Illi- nois, 94 U. S. 113, would be applied to charters of banks not of issue may well be doubted. The charter could not be re- pealed except by authority reserved or by virtue of the police power; but that subject belongs to a treatise on con- stitutional law or corporations and not especially to a work of this nature. 1 22. Power as to by-laws. The power of a banking corporation to enact by-laws, whether the right is granted by the charter or is used as an inherent power, does not differ from the rules in regard thereto governing other corpora- ' Atlantic Bank v. Harris, 118 v. Bopp, 50 N. Y. Supp. 676. And it Mass. 147. applies to debts thereafter incurred. 8 Western Res. Bank v. Mclntire,' Barnes v. Arnold, 51 N. Y. Supp. 40 Ohio St 52a 1109. A by-law that requires the 1 See 2 Cook on Corp., sec. 492 et consent of the directors to a trans- seq.; 1 Thompson on Corp., sees. 66- fer of the stock is void. McNulta 105; 4 Thompson on Corp., sec. v. Corn Belt Bank, 164 111. 427. 5380. See also Wheeler v. Frontier 2 One case holds squarely that a Bank, 23 Ma 303; In re Reciprocity bank is a corporation charged with Bank, 22 N. Y. 9; In re Oliver Lee public duties (Mechanics' Bank v. Bank, 21 N. Y. 9. Compare United Debolt, 1 Ohio St 591; reversed, 18 States Trust Co. v. Fire Ins. Co., 18 How. 380); but it can choose its de> N. Y. 199; Lowry v. Inman, 46 N. positors (Thacher v. State Bank, 5 Y. 119; Marr v. Bank, 4 Lea, 578; Sandf. 121), and its charter is a con- Owen v. Purdy, 12 Ohio St. 73; tract. See Planters' Bank v. Sharp, Sherman v. Smith, 1 Black, 587. A 6 How. 801; Claghorn v. Cullen, 1 charter was altered to impose a Pa, 133; People v. Manhattan Co.,. stockholder's liability. Hirshfield 9 Wend. 351. 23.] BANKS, ORGANIZATION, ETC. 49 tions. 1 But certain implied limitations arise from the char- ter or genera] law. A national bank which is forbidden by law from loaning on the security of its own shares can- not create a lien in its own favor upon the shares of its stock- holders. 2 The same rule applies to state banks similarly restricted. 8 The passage of such a law repeals a by-law creating the lien, although the by-law was legal when made. 4 The rules governing the relations of depositors to a savings bank as affected by the by-laws of the bank will be found discussed under a later chapter on Savings Banks. 5 23. Proof of corporate existence. The corporate ex- istence may come directly in question or indirectly. It comes directly in question when a suit is brought by the state to forfeit the charter. In such case, nothing being pre- sumed against the state, the proof of the performance of every act required, whether by the special charter or gen- eral law, must be strictly made. None of the decisions which follow applies to such a case. But when the due incorpo- ration of a bank comes collaterally in question a very differ- ent rule applies. As to a shareholder or officer of the cor- poration, or as to any one who has contracted with the corporation as such, the fact of due incorporation is conclu- sively presumed. 1 Even in a criminal case the defendant could not urge the non-existence of the bank, where he had performed acts as president thereof. 2 When collaterally attacked the existence of the corporation may be proved in favor of the corporation by the certificate of proper author- ity, and this certificate is conclusive. 8 It may also be proved 1 See 1 Thompson on Corp., sees. l Casey v. Galli, 94 U. S. 673, cit- 935-1053. ing a number of cases. Indiana 2 Bullard v. Bank, 18 Wall 589, permits a bill in equity by a stock- overruling a number of cases. See holder against the corporation, in 54, post. order to test the due incorporation. s Nicollet Nat. Bank v. City Bank, Albert v. State, 65 Ind. 413. 38 Minn. 85. 2 In re Van Campen, 2 Ben. 419; 4 See Nicollet Nat Bank v. City Fed. Cas. No. 16,835. Bank, supra. 3 Casey v. Galli, 94 U. S. 673; 6 See 234, post. Keyser v. Hitz, 2 Mackey, 473; 4 50 BANKS AND BANKING. [ 23. either by the special charter or a general law authorizing the incorporation with proof of user under the charter. 4 Even if the charter is conditional, the proof of user is suffi- cient proof of the performance of the condition. 5 If a double certificate is required, for instance, one by the county clerk and another by the secretary of state, proof of the first cer- tificate with evidence of the transaction of business as a cor- poration is sufficient. 6 Parol proof that the bank was actu- ally in existence by doing acts of business, 7 or was generally reputed to be a bank, 8 has been held sufficient proof in favor of the bank. "Where proof of due incorporation is made by a grant of a charter, it is not necessary to show that the bank commenced business. 9 But it may be that the general law or. the charter forbids the doing of business by the bank until some certain act or acts have been done. If proof were offered that such an act had not been performed, where the objection is made by a third party as against the bank, it would seem that the person who had contracted with the bank, or a shareholder or officer who had acted in the cor- poration, would nevertheless be held responsible to the asso- ciation. 10 But if the objection be made by the corporation Thacker v. West River Bank, 19 7 Way v. Butterworth, 106 Mass. Mich. 196. It seems to be intimated 75; Farmers', etc. Bank v. William- that if proof were made that the son, 61 Mo. 259; Yakima Nat. Bank law did not authorize the granting v. Knipe, 6 Wash. 848. of the certificate in such a case, the 8 State v. Fitzsimmons, 30 Mo. proof would not be sufficient, in 236. Under a statute see the same Agnew v. Bank of Gettysburg, 2 case and Jennings v. People, 8 Mich. Har.&G.478. On principle the cer- 81. Proof is sometimes dispensed tificate would be sufficient, even if with by statute, unless the incor- obtained by fraud. poration be denied under oath. It 4 Henderson v. Union Bank, 6 seems that a different rule than Smedes & M. 314; Farmers', etc. that stated in the text was laid Bank v. Jenks, 7 Met (Mass.) 592; down in United States Bank. v. Bank of Manchester v. Allen, 11 Vt Stearns, 15 Wend. 314, as to the 302. United States Bank. Williams v. Union Bank, 21 9 People v. Peabody, 25 Wend. 472. Tenn. 339. 10 Berkshire v. Evans, 4 Leigh, 22a 6 Leonardsville Bank v. Willard, And see 32, post. 25 N. Y. 574. 24, 25.] BANKS, ORGANIZATION, ETC. 51 as against a third party, there is some confusion in the de- cisions. In the case of national banks it is settled that the proof would be good. 11 This subject is, however, more prop- erly a part of the discussion upon Unauthorized Banking. 12 24:. Power under charters as to branches. If the law or the charter of a bank prohibits the establishment of branches, it of course cannot do so; but if the law of the state prohibits branches of a bank, whether of the state or a foreign bank, and the penalty provided is a forfeiture of the charter, it is inoperative as to foreign banks. 1 If private banking is permitted, there is no reason, in the absence of legal prohibition, why a private bank should not have branches; but a corporation has only the powers granted it, and it can- not establish branches unless the power to do so is granted to it. 2 If the law permits it and branches are established, whether the branch bank is a separate or the same corpora- tion depends wholly upon the effect to be given to the pro- visions of the statute. 3 A bank may do business anywhere unless prohibited, 4 but it cannot change its place of location. 5 25. Conflict of national and state laws. A corpora- tion chartered as a bank by the national government cannot be controlled in any way by state laws in the exercise of the rights granted by congress. 1 It is wholly exempt from 11 McCormickv. Market Nat. Bank <334; Trezevant v. Bank of Tennes- 165 U. S. 538; but in this case there see, 1 Rob. (La.) 465; Branch Bank was no proof of user or of doing v. Rhew, 37 Miss. 110; Bank v. business beyond the contract sued Smith, 33 Mo. 364; Merchants' upon. Bank v. Farmer, 43 Mo. 214; Bank 12 See 33, post. v. Goddard, 5 Mason, 366; Fed. Gas. 1 Bowman v. Cecil Bank, 3 Grant No. 917; Mason v. Farmers' Bank, Gas. 33. 12 Leigh, 84. 2 People v. Oakland Co. Bank, 1 4 Bank of Augusta v. Earle, 13 Doug. 282. See Atterbury v. Knox, Pet. 588. 4 B. Mon. 90. Ex parte Schollenberger, 96 U. S. 3 State v. Ashley, 1 Ark. 513; El- 369. A state statute as to service Hot v. Branch Bank, 4 Ark. 424; upon foreign corporations gives the Bower v. State, 5 Ark. 234; Farm- same right of service to United era' Bank v. Calk, 4 Ky. Law R States courts. 617; Union Bank v. Denere, 17 La, l Farmers' Nat. Bank v. Bearing, 52 BANKS AND BANKING. [ 25. state control or state taxation, except as to the taxing of its real estate or the shares of individual stockholders, or as such right is granted by congress. 2 Congress may grant to the states the right to tax such banks. 3 Congress has granted to the states the right to tax the shares of individ- ual stockholders and the right to tax the real estate of the bank. The power granted is limited by the two restrictions, first, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of indi- vidual citizens; and second, that the shares of non-residents shall be taxed in the city or town, where the bank is located and not elsewhere. 4 Under this law the bank may be re- quired to pay the tax on its shares and charge the same against its stockholders, 5 even though state banks are not required to do the same thing for their shareholders. 6 A deduction allowed from some moneyed capital, but not ap- parently directed against national banks, is not an unlawful discrimination. 7 The release from taxation of certain kinds of moneyed capital in the hands of individual citizens is an unfair discrimination only when the particular kind of moneyed capital exempted comes into competition with that of national banks. 8 A discrimination among national banks is permissible where the discrimination affects all banks, state and national alike, and is not directed against national banks as such. 9 A state cannot tax the franchises or intan- 91 U. S. 29; National Bank v. Com- Bank of Commerce v. Hart, 37 16 Holt v. Bacon, 25 Miss. 567; Neb. 197. Asher v. Sutton, 31 Kan. 286. See 24 Thompson v. McKee, 5 Dak. 172; Bank v. Warren, 7 Hill, 91. Ecker v. First Nat. Bank, 59 Md. BANKS AND BANKING. [ 100. thorized so to do by the rules and usages of the business, 2 * or in payment of the bank's claim, when he may do all acts required to complete the payment; 26 he has no power to make purchases for the bank not in the line of acquiring bankable securities; 27 he has no power to assign the bank's property unless it be in the usual course of business. 28 It was held in one case that he had no power to pledge the assets of the bank to secure an antecedent debt, 29 and in another that he had no power to make acceptances at all; 3(> certainly he has no power to make accommodation accept- ances, 31 except of course to a bonafide holder; he has no general power to receive special deposit of papers. 32 It was held in one case that he had no power to make an answer to a garnishment. 33 He cannot bind the bank by signing its name to an indemnity bond given upon an execution in the bank's favor; 34 nor has he power to bind his bank to defend a suit for a correspondent, where the correspondent is sued for negligence in collecting. 35 But this prima facie power or lack of power is capable of variation by the course of dealing in a bank, as we shall hereafter see. 36 291 ; Cocheco Nat. Bank v. Harkel, 31 Farmers' Bank v. Troy Bank, 1 51 N. a 116; Hodge v. First Nat Doug. 457. Bank, 22 Grat. 51. 32 Lloyd v. West Branch Bank, 15 25 Ryan v. Dunlap, 17 111. 40. Pa. 172. 26 Matthews v. Massachusetts Nat. 33 Branch Bank v. Poe, 1 Ala. 396. Bank, Fed. Gas. No. 9286. But his affidavit for a capias is 27 Lionberger v. Maxer, 12 Mo. proper on behalf of the bank. App. 575; North Star Co. v. Steb- Wachsmuth v. Merchants' Nat- bins, 2 S. Dak. 74. Contra, Crystal Bank, 96 Mich. 426. Plate Glass Co. v. First Nat. Bank, u Watson v. Bennett, 12 Barb. 196. 6 Mont. 303, semble. The purchase & First Nat. Bank v. Manufact- was for a third party, and hence urers' Nat. Bank, 10 Ohio Cir. Ct. R the case is wrong because the cash- 233. But if the cashier had made ier had no such power. the agreement as part of the consid- 28 Hartford Bank v. Barry, 17 eration for receiving the draft for Mass. 94. See Lamb v. Cecil, 25 collection, there seems to be no rea- W. Va. 288. son why such an act should not be 29 State of Tennessee v. Davis, 50 within the scope of his general au- How. Pr. 447. thority, provided the engagement 80 Pendleton v. Bank of Kentucky, were otherwise enforceable. 1 T. B. Mon. 171, under a statute. 36 See 105, infra. 101, 102.] OFFICERS AND AGENTS. 155 101. Treasurer of savings bank and other general agents. The treasurer of a savings association is an officer with general powers analogous to the cashier's powers in a bank. A suit instituted on behalf of the savings association by its treasurer is presumed to be authorized. 1 He may au- thorize the attorney of the corporation to levy execution upon land and to purchase the same for the bank, and in pursuance thereof to bring a writ of entry. 2 A manager of a branch bank has power to bind the bank as an accommodation in- dorser upon a draft payable at a branch bank. 3 In fact the manager of a branch bank must necessarily represent for that branch all the corporate power. It would be difficult to find a corporate officer with as much authority, for as ta the branch he must to the general public be a board of direct- ors, a president and a cashier. 4 An agent with a general authority binds the bank by his transfer as a matter of course. 5 An authority given to an agent carries with it the powers necessary or fairly adapted to carrying out the au- thority. 6 But a clerk acting as cashier in place of an absent cashier has authority to indorse the bank's paper only for collection. 7 102. Tellers and book-keepers. In banks where one teller acts at both the receiving and the paying counter, there can be no discrimination between the paying and the receiving teller, but in many banks the two functions are in separate officers, and in some banks these officers each have 1 Bangor Sav. Bank v. Wallace, 7 Potter v. Merchants' Bank, 28 87 Me. 28. See also 232, post. N. Y. 641. This is one of the de- 2 Bristol Co. Sav. Bank v. Keavy, cisions resulting from the mistaken 128 Mass. 298. New York doctrine that a deposit 3 Canadian Bank v. Coumbe, 47 for credit passes complete title to Mich. 358. the bank. This ruling can be cor- 4 Such officers are the managers, rect only as to one who knew a for instance, of Wells, Fargo & Co., clerk was temporarily acting. A at Salt Lake City, or New York or person who comes into a bank and London. finds a man acting as cashier has 6 Smith v. Lawson, 18 W. Va. 212. the right to assume he has the pow- 6 Burrill v. Nahant Bank, 2 Met. ers of cashier. 156 BANKS AND BANKING. [ 102. assistants. But the public are not supposed to know the functions of those various officers in the bank. 1 It is the busi- ness of the receiving teller to receive all the deposits at the bank, in subordination, of course, to the cashier. Therefore the bank is liable for the teller's receipt of packages for safe- keeping* where no order has been given to the contrary. 2 He is also charged with the duty of receiving notes and drafts for collection, as a general rule ; and it has been held that the bank was responsible for a note left with the paying teller for collection, although it was indorsed by a general indorse- ment ; 3 and the bank is also liable for a collection left with the assistant receiving teller who was temporarily acting. 4 The paying teller is the proper officer to make payments over the counter for checks drawn upon the bank. He is the proper officer to whom to apply as to the genuineness of a certificate upon a check ; but if he fails to state that a check has been stopped to one who merely inquires as to the gen- uineness of the signature, the bank is not bound by his fail- ure. 5 The note teller of the bank cannot erase a name of a maker on a note so as to bind the bank. 6 It would seem to follow as a general principle that an act of alteration made by any officer of a bank, who had not the power to make the alteration, would be an act of spoliation by a stranger. A paying teller, or any other officer of a bank, cannot bind his bank by an act unlawful and unauthorized, unless the act be a tort. 7 A paying teller has no authority to certify a check where the drawer of the check has not sufficient funds to meet it, although he has general authority to certify 1 See the next case. Daly 476. The lower court made 2 Pattison v. Syracuse Bank, 1 the correct decision. The bank was Hun, 606. Compare, however, Lloyd afterward held liable on the ground v. West Branch Bank, 15 Pa. 172. of negligence. See Clews v. Bank, 3 City Nat Bank v. Mastin, 70 105 N. Y. 398, 114 N. Y. 70. The Tex. 643. court reversed itself, but would not 4 Hotchkiss v. Artisans' Bank, 2 admit it. Keyes, 564 6 Marine Bank v. Terry, 40 111. 255. 5 Clews v. New York Banking 7 Clark v. Metropolitan Bank, 3 Ass'n, 89 N. Y. 418, reversing 8 Duer, 241. 103.] OFFICERS AND AGENTS. 15T checks; 8 and it seems that the paying teller binds the bank, where a check is left with him. for collection upon a depos- itor, where the paying teller agreed that he would cause the check to be paid during the day if the depositor should have sufficient funds during the day in the bank. 9 But the pay- ing teller has no authority to receive deposits, and where he takes a deposit, but embezzles it, the bank is not liable ; 10 nor is the bank liable where the book-keeper takes a deposit, and enters it upon the customer's pass-book and in the ledger, but in no other place. 11 103. Place of acting. Every bank has a well-known place of business, and, as a general rule, any act done by an agent, unless specially authorized or ratified by the bank, away from the place of business, ought not to be binding upon the bank. 1 But there are exceptional cases, such as that of a cashier going to another bank to buy gold, 2 or going to another place to settle business of the bank. The bank 8 Clarke Nat. Bank v. Albion Bank, 52 Barb. 592. It would have been good if the holder was a bonafide holder. Farmers' Bank v. Butch- ers' Bank, 16 N. Y. 125. But the form of the check was notice in the former case. 9 Washington Nat. Bank v. Aver- ell, 2 App. D. C. 470. 1 Thatcher v. State Bank, 5 Sandf. 121. This case cannot be justified on principle. See the next note. Compare City Nat. Bank v. Mastin, 70 Tex. 043. This latter case states the sound reason why the bank should be held. 11 Manhattan Co. v. Lydig, 4 Johns. 377. Although Chancellor Kent was one of the concurring judges, this case as well as the latter seems open to objection. Of course it may be said a man dealing with a bank is bound to know the powers of its dif- ferent officers; but suppose an ig- norant man knowing nothing of banks should come into a bank with a check or draft to collect and should go up to a window and hand his check or draft to the wrong clerk, who should tell him to indorse it to himself, the bank would be liable for the clerk's action. See note 3, supra* But if it were money or something else for deposit these cases say the bank would not be liable. It is right that the bank should be lia- ble, because it impliedly represents its employees to be something bet- ter than mere confidence men. See the last note. 1 Sandy River Bank v. Merchants' Bank, 1 Biss. 146. The general rule is stated in Merchants' Bank v. Ru- dolf, 5 Neb. 527. 2 Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 604 158 BANKS AND BANKING. [ 104. has been held for an indorsement 8 or an admission made by the cashier upon the street, 4 and other cases exceptional in their nature are likely to happen, 5 such as torts. 104. Surrendering the bank's rights. There are cer- tain cases which use language to the effect that the officers of the bank have not the right to surrender the rights of the bank on a note by statements made at the making of it. But this statement is inaccurate. In a leading case where the language is used, the judge deciding the case did not under- stand the point he was deciding. 1 The case was one where the officers of a bank represented to an indorser or agreed with the indorser that the indorser would not be liable. The real point was that the party was seeking to contradict the effect of the written document by parol evidence. But other courts have followed this deliverance, 2 and it is possible that courts may go on repeating it. The rule as to parol evidence to vary a written contract is that it is not admissible except in cases of fraud or mistake. But a representation by a bank officer that a person indorsing a note would not be liable on it is, of course, not a fraudulent representation, or a repre- sentation of a fact at all, or a representation upon which the indorser had a right to rely. Yet if at the time the indorse- 3 Bissell v. First Nat. Bank, 69 Pa. other party had no right to rely 415. upon such an agreement. That is 4 Kingston v. First Nat. Bank, 26 true. But the theory of the law is Wis. 663. that the note cannot be varied by 5 Pendleton v. Bank of Kentucky, such evidence. Other cases say 1 T. B. Mon. 171. that the act was beyond the scope 1 Bank of U. S. v. Dunn, 6 Pet. 51, of the officer's duty, but that is by Justice McLean. He did not re- simply petitio principii. Suppose peat this statement in Bank of a benefit was granted to the bank Metropolis v. Jones, 8 Pet. 12. for such an agreement The other 2 Loomis v. Fay, 24 Vt 240. This cases which follow Bank of U. S. v. case advances the theory that such Dunn are Whitehall Bank v. Tis- an agreement would be a fraud on dale, 18 Hun, 151; Mapes v. Second the bank. That is no reason for not Nat. Bank, 80 Pa, 163; and see Comp. holding the bank liable. It is lia- v. Carlisle Bank, 94 Pa. 409, which ble for many acts of its agents that was clearly a case under parol evi- are a fraud upon it. Other cases dence rule. put forward the theory that the 105.] OFFICERS AND -AGENTS. 159 ment is given an actual fraudulent representation is made by an officer of the bank who has the power to act in regard to the note, the bank will be responsible for the fraudulent rep- resentation. 3 This is the general rule now fully established, that a corporate officer perpetrating a tort in the perform- ance of the business of the corporation which he is qualified to perform renders the corporation liable. 4 105. Special course of dealing. Although the appar- ent scope of the authority of bank officers is as stated in the preceding section, that apparent authority may be greater owing to the fact that the governing authority in the cor- poration has permitted to the particular officer an apparent authority greater than he would otherwise enjoy. The cor- poration is bound by the action of its governing body. That governing body permits an agent to assume greater power than he is entitled to enjoy. From such conduct an agency by estoppel arises. 1 On principle it makes no difference whether the agent's acts are authorized by the special char- ter or articles of agreement, or are contrary thereto; the corporation is bound as to third parties, just as the princi- pal would be bound who defined his agent's authority in a written document and then knowingly permitted him to ex- 3 First Nat. Bank v. Pegram, 118 oque Bank v. First Nat. Bank, 36 N. C. 671. This case must decide Conn. 325. See the preface to Cook that the cashier had power to make on Corporations. It is not neces- the representation, for it is not con- sary here to recapitulate the au- ceivable that the court would know- thorities upon this question. Of ingly permit a wrong judgment to course, to make the corporation re- stand. Grant v. Cropsey, 8 Neb. sponsible for punitive damages, the 205. This last case is questionable as corporation must have authorized an authority. If the bank receives or ratified the tort. Lake Shore Ry. a benefit, the bank will be bound Co. v. Prentice, 147 U. S. 101. But even though the officer's act was a other authorities are contra. See fraud. But the making of the con- note 11 to 96, supra. tract is, as a matter of considera- * This form of agency is a matter tion, the reception of a benefit by of common application in the law of the bank. See Manhattan Life Ins. principal and agent. SeeBronson's Co. v. Farmers' Bank, 10 Blatch. 344. Executor v. Chappell, 12 Wall. 681 ; 4 See, for the principle, Pahqui- Johnson v. Hurley, 115 Mo. 513. 160 BANKS AND BANKING. [ 105. ercise a greater authority. 2 A corporation, by a course of dealing, can commit the whole corporate authority to one particular officer. The limitation is that the officer be not forbidden, by an express general statute or rule of law, from exercising the particular authority. 3 So it is held that the directors of a bank, by allowing its cashier to exercise the whole corporate authority, make the bank responsible for the acts of the cashier beyond the scope of his usual author- ity in other banks. 4 But in order to bind the bank, where an officer acts outside the usual scope of his authority, the bank must be a party to the circumstances, or chargeable in some way with knowledge. 5 Since such action is by the implied authority of the board of directors, it follows that the bank is bound, where it receives a benefit, whether the act is contrary or not to the special charter or to the articles of agreement. 6 The same result ought to follow as to any 2 See note 9 to 120, post, and note 3 following this note. By the rule laid down in 33, ante, the bank receiving a benefit would be held to be bound, except where the transaction was forbidden by a pos- itive rule of law or a statute, and was not purely ultra vires. That is the doctrine of the Supreme Court of the United States, and yet it is not. 3 If he is, no estoppel arises. Bur- rows v. Niblack, 84 Fed. R. Ill, senible; and Kennedy v. California Bank, 167 U. S. 362, applies the principle to a purchase merely be- yond the corporate power. But the latter case is wrong on that point. See 33, ante, and s. C., 101 Cal. 495. 4 Pattison v. Syracuse Nat Bank, 80 N. Y. 82; Davenport v. Stone, 104 Mich. 521, rediscounting by cashier; City Nat. Bank v. National Park Bank, 32 Hun, 105, borrowing money by president and fraudu- lent representations binding on the bank, because the president was permitted to absorb all the corpo- rate power. See also Cox v. Rob- inson, 82 Fed. R. 277; Armstrong v. Cache Valley Co., 48 Pac. R. 690; National Bank v. First Nat. Bank, 79 Fed. R. 961 ; Carpey v. Dowell, 115 CaL 677. 5 Wheat v. Bank of Louisville, 5 S. W. R. 305. Compare Robinson v. Bealle, 20 Ga. 575. But if the facts are on the books of the bank, knowledge of the directors is pre- sumed. Bank of Carlisle v. Flem- ing, 44 S. W. R. 961. 6 Hagerstown Bank v. Loudon Sav. Soc., 3 Grant Cas. 135. This idea seems to contradict the propo- sition that every man dealing with a corporation is bound to know the authority of its agents as defined in the articles of agreement or char- ter. But the two things may be reconciled by the consideration that the representation has pre- vented the ascertainment of the 106.] OFFICERS AND AGENTS. 101 particular course of action with reference to special matters permitted by the corporate direction. 7 The bank is likewise bound. These cases may be also treated as cases of acquies- cence by the bank. 106. Officer agent for another. When the officer of a bank in a particular transaction acts as agent or trustee for another, and also as agent for the bank, the question in- volved is more frequently one of notice than of power in the agent; but it may serve a useful purpose to collect some of the cases in one section in order to illustrate the general principle. Some of the cases are decided on the question of which party has received a benefit. Thus, where the treas- urer of one company was the cashier and manager of a bank, and took the bonds of the company and pledged them in the name of the bank, and secured advances to be made to the bank, the directors of the bank as well as the directors of the corporation being ignorant of the whole matter, the bank was held liable for the bonds, on the plain ground that it had received a benefit. 1 Again, a cashier was the agent of a trustee. He received trust moneys into the bank, and knowingly allowed the trust money to be taken to pay the private debt of the trustee, 2 and his bank was held liable. This is a simple case of notice to the bank, where the agent had acquired his knowledge while acting upon the bank's business, and his knowledge was therefore imputable to the bank. In another case a town treasurer was the cashier of a bank. He drew a note as town treasurer and discounted fact. See note 2, supra. The dis- checks and receiving payments in- tinction should be that the act be stead of cashier. Iowa State Bank not forbidden by a statute or rule v. Black, 91 Iowa, 490, is not contra, of general law. because there was no course of deal- 7 Caldwell v. National Mohawk ings. See also First Nat. Bank v. Val. Bank, 64 Barb. 333; Martin v. Stone, 106 Mich. 367; Winton v. Webb, 110 U. S. 7; Mercantile Bank Little, 94 Pa, 64 v. McCarthy, 7 Mo. App. 318; First iFishkill Sav. Inst v. Bostwick, Nat. Bank v. Graham, 79 Pa. 106; 80 N. Y. 162. Neiffer v. Bank of Knoxville, 1 2 Loring v. Brodie, 134 Mass. 453, Head, 162, as to president signing 11 162 BANKS AND BANKING. [ 106. it at his bank and pocketed the proceeds; the board of di- rectors of his bank was ignorant of the transaction, he alone acting. 3 This is a case of notice, and it was rightly held that the bank could not sue on the note, the reason being that, the cashier having acted for the bank in discounting the note, whatever he knew the bank must be held to know. It will be seen from the preceding cases that where two cor- porations have common officers, and are dealing with each other, the question that arises is sometimes a question of power in the officer and sometimes a question of notice to the bank through an officer. If it is a question of power in the agent, two conditions of fact may arise. The two cor- porations may have a common officer, but the common offi- cer does not act for either corporation. In such case the fact of the common officer existing is wholly immaterial. 4 Or, again, the common officer may act for the one corpora- tion and other officers may act for the other corporation. In such case the fact of the common officer existing is wholly immaterial as to the corporation for which the common offi- cer does not act. But where the same officer acts for both corporations, the rule to be applied is that the agent may contract with himself as agent to the extent of his power; that is to say, the binding force of the contract upon each corporation is to be determined solely by the question of the agent's power given him by that particular corporation. 5 If any question of notice arises the rule is very simple. All the knowledge, though uncornmunicated, that its agent had present in his mind at the time of the transaction is to be imputed to each corporation. Thus, calling the bank B. and the other corporation A., all that the officer knew, 3 First Nat. Bank v. New Milford, ion it could have recovered. But 36 Conn. 93. The opinion puts the it could not because it had notice, case on the ground that by suing 4 First Nat. Bank v. Christopher, on the note it ratified the fraud. 40 N. J. Law, 435. But that ground seems hardly 8 Thus Fort Dearborn Nat. Bank sound. Suppose the bank had sued v. Seymour, 73 N. W. R 724, is a for money had and received, not question of power, ratifying the fraud, under the opin- 106.] OFFICERS AND AGENTS. 163 whether he gained his knowledge on the affairs of the bank or the other corporation B., if the latter was present in his mind, is to be imputed to the bank A., and all that he knew as agent of the other corporation B., or as agent of the bank A., if it was present in his mind, is to be imputed to B. 6 Thus, the cashier of a bank makes a contract with the di- rectors of a corporation, of which he is also a director, but in regard to which he acted solely for the bank; his power is to be determined by the general scope of his authority, the particular course of dealing as to the allowance of power to the cashier in that bank in connection with the consider- ations of express or implied authorization or of ratification or of retention of benefits by the bank. But if the cashier of the bank makes a contract with a corporation of which he is an officer, and he acts on both sides, his power to make the contract is still to be determined by the rules of law stated as to the last illustration, with the limitation that if he knows that as officer of the bank he has not the power to make the contract, although it would generally be lawful for him to make it, his knowledge is to be imputed to the other corporation, if present in his mind, and that corporation's rights are to be treated as if he knew the cashier's lack of power; and conversely, if he knew that he, as officer of the other corporation, or the other officers with whom he was acting for the other corporation, had not the power to make the contract, his knowledge is to be imputed to the bank if present in his mind, and the bank is to be treated as if it knew that he, as the officer of the other cor- poration, had not the power to make the contract. The cases applicable to banks it is believed bear out this state- ment of the law. Thus, it is held that if the bank officer dealing as officer for another corporation with the bank does not communicate his knowledge to the bank, the bank is not bound, where the lank officer did not act in the partic- ular transaction for the lank. 1 But if in such a dealing of 6 Murray v. Pauly, 56 Fed. R. 962, Mass. 74; Innerarity v. Merchants' illustrates this point Nat. Bank, 139 Mass. 332; First 7 Corcoran v. Snow Cattle Co., 151 Nat. Bank v. Loyhetl, 28 Minn. 396; 164 BANKS AND BANKING. [ 107. the bank with another corporation, the bank officer acting for the other corporation also acted for the bank, the bank is chargeable with whatever knowledge the bank officer had. 8 But the limitation by some of the cases is made that the common officer must alone act for both corporations. 9 This limitation is not logical for this reason : If the officer is act- ing as one of a board of directors or one of a committee, the knowledge of one member of the committee is the knowl- edge of all of them; and so one case plainly recognizes, 10 where the point was drawn to its attention, while it was not carefully or at all examined in the other cases, in both of which the assertion is the purest dictum. n But it should appear that the knowledge was present in the mind of the agent when he acted, unless the court of the particular juris- diction recognizes a presumption of communication. 107. Officer acting about his private affairs. An offi- cer of a bank has ne right to use the bank or its funds for his private advantage, and, as we shall see in the next sec- tion, any person who has knowledge of such a fact can claim nothing against the bank from such a transaction. But without reference to the question as to who is claiming the benefit of the transaction, but simply considering the matter as a question of power in the officer as the bank agent, the rule above stated is uniform. Thus, the president of a bank Benton v. German-American Bank, the particular officer is not, this 122 Mo. 832; Oak Grove Cattle Co. rule is very proper, v. Foster, 41 Pac. R 522; Bank v. "Le Due v. Moore, 111 N. C. 516, Blake, 60 Fed. R. 78. Owensboro v. overruling on ttiis very point, Corn- Da viess Co. Court, 12 S. W. R 930, mercial Bank v. Burgwyn, 110 N. C 13 S. W. R 101, seems to be contra, 267. but is too vague to afford much u See statement of facts in both light. See also Wilson v. Bank, 7 cases, cited in note 9, supra. Inao Atl. R 145. cordance with the rules in this sec- 8 Le Duo v. Moore, 111 N. C. 516. tion, Niblack v. Cosier, 80 Fed. R 9 Corcoran v. Snow Cattle Co., 151 596; Broston v. Penniman, 97 Ga. Mass. 74; Bank v. Blake, 60 Fed. R 527; Detroit Motor Co. v. Third Nat 78. Wherever there is any pre- Bank, 69 N. W. R 726; Withers v. sumption from the fact that others Lafayette Co. Bank, 67 Mo. App. 115, are acting for the bank and that and Leonard v. Lattimer, 67 Mo. App. 138, are correct 107.] OFFICERS AND AGENTS. 165 cannot appropriate the bank's note to pay his own debt, 1 nor can the cashier 2 or the president bind by contract the bank in a transaction where the bank is not interested ; s but of course the bank may ratify such a transaction, 4 or permit it by the conduct of its governing body, 5 which is ratification in advance, if the phrass be permissible. An agent author- ized to certify checks cannot bind the bank by certifying his own check or indorsing his own note, 6 or by issuing cer- tificates of deposit to himself, 7 or by certifying checks when the drawer has no funds; 8 or by paying checks of a creditor of the president when the creditor has no funds in the bank, 9 nor by paying his own debts with the bank's funds without authority, 10 nor by a promise to pay a check if sent through the clearing-house regardless of the presence in the bank of funds to meet the check, 11 nor by drawing drafts to use in his private business, 12 nor by drawing drafts to cover his own embezzlement, 13 nor by entering into a conspiracy to swindle creditors. 14 In all such cases if the bank is to be held it must be on grounds of ratification, or of a course of dealing permitting the acts, or of estoppel by the retention of benefits received by the acts, or because the party claim- ing under the contract is recognized by the law to be in 1 Rhodes v. Webb, 24 Minn. 292. "> Christie v. Foster, 61 Fed. E. 551. 2 State Nat. Bank v. Newton Nat. u Morse v. Mass. Nat. Bank, Fed. Bank, 66 Fed. R. 691, 32 U. S. App. Gas. No. 9857. It would not bind 52. the bank if authorized, unless in 8 Kennedy v. Otoe Co. Nat. Bank, writing, because if there were no 7 Neb. 59. funds it would be within the stat- 4 Winton v. Little, 94 Pa. 64. ute of frauds. 6 Martin v. Webb, 110 U. S. 7. 12 Anderson v. Kissam, 35 Fed. R 6 Claflin v. Farmers' Bank, 2 Am. 699; Lamson v. Beard, 94 Fed. R Law Reg. (N. S.) 92; West St. Louis 30; United States v. Johnson, Fed. Sav. Bank v. Shawnee Co. Bank, 95 Cas. No. 15,483; Ruohs v. Third Nat U. S. 557. Bank, 94 Tenn. 57. 7 Lee v. Smith, 80 Mo. 304 "Faneuil Hall Bank v. Bank of 8 Clarke Nat Bank v. Albion Brighton, 16 Gray, 534. The bank Bank, 52 Barb. 592; Pope v. Bank would be held to a bond fide holder, of Albion, 57 N. Y. 126. "Johnston-Fife Hat Co. v. Nat 9 Dowd v. Stephenson, 105 N. C. Bank of Guthrie, 4 OkL 17. 407. 166 BANKS AND BANKING. [ 108. good faith, through lack of notice and the payment of value, or the suffering of a detriment on the faith of the act. u 108. Bona fide third parties. In the case of commer- cial paper or other property of the bank, whenever it comes into the hands of a third party who had no notice of the corporate officer's lack of authority, and who is a holder for value, the bank is bound by the transaction. 1 But whenever the paper on its face shows that in the transaction there must have been a want of authority, such fact gives full no- tice to every one who deals with the paper, 2 such as drafts of a bank in favor of the president of the bank and signed by himself as president, erasing the word " cashier," 8 or post- dated checks certified before they could be cashed. 4 And it is stated that those having notice of the officer's want of authority, where there is a want of authority, by knowing the circumstances of the act cannot claim as against the bank, 8 if the validity of the act depends solely upon the ques- tion of power and not of ratification or authorization. 15 See the succeeding section. that some officer had power to in- 1 Faneuil Bank v. Bank of Brigh- dorse. The case is hardly sound, ton, 16 Gray, 534; Phillips v. Merc. See West St. Louis Bank v. Shaw- Nat Bank, 140 N. Y, 556; Goshen nee Co. Bank, 95 U. S. 557. One Nat Bank v. State, 141 N. Y. 379; court puts forward the queer idea Blair v. First Nat. Bank. 2 Flip, that such an indorsement is merely 111; Houghton v. First Nat Bank, voidable. Preston v. Cutter, 64 N. 26 Wis. 663; Central Trust Co. v. H. 461. It is void. Cook Co. Nat Bank, 15 Fed. R 885; * Lamson v. Beard, 94 Fed. R 30. Farmers' Bank v. Butchers' Bank, * Clarke Nat Bank v. Albion 16 N. Y. 125. See Dime Sav. Inst Bank, 52 Barb. 592. v. Allentown Bank, 65 Pa. 116. 6 Bank of E. Tenn. v. Hook, 1 2 Anderson v. Kissam, 35 Fed. R. Cold. 156. One case, Williams v. 699; Clarke Nat Bank v. Albion Dorrier, 135 Pa. 445, is decided on Bank, 52 Barb. 592; Pope v. Bank the basis of uti possidetis. It is of Albion, 57 N. Y. 126. The iden- partly right and partly wrong, tity of name is notice. Claflin v. Breyfogle v. Walsh, 71 Fed. R 898, Farmers' Bank, 2 Am. Law Reg. is rightly decided by reason of the (N. S.) 92; Lee v. Smith, 84 Mo. 304. fact that the parties knew the lack Contra, Central Trust Co. v. Cook of authority. The reasons given Co. Nat Bank, 15 Fed. R 885. But by the court for its judgment are in this latter case it might be said absurd. 109.] OFFICERS AND AGENTS. 167 109. Ratification. The bank may ratify an act which it could have authorized, and even those acts, which are ultra vires in the sense of being merely beyond the corporate power, 1 it may ratify. This ratification may be express, or may be implied from long acquiescence or delay in objecting, or by the retention of a benefit received under the unau- thorized contract, or by insisting upon it as valid. This species of ratification is in the nature of an estoppel. Cases where the act is held authorized by a course of dealing might be called a species of ratification. 2 But leaving out these latter cases, and considering the other instances mentioned, it is plain that in the case of an express ratification the proof can never be difficult. The action of the board of directors or of any other officers competent to act determines the fact. In cases of implied ratification the existence of the fact is to be deduced from circumstances. A long delay or failure to object to an unauthorized act will estop the corporation, especially where the other party has altered his situation with reference to the matter. 3 The reception of a benefit by the corporation will estop the corporation from object- ing. 4 Thus if the corporation retains the consideration re- ceived for a deed, it cannot object that the officer was un- authorized to make the deed. 5 Even if the officer deceived 1 See 88, ante, for many cases of Bank v. Me Anulty, 31 S. W. R. 1091 ; this nature. Bank of New London v. Ketcham, 2 See 105, ante. 64 Wis. 7; Johnston-Fife Hat Co. v. 3 Peninsular Bank v. Hanmer, 14 National Bank, 4 Okl. 17, where the Mich. 208; Bank of Pa. v. Reed, 1 bank received the benefit of a Watts & S. 101; Parker v. Donelly, swindling conspiracy; Manhattan 4 W. Va. 648; Kelsey v. Nat. Bank Life Ins. Co. v. Farmers' Bank, 10 of Crawford Co., 69 Pa. 426. One Blatch. 344; Hughes v. First Nat. case says want of objection alone Bank, 110 Pa. 428; Owens v. Stapp, not sufficient. Tifft v. Quaker City 32 111. App. 653; Johnston v. South- Bank, 8 Pa, Co. Ct. R. 606. But that western Bank, 3 Strob. Eq. 263 ; Cut- is not an accurate statement. ting v. Marlor, 78 N. Y. 454; Haw- 4 Peninsular Bank v. Hanmer, 14 kins v. Fourth Nat. Bank, 49 N. E. Mich. 208; Tradesmen's Nat. Bank R. 957. v. Bank of Commerce, 39 N. Y. Supp. 5 Akers v. Ray Co. Bank, 63 Mo. 554; Gold beck v. Kensington Nat. App. 316. Bank, 147 Pa. 267; Merchants' Nat. 168 BANKS AND BANKING. [ 109. the bank, and the bank retains the benefit of his act, it is liable for the act as authorized. 6 For although ratification must be with knowledge, 7 yet where it retains a benefit it will not be heard to say it had not knowledge. Where a bank receives and keeps the sura or consideration paid for an extension of payment on its claim, it ratifies the extension though unauthorized. 8 So where the bank retains the money derived from the unauthorized pledge of another corpora- tion's securities, it must answer to that corporation for the securities. 9 On the same principle, if the corporation at- tempts to enforce an unauthorized contract, it binds itself to the contract. 10 It cannot approbate and reprobate in the same breath. If the bank protests a draft received for col- lection, it ratifies the receipt for collection. 11 It was held in the case of a town treasurer, who was also cashier of a bank, and who drew a note as town treasurer and signed it as such, but discounted it to his bank for his own individual profit, that the bank by bringing suit on the note ratified its cashier's fraud. 12 Whenever a ratification is shown in this manner it amounts to a prior authority. 13 There are other cases which may be called cases of ratification. Thus a cashier pledged bonds of the customer deposited for safe keeping with the bank. The pledge was for the benefit of the bank and the pledgee acted in good faith. The cashier afterwards got the bonds back by a fraud, and it was held that the bank could not object to the pledgee's title while 6 Kennedy v. First Nat. Bank, v. Sharp, 4 Smedes & M. 75; Le Fed. Gas. No. 7701o. Grande Nat. Bank v. Blum, 27 Oreg. 7 Western Nat. Bank v. Ann- 215. strong, 152 U. S. 346. u Averell v. Second Nat. Bank, 6 8 Perkins v. Bank of La., 6 La. Mackey, 358. Ann. 222. 12 First Nat Bank v. Milford, 36 9 Fishkill Sav. Inst. v. Bostwick, Conn. 93. This case is put on the 80 N. Y. 162. It cannot deny an of- wrong ground. The cashier alone fleer's authority to make a loan for acted for both parties. The bank it, where it receives the money upon had notice of the lack of authority the loan. Blanchard v. Commercial of town treasurer. See note 3, 106, Bank, 75 Fed. R. 249. ante. to Wilson v. Pauly, 72 Fed. R 129, w See preceding note. 87 U. S. App. 642; Planters' Bank 110.] OFFICERS AND AGENTS. 169 it retained the bonds and ratified the cashier's fraud. 14 Two cases that are at first glance irreconcilable decide the effect of a cashier's act in receiving money into the bank and then wrongfully passing it out. Thus the president of a bank discounted his notes to another bank, claiming that his bank would not pay the notes. The money was deposited with his bank to the president's credit. It was held that the bank was not liable for the loan, as there was no evidence that it retained the proceeds. It was simply the medium of transference. 15 In the other case the vice-president made a loan in the bank's name and the money was put to the bank's credit and the cashier notified. The vice-president thereupon caused the cashier to put the money to his (the vice-pres- ident's) credit, and he used the money for private purposes. It was held that the bank having received the money was liable. 16 A yet different case was caused by the astute opera- tion of a couple of tellers and a broker. The paying teller of the first bank was short in his accounts. A complaisant broker drew a check on the first bank. The paying teller marked it good. Then the broker took the check to the teller of a second bank, who cashed it. The broker took the money to the paying teller of the first bank, who de- posited it amongst his cash. It was held that the second bank could recover the money from the first bank- The first bank by retaining the money ratified the fraud. 17 110. Admissions of bank officers. The general rule is that the admission of an agent while he is acting within the scope of his authority and in regard to a matter then depending, or, as it is expressed, dum fervet opus, is binding upon his principal. 1 An admission that is merely a state- 14 Ringling v. Kohn, 4 Mo. App. 59. Bank, 10 Gray, 532. Accord, Skinner 15 First Nat. Bank v.Hanover Nat v. Merchants' Bank, 4 Allen, 290. Bank, 66 Fed R. 34, 13 C. C. A. 313. Contra, Bank of Charleston v. State Compare Western Nat. Bank v. Bank, 13 Rich. Law, 291, an inde- Armstrong, 152 U. S. 346. fensible ruling. 16 Stewart v. Armstrong, 56 Fed. 1 Another statement of the rule R. 167. which amounts to the same thing 17 Atlantic Bank v. Merchants' is that the admission must be a 170 BANKS AND BANKING. [ 110. ment or narration of a past occurrence is not admissible, be- cause the agent is not authorized to make admissions of that character. 2 But if the agent has authority to act about a particular matter, his statements made while acting as agent in regard to the matter are binding upon the bank, whether the statements are an admission as to a past or a present occurrence. 3 It must be shown that the declaration was in regard to a matter within the legal sphere of action of the corporate agent. 4 It is upon this ground, perhaps, that it has been held that the admission of the genuineness of an indorsement by the bank teller is not binding upon the bank; 5 and the admission by a single director not author- ized to act for the bank has been held not to be binding upon the bank. 6 In one case of doubtful authority it has been held that a bank cashier who rented premises for the bank did not bind the bank by admissions as to the pur- pose of the bank in renting the premises, or as to the terms of a previous renting. 7 It would seem, too, that the state- ment sought to be considered an admission must have been made to the party relying upon it, or to some one for him ; 8 but this statement is not entirely free from doubt. 9 Stock- holders are not authorized merely in their capacity as stock- part of the res gestce. Railroad to a signature of a drawer of a Co. v. O'Brien, 119 U. S. 99; Idaho check. Forwarding Co. v. Insurance Co., 6 East River Bank v. Hoyt, 41 8 Utah, 41. Courts sometimes Barb. 441. stretch the rule as to what is a 7 Union Banking Co. v. Gillings, part of the res gestce to an unwar- 45 Md. 181. Compare Merchants* ranted length. See Huffcutt on Bank v. Marine Bank, 3 Gill, 96. Agency, sees. 136-139. 8 4 Thompson on Corp., sec. 4918; 2 Franklin Bank v. Steward, 37 Carrol v. Railroad Co., 82 Ga. 452. Ma 519. 9 Keysor v. Railroad Co., 66 Mich. 3 Morse v. Railroad Co., 6 Gray, 390; but this case is so confused 450; Malecek v. Tower Grove R. R. that the reporter of the court de- Co., 57 Ma 17. spaired of a syllabus. See also Lin- 4 Wyman v. Hallowell Bank, 14 derberg v. Crescent Mining Co., 9 Mass. 58; Salem Bank v. Gloucester Utah, 163, which case was a most Bank, 17 Mass. 21. laughable judicial aberration, and 6 Walker v. St. Louis Nat Bank, is now overruled. People v. Kessler, 5 Mo. App. 214 But the principle 13 Utah, 69. of the decision could not be applied 111.] OFFICERS AND AGENTS. 171 holders to bind the corporation in any way ; but when the stockholders are assembled as the ultimate governing body of the corporation in a stockholders' meeting, an admission made by such a body is under some circumstances an ad- mission binding upon the corporation. 10 111. Notice to a bank. This question is frequently of controlling importance in the law of banking, because much of the bank's business consists of dealings with negotiable instruments, or collateral deposited as security. If the bank is that of a private banker or a partnership, notice to the banker himself, or notice to one of the partnership, is, of course, notice to the bank. It is the case of notice to any other individual. This is so in the case of an unincorpo- rated association, even though the particular partner has an interest in the transaction adverse to the partnership. 1 But both private bankers and corporations, the former by choice and the latter by necessity, deal with the public through agents. A private banker may receive notice through an agent, the incorporated bank can receive notice only in this way. The rules governing the question in the case of both private bankers and corporations are identical. The first inquiry must always be whether the agent received the notice in the line of his duties in the bank, or whether he obtained his knowledge in his private capacity. At the out- set it is necessary to lay down the principle clearly that where the agent receives notice of a fact while he is acting upon the bank's business, being duly authorized to act, he is- identical with the corporation, and notice received by the agent under such circumstances is notice once for all to the corporation. Secondly, where an agent acts for the cor- poration, and the corporation insists upon his act as giving it a right, it adopts his act in toto. It cannot adopt what is favorable to itself and repudiate what is not favorable. If the notice was received by the agent in the line of his duty, the bank will be bound by notice so received. 2 Within this 10 4 Thompson on Corp., sec. 4919. 2 Ihl v. St. Joseph Bank, 26 Mo, 1 Stockdale v. Keyes, 79 Pa. 251. App. 129. If the notice is comma- 172 BANKS AND BANKING. [ 111. rule it is held that notice of facts to the general officers of the bank, such as cashier, president, or any active managing officer, received while such officer was acting in regard to the bank's business, is notice of such facts to the bank itself.* So notice of facts stated in a letter received at the bank and there opened by the head book-keeper, whose duty it was to open and distribute the mail, is imputable to the bank. 4 And notice to a receiving teller as to the disposi- tion of a check received by him is notice to the bank. 5 It is also true that notice of facts to an officer of the bank, whose duty it is to act upon such notice or to transmit it to the bank, will be considered as notice received in the line of his duty, 6 however it was received, unless the officer received the notice not in his official capacity and has an interest in the matter adverse to the bank itself. This proposition leads us to the second consideration, and that is whether the knowl- edge was received by the officer of the bank in his official capacity. Mere private knowledge of some officer of the bank is not necessarily imputable to the bank. It is impu- table to the bank when such officer communicated the knowl- edge to some officer or officers of the bank, whose duty it was to act upon the notice, or in whose line of duty in the nicated to the officer for the bank, 81 S. W. R 1091. As to any act- the bank is bound. National Bank ive managing officer. Second Nat. v. Norton, 1 Hill, 578. Bank v. Howe, 40 Minn. 390; Sav- 3 As to cashier. McLeod v. Fourth ings Bank v. Holt. 58 Vt. 166; New- Nat Bank, 20 Fed. R 225; New port Nat. Bank v. Tweed, 4 Houst. Hope Co. v. Phoenix Bank, 3 Comst. 225; Branch Bank v. Steele, 10 Ala. 156; Stebbins v. Lardner, 2 S. D. 915. 127; Fall River Bank v. Sturtevant, 4 First Nat. Bank v. Fourth Nat 12 Gush. 372; Loring v. Brodie, 134 Bank, 16 U. S. App. 1, 56 Fed. R 967. Mass. 453; Gaston v. American Ex. 6 Strauss v. Tradesmen's Nat Bank, 29 N. J. Eq. 98; Veasy v. Bank, 122 N. Y. 379. Graham, 17 Ga. 99; Bank of Amer- 6 Fulton Bank v. New York Canal ica v. McNeil, 10 Bush, 54. As to Co., 4 Paige, 127; National Bank president Bartlett v. Woodbine v. Norton, 1 Hill, 572; Bartlett v. Bank, 57 III App. 425; Louisiana Woodbine Bank, 57 III App. 425. State Bank v. Senecal, 13 La. 525; If received by him officially, his McCann v. State, 4 Neb. 324; Porter adverse interest is wholly immate- v. Bank of Rutland, 19 Vt 410; rial. See Atlantic State Bank v. Merchants' Nat Bank v. McAnulty, Savery, 82 N. Y. 291. 111.] OFFICERS AND AGENTS. 173 bank the reception of such notice lay. Another statement of the rule would be that the knowledge must be received by the agent in his official capacity. 7 The private knowl- edge gained by a director, outside of his duties at the bank, unless communicated to the board or to some officer whose duty it was to receive the notice, is not binding upon the bank. 8 But this latter statement must be taken with the limitation that the particular officer who has the private knowledge did not act in the particular transaction in re- gard to which notice of the facts within such officer's private knowledge is sought to be imputed to the bank. 9 This dis- tinction between the reception of knowledge by the bank officer in the line of his official duty in the bank and the re- ception of knowledge on his private affairs is one of the greatest importance. In the first instance the knowledge of the agent is imputed to the bank on the principle of identity. The agent, while acting in the line of his duty y is the bank. Notice so received by the bank is absolute. It cannot bs disputed; it binds all other officers of the bank in their dealings ; 10 it is binding upon all subsequent boards of directors. 11 But in the second case, where the agent's knowledge is gained in his private affairs and wholly out- side of the scope of his duties as an officer of the bank, the fact of knowledge on the part of the principal depends upon 7 Merchants' Nat. Bank v. Clark, Cushman, 121 Mass. 490; Clerk's 139 N. Y. 314; Bank of U. S. v. Sav. Bank v. Thomas, 2 Mo. App. Davis, 2 Hill, 452; Washington Nat. 367. These cases are wrong if they Bank v. Pierce, 6 Wash. 491 ; West- mean to hold that the presumption, field Bank v. Cornen, 37 N. Y. 320. of notice is absolute. As we will Goodloe v. Godley, 13 Smedes & see later on in this section the pre- M. 233, is a case in accord with the sumption of the communication of general rule, where agent was not an officer's private knowledge may- authorized to act. be rebutted by proof. See Fair- 8 First Nat. Bank v. Christopher, field Sav. Bank v. Chase, 72 Me. 226. 40 N. J. Law, 435; Farmers' Bank Some cases deny this presumption, v. Payne, 25 Conn. 444; Shaw v. 10 Gibson v. National Park Bank, Clark, 49 Mich. 384; Mercer v. Ca- 98 N. Y. 87. nonge, 8 La. Ann. 37. n Merchants' Bank v. Seton, 1 Pet. Bank of U. S. v. Davis, 2 Hill, 299. 452; National Security Bank v. 174: BANKS AND BANKING. [ 111,. the fact as to whether or not the agent, if he did not act in regard to the particular matter, has communicated his knowl- edge to the principal. 12 Judges have confused the two things. If they are not kept distinct, a person dealing through an agent is either in a better or a worse position than if he dealt in the matter himself. The failure to observe this very plain distinction between a fact acquired by the agent in the. line of his duty as agent, and the effect of the agent's private knowledge, has caused some exceedingly unjust de- cisions, as will appear in the next section. It is to be no- ticed further that officers of a bank performing a continuous course of service for the bank are within this rule consid- ered as being engaged in one transaction. If the knowledge of such an officer of a fact has been acquired during the course of his authorized dealings for the bank, his knowl- edge is treated as if it were a part of each particular transac- tion of the bank. 13 This rule certainly applies to all the general executive officers of the bank as well as to those agents whose duties require them to be engaged in a continuous line of service for the bank. It follows that the bank will not be heard to dispute its knowledge received in this way. 14 But there are cases which have lost sight of this distinction and 12 Some cases put the case of does not exist Pollock & Mait- knowledge received during the land, Hist. Eng. Law, 529 et seq. course of the agent's business for But it did exist in the Roman law, the bank upon this ground also, and the experience of the ages has See Pierce v. Red Bluff Hotel Co., 31 decided that the Roman law was CaL 160, 166. But this is wrong. If correct. "Eadem est persona domini it were a mere question of commu- et procuratoris. Eadem, inquam, nication, the presumption would be non rei veritate, sedfictione," quoted open to dispute, or the communi- 7 Am. Law Rev. 63. cation would need to be proven. 13 Holden v. New York & Erie This conclusion is escaped by call- Bank, 72 N. Y. 286; Craigie v. Had- ing it a conclusive presumption, ley, 99 N. Y. 131; First Nat. Bank But the calling of it a conclusive v. Peisert, 2 Penny. 277. presumption only amounts to say- 14 Strauss v. Tradesmen's Bank, ing that the identity exists. Why 122 N. Y. 379; First Nat. Bank v. does it exist ? is the question. The Peisert, 2 Penny. 277, and Winslow only answer we can make is that v. Harrimon Iron Co., 42 S. W. R. originally in the English law it 698. 111.] OFFICERS AND AGENTS. 175 cannot be considered as properly decided. 15 If the bank has once acquired knowledge through an agent competent to receive it, who receives it officially, the notice is always binding upon it. Yet it has been held that if the particular officer with the knowledge did not know of the transaction, or was not present in the bank at the time, and did not act. in the transaction, his knowledge received in the course of his duties will not be imputable to the bank. 16 These cases cannot be sound, and are not in accordance with authority, 17 for notice once given to the bank, or received by it, is there- after not dependent upon the continuous presence of the officer through whom the notice was derived. It follows also, in regard to such notice, that it is perfectly immaterial that the officer through whom the notice came to the bank had an interest adverse to the bank in the particular trans- action wherein notice was acquired. He was identical with the bank, where he acquired the knowledge, and the ques- tion of communication is not involved, and the bank, by adopting the transaction, adopts his act. While, perhaps, no case holds this exact language, it is the necessary result of the principle and the decisions. 18 Turning now to the case where an officer has acquired knowledge in his own 15 See cases in note 16. not act for the bank, is not imput- 16 Memphis Nat. Bank v. Sneed. 97 able to the bank. Tenn. 120; Fulton Bank v. New is Twenty-Sixth Ward Bank v. York Canal Co., 4 Paige, 127. These Stearns, 148 N. Y. 515; Nesbit v. cases can be considered correct Macon Bank, 12 Fed. R. 686; Hoi- only on the theory that the court den v. New York & Erie Bank, 72 held that the officer had not re- N. Y. 286; Stebbins v. Lardner, 2 ceived the knowledge officially. S. D. 127. The analogy of a pri- 17 Bank of America v. McNeil, 10 vate principal is the same. Stock- Bush, 54; Central Nat. Bank v. dale v. Keyes, 79 Pa. 251. See Levin, 6 Mo. App. 543; First Nat. Huffcutt on Agency, sees. 144, 145, Bank v. Peisert, 2 Penny. 277; and First Nat. Bank v. Allen, 100 Strauss v. Tradesmen's Bank, 122 Ala. 476. But Louisville Trust Co. N. Y. 379. Holm v. Atlas Bank, 84 v. Louisville R. R, 75 Fed. R 433, Fed. R 119, correctly decides that overlooks this distinction and is the knowledge received hy an offi- wrong. cer not officially, and where he did 176 BANKS AND BANKING. [ 111. private affairs, whether or not such knowledge will .be im- puted to the bank depends upon circumstances. His private knowledge will never be imputed to the bank unless he communicated it, or unless he acted in the particular trans- action wherein it is sought to impute knowledge to the bank. 19 If he did not act in the transaction, the fact of his communication of his knowledge must be proven as a fact. 20 The burden of proof is on the person claiming the communi- cation. 21 It may be inferred from the fact that the agent had such private knowledge; 22 but that seems an extreme rule. If the officer having the knowledge acquired outside of his duties as agent acted in the particular transaction, the bank will not be bound unless it appears that such knowledge was present in the mind of the officer when he acted. 23 This may be inferred from circumstances and his recent acquisition of the knowledge. 24 It makes no differ- ence, in case the officer acted, how he acquired his knowl- edge, whether in a transaction adverse to the interest of the bank or not, 25 because the bank's knowledge does not depend upon the fact of communication, but on the fact of an offi- cer acting as to a transaction with the knowledge upon it, which gives the bank notice. 26 A limitation is put upon this rule by some courts to the effect that the agent with 19 If it is communicated, of course, 22 Continental Nat. Bank v. Mo the bank has knowledge. Bank of Geoch, 92 Wis. 286. Compare Cus- Pittsburgh v. Whitehead, 10 Watts, ter v. Tompkins Co. Bank, 9 Barr, 27. 897. The principle is laid down in 23 The Distilled Spirits, 11 Wall. Fairfield Sav. Bank v. Chase, 73 356; Campbell v. First Nat. Bank, Me. 226; Atlantic State Bank v. 22 Colo. 177. Savery, 82 N. Y. 291. u Brothers v. Bank, 84 Wis. 381. 20 See cases cited in note 8. But see note 9 to 111, ante, as to 21 Constant v. University,!! 1 N. Y. a presumption. 604. But some courts say there is 25 Union Bank v. Wando Mfg. Co., a presumption of communication 17 S. C. 339; Hughes v. Settle, 8& if the officer in the transaction S. W. R. 577. The rule presupposes wherein notice is sought to be im- that the agent acquired his knowl- puted had no adverse interest or edge in his own private affairs, no duty or reason to conceal the x Union Bank v. Campbell, 4 knowledge. Humph. 392. 112.] OFFICERS AND AGENTS. 177 the knowledge must alone have acted for the bank; 27 but there is no reason for such a rule, and it is not sound. 28 112. Agent with adverse interest. We have already discussed the question of the bearing of the agent's adverse interest in another transaction wherein he acquired knowl- edge which is sought to be imputed to a bank in a transac- tion wherein he acted, where he had no interest. Such knowledge was seen to be a case of knowledge acquired either in his course of acting as agent, or as knowledge ac- quired about his private affairs. But where an agent is acting in a particular transaction wherein he has an interest adverse to the bank, two cases may arise. The person with whom the agent is transacting business may know of the agent's adverse interest or he may not. "We have already seen what facts may show that the agent's interest is adverse, in a case where the agent's power to act is in question. 1 In such a case the person having the knowledge of the agent's lack of power is a wrong-doer with the agent, and he can claim nothing against the bank unless the bank insists upon the transaction. 2 But the question as to notice is a different one. The bank in the first instance may have a right to re- scind or to refuse to be bound by the transaction, because the agent acted upon both sides ; but this right it waives 27 Atlantic Cotton Mills v. Indian case of Graham v. Orange Co. Nat. Orchard Mitts, 147 Mass. 268. Bank, 35 Atl. R. 1053, can only be 28 Le Due v. Moore, 111 N. C. 516. considered sound on the theory See notes 8, 8 and 9, 106, supra, that the officer with the adverse But perhaps these cases are bet- interest acted for himself and some ter authorities upon the proposi- other officer acted for the bank, tion that an agent may act in a l See 107, 108, ante. particular transaction wherein he 2 Savannah Bank v. Hartridge, 75- is interested, if the bank ratifies it, Ga. 149; First Nat. Bank v. Gifford, and his knowledge, however ao 47 Iowa, 575. But it must be re- quired, where he acts for the cor- membered that the fact of the poration, is imputable to the corpo- agent's adverse intent does not ration, whether the person treating make him a wrong-doer. The trans- with the corporation had notice of action must be one where he is his lack of knowledge or not. The using the bank for his own ben efit.. 12 178 BANKS AND BANKING. [ 112. when it adopts the transaction and insists upon it. Having adopted its agent's act, it adopted it altogether. This mat- ter must be kept plainly in view, or only confusion will result. It presupposes the agent's power to act; but the question is whether facts that the agent knows will be con- sidered facts known to the bank, where the agent is acting upon a matter where he is bound not to disclose such facts, or is interested in concealing his knowledge, and the bank is enforcing such a transaction. It presupposes also that the third person who is acting with the agent is not a wrong- doer as to the bank. If the third person, who claims that the bank had notice of certain facts through its agent, had no notice of the agent's adverse interest, the fact of such in- terest is immaterial as to him. 8 That rule applies both to the transaction in which the notice of the fact was acquired, and to the after transaction in which the notice or knowl- edge acquired in the former transaction is sought to be im- puted to the bank. In the latter transaction it is plain that the same or different officers may be acting for the bank. But if the third person has notice of the agent's adverse in- terest in a former transaction in regard to which the agent was acting not for the bank, and the knowledge gained in such a transaction is such that needs to be communicated to the bank in order to bind it, that is to say, if it is knowledge acquired by the officer outside of his duties, there will be no presumption of a communication where the officer, has an in- terest 4 or a duty 5 in concealing the matter. But where the fact is not one that needs communication, but is imputed to the bank by reason of the fact that it is within the officer's 'This result follows from the Hummel v. Bank of Monroe, 75 power of the agent to act in regard Iowa, 689. But if the wrongful act to a matter within the scope of his was perpetrated for the benefit of authority. See United States Nat. the bank, the bank has notice. Mer- Bank v. First Nat. Bank, 79 Fed. R chants' Nat Bank v. Tracy, 77 Hun, 296; Chemical Nat. Bank v. Arm- 443. Compare City of New York strong, 76 Fed. R 339. v. Tenth Nat Bank, 111 N. Y. 446. 4 American Surety Co. v. Pauly, 8 Constant v. University, 111 N. Y. 72 Fed. R 470, 38 U. S. App. 254; 604. 112.] OFFICERS AND AGENTS. 179 knowledge by reason of facts learned in the discharge of his duties, or by reason of the fact that the officer has the power to act and is acting about the particular transaction with the knowledge present in his mind, the third person who charges such notice to the bank adopting the transac- tion, where he is himself acting in good faith and not a wrong-doer, will be held entitled to claim. 6 Courts have not kept distinct the two transactions, the first being the transaction of which notice is to be imputed to the bank, the second being the transaction wherein notice is to be im- puted to the bank. The same rule holds good as between two corporations dealing with each other through a com- mon officer, as has been heretofore stated. 7 This case is one where the officer of the bank is also acting as agent for an- other. It is merely one phase of an agent acting in a mat- ter wherein he has an adverse interest, as was pointed out in section 106, ante. The cases ought to distinguish between knowledge acquired by the officer officially in the perform- ance of his duties in the bank, and knowledge acquired by him outside of those duties ; as, for example, while acting as agent for another. In the former case the agent's knowl- edge of the former transaction is imputable to the bank in the particular transaction, regardless of any adverse inter- est of the agent in the latter transaction. But-the principle does not differ in the least whether the officer acts for an- other corporation as well as for the bank, or for another person as well as for the bank. There are certain cases, 6 First Nat. Bank v. Blake, 60 Fed. Mills, 147 Mass. 268. See 106, ante. R 78; Black Hills Nat. Bank v. In 29 Am. Law Rev. 528, will be Kellogg, 4 S. D. 312; Nesbit v. found an article by a well-known Macon Bank, 12 Fed. R. 686; First text writer which displays more Nat. Bank v. Babbidge, 160 Mass, confusion upon this subject than it 563; Tilden v. Bernard, 43 Mich. 376. is possible to find elsewhere. Every 7 Le Due v. Moore, 111 N. C. 516; case that he states, except one or Corcoran v. Snow Cattle Co., 151 two, is capable of being fully ex- Maas. 74; Oak Grove Cattle Co. v. plained, if the distinctions sug- Foster, 41 Pac. R 522; Atlantic gested in this section are kept Cotton Mills v. Indian Orchard clearly before the mind. 180 BANKS AND BANKING. [ 112. however, which are palpably erroneous 3 and they all show how the principles of the law, when misunderstood, can be made the engine of gross injustice. The case of First Na- tional Bank v.Foote, 12 Utah, 157, discloses that a note had been executed to the bank by the president thereof, the cashier thereof, and two other parties. The last two parties were accommodation makers, without any personal interest in the loan. After the note had been renewed several times, always by the same parties, the cashier had the two parties sign a new note, and informed them so as to make the mat- ter an agreement that he, the cashier, would sign it, and that the president's signature would be obtained, and then the note would be delivered to the bank. The cashier did sign it, but, without obtaining the president's signature, put the note among the bank's discounts. This transaction was, of course, not binding on the bank, because the cashier had no power to take the new note and release the president. But the president, being in control of the bank, had the bank adopt the transaction by suing upon it. The cashier was then a felonious bankrupt, but the president was perfectly solvent. The whole transaction could have been found to be a scheme to let the president escape liability. It was held that the bank took the note as a ~bonafide holder, and that the knowledge of the cashier could not be imputed to the bank because he was on the note. But the question of no- tice was not really in the case. The question involved was one of power, and that was granted by the bank ratifying and adopting the transaction by suing on the note. The note was not made to a third party and negotiated to the bank, but was made directly to the bank. Hence the bank, having adopted the note, adopted the cashier's agreement in regard to the note, and consequently there was never any delivery of the note. The bank still had the right to sue on the former note. But the real question involved, even if it were considered one of notice, was whether the cashier's knowl- edge, he alone having acted for the bank, was the knowledge of the bank. The transaction having been adopted by the 112.] OFFICEBS AND AGENTS. 181 bank, the whole of it was binding. The knowledge of the cashier was binding on the bank for two reasons : First, it was knowledge gained in the general line of his duty, and therefore the question of his interest was immaterial ; sec- ond, even if not gained in the line of his duty, it was prior knowledge, which he must have had when he alone was act- ing for the bank in taking the note for the bank, and how he acquired the knowledge was immaterial. The court cites Claflin v. Bank, 25 N. Y. 293, where the president of a bank having certified his own check, the form of the check was held notice of his lack of authority as to a holder of the check; the bank did not adopt the certification, but repudiated it; Voltz v. Blackmar, 64 N. T. 440, where the rule of an agent's lack of power was held as against the agent himself; and Bank v. Shawnee Co. Bank, 95 U. S. 557, where the form of the paper was notice to the indorsee of the officer's lack of authority, the bank repudiating the transaction. It is pain- ful to think that a court would cite cases which had so little application. The case denounces Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268. It is contrary also to Twenty-sixth Ward Bank v. Stearns, 148 ~N. Y. 515, and a number of other cases. 8 This is one of those crude and ill-advised products of inadequate knowledge which bring so much discredit upon the law. Another case is Ter- rell v. Branch Bank, 12 Ala. 502. There a customer of the bank handed a note signed in blank to a director of a bank, and asked him to fill it in with a certain sum and renew his note at the bank. The director took the note, filled it in with a larger sum, and discounted it for his own benefit. The director acted for the bank in the discount as well as for himself. It was held that the bank had no notice. This 8 First Nat. Bank v. Blake, 60 Fed. the ground that there was no evi- R. 78; Le Due v. Moore, 111 N. C. 516; dence to show the knowledge pres- National Security Bank v.Cushman, ent in the mind of the president 121 Mass. 490. The case of Louis- when he acted. But the court's ville Trust Co. v. Louisville R. Co., language, general as it is, even if 75 Fed. R. 433, may be justified on dictum, is erroneous. 182 BANKS AND BANKING. [ 112. case is an exceedingly incorrect and unjust decision, although one text- writer upon banking law has been so misled as to give it his earnest approbation. It may be said that the di- rector had no power to bind the bank, and that the knowl- edge which he had was not acquired in the line of his duty. But if he acted for the bank in the discount of the note, and the bank adopted the transaction, as it did, his knowledge ought to have been held to be the bank's knowledge if the circumstances showed, as they did, that it was present in his mind. The case of Commercial Baiik v. Burgwyn, 110 N. C. 267, may be justified on the ground that the director with knowledge did not act for the bank, but it is now over- ruled. The foregoing statement of the law applies where the officer who has an adverse interest acts for the bank as well as in his own interest. But where the officer does not act for the bank, but adversely thereto, while other officers act for the bank, the knowledge which the officer has gained in his private affairs, and not in the course of his duties at the bank, will not be imputed to the bank, 9 and the rule is not changed by the fact that the officer acted for another corporation instead of for himself individually. 10 For the same reason, practically, it was held that where an officer of the bank gave to a mortgagee certain worthless securi- ties in release of a mortgage, whereupon the bank purchased the premises for full value, the bank is not charged with no- tice of its officer's acts. 11 While under some circumstances the form of negotiable paper may be notice to third parties Atlantic State Bank v. Savery, Nat. Bank v. Loyhed, 28 Minn. 396; 82 N. Y. 291; National Bank v. Lov- Benton v. German Am. Bank, 122 ett, 21 S. W. R 825; Buffalo Co. Mo. 332; Wilson v. Bank, 7 Atl. R Bank v. Sharpe, 40 Neb. 123; City 145; Owensboro v. Daviess Co. Bank v. Barnard, 1 Hall, 80; Lyne Court, 12 S. W. R 930, 13 S. W. R v. Bank of Kentucky, 5 J. J. Marsh. _ 101 ; Washington Bank v. Lewis, 545; Louisiana State Bank v. Sen- 22 Pick. 24; Waynesville Bank v. ecal, 13 La. 525. Irons, 8 Fed. R 1; Third Nat. Bank 10 Innerarity v. Merchants' Nat. v. Harrison, 10 Fed. R 243. Bank, 139 Mass. 332; Corcoran v. u Staples v. Huron Nat Bank, 66 Snow Cattle Co., 151 Mass. 74; First N W. R 314. 112.] OFFICERS AND AGENTS. 183 where executed by the bank in favor of its officers, yet the fact that a director was an indorser on a note is no notice to any one that the note was for his accommodation. 12 This question of notice may be looked at from the standpoint as to whether the officer will be charged in his own private affairs with notice of facts known to the bank. The rule on principle would be that he could be charged with notice only of those facts as to which he had knowledge, and it would seem that this knowledge ought to be either actual or notice of such facts as it would be negligent in him to overlook. 13 A final caution should be added in these matters of repre- sentation of a bank by its officers, and that is, to look only to the facts of the case and the decision ; the reasoning and remarks of the court are too often not valuable. 12 Commercial Bank v. Cunning- 13 Holland v. Citizens' Sav Bank, ham, 24 Pick. 270. 17 R L 87. CHAPTER VI. DEALINGS OF BANKS. ARTICLE I. INFLUENCE OF CUSTOMS. 113. In general. There is no branch of business, un- less it be shipping, where customs and usages cut so large a figure as in banking. In a former chapter the influence of usage in determining the duties of the various officers, as well as their powers, has been noticed. Customs have a large influence in governing the dealings of customers and traders at the bank. 1 The general principles of law as to usages are comparatively well settled, yet even here courts display a tendency in some instances to disregard the settled law. In the following sections cases are examined, but oth- ers will be found below. 2 114. Usage must be lawful. A usage or a custom can- not change the express rule of law or statute. 1 Days of grace are sometimes established by statute, and therefore a custom cannot change that law; 2 but a custom can add an- other day to the three days allowed by statute or by the general rule of law. 3 But where days of grace are estab- lished merely by the general local usage, a particular cus- tom may exonerate a bank for failing to allow days of grace, 1 Allen v. Merchants' Bank, 22 Ala. 180; Allen v. St Louis Nat. Wend. 215; Bell v. Hagerstown Bank, 120 U. S. 20. Bank, 7 Gill, 216. 2 Morrison v. Bailey, 5 Ohio St. 13 , 2 See 261 and 288, post. Bowen v. Newell, 8 N. Y. 190; Me- 1 Piscataqua Ex. Bank v. Carter, chanics' Bank v. Merchants' Bank, 20 N. H. 246; Bank of Alexandria 6 Met. 13; Perkins v. Franklin Bank, v. Deneale, 2 Cranch, C. C. 488; Ma- 21 Pick. 483. rine Bank v. Chandler, 27 III 525; 8 Renner v. Bank of Columbia, 9 First Nat Bank v. Taliaferro. 72 Wheat 581; Bank of Washington Md. 164; Shaw v. Jacobs, 89 Iowa, v. Triplett, 1 Pet 25. 713; First Nat Bank v. Nelson, 105 115, 116.] DEALINGS OF BANKS. 185 thereby discharging an indorser. 4 T\vo cases are found which solemnly hold that a bank cannot increase the legal rate of interest by a custom. 5 It ought not to require a judicial decision to determine that a man, by habitually vio- lating a law, cannot obtain the right to violate it, and thus repeal it as to himself. 115. Usage must be uniform, certain and general. It is said that a usage must be general ; that one instance does not make a usage. 1 This means that a usage must be uniform and certain, and uniformly acted upon. 2 - But it may very well be that the usage may be that of all the banks at one place or a particular bank at a place. 3 But even if the usage is a general one among banks, if a particular bank has abandoned it the usage is non-existent as to that bank. 4 Nor will the usage of any number of banks control a bank which has not adopted it. 5 A person dealing with a particu- lar bank is said to be presumed to know the usage of that particular bank, 6 and it has been held that the bank may abrogate its usage without notice to its customer; 7 but this decision cannot be correct because the customer is held to know the usage, and after he has found it out, by some spe- cies of omniscience, he is required to know that the bank has abrogated it. The contrary rule is correct. 8 116. Usage must be reasonable. There is a saying ascribed to a. noted political thinker that "man is a reason- 4 Haddock v. Citizens' Bank, 53 4 Isbell v. Lewis, 98 Ala. 550. Iowa, 542. Compare Merchants' 5 Williams v. National Bank, 70 Bank v. Woodruff, 6 Hill, 174, which Md. 343. is contra, and cases in note 1. 6 Patriotic Bank v. Farmers' 5 Niagara Co. Bank v. Baker, 15 Bank, 2 Cranch, C. C. 560; Kilgore Ohio St. 68; Talbot v. First Nat. v. Buckley, 14 Conn. 363. Compare Bank, 76 N. W. R. 726. Sahlien v. Bank of Lonoke, 90 Tenn. 1 Duvall v. Farmers' Bank, 9 Gill 221; Howard v. Walker, 92 Tenn. & J. 81. 452. 2 Grissom v. Commercial Nat. 7 Citizens' Bank v. Graffin, 31 Md. Bank, 87 Tenn. 350. 507. 3 See Williams v. National Bank, 8 Barnes v. Ontario Bank, 19 N. 70 Md. 343. Y. 152, 169. 186 BANKS AND BANKING. [ 117. ing and not a reasonable animal." The fact that banks have sometimes tried to insist upon customs which are not reason- able from any standpoint, not even their own, may be proof of the aphorism. Thus it was once insisted that a bank by custom could establish the rule that it would not correct mistakes after a customer had left the banking room. Such an alleged custom was held to be " immoral," unreasonable and void. 1 Such was the wrongful holding as to a usage to treat the passing of checks to the credit of the depositor as a receipt and not a transfer; 2 and a custom among banks to examine a check indorsed by another bank and to return it after having credited it is unreasonable. 3 On the same ground, probably, a bank's custom to notify a non-resident of the maturity of a note instead of demanding payment was judicially condemned 4 where it was sought to hold the indorser. 117. Usage must foe known. Even if a usage be law- ful, reasonable and uniform, it does not necessarily bind any one, unless it can be shown that the party sought to be charged with notice of the usage dealt with reference to it. It is apparent that a usage of this kind is only of value in interpreting a contract; it does not make a contract or prove one. 1 If it is shown that the parties had either actual or constructive knowledge of the usage, it will be presumed, nothing else appearing, that they contracted with reference to the custom, which will be considered as written into the contract. The question is therefore one of fact. The bank will be presumed to know its own customs or the customs of its business. 2 Such a custom may put it upon notice of 1 Gallatin v. Bradford, 1 Bibb, 209. * Comm. Ex. Bank v. Nassau Bank, See Second Nat. Bank v. Western 91 N. Y. 74. Nat Bank, 51 Md. 128. 4 Bank of Alexandria v. Deneale, 2 Shaw v. Jacobs, 89 Iowa, 713. 2 Cranch, C. C. 488. The principle of the decision was * Harper v. Calhoun, 7 How. (Miss.) correct, but the great weight of au- 203. thority is that a deposit of a check 2 Pope v. Bank of Albion, 57 N. Y. upon another bank for credit is not 126; Kilgore v. Buckley, 14 Conn, a sale but a bailment 363; Marrett v. Brackett, 60 Me. 524. 117.] DEALINGS OF BANKS. 1ST certain facts which it would otherwise have no notice of.* The bank is bound by its own usages, 4 and cannot abrogate them without notice to parties dealing with it. 5 But as to- third persons dealing with the bank the question of knowl- edge of the usage becomes of prime importance. If a third person has actual knowledge of a customary mode of deal- ing of a bank he will be bound by the custom. 6 This actual knowledge will be inferred from the fact that he has chosen a particular bank with which to do business. 7 It may also be inferred from the fact that the usage was a general one in the business, 8 or was so notorious that a person in the position of the thy-d party should have known it. 9 Thus, the usages of a bank as to demand, notice of non-payment and protest are valid as to those who voluntarily select that bank to do business with, 10 and as to those who reside in the particular place 11 as well as to those who have actual knowledge of the usage. 12 But if the third party has no knowledge of the usage, and cannot be charged with notice of it in the ways above indicated, he cannot be bound by it. 13 ]STor if a local usage has once been established by ju- 3 Taliaferro v. First Nat. Bank, 71 Wheat. 481 ; Gindrat v. Mechanics' Md. 200. Bank, 7 Ala. 324. 4 See cases cited in last two notes. 8 Sahlien v. Bank of Lonoke, 9fr 5 Barnes v. Ontario Bank, 19 N. Y. Tenn. 221. 152: Hotchkiss v. Artisans' Bank, 9 Citizens' Bank v. Graffin, 31 42 Barb. 517. Contra, Citizens' Md. 507; Grissom v. Commercial Bank v. Graffin, 31 Md. 507. Nat. Bank, 87 Tenn. 350. 6 Sahlien v. Bank of Lonoke, 90 10 See cases cited in note 7, supra* Tenn. 221; Bridgeport Bank v. "Gindrat v. Mechanics' Bank, 7 Dyer, 19 Conn. 136; Pope v. Bank Ala. 324; Gallagher v. Roberts, 11 of Albion, 57 N. Y. 131; Renner v. Me. 484; Marine Bank v. Smith, la Bank of Columbia, 9 Wheat. 581; Me. 99; Shove v. Wiley, 18 Pick. Warren Bank v. Suffolk Bank, 10 558; Wild v. Gorham, 10 Mass. 366. Cush. 582. 12 Lincoln Bank v. Page, 9 Mass. 7 Patriotic Bank v. Farmers' Bank, 155; City Bank v. Cutler, 3 Pick. 2 Cranch, C. C. 560; Kilgore v. 414; Bank of United States v. Nor- Buckley, 14 Conn. 367. This rule wood, 1 Harr. & J. 423. applies to those who make notes 13 Bank of Alexandria v. Deneale, payable at a bank as well as to 2 Cranch, C. C. 488; Lawrence v. those who indorse such notes. See Stonington Bank, 6 Conn. 521. Mills v. Bank of United States, 11 188 BANKS AND BANKING. [ 118, 119. dicial decision can a third party be affected by a change of that custom, where he is not shown to have been cognizant of the change. 14 ARTICLE II. BANKING POWERS. 118. In general. The various functions of a bank are largely a matter of usage as established by judicial decision. The matters of deposit, discount and issue will be treated under appropriate heads. But there are yet other transac- tions in which banks have sometimes become engaged which have required the judgment of the courts as to whether they were within the powers of a bank or not." Since the govern- ing statute or charter generally defines the powers of a bank by general phrases, such as " the business of banking," or a " general banking business," the courts must in -such cases be guided by the limits of the business as defined by general custom or the decisions of courts. Custom may be appealed to to show that an act is within the ordinary business of a bank. 1 Whenever the statute or the charter permits an act to be done by a bank, the terms of the statute or charter must govern. The same rule holds as to acts forbidden to a bank. The governing statute or charter may forbid an act by implication as well as by a direct prohibition, as in the case of national banks, which are by the terms of the national bank act impliedly forbidden to loan on real-estate security. The effect of an unauthorized act of banking has already been discussed. 2 119. Dealing in its own stock. A bank may purchase its own shares unless the statute expressly or by implication forbids it, 1 but of course if the act is expressly or impliedly 14 Cookendorfer v. Preston, 4 How. the effect of unauthorized acts of 317. banking, where the objection is 1 Grain v. First Nat. Bank, 114 11L made on behalf of the state. The 516. powers of savings banks are noticed 2 See the former chapter entitled in the chapter upon Savings Banks. " Unauthorized Banking." In a l Farmers' Bank v. Champlain later chapter will be considered Transp. Co., 18 Vt. 131; Robinson 119.] DEALINGS OF BANKS. - * forbidden .by its charter or by a governing statute it may not do so. 2 But how such a purchase can be a banking transaction, unless the stock is taken to cancel a stockhold- er's debt to the corporation, 3 or as collateral to a debt, is hard to understand. There seems to be no difficulty in hold- ing that a bank may take a lien upon its own shares to secure a previously existing debt, 4 or that it may take its own shares to cancel a debt from a stockholder. 5 National banks are prohibited from purchasing their own .shares, nor can the bank by such a purchase, it has been held, vest title in an- other. 6 But this latter case is wrong, because a national bank may under some circumstances sell its shares, and a purchaser in good faith would obtain a good title, whatever might be the holding as to one cognizant of the defect in the title. 7 It has been held that one who sells to a broker, who is really acting for the bank, stock in the bank, makes a valid sale, where he did not know the broker was acting for the bank. 8 Of course the bank can sell its own stock, even upon credit, where it has lawfully acquired it. 9 Even if the purchase by bank officers were illegal it has been held that the bank may ratify the act; 10 but an illegal act, our v. Beall, 26 Ga. 17. Contra, German stances the bank can acquire its Sav. Bank v. Wulfekuhler, 19 Kan. own stock, and in any event its 60. See also Bundy v. Jackson, 24 transfer is good. Wallace v. Hood, Fed. R. 628, as to a ratification. 89 Fed. R. 11. 2 Gillett v. Moody, 3 Comst. 479; ?If cognizant of the defect the Myers v. Valley Nat. Bank, Fed. purchaser could be said to be a Cas. No. 9519. party to an illegal transaction, yet 3 Taylor v. Miami Ex. Co., 6 Ohio, it is the purchase and not the sale 177. which is illegal. But the bank can- 4 German Sav. Bank v. Wulfekuh- not agree to take shares in pay- ler, 19 Kan. 60. ment of a note which has been 8 Taylor v. Miami Ex. Co., 6 Ohio, given to it for shares sold. Att- 177. water v. Stromberg, 77 N. W. R. 6 Myers v. Valley Nat. Bank, Fed. 963. Cas. 9519. This case holds that a na- 8 Johnson v. Laflin, 103 U. S. 800, tional bank cannot be sued in trover 3 Dili 65. for conversion of its shares, because 9 Union Bank v. Hunt, 7 Mo. App. judgment satisfied passes title to 42. bank. But the case is hopelessly 10 Bundy v. Jackson, 24 Fed. R. wrong, because under some circum- 628. 190 BANKS AND BANKING. [ 120. highest court holds, cannot be ratified by the bank so as to make itself liable on a contract. 11 Sometimes the statute forbids a bank to loan money upon its own shares, and such a, loan is illegal though made in the form of a deposit in an- other bank. 12 120. Purchasing stock of corporations. A banking corporation has not the right to become a stockholder in another corporation, 1 unless the act is made necessary to preserve a security 2 which it has taken in a banking trans- action, or unless it is permitted to do so in order to make a deposit of securities under a banking law. 3 It has no power to subscribe for stock in a railroad corporation, 4 nor to engage in the business of buying and selling stocks for profit; 5 and if a bank buys stock in its own name which it has no authority to buy it will not be held as a stockholder. 6 Where the bank is prohibited from purchasing or holding stock in another bank, it has been held that the bank cannot take a pledge of such stock. 7 National banks have no power to engage in the selling of stocks 8 or railroad bonds on commission, 9 11 See 33, ante, and note 3, 105, Talmage v. Pell. 7 N. Y. 328. ante. But if it converts property 6 Cal. Bank v. Kennedy, 167 U. S. it has agreed to sell, it is liable in 362. conversion. First Nat. Bank v. 1 Franklin Bank v. Commercial Anderson, 172 U. S. 573. Bank, 36 Ohio St. 350. 12 Bank v. Lanier, 11 Wall 369. sgearle v. First Nat. Bank, 9 See also Bridgeport Bank v. New Walk. (Pa.) 395; First Nat Bank v. York, etc. R R Co., 30 Conn. 270. Nat Ex. Bank, 92 U. S. 122. 1 Bank of Commerce v. Hart, 37 9 Weckler v. First Nat. Bank, 42 Neb. 197; Franklin Bank v. Com- Md. 581. This case was very well mercial Bank, 36 Ohio St. 350, and argued. It holds that a represen- cases cited therein. But on a tation never ratified made by an wrong construction of a statute it is agent as to an ultra vires contract held that the bank can do so. Lati- is not within the scope of the mer v. State Bank, 71 N. W. R 225. agent's authority and therefore not 2 See cases in notes 10, 11 and 12, binding on the bank. See Willett infra. v. Farmers' Sav. Bank, 77 N. W. R 3 Curtis v. Leavitt, 17 Barb. 809. 519. The case is rightly decided 4 Nassau Bank v. Jones, 95 N. Y.' as to that point The third person 115. But see City of Goodland v. had no right to rely on the repre- Darlington Bank, 74 Mo. App. 365. sentation. See also Farmers' Nat. 121.] DEALINGS OF BANKS. 191 because such banks have only the powers that are granted to them by the national banking act. 10 Yet those banks may accept stocks in satisfaction of a doubtful debt, and may, in order to settle claims wherein the bank is interested, pay a larger amount than would otherwise have been ex- acted and take stocks as part of the settlement, provided the stocks are taken to be sold afterwards and the act is neces- sary to avert loss. 11 National banks may loan money on the security of stocks, and may sell the same under a power, 12 and may purchase the same in order to protect their own interests. 13 121. Other mercantile and banking transactions. It is perhaps needless to say that a bank cannot buy and sell merchandise, 1 but it may under peculiar circumstances have a. single transaction of purchase, 2 and it may take charge of a, shipment of goods in order to credit the amount on a bill which it holds, 3 and if goods are taken as collateral the bank may ship and sell them. 4 But a bank by merely col- lecting a draft attached to a bill of lading, where the col- lection is made in order to credit a depositor, does not become liable as the seller of the goods, 5 although in such cases the bank has the power to take a bill of lading as col- lateral security. 6 The bank, it seems, would . not be held Bank v. Smith, 77 Fed. R. 129, ac- vires, the bank is not liable even cord. though the cashier and president 10 Matthews v. Skinner, 62 Mo. agree to defraud the customer, 329; First Nat. Bank v. Nat. Ex. where the bank is not benefited. Bank, 92 U. S. 122. Grow v. Cockrill, 63 Ark. 418. 11 First Nat. Bank v. Nat. Ex. 2 Sackett's Harbor Bank v. Lewis Bank, 92 U. S. 122; s. c., 39 Md. 600. Co. Bank, 11 Barb. 213. 12 Canfield v. State Nat. Bank, 3 Bates v. State Bank, 2 Ala. 451. Fed. Cas. No. 2382; Shoemaker v. * Commercial Bank v. Nolan, 7 National Mechanics' Bank, 1 How. (Miss.) 508. If the bank sells Hughes, 101. it may give a warranty of its title. 13 See cases cited in note 11. See Talman v. Rochester Bank, 18 also Farmers' Bank v. Detroit R. R. Barb. 123. Co., 17 Wis. 383. Fourth Nat. Bank v. Mayer, 89 1 Bates v. State Bank, 2 Ala. 451. Ga. 108. See Addendum. The act of a cashier in agreeing to 6 Freeman v. Bank, 3 Wills. Civ. make loans for a person, being ultra Cas., sec. 339. 192 BANKS AND BANKING. [ 12L upon a representation as to what was being forwarded by the drawer of a draft which the bank was collecting. 7 Na- tional banks being endowed with general banking powers have the right to do whatever is necessary to preserve their claims. Thus, such a bank may take an elevator stored with grain in payment of its claim. 8 It may take and enforce a chattel mortgage in order to secure a previousl} 7 existing debt. 9 It may secure itself on an existing indebtedness by taking an assignment from contractors with a city of money due or to become due to the contractors. 10 It has power to engage in the business of dealing in government securities, 11 and will be liable for a failure to perform, its contracts in regard thereto. 12 But a national bank has' no power to make a donation to a manufacturing plant to prevent it from re- moving its plant from the city where the bank is located. 15 It cannot make a valid agreement to procure insurance for a certain person, but it would, of course, be liable in quasi- contract for the benefit received. 14 But where the trans- action can fairly be said to be connected with a banking operation, the courts are liberal in permitting it. Thus a bank, where it has acquired property lawfully taken, may do what is necessary to make the property productive. 15 It 7 Littleton v. People's Bank, 1 63 v. Tamblyn, 7 Mo. App. 570); or a N. W. R 666. This is a very close judgment. Harwood v. Ramsey, case and might just as well have 15 S. & R 31. been decided otherwise. The real ll Van Leuven v. First Nat. Bank, ground of the decision ought to 54 N. Y. 671; Leach v. Hale, 31 have been either that the repre- Iowa, 69; Yerkes v. National Bank, sentation was not one of fact or 69 N. Y. 382. that the plaintiff did not rely 12 See cases cited in last note; but upon it. compare First Nat. Bank v. Hoch, 8 German Nat. Bank v. Meadow- 89 Pa. 24. croft, 4 Bradw. 630. 13 McCory v. Chambers, 48 III App. 9 Gaar v. Centralia Bank, 20 445. Bradw. 611; Spafford v. First Nat. "Dresser v. Traders' Nat. Bank, Bank, 37 Iowa, 181. 165 Mass. 120. The bank should 10 First Nat Bank v. Ottawa, 43 have been held liable on the con- Kan. 294. Or a bank may take an tract under the doctrine stated in assignment of any account to pro- section 33, ante. tect itself (Bank of North America 15 Reynolds v. Simpson, 74 Ga. 454. 122.] DEALINGS OF BANKS. 103 may contract in order to prevent its own building from being injuriously affected by the erection of another build- ing. 16 It may receive personal property in exchange for its real estate. 17 It may assign or sell its own judgment, 18 or transfer it in payment of its own debt. 19 It may take al- most any species of property as collateral security unless forbidden to do so, 20 and in holding escrows, or in transactions analogous thereto, may hold securities to obtain the per- formance of the agreement. 21 A bank may sell all its secu- rities to another bank in consideration of the latter assuming all its liabilities. 22 In Kansas the supreme court found it necessary to decide that a national bank could agree to pay interest on a city deposit. 23 The power of an ordinary char- tered bank to maintain a savings department seems not to have been made the subject of adjudication. But since the receiving" of deposits is a banking transaction, and since the maintenance of a savings department is merely one method of receiving deposits, there ought to be no doubt in the mind of any judge that such a proceeding is within the corporate power of either a national or a state chartered bank. 122. Dealings in real estate, The general rule appli- cable to all banking institutions which are incorporated is that they can acquire land only as permitted by their char- ters or governing statutes. 1 They have the power to acquire This case, extraordinarily enough, would seem to be a simple process holds that the question may be left for putting the depositors' money to the jury. into grain speculations. 16 First Presby. Church v. Nat. 21 Bushnell v. Chatauqua Co. Nat. State Bank, 57 N. J. Law, 27, 58 N. Bank, 74 N. Y. 290. J. Law, 406. 22 stetson v. City Bank, 12 Ohio "First Nat. Bank v. Reno, 73 St. 577. Compare Mitchell v. Beck- Iowa, 145. man, 64 CaL 117, where it was held 18 Emory v. Joice, 70 Mo. 537. that after a long lapse of time the 19 Gillett v. Campbell, 1 Denio, transaction would not be disturbed. 520. 23 interstate Nat. Bank v. Fergu- 20 Morris v. Dixon Nat. Bank, 55 son, 48 Kan. 732. 111. App. 298. The property here l State Bank v. Brackenridge, 7 was board of trade options. This Blackf. 395. A law against a bank's. 13 194 BANKS AND BANKING. [ 122. land and buildings only for the accommodation of their bank- ing business. 2 It is a well-known fact that many banks have placed a large part of their capital in office buildings, a small part of which is used for the bank. But it is doubtful whether such a dealing can be justified without special power given in the charter. 3 But where a bank has lawfully taken real-estate security, there can be no doubt of its power to purchase at its own sale. 4 Or, if the bank has a lien upon real property, it may pay off prior liens in order to protect its own lien. 5 There ought to be no question as to the bank's power to purchase at any execution sale, if the act be done to secure its own lien. 6 While a bank has no power to buy land to sell it again, and while such a contract will not be enforced against either party, 7 yet, unless prohibited by stat- ute, the bank may take real-estate security or may take land in payment of its claim. 8 If a national bank has loaned money to a purchaser of land with which to make the pur- chase, it may take the land in payment of its debt. 9 It may acquiring real estate applies in an. other state. Metropolitan Bank v. Godfrey, 23 III 579. 2 Thweat v. Bank of Hopkinsville, 81 Ky. 1. Compare Holt v. Win- field Bank, 25 Fed. R 812. 3 See, however, Bands v. Poiteaux, 3 Rand. 136, where it is held that a bank may buy more land than it needs and build buildings thereon and sell them out The measure seems to have been taken to pro- tect its own building by erecting fire-proof structures. 4 Farmers' Bank v. Detroit R R Co., 17 Wis. 372; Martin v. Branch Bank, 15 Ala. 587; Ingraham v. Speed, 30 Miss. 410; Merchants' Bank v. Harrison, 39 Mo. 433. 8 Brown v. Hogg, 14 111. 219; Zant- zingers v. Gunton, 19 Wall. 32. 6 Sherry v. Dunn, 8 Blackf. 542. The same rule applies to national banks. Heath v. Second Nat. Bank, 70 IncL 106; Holmes v. Boyd, 90 Ind. 332; Roebling v. First Nat Bank, 30 Fed. R 744. 7 Bank of Michigan v. Niles, 1 Doug. 401. 8 Thomaston Bank v. Stimpson, 21 Me. 195; Baird v. Bank of Wash- ington, 11 S. & R 411. The bank may agree to secure a release of a mortgage upon land covered by its own lien. McCraith v. Nat Mo- hawk Valley Bank, 104 N. Y. 414 It may take real estate as security, though forbidden to own it Alex- ander v. Brumnett, 42 S. W. R 63. And if it takes real estate from a stockholder to cover a deficit it may hold it Brown v. Bradford, 103 Iowa, 37a 9 Turner v. First Nat Bank, 78 Ind. 19. 123.] DEALINGS OF BANKS. 195 take the land and pay to the owner the difference between the value of the land and its own claim, 10 or it may purchase its debtor's property at an execution sale, paying for the land more than its debt. 11 If a bank acquires land it may control it as a proprietor, 12 and, of course, may sell it. 13 If it sells, it may take a mortgage back to secure the purchase price. 14 There will be no presumption of illegality in the transaction. The illegality must be made to appear, 15 and this rule applies equally well to every other transaction, whether of a bank or any one else. Finally, it is said to be the law that even if a bank takes the land contrary to law, it gets a good title against everybody except the state. 16 But this is not believed to be true where there is an acquisition of land in violation of an express statute. 17 123. Dealings in mortgages on realty. Where there is no statute either expressly or impliedly forbidding the ac- quisition by a bank of real-estate security, there can be no objection to such a dealing by the bank. 1 This right would include the power to take assignments of mortgages. 2 The bank, as a mortgagee, is entitled to the same remedies that any other mortgagee would have. 3 A bank may take real- 10 Mapes v. Scott, 88 III 352 ; Libby w Chatauqua Co. Bank v. Resly, 19 v. Union Nat. Bank, 99 111. 622. N. Y. 369; Sparks v. State Bank, 7 11 Upton v. National Bank, 120 Blackf. 469; Perkins v. Church, 31 Mass. 153. Barb. 84; Richards v. Kountze, 4 12 Roebling v. First Nat. Bank, 30 Neb. 200. Fed. R. 744. 16 Leazure v. Hillegas, 7 S. & R. 13 Wherry v. Hale, 77 Mo. 20 ; Jack- 313. As to national banks the rule is son v. Brown; 5 Wend. 590. If the the same. Mapes v. Scott, 94 111. 379. bank conveys land it may make 17 See Zantzingers v. Gunton, 19 covenants of warranty. Talman v. Wall. 32. Rochester Bank, 18 Barb. 123. If 1 Baird v. Bank of Washington, the deed of the bank is insufficient 11 S. & R 411; Thomaston Bank v. because not authorized, the deed Stimpson, 21 Ma 195; Merchants' may take effect as an equitable Bank v. Harrison, 39 Mo. 433. mortgage. Stapylton v. Stockton, 2 Trenton Banking Co. v. Wood- $1 Fed. R. 326. ruff, 2 N. J. Eq. 117. 14 National Bank v. Raymond, 29 3 Gage v. Sanborn, 108 Mich. 269; La. Ann. 355; First Nat. Bank v. Ahl v. Rhoads, 84 Pa. 319; Lewis v. Kidd, 20 Minn. 234 Jeffries, 86 Pa. 340. 196 BANKS AND BANKING. [ 123* estate security to cover anticipated liabilities if not forbid- den so to do. 4 A mortgage given directly to the bank is good, although the statute may require it to be given to an officer. 5 But in the case of national banks there is an im- plied prohibition against loaning on real-estate security, except to secure a pre-existing indebtedness. Originally, in New York under a similar statute, it had been held that a loan made at the time of taking the security was a pre- existing indebtedness. 6 But the courts at first held that national banks could not take real-estate security, either to secure an indebtedness concurrently created or to be created in the future. 7 But this statute was capable of producing so much injustice that it was authoritatively decided that the debtor could not make the objection. 8 This ruling recon- ciles the law upon this subject to the distinction between ultra vires contracts and prohibited contracts stated in sec- tion 33, ante. There never was any doubt as to the right of a national bank to take real-estate security to secure a past indebtedness; 9 or to take a mortgage made to a third party as collateral security for a loan to the mortgagee ; 10 or to take an agreement that the mortgage security should ,inure 4 Crocker v. Whitney, 71 N. Y. Flathers, 45 La. Ann. 75; First Nat. 161. The case was decided wrongly. 'Bank v. Elmore, 52 Iowa, 541; Old- 's Kennedy v. Knight, 21 Wis. 345. ham v. First Nat. Bank, 85 N. C. 240. Silver Lake Bank v. North, 4 The same rule applies to a mort- Johns. Ch. 370. gage to secure future advances, * Matthews v. Skinner, 62 Mo. 329 ; Sessions v. First Nat. Bank, 93 N. Y. Kansas Nat. Bank v. Rowell, 2 Dill. 269; National Bank v. Whitney, 103 371; Fowler v. Scully, 72 Pa. 456; U. S. 99. Wood v. People's Nat. Bank, 83 Pa. 9 Owen v. Merchants' Nat. Bank, 57. The statute could not be 16 Kan. 341. A reorganized stato evaded by taking the mortgage to bank might, as a national bank, an officer of the bank. Fridley v. take the assignment of a note along Bowen, 87 I1L 151. One case held with the real-estate collateral Sco- a statute to be directory. Magruder field v. State Bank, 9 Neb. 316. v. State Bank, 18 Ark. 9. iFortier v. New Orleans Nat. 8 National Bank v. Matthews, 98 Bank, 112 U. S. 439; Worcester Nat. U. S. 621; National Bank v. Whit- Bank v. Chieney, 87 III 602; Mer- ney, 103 U. a 99; Winton v. Little, chants' Nat. Bank v. Mears, 8 Bias. 94 Pa, 64 ; Graha m v. National Bank, 158. 5 Stew. 804; State Nat Bank v. 124.] DEALINGS OF BANKS. 197 to the benefit of the bank, if its debtor, owning the mort- gage, should make default. 11 The right of the bank to be subrogated to the rights of the mortgagee would not be de- feated by the statute. 12 It was also held that the bank might take an assignment of a mortgage as collateral security even though the mortgage was made contemporaneously with the assignment. 13 A renewal note was held to be not the crea- tion of a new indebtedness, but simply evidence of the past indebtedness, 14 which is, of course, the general rule. The effect of the statute against taking real-estate security is re- duced to the effect the transaction would have as against the state complaining of a violation by the bank of its charter. Such a statute does not, however, abridge the bank's rights as to the acquisition of personal property, 15 nor does it en- large those powers. 16 It should be stated in this connection that a bank has the undoubted right to mortgage its real es- tate to secure its debts. 17 124. Dealings in negotiable paper. One of the proper functions of a banking institution being the acquisition of commercial paper, there can be no doubt as to the general authority of a bank to deal in promissory notes; l but some courts have denied the power of a bank to purchase nego- tiable paper; 2 but the better reason and authority is that the power of discounting includes the power of purchasing paper. 3 Sometimes the statute prescribes the paper in which 11 First Nat. Bank v. Haire, 36 17 Leggett v. New Jersey, etc. Co., Iowa, 443. Saxt. 541. 12 Matthews v. Abbott, Fed. Gas. 1 State Bank v. Criswell, 15 Ark. No. 9275. 230; Commonwealth v. Comm. w First Nat. Bank v. Andrews, 7 Bank, 28 Pa. 391. Wash. 261. See also Richards v. 2 Farmers' Bank v. Baldwin, 23 Kountze, 4 Neb. 200; Oldham v. Minn. 198; First Nat. Bank v. Pier- First Nat. Bank, 85 N.C. 240; Thorn- son, 24 Minn. 140. See also 34, ton v. Nat. Ex. Bank, 71 Mo. 221. ante; Lazear v. Nat. Union Bank, 14 Howard Nat. Bank v. Loomis, 52 Md. 78. 51 Vt. 349. Pape v. Capitol Bank, 20 Kan. 14 Farmers' Bank v. Detroit, etc. 440; Atlantic State Bank v. Savery, R. R. Co., 17 Wis. 372. 82 N. Y. 291 ; Salmon Falls Bank v. ^Talmage v. Pell, 7 N. Y. 328. Leyser, 116 Mo. 51; First Nat. Bank 198 BANKS AND BANKING. [125 a bank shall deal ; but such a provision does not prevent the bank taking other paper in order to secure a previous in- debtedness. 4 A bank has also the undoubted right to trans- fer its negotiable paper in the ordinary course of business, 5 and it may indorse the same, 6 and may guaranty the paper for its own benefit. 7 One case holds that a bank may not as- sign its notes, 8 but this was due to an absurd construction of an absurd statute. The statute sometimes prohibits a bank from issuing its bills or notes except in certain forms, 9 or to circulate as money, 10 but even in such case a bank may issue its note in the ordinary course of business. 11 125. Borrowing money. A bank with general bank- ing powers may undoubtedly borrow money, 1 but sometimes the statute forbids the borrowing of money payable at a future day certain. 2 A national bank may borrow money in order to loan it out again at a higher rate of interest than it v. Sherbourne, 14 Bradw. 566 ; Smith v. Exchange Bank, 26 Ohio St. 141; Nicholson v. State Bank, 92 Ky. 251. Bank may purchase interest cou- pons (First Nat. Bank v. Benning- ton, 16 Blatchf. 53); or a check (First Nat Bank v. Harris, 108 Mass. 514); or a draft (Union Nat. Bank v. Rowan, 23 S. C. 339). 4 John v. Farmers' Bank, 2 Blackf. 867. 6 Planters' Bank v. Sharp, 6 How. 301; Mar vine v. Hymers, 12 N. Y. 223; Robb v. Ross Co. Bank, 41 Barb. 586. 6 Crocket v. Young, 1 Smedes & M. 241. See next section. ?Dabney v. State Bank, 3 S. C. 124 8 Mclntyre v. Ingraham, 35 Miss. 25. The opinion, beyond being an excellent specimen of state rights, ante bdlum balderdash, is chiefly remarkable for speaking of the United States Supreme Court as " she ! " This is the court that Sar- gent S. Prentiss was wont to call the Court of High Errors and Ap- peals. 9 See James v. Rogers, 23 Ind. 451 ; Safford v. Wyckoff, 1 Hill, It 10 Rockwell v. Elkhorn Bank, 13 Wis. 731. "Rockwell v. Elkhorn Bank, supra. 1 Tuttle v. National Bank of Re- public, 48 111. App. 481. This opin- ion cites a work called " Aloise on Banking." Ringling v. Kohn, 6 Mo. App. 333; Donnell v. Lewis Co. Sav. Bank, 80 Mo. 165; Leavitt v. Yates, 4 Edw. Ch. 134; Barnes v. Ontario Bank, 19 N. Y. 152; Ward v. John- son, 95 III 215. A rediscount is not a borrowing, even if the bank indorses. It is a sale. National Bank v. First Nat Bank, 79 Fed. R. 296. 2 Commonwealth v. Bank of Mut- ual Redemption, 86 Mass. 1. 126.] DEALINGS OF BANKS. 199 pays. 3 It may loan borrowed money to its own directors if the loan is not otherwise illegal. 4 National banks, for money loaned to them or deposited, may issue certificates of deposit payable on demand or a future day. Such certificates are not post notes within the prohibition of section 5183 of the Eevised Statutes of the United States. 5 But such certificates must represent an actual loan. 6 126. Lending of credit. A bank has not the right to lend its credit on personal security, nor can it become an accommodation maker of drafts, 1 or an accommodation in- dorser of commercial paper ; 2 but such indorsement or such accommodation draft is valid in the hands of a fiona fide holder. 3 Since it may receive special deposits, a national bank is liable for its negligence where it undertakes to re- cover stolen special deposits. 4 A bank may guaranty the payment of a note discounted by it 8 or sold by it. 6 But a guaranty against loss given by the president to sureties upon a note to the bank, or upon any transaction not made by the bank, is beyond the power of the bank. 7 A certification of a check is in effect a guaranty of its payment by the bank, and, as such, it may be oral, 8 if the drawer has funds, or con- ditioned upon the payment of a draft left with it for collec- 1 National Bank of Commerce v. 6 Talman v. Kochester City Bank, National Bank of Mo., Fed. Gas. No. 18 Barb. 123 ; Dabney v. State Bank, 18,810. 3 S. C. 124 The rule is the same 4 Cases last cited. as to national banks. People's Bank 6 Riddle v. First Nat. Bank, 27 v. National Bank, 101 U. S. 181. Fed. R. 503; Hunt v. Appellant, 141 6 Thomas v. City Nat. Bank, 40 Mass. 515. Neb. 501. 6 Logan Nat. Bank v. Williamson, 7 First Nat. Bank v. Bennett, 33 2 Ohio Cir. Ct. R. 118. Mich. 520. What the court prob- 1 Johnson v. Charlottesville Nat. ably meant to decide was that parol Bank, 3 Hughes, 657. evidence was inadmissible to vary 2 National Bank of Commerce v. the terms of the written contract. Atkinson, 55 Fed. R 465. Comm. Nat. Bank v. Pirie, 82 Fed. . 3 Johnson v. Charlottesville Bank, R. 799. 3 Hughes, 657. 8 Merchants' Nat. Bank v. First *Wylie v. Northampton Nat. Nat. Bank, 7 W. Va. 544 Bank, 15 Fed. R. 426, reversed 119 U. S. 361, holding the text. 200 BANKS AND BANKING. [ 127. tion. 9 But ofie case decides that, where a man deposits securities with one bank, and that bank guaranties the secu- rities to a second bank, which thereupon issues a letter of credit to the depositor of the securities, the guaranty is not binding upon the first bank. 10 This case is clearly wrong, because the transaction was in effect a deposit of notes with the first bank, which thereupon discounted or transferred them to the second bank by guarantying their payment. 127. Collections. Since a bank, as one of its ordinary powers, has the right to receive paper for collection, it can be held liable for its neglects in performing that function. 1 There would seem to be no good reason why a bank has not the power to guaranty the paper it takes for collection, both as to the person depositing the paper for collection and as to the person from whom it collects. 9 Case last cited. man v. First Nat Bank, 86 Fed. R. 10 Seligman v. Charlottesville Nat. 1013. Bank, Fed. Gas. No. 12,642. But the l Exchange Nat. Bank v. Third court was in error in calling the Nat. Bank, 112 U. S. 276; Mound transaction a guaranty. A repre- City Paint Co. v. Commercial Nat. sentation by the bank as to the sur- Bank, 4 Utah, 353; White v. Third plus and paid-up capital of an in- Nat. Bank, 4 Weekly Law Bui. 791. surance company is ultra vires, but The power is incidental to bank- not a representation that the insur- ing. Keyes v. Bank of Hardin, 52 ance company has so much money Mo. App. 323; Yerkes v. National on deposit with the bank. Hind- Bank, 69 N. Y. 382; Tyson v. State Bank, 6 Blackf. 225. CHAPTER YIL DEPOSITS. 128. Nature of relation. When a man makes a gen- eral deposit in a bank the relation that exists between the bank and him, as a depositor, has not been accurately de- fined. It is settled that the relation is one of debtor and creditor; 1 so far all the courts agree. But a debtor, if he refuse to pay his creditor, can only be sued for the debt. A banker, however, can be sued not only for the debt, but he can be sued also for damages for refusing to pay the check which demanded the debt. 2 What is the nature of this fur- ther obligation? It is not one of contract at common law, because the form of the action is an action on the case. 3 The banker is sued for a violation of his duty, which was to pay his depositor's checks as long as he had sufficient funds rightfully credited to the depositor. But every duty owed has its correlative right in the person to whom the duty is owed. It is the nature of this right that is in question. Some courts have said it is a contract right arising out of the agreement made by the bank with its depositor. 4 It is certainly not an express contract, because no such contract is ever made. It is not a contract implied as of fact, because the measure of damages is that of tort and not of contract, and because wilfulness and maliciousness are a part of the act; not actual malice necessarily, but the malice that is im- plied from the doing of a wrongful act. 5 Therefore the dis- 1 Bank of Kentucky v. Wister, 2 Ad. 415. But Taunton, J., shows Pet. 324. that it is a breach of duty. 2 Mt. Sterling Bank v. Green, 99 Schaffnerv. Ehrman,139Ill. 109. Ky. 262. See the appellant's brief in this case 3 First Nat Bank v. Shoemaker, in 15 L. R. A. 134, discussing this 117 Pa. 94 question, but only succeeding in 4 Marzetti v. Williams, 1 Barn. & " darkening counsel." The opinion does not help the matter. 202 BANKS AND BANKING. [ 128. honoring of the check is a tort. The closest analogous relations are the duties owed by a common carrier or an innkeeper. In those cases the law raises the duty on mo- tives of public policy out of the relation. So in the case of a banker and his depositor the law raises the duty out of the relation. Historically, the deposit in .the bank is a bail- ment, belonging to the same general class as the carrier's and innkeeper's bailment. The relation of bailor and bailee imposes certain duties, a breach of which is redressed by a common-law action. Although the bailment has been in process of time changed to a debt, certain characteristic features of it have remained. There is a contract only in the sense of a ^wan'-contract. 6 The contract is wholly ex lege; it is not the result of any agreement between the parties. It is true that in declaring on the carrier's duty in assumpsit a contract is pleaded, but that was merely the statement of the duty to charge an assumpsit. There was no considera- tion pleaded. Assumpsit was originally an action on the case, and the promise was considered important after the common-law pleaders had lost sight of this fact. 7 The state- ment of the contract is now merely by way of inducement to show the relation out of which the law raises the duty. This is the form of pleading in case. So the ingredient of malice in the action for dishonoring a bank check and the allegation thereof in the declaration is merely a method of charging a failure of duty. 8 It is wholly dispensed with in 6 See Keener on Quasi-Contract, 7 See two articles on assumpsit 18, and the introduction to the pres- by a very great authority in 2 Har- ent work. He makes the point that vard Law Rev. 1, 53. the duty enjoined is to act, which 8 The failure to recognize this makes the carrier's duty quasi-con- very palpable fact led the supreme tract. One case recognizes that the^ court of Illinois in Schaffner v. Ehr- duty of a bank in case of a collec- man, 139 111. 109, to call this suit tion, which depends upon the same one in slander. It is no more a principle, is raised out of the rela- slander than the refusal of any tion, because where a contract to debtor to pay his debt is a slander use proper steps in collecting is al- upon the creditor. It merely hap- leged it need not be proven if the pens that one of the elements of relation is proven. Jagger v. Ger- damage is loss of credit. man-American Bank, 53 Minn. 386. 129.] DEPOSITS. 203 code pleading; it is simply a way of saying that the bank acted unlawfully in violating the duty which the law raised out of the relation. The duty owed by a bank is just as much the result of a custom as is the duty of a common carrier or an innkeeper. The old form of declaration against an inn- keeper was on the common custom of the realm. The cus- tom simply became recognized by the courts and thus became a rule of law. Suppose the duty had been originally created by a statute ; there would then have been no question of its g'w^-contractual character. Another test would be this: Suppose a state statute should abolish the duty of a bank to honor its customer's checks and leave the remedy simply one of debt. 9 It certainly could do so; yet if the relation is one of contract it could not do so as to future deposits ; but it could not abolish the debt of the bank to its depositor as to a future transaction. If a statute should declare that a de- posit of money in a bank should not create a debt, the stat- ute would be void. But if it should say that the bank should not be responsible for more than the debt on failure to honor a check, the statute would be good. The debt is a genuine contract, therefore, and the other part of the legal relation i& not. 10 It will be seen later that this question is not a mere academic one, but has an important bearing upon questions in banking law. 129. Kinds of deposits. Deposits are either general or special. A special deposit may be of something else than 9 Statutes have varied the duties transactions; that obligation is pro- of innkeepers and carriers, and tected by the clause in the four- those statutes no doubt affected all teenth amendment as well as by future instances of the relation. the clause against the taking of 10 See Louisiana v. New Orleans, private property. The quasi-con- 109 U. S. 285, as to gwcrsi-contracts tract, after the obligation has once not being within the protection of arisen, is property. The dissenting the constitution as to contracts, opinion of Justice Harlan does not The case itself is wrong, however, display any knowledge of the nat- where it decides that a quasi-con- ure of a gwasi-contract, although tract can be abolished as an obliga- he was right in his conclusion, tion by statute, except as to future BANKS AND BANKING. [ 130. money. Its characteristic feature is that title to the thing does not pass to the bank, except as bailee. We are con- cerned at present simply with general deposits. 130. General depositor's rights. A general deposit of money in a bank creates a debt from the bank to the de- positor. The money becomes the banker's to use as he can. 1 Whether interest be paid or not, 2 whether the deposit be on an open checking account or a time deposit, 3 the rule is the same. If it be a deposit in a savings bank, payable upon notice, the money belongs to the bank. 4 The relation is not that of trustee and cestui que trust, 5 although in some cases money placed in a bank by a depositor becomes a common- law trust. Those cases are where a specific sum of money is remitted to a banker to pay a specified debt, the relation is that of bailor and bailee, and the bank is a trustee for the amount; 6 or where a person deposits money with one bank for transmission to his own bank, 7 in which case the trans- mitting bank is not relieved from responsibility by turning the amount over to another bank to transmit, acccording to a custom not known to the person depositing the money; 8 or where debts were due to a former owner of the bank which the bank collected and held in its general funds. 9 The engagement of the banker, which is merely a poor phrase for his customary and lawful duty, is to honor and pay all drafts and checks drawn by the depositor upon the bank until the deposit is exhausted, and to repay upon demand any balance that remains due above the checks and drafts 1 Bank of Kentucky v. "Wister, 2 6 City of St. Louis v. Johnson, 5 Pet. 324; Dabney v. State Bank, 3 Dill. 241. Compare ^Etna Bank v. S. C. 124; Robinson v. Gardner, 18 Fourth Nat. Bank, 40 N. Y. 82. Gratt. 509, and numerous other 'Drovers' Nat Bank v. O'Hare, cases. 119I1L646; Cutler v. American Ex. 2 State v. Bartley, 39 Neb. 353. Nat. Bank, 113 N. Y. 593. See 162, 3 Williams v. Rogers, 14 Bush, 776 ; 163, 345, post. Leaphart v. Commercial Bank, 45 8 Union Stock Yards Nat. Bank S. C. 563. v. Dumond, 150 111. 501. 4 Johnson v. Ward, 2 Bradw. 261. 9 Parsons v. Treadwell, 50 N. H. 8 Buchanan Farm Oil Co. v. Wood- 356. man, 1 Hun, 639. 131.] DEPOSITS. 205 or other claims lawfully paid. 10 This relation is not varied in the least by the fact that the deposit may be or become payable to some one else than the depositor. 11 The bank may select its own depositors, 12 and the depositor is always entitled at reasonable hours to examine the books of the bank in order to ascertain the state of his own account. 13 Bank bills received as cash are money deposited. 14 131. When the deposit is made. "Where money is de- posited the deposit dates from the time the deposit is entered in the pass-book, 1 or where not entered there when received whenever the duplicate deposit slip is delivered to the de- positor, or whenever the money is actually received at the bank. It will be a question of fact whether or not the bank has received the deposit. Leaving out of view peculiar cases, it seems plain that since the bank has a business house and an officer to receive deposits, a deposit is not made until it is delivered to that officer. This delivery must be a manual delivery. There being a window for the reception of the deposit, it ought to be the rule that until the deposit goes to the officer it is not made. Suppose a man puts his money before the window. The teller takes the money with the deposit slip. Then the deposit is complete. But if before that delivery is actually made some thief should snatch the money, the bank ought not to be responsible. It was held in an old case that the money is not deposited until it comes to the proper officer of the bank, 2 but the president 3 or the N>Boyden v. Bank of Cape Fear, !Wasson v. Lamb, 120 Ind. 514. 65 N. C. 13. But the money must have reached 11 Bushnell v. Chatauqua Co. Bank, the bank. Thus money in the post- 74 N. Y. 290. office which the bank has refused 12 Thatcher v. State Bank, 5 Sandf. to receive is not a deposit nor is the 121. The rule ought to be that an bank liable for its loss. Simpson incorporated bank could not make v. Pemegiwasset Nat. Bank, 88 AtL selection as to its depositors. R. 1005. 13 Union Bank v. Knapp, 3 Pick. 96. 2 Manhattan Co. v.Lydig, 4 Johns. 14 Corbet v. Bank of Smyrna, 2 377. The general principle of this Harr. (Del.) 235; Way v. Tuskegee case is right, but the actual decis- Ins. Co., 34 Ala. 58. ion is wrong. The same thing may 3 Hazleton v. Union Bank, 32 Wis. 34. 206 BANKS AND BANKING. [ 131. cashier 4 or the paying teller 5 can receive deposits as well as the receiving teller; and even if money is received without a deposit ticket being made out or an entry in the pass-book being made, the deposit is complete. 6 But it must be the in- tention of the party to make a deposit. 7 Nor will the alleged depositor be allowed to take inconsistent positions in trying to hold the officers personally liable and at the same time hold the bank liable. 8 Difficult questions sometimes arise on account of the form of the transaction. A check in favor of the cashier was sent to the bank and it was cashed. It was held that such fact was no proof that the money was deposited in the bank. 9 But this is certainly wrong, be- cause if the man had handed the money to the cashier the bank would have been. held. The mere mailing of checks to a bank for deposit is not proof of a deposit, 10 without more appearing. But where the teller received a draft for collection and w.as instructed to collect it and deposit it to the sender's credit, or to the teller's credit as trustee, but the teller, after collecting it, deposited the money to his own personal credit, it was held that the deposit was com- plete. 11 So, where the cashier issued a certificate of deposit, although it had a memorandum put upon it by the cashier stating that the amount was to be paid to a creditor of the depositor, or, if not paid to him, was to be loaned for the depositor, the bank was held liable. 12 But this case is be said of Thatcher v. State Bank, cumstances. But the real reason 5 Sandf. 121. The money was de- for deciding the case as it was de- posited in both cases. cided must be that the plaintiff 4 State Bank v. Kain, 1 III 45. . never intended to make a deposit. s East River Nat. Bank v. Gove, 8 Rich v. Niagara Co. Bank, 5 57 N. Y. 597. But in any case, ex- Thornp. & C. 589; Shields v. Niagara cept under very remarkable cir- Co. Bank, 3 Hun, 477. cumstances, the deposit should be Gettysburg Nat Bank v. Kuhns, received at the bank. 62 Pa. 88. 6 Jackson Ins. Co. v. Cross, 9 10 Miller v. Western Bank, 172 Pa. Heisk. 283. The depositor violated 197. the rule of the bank, but the receiv- nihl v. St. Joseph Bank, 26 Mo. ing teller also violated the rule. App. 129. 7 Calton v. Savings Bank, 7 Conn. First Nat Bank v. Brooks, 22 487, a case with very peculiar cir- 111. App. 238. Compare Beckly v. 131.] DEPOSITS. 207 wrongly decided, because it was not a banking transaction, and the depositor made the cashier his own agent, unless it can be said that the memorandum contradicted the certifi- cate. In another instance a president of a bank issued his personal certificate, according to his habit of issuing either his own or the bank's certificate, but the customer thought he was dealing with the bank; a deposit was held to have been made in the bank." So, where the certificate of a pri- vate firm was issued, but the bank teller, in the presence of the customer, said it was " good on the bank," the bank was held upon the certificate. 14 The same holding was made where no assurance whatever was given. 15 Again, a man, being notified by the paying teller that his account was overdrawn, went to the bank and left with the paying teller the amount of the overdraft, but the paying teller embezzled it; the bank was held liable. 16 In a peculiar case a bucolic bank permitted a customer to deposit inone} 7 in a city bank to the credit of the country bank, with authority to draw upon it solely at the customer's request, and it was held that there was no deposit in the country bank. 17 If a general principle is deducible from these cases, it is that if there be a delivery of money at the bank on the part of the depos- itor, with the intention of making a deposit, known to the officer of the bank, who receives it, the deposit in the bank is complete. No deposit can be made in the bank until it is fully organized. 18 Commercial Bank, 39 S. C. 281, "Dustm v. Hodgen, 38 111. 352. which seems contra. But money left with the bank to 13 West v. Elmira Bank, 20 Hun, deceive the examiner is not a de- 408. posit. United States v. Peters, 87 14 Steckel v. Allentown Bank, 93 Fed. R. 984. Pa. 376. This case is wholly irrec- 18 Long v. Citizens' Bank, 8 Utah, oncilable with Allentown Bank v. 104 The real point, however, in Williams, 100 Pa. 123. The differ- this case was that the papar, which ence on which the court relies is a was a certificate of deposit, was is- fantastic quibble. sued by the cashier to himself. 15 Coleman v. First Nat. Bank, 53 There was proof that the bank had N. Y. 388. done business. Even a delivery at 1K East River Nat. Bank v. Gove, some place other than the bank 57 N. Y. 597. binds the bank if it ratifies or ao 208 BANKS AND BANKING. [ 132, 133, 132. Effect of entries in books. An entry upon the pass-book or in the bank books of a deposit is merely a re- ceipt. It is explainable or revocable for mistake l by either the bank or the depositor, and the depositor may contradict the entry even though a by-law of the bank requires an ex- amination as to correctness at the time of the entry. 2 The earlier cases show some remarkable judicial performances upon this subject. 3 133. Deposit of other things than money. Where a man goes to a bank and deposits in it checks or drafts or other paper, the transaction may take different forms. The bank may purchase the paper. If it does, the transaction does not become a deposit, even though the cashier makes out a deposit slip to an illiterate man. 1 The paper may be deposited for collection to be made by the bank, but not for credit. If a specific instruction to that effect is given, it will be binding upon the bank receiving the paper; but whether or not it will be binding on third parties depends upon whether those third parties have notice. If the direction for collection, or for account, or for collection and credit is in- dorsed on the paper itself, that is sufficient notice to every one dealing with the paper that the depositor has never parted with his title. 2 If the paper is not so indorsed, any quiesces in the transaction by a entry is conclusive; otherwise, not. course of dealing. Juniper v. Com- Manhattan Co. v. Lydig, 4 Johns, raercial Bank, 26 S. E. R. 725. 377. The true rule is that the ^alcott v. First Nat. Bank, 53 books are prima facie correct. Kan. 480; Schneider v. Irving Bank, Asher v. National Bank, 7 Alb. L. 1 Daly, 500; Branch v. Dawson, 36 J. 43. Minn. 193. 1 Bank of Guntersville v. Webb,. 2 Mechanics' Bank v Smith, 19 108 Ala. 132. Johns. 115. 2 Sweeney v. Easter, 1 Wall. 166; 3 It was held that the entry on Commercial Nat. Bank v. Arm- the books made an account stated, strong, 148 U. S. 50; National which could be attacked only for Butchers' Bank v. Hubbell, 117 fraud. Hepburn v. Citizens' Bank, N. Y. 384; Manufacturers' Bank v. 2 La. Ann. 1007; Mechanics' Bank Continental Bank, 148 Mass. 553 \ v. Banks, 11 La. Ann. 261. In an- Crown Point Nat Bank v. Rich- other case it is said if the entry is mond Nat. Bank, 76 Ind. 561. And made on the bank book first the see 175, post. 133.] DEPOSITS. 209 third party receiving the paper, such as a correspondent, bank, may assume rightfully, in the absence of notice of a different state of facts, that the paper belongs to the bank transmitting it. 3 When the funds are collected and in the collecting bank, whether or not those funds become a general deposit in the bank depends upon the course of dealing be- tween the parties, if there has been one, or if there has been no course of dealing, and no express contract, except to col- lect, has been made, the funds after collection belong to the bank, and the relation of debtor and creditor exists between the bank and its depositor. 4 But where there has been an express contract to collect the money and return the pro- ceeds to the depositor, the express contract would overrule the general usages of the business, 5 and the money in the hands of the bank would be a trust fund of the depositor. 6 Such are the rules governing deposits for collection. But ordinarily a man who has checks or drafts takes them to his bank and deposits them for credit to himself. If nothing is said or written to indicate the intention, the deposit is for the depositor's credit. 7 But where such a deposit is made, the question as to where the title remains is a much debated contention. If the checks or drafts are on the particular bank in which they are deposited, a credit of them as cash to the depositor is payment, and by the great weight of au- thority that payment is final and irrevocable. 8 The checks, 3 Cody v. City Nat. Bank, 55 Mich. 6 Continental Nat. Bank v. Weems> 379; Vickery v. State Sav. Ass'n, 21 69 Tex. 489. See also McLeod v. Fed. R. 773. And see 175, post. Evans, 66 Wia 401 (overruled by 4 Marine Bank v. Fulton Bank, 2 Nonotuck Silk Co. v. Flanders, 8T Wall 252; Commercial Nat. Bank Wis. 237), and Anheuser-Busch Ass'n v. Armstrong, 148 U. S. 50; Marine v. Morris, 36 Neb. 31. See 343, post, Bank v. Rushmore, 28 I1L 463; for full discussion. Butchers' Bank v. Hubbell, 117 7 Farmers' Bank v. Slayden, 8 N. Y. 384; Reeves v. State Bank, 8 Tex. Civ. App. 63. Ohio St. 465. 8 Am. Ex. Nat. Bank v. Gregg, 138 5 Continental Nat. Bank v.Weems, 111. 596; Bank v. Burkhardt, 100 69 Tex. 489, where the contract was U. S. 686; Bartley v. State, 73 N. for collection and return of pro- W. R 744; Oddie v. National City ceeds. This is the rule as between Bank, 45 N. Y. 735. And see 158, banks, and the same principle ap- post, notes 5 and 6; City Nat. Bank plies as between depositor and bank. v. Burns, 68 Ala. 267. Contra, Na- 14 210 BANKS AND BANKING. [ 133. thereupon, have passed from the ownership of the depositor. But if the bank receives such checks upon the express con- dition that they are not credited as cash, but are subject to further examination, the mere entry of them as cash will not preclude the bank from charging them back to the depositor. 9 But a custom to that effect would not be valid. 10 Where the checks or drafts deposited for credit are on another bank than the one receiving them, it is usual for them to be cred- ited as cash. The point is, however, whether they pass to the bank as owner or as a mere bailee where they are cred- ited as cash. All the cases agree that when such checks or drafts deposited for credit are collected and the money in the collecting bank, the relation of debtor and creditor ex- ists, 11 unless there be some special agreement or understand- ing between the bank and its customer to the contrary. All the cases agree that all third parties may treat the bank in which checks have been deposited for credit of the depositor as the owner of the paper. 12 But where the title is during the process of collecting is a very different question. Some courts erroneously say that, if the depositor is allowed to check against the deposit, the title is in the bank. 13 Other tional Gold Co. v. McDonald, 51 Wis. 401 (but Nonotuck Silk Co. v. CaL 64. In Pennsylvania, if the Flanders, 87 Wis. 237, is in accord), drawee knows that the drawer has and Anheuser-Busch Ass'n v. Mor- no funds, the bank may revoke the ris, 36 Neb. 31. The collection is credit Patterson v. Union Nat. complete when credits are given Bank, 52 Pa. 206. Rawl v. Sauls- between the different banks. Ditch bury, 66 Ga. 394, was a case of the v. Western Nat. Bank, 79 Md. 192; bank's own check. Commercial Nat. Bank v. Arm- 9 Pratt v. Foote,9N. Y. 463: Rapp strong, 148 U. S. 50; In re State v. National Security Bank, 136 Pa. Bank, 56 Minn. 119. See also First 426. Nat. Bank v. Dickson, 6 Dak 301. 10 This must follow from the fact 12 See note 3, ante, and Metropoli- that payment of a check is final tan Bank v. Loyd, 90 N. Y. 530. A custom to abrogate that rule of 13 Ex parte Richdale, 19 Ch. D. 409; law would not be valid. See 158, Craigie v. Hadley, 99 N. Y. 131 ; Na- post. tional Butchers' Bank v. Hubbell, 11 See note 4, ante, for cases. This 117 N. Y. 384; Justt v. National rule applies between banks, and Bank, 36 N. Y. Super. Ct. 273; 2 between the depositor and the Morse on Banking, 896. Some bank. The two cases that seem to courts say this results from a de- be opposed are McLeod v. Evans, 66 posit for credit. Security Bank v. 133.] DEPOSITS. 211 courts deny this, and say the right to check against the de- posit is a mere privilege. 14 This latter idea is the true one, because there is no question on the authorities but that the bank, having received checks or drafts on other banks as cash credited, has the right to revoke the credit if the col- lection is not made ; but this would not be possible if title had passed. 15 It does not help the matter to appeal to cus- tom, because customs are facts, while title is a legal conclu- sion from the facts. One part of the custom may be to treat the deposit as cash, but the other part of the custom is to treat the credit as merely tentative. A custom cannot exist as to a legal conclusion. Therefore, we must fall back upon the facts. The Supreme Court of the United States once said the whole question is one of fact. 16 That statement does not help the matter, because the facts being conceded the law must put a construction upon those facts. Now, on principle, a deposit of checks for credit on one bank upon another bank is a bailment. 17 The duty of the bank is to Northwestern Fuel Co., 58 Miun. 141; Lanterman v. Travous, 73 11L App. 670, 174 111. 459: Am. Ex. Bank v. Mining Co., 165 111. 103; Doppelt v. National Bank of Republic, 175 111. 432; Am. Trust & Sav. Bank v. Manufacturing Co., 150 111. 336. But these courts recognize that the bank can charge back the deposit. 14 Balbach v. Frelinghuysen, 15 Fed. R. 675; Beal v. City of Somer- ville, 50 Fed. R. 647, 5 U. S. App. 14. This last is the only able examina- tion of the matter that has been made. It expressly disapproves 2 Morse on Banking, 896. See also Scott v. Ocean Bank, 23 N. Y. 289. The Supreme Court of the United States has followed the case of Beal v. City of Somerville. 15 See Beal v. City of Somerville, supra; Stapylton v. Cie des Phos- phates, 88 Fed. R. 53. See also S 188, 189 and 190, infra. 16 St. Louis & S. F. Ry. Co. v. Johns- ton, 133 U. S. 566. But this case really decides that checks received and credited as cash against which the depositor has the right to draw, when the checks are on a different bank than the one receiving them, do not necessarily become the prop- erty of the bank. But the case is not in point, because it is put upon the ground that, even if it was a deposit, the bank became a trustee by reason of its fraud. If the de- posit was really a purchase by the bank, and is so treated and acted upon by both parties, title, of course, passes. Taft v. Quinsigamond Bank, 52 N. E. R. 387. The case of Evans- ville Bank v. German-American Bank, 155 U. S. 556, says the legal title is in the collecting bank, but that it has not the equitable title. "Giles v. Perkins, 9 East, 12, 14; Beal v. City of Somerville, 50 Fe. 212 BANKS AND BANKING. [ 133. collect and credit the depositor with the amount obtained. "When that is done the bailment is complete. The collecting bank takes no risk upon the paper ; if collection is not made it charges the paper back to the depositor. 18 If the bank fails in this duty it is liable for negligence. 19 It would not be so if it owned the paper. Hence we are driven to conclude that the bank has no title until the collection is complete. The full reason for this conclusion will be found in sections 1SY and 188. This conclusion is wholly compatible with the fact that a third party without notice may get title from the bank. That is the result of investing the bank with the indicia of ownership. This conclusion is, too, wholly com- patible with the fact that the bank may sue upon the paper whether indorsed to it for credit or for collection. But it may do this as holder, although it is not the owner. 20 Each bank in the chain is a holder or bailee. But it cannot be said that this conclusion is the adjudicated law everywhere upon this subject. A very ably considered case so holds. 21 But there are cases which hold that if the depositor is al- lowed to check against the deposit, the title passes to the bank. 22 There are other cases which say that if the deposit is credited as cash the title passes to the bank. 23 The con- flict of authority is not capable of being explained, but the true rule is that of Beal v. City of Somerville. The impor- R. 647. And see 181, 187-190, (Ky.), can only be passed over in infra. charitable silence. 18 Am. Trust & Sav. Bank v. Man- 21 Beal v. City of Somerville, 50 ufacturing Co., 150 TIL 830; Beal v. Fed. R. 647. And this case is fol- City of Somerville, supra. This lowed in all the federal courts, fact is what renders the decisions 22 Craigie v. Hadley, 99 N. Y. 131, in note 13 so ingeniously absurd. and cases cited in note 13, ante. 19 Exchange Nat. Bank v. Third One case says a deposit for collec- Nat. Bank, 112 U. S. 276; Mound tion and credit does not pass title. City Paint Co. v. Commercial Nat. Armstrong v. National Bank, 90 Bank, 4 Utah, 353. Ky. 431. But the indorsement for 2 Evansville Bank v. German- credit always shows this fact by American Bank, 155 U. S. 556; Com- being to another bank, mercial Bank v. Armstrong, 148 23 Security Bank v. Northwestern U.S. 50; First Nat. Bank v.Hughes, Fuel Co., 58 Minn. 141; Ditch v. 46 Pac. R. 272. The case of First Western Nat Bank, 79 Md. 192. Nat. Bank v. Payne, 42 S. W. R. 736 134.] DEPOSITS. 213 tance of the matter is as to who sustains the loss when the correspondent bank fails, and as to who owns the funds if the collecting bank should fail. These matters will be treated under the head of collections arid insolvency. 24 134. Ownership of deposit. The natural presumption is that money deposited to the credit of a depositor by him- self belongs to that depositor, and in reason the bank need only look to the apparent owner of the fund. If it pays that apparent owner of the deposit or one designated by him, the bank is fully protected. 1 But sometimes it will happen that money deposited to the credit of one man really belongs to another. 2 In such case, after notice as to who is the true owner of the fund, the bank cannot pay the appar- ent owner. 3 If the bank pays the true owner of the fund it is always protected. 4 The rule is believed to be settled that a bank cannot dispute the title of the depositor, except when the credit is claimed by the true owner, or when the same has been attached or garnished. 5 When the form of the de- posit is such that it is notice of the true ownership of the fund, the bank is compelled to act upon such notice. 6 But 24 See 188-190, 343 and 344, post. 4 Lockhaven Bank v. Mason, 95 1 Daly v. New York Chem. Co., 2 Pa. 113; Brown v. Kinsley Ex. Hall, 550; Fulton Bank v. New York Bank, 51 Kan. 359. True owner Canal Co., 4 Paige, 127; McEwen v. may recover against the bank. Davis, 39 Ind. 109; Davis v. Pan- Starr v. York Nat. Bank, 55 Pa. 364; handle Nat. Bank, 29 S. W. R. 926. Smith v. Phila. Nat. Bank, 1 Walk. As to presumption see Egbert v. (Pa.) 318. It is said that the bank Payne, 99 Pa. 239 ; Lockhaven Nat. can pay the true owner only when Bank v. Mason, 95 Pa. 113. he has enforced his claim by legal 2 See cases following. process. Lund v. Seamen's Bank, 3 Providence Ass'n v. Citizens' 37 Barb. 129. But this is not true. Sav. Bank, 19 R. L 142; Anderson See Farmers' Bank v. King, 57 Pa. v. Market Nat. Bank, 1 N. Y. Supp. 202; First Nat. Bank v. Bache, 71 136; Frazier v. Erie Bank, 8 Watts Pa. 213; Viets v. Union Nat. Bank, & S. 18; Union Bank v. Johnson, 9 101 N. Y. 563; Bank v. Waddel, 100 Gill & J. 297. As to fact of notice N. C. 338. see Isom v. First Nat. Bank, 52 Miss. 6 Citizens' Bank v. Alexander, 120 102; Gibson v. Nat. Park Bank, 98 Pa. 476; Martin v. State Bank, 7 N. Y. 87; Eagle Mfg. Co. v. Belcher, S. D. 263. 89 Ga. 218. See the next section. 214: BANKS AND BANKING. [ 134. the mere fact that the word " assignee " is appended to the depositor's name in the deposit is not notice to the bank that the credit belongs to any particular fund; 7 nor is a deposit in the name of the county treasurer by itself notice that the fund belongs to the county. 8 The whole test is whether under the circumstances the bank had reason to believe or ought to have known that some one else than the depositor owned the fund. 9 If a mistake is made in the name in which money is deposited in the bank, the bank is bound to rectify the mistake, unless it has changed its position to its detri- ment by reason of the fact of deposit. 10 But whenever there is a dispute as to the ownership, the bank acts at its peril in attempting to settle the matter for itself. 11 Payment into court under a bill of interpleader should generally be re- sorted to. It often happens that one man will make a de- posit in another man's name. But that single fact does not operate as a transfer to the one in whose name the deposit is made. 12 Yet, of course, if it is an actual transaction be- tween the two persons, or if it be a case of gift or declara- tion of trust, the title is complete in the third party or trustee. 18 But the one who made the deposit, upon tender of the pass-book and proof of no transfer or gift, is entitled to recover the deposit against the bank. 14 But no careful banker would be justified in acting unless the third party waives his claim, or unless there is no controversy. Assign- ments may be made of deposits in a bank. An oral assign- ment or declaration of trust of a deposit is good, 15 but the 7 Laubach v. Leibert, 87 Pa. 55. Caines. 337; Jameson v. Collins, 11 See next section. Phila, 258. 8 Eyerman v. Second Nat. Bank, 12 Branch v. Dawson, 36 Minn. 193. 84 Mo. 408. See next section. See Douglas v. First Nat. Bank, 17 9 California Bank v. Western Minn. 35; Armstrong v. National Union TeL Co., 52 CaL 280; White Bank, 53 Iowa, 752. v. Springfield Inst, 134 Mass. 232; 13 See case following and Minor v. Mfg. Nat. Bank v. Barnes, 65 III 69. Rogers, 40 Conn. 512; Martin v. 10 First Nat Bank v. Belt, 29 111. Funk, 75 N. Y. 134. App. 194. 14 Brodeneck v. Waltham Sav. " Parker v. Hartley, 91 Pa. 465. It lust., 109 Mass. 149. has no right to change a deposit 18 McEwen v. Davis, 39 Ind. 109. Winter v. Bank of New York, 2 Accompanied with change of de- 135.] DEPOSITS. 215 bank may require a written transfer. 16 But a promise to transfer is not such an assignment as a bank may act upon. 17 A written assignment of a deposit, accompanied by a delivery of the pass-book, is evidence of a complete assignment, 18 al- though the deposit is made payable after the depositor's decease. 19 But a mere delivery of the deposit slip is not an assignment even as to one who discounted a check upon the fact. 20 Notice of the assignment to the bank is necessary to protect the assignee, 21 for a payment without notice is pro- tected. 22 After a bank has certified a check, so much of the deposit belongs to the bank. Such funds are therefore not attachable as the depositor's credit or debt from the bank, yet this self-evident proposition is disputed. 23 There may be liens upon the deposit, and the bank, if it have notice thereof, must protect the lien, otherwise not. 24 135. Trust or partnership funds. Where trust funds are so deposited that the bank is not chargeable with notice that they are trust funds, it is able to give credit upon them to the depositor, and is not liable for paying them out, as if they belonged to the depositor. 1 Yet as soon as the bank posit (Hillnian v. Me Williams, 70 22 Griffin v. Rice, 1 Hilt. 184; Night- Cal. 449), or without such change ingale v. Chaffee, 11 R. L 609. (Risley v. Phoenix Bank, 83 N. Y. See 150, post; but see Bills v. 318). See cases in notes 17, 18, 19 Park Bank, 89 N. Y. 343. The court and 20 to this section. mistook completely the nature of 18 McEwen v. Davis, 39 Ind. 109; the transaction of certifying. The Risley v. Phoenix Bank, 83 N. Y. decision may be justified upon the 318; First Nat. Bank v. Clark, 134 ground that the certifying was a N. Y. 368. Bank cannot pay de- mere fraudulent device, positor after notice of assignment. 24 But where an attachment Griffin v. Rice, 1 Hilt. 184; Beck- reaches legal interests no lien is with v. Union Bank, 9 N. Y. 211. created by a garnishment of a de- 17 Coffin v. Henshaw, 10 Ind. 277. posit, where the levy is upon the 18 Foss v. Lowell Sav. Ass'n, 111 interest of the true owner, but the Mass. 285. deposit stands in another's name. 1 9 Schollmeier v. Schoendelen, 78 Greenleaf v. Mumford, 50 Barb. 543. Iowa, 426. Yet this decision appears to be 20 First Nat. Bank v. Clark, 134 wrong on the New York statute. N. Y. 368. See Gibson v. Nat. Park Bank, 98 21 Beckwith v. Union Bank, 9 N. Y. N. Y. 87, and note 2 to 137, post. 211. i School Disk v. First Nat. Bank, 216 BANKS AND BANKING. [ 135. has notice of the trust character of the deposit it must act accordingly. 2 The bank will be held to have had notice from the words attached to the name of the depositor in the account indicating a trust relation, such as the word trustee 3 or general agent. 4 So, where a public officer deposits pub- lic moneys in his official name, the credit passes to the suc- cessor to that officer. 5 But where moneys are deposited by a public officer in his individual name, the bank may treat the funds as those of the individual so long as it has no notice of its trust character. 6 If the fund is deposited by an agent, which fact is known to the bank, the bank has notice that the fund, belongs to some one else than the depositor. 7 Where the fact of agency is disclosed, the bank has no right to assume that the agent has power to do anything more than deposit the money. 8 It would be unsafe to rely upon the agent's statements as to who has authority to draw out the funds. 9 But this proposition is disputed. 10 The law ought to be that whoever deposits money has the right to draw it out, where words which merely describe his capacity 102 Mass. 174. See also Ensman v. Swartwout v. Mechanics' Bank, 5 Delaware Co. Bank, 37 Wkly. Notes Denio, 555, are wrong. Cas. 578; In re Plankinton Bank, 6 Long v. Emsley, 57 Iowa, 11. 87 Wis. 378; Wood v. Boylston ? Union Stock Yards Bank v. Gil- Bank, 129 Mass. 358. But the bank lespie, 137 U. S. 411 ; National Bank cannot apply the deposit to its own v. Insurance Co., 104 U. S. 54 previously existing claim so as to 8 Honig v. Pacific Bank, 73 Cal. cut off the true owner unless it in 464 Compare Citizens' Bank v. some way has a lien upon the de- Harrison, 127 Md. 128, and 143, posit. Burtnett v. First Nat. Bank, post, note 12. See also Bristol 38 Mich. 630; National Bank v. In- Knife Co. v. Bank, 41 Conn. 421. surance Co., 104 U. S. 54 And see 9 Honig v. Pacific Bank, 73 Cal. note 3 to 140, post. 464; Bates v. First Nat. Bank, 89 2 Bundyv.Monticello,84Ind. 119; N. Y. 286; Kerr v. People's Bank, Ihl v. St. Joseph Bank, 26 Mo. App. 158 Pa. 305. 129. 10 See Randolph v. Allen, 73 Fed. 3 See cases cited in last note. R. 23,41 U. S. App. 117, semble. If the 4 National Bank v. Insurance Co., money actually belongs to the so- 104 U. S. 54 called agent the bank is protected. 5 Meridian Nat. Bank v. Hauser, Kerr v. People's Bank, 158 Pa. 305. 145 Ind. 496; Carman v. Franklin If principal authorizes or ratifies, Bank, 61 Md. 467. See also Smith the bank is protected. City Bank v. Board, 48 N. J. Eq. 627. But ' v. Kent, 57 Ga. 28a Eyerman v. Bank, 84 Mo. 408, and 135.] DEPOSITS. 217 are appended to the deposit. Thus, where A. deposits money to the credit of A., " agent," A.'s check as agent ought to be good authority to the bank to pay, unless the name of the principal is disclosed or ascertained in some way. If the name of the principal be disclosed, then only that prin- cipal ought to have authority to authorize a payment to be made by the bank. 11 But where the deposit is to the credit of A., " trustee," the check of A. as trustee ought to be suf- ficient. 12 The difference between the agent and trustee is that one holds the legal title and the other does not; one has full power to deal with the property, the other has only a limited power, depending upon the terms of the agency. But where the question is between the bank and the agent, there is no question that the bank has no right to appro- priate the deposit which it knows is made by him as agent to the bank's claim against the agent. 13 The same is true as to trustees. 14 So, in case of partnership deposits, the bank cannot pay out the money upon a private check of one of the partners 15 unless there is such a custom of dealing. 16 11 Honig v. Pacific Bank, 73 Cal. Compare Laubach v. Lubert, 87 Pa. 464. However the knowledge comes 55; Clemmerv. Drovers' Nat. Bank, to the bank, either through the 157 111. 206. agent or the principal, is immate- 14 Central Bank v. Life Ins. Co., rial. Farmers' Bank v. King, 57 104 U. S. 54; United States v. Na- Pa. 202; Lindsey v. Lambert Ass'n, tional Bank, 73 Fed. R. 379; Clem- 4 Fed. R 48. mer v. Drovers' Nat. Bank, 157 III. 12 Munnerlyn v. Augusta Sav. 206; McDowell v. Bank of Wilming- Bank, 88 Ga. 333, says the private ton, 2 Del. Ch. 1. But bank bound check of the individual is sufficient; by agreement to so apply. Sayre but this case seems wrong. The v. Weil, 94 Ala. 466. See Hale v. reasoning is poor. The true rule is Richards, 80 Iowa, 164 In both that a check by the trustee as these cases the bank was held es- trustee is good. Anderson v. Walker, topped as against the depositor 49 S. W. R. 937; Duckett v. Nat. from saying that an application of Mechanics' Bank, 86 Md. 400. But a trust deposit already made was anything else is a breach of trust, wrongfully made. 13 Lawrence v. Bank of Republic, 15 Coote v. United States Bank, 3 35 N. Y. 320, as to an assignee; Cranch, C. C. 50; Billings v. Meigs, Union Stock Yards Bank v. Gilles- 53 Barb. 272. But if the bank can pie, 137 U. S. 411, as to an agent, show that the money actually went i 6 Evans v. Evans, 82 Iowa, 492. 218 BANKS AND BANKING. [ 136. The statement of the partner as to his authority will not justify the bank in acting upon it. 17 A deposit to the credit of a corporate officer as such belongs to the corporation. 18 136. Liability of bank as to trust funds. Trust funds are those which are credited in the bank to some person in a trust capacity, such as agent or trustee, or funds that are in fact either actually or beneficially the property of some one else than the ostensible depositor. Where the bank has no notice or knowledge of the trust, it may pay out or give credit upon the apparent authority. 1 Where it has notice of the trust, it cannot permit the funds to be taken out of the bank in known violation of the trust, or by a single trustee where there are two, 2 nor can the bank itself apply the funds in any way which it knows is a violation of the trust. But if the agent has authority to draw out the money, the bank is not required to look after a proper application of it, 3 and in such a case the bank takes the risk as to the agent's authority. 4 In the case of trust funds the bank as- sumes no responsibility, unless in some way it is put upon notice of a violation of the trust. 8 By accepting an account for partnership purposes, the form Commercial Bank v. Jones, 18 Tex. of the check becomes immaterial 811. See also Hatch v. Fourth Nat. Coote v. United States Bank, supra. Bank, 147 N. Y. 184; United States i 7 Coote v. United States Bank, 3 v. National Bank, 73 Fed. R 379; Cranch, C. C. 50. Bank of Greensboro v. Clapp, 76 18 Lindsey v. Lambert Ass'n, 4 N. C. 482. It makes no difference Fed. R 48. that the funds of the principal are 1 Ensman v. Delaware Co. Nat. mingled with the agent's funds. Bank, 37 Wkly. Notes Cas. 518; In Van Alen v. American Nat. Bank, re Plankinton Bank, 87 Wis. 378; 52 N. Y. 1; but contra, Beatty v. Long v. Emsley, 57 Iowa, 11; Smith McLeod, 11 La. Ann. 76. v. Des Moines Nat. Bank, 78 N. W. a Randolph v. Allen, 73 Fed. R R 238. But it is held that where 23, 41 U. S. App. 117. the bank claims the fund for itself, 4 Honig v. Pacific Bank, 73 Cal. it is accountable to the principal 464; Robinson v. Chem. Nat. Bank, regardless of notice. Cady v. South 86 N. Y. 404 Omaha Nat Bank, 49 Neb. 125. ^Loring v. Brodie, 134 Mass. 453. This is the true rule unless the bank But if administrator dies with a de- by lending credit has become a posit, bank cannot pay to adminis- bonaflde holder. See note 13, infra, trator de bonis non of intestate. 2 Swift v. Williams, 68 Md. 236; Slaymaker v. Farmers' Bank, 103 136.] DEPOSITS. in the name of a trustee, it does not undertake any super- vision of the trust. 6 But if the bank has reason to think or has notice that the funds do not belong to the person in whose name they are standing, it is sometimes placed in a position of much difficulty. Instances sometimes occur as between husband and wife. If the husband deposits money for both himself and his wife to draw upon, the pass-book being is- sued to the husband, the bank may safely assume the deposit to belong to the husband. 7 But if the deposit is made in the name of the wife as her money, the bank cannot permit the husband to check it out on any statements of his. 8 Ex- press authority or ratification by the wife must appear. 9 Yet, if the money really belonged to the husband and was not a gift to the wife, 10 the bank would be protected in pay- ing to the order of the true owner as in all other cases. 11 Even though the bank is informed that the money belongs to the husband when it is deposited in the husband's name, the wife can reclaim it if the bank has suffered no injury, but merely seeks to apply it on the husband's debt. 12 The same is true of all other cases where funds are in the bank as the property of one person, but in fact belong to another. So long as the bank has not paid them out without notice or lent credit or suffered a detriment, but itself seeks to hold the funds as belonging to the ostensible depositor, it will not be permitted to do so. 13 Where money is deposited to Pa. 616. If the bank permits the 496; Hammel v. First Nat. Bank, 2 trust fund to be credited to the Colo. App. 571; Scranton v. Farm- trustee personally, it is accountable ers' Bank, 24 N. Y. 434; Gate City to the principal, for it assists in the Ass'n v. National Bank, 126 Mo. 82. breach of trust. Farmers' Loan Co. 7 Brown v. Brown, 23 Barb. 565. v. Fidelity Trust Co., 86 Fed. R 541. 8 Bates v. First Nat. Bank, 23 Hun, 6 Evans v. Evans, 82 Iowa, 492; 420, 89 N. Y. 286. Eyrich v. Capital State Bank, 67 9 Case last cited. Miss. 60. The difficulty always lies 10 People v. State Bank, 36 Hun, in determining what puts the bank 607, 102 N. Y. 740. upon inquiry as to a misappropria- H Kerr v. People's Bank, 158 Pa. tion. As to agent, see Union Stock 305. But see German Bank v. Him- Yards Bank v. Gillespie, 137 U. S. stedt, 42 Ark. 62. 411; National Bank v. Insurance 12 Citizens' Bank v. Harrison, 127 Co., 104 U. S. 54. As to trustee, see Ind. 128. Howard v. Deposit Bank, 80 Ky. 1S Armstrong v. National Bank, 53- 220 BANKS AND BANKING. [ 137. pay to a certain person, if the person is not interested in the deposit and has not ordered or procured or agreed that the deposit should be so made, 14 the deposit may be withdrawn at any time before notice to the person for whose use the deposit is made or a promise to pay that person. 15 In case of corporate funds deposited in the bank, 16 the bank cannot transfer them to the individual credit of an officer; 17 but it was said in one case that the check of the corporation trans- ferred by the officer to himself would not be notice of a misappropriation by the officer. 18 But government deposits known to the bank to be government deposits cannot be permitted by the bank to be drawn out on private check. 19 Some further cases will be noticed under the section in re- gard to a bank's application of deposits to pay off its own claims. 20 There are other cases where the bank actually acts as a trustee. 21 137. Attachment and garnishment of deposits. A levy of a writ of attachment properly made, or a garnish- ment under a writ of attachment, or an execution upon a Iowa, 752; Union Stock Yards Nat. 16 Lindsey v. Lambert Ass'n, 4 Bank v. Moore, 79 Fed. R. 705; An- Fed. R. 48. derson v. Market Nat. Bank, 1 N. Y. 17 Cushman v. Illinois Starch Co., Supp. 136. Contra, Boettcher v. Colo- 79 HI. 281. rado Nat. Bank, 15 Colo. 16, which is 18 Gate City Ass'n v. National wrongly decided because the bank Bank, 126 Mo. 82. This case is lost nothing; Wood v. Boylston wrong, because the fact would be Nat Bank, 129 Mass. 358, which is notice, unless the check was of rightly decided because the bank such a character that the bank lost its debt. See further, Burtnett could assume that the check was v. First Nat. Bank, 38 Mich. 430; transferred properly by the officer Johnson v. Payne Bank, 56 Mo. App. to himself. The court in its decis- 257. But this rule does not apply ion does not see the point at all, to a trust completed. nor does the annotator of 47 Am. 14 Mayer v. Chattanooga Bank, 51 St. R. 63a Ga. 325. M United States v. National Bank, ^ Brockmeyer v. Washington Nat. 73 Fed. R. 379. Ban k, 40 Kan. 744 ; Trustees v. Pace, 20 See 1 40, post . 15 Ga. 486; Mayer v. Chattanooga 21 See341,^>os. Under such cir- Nat. Bank, 51 Ga. 325, citing four cumstances it is chargeable with English cases. all the duties and liabilities of a trustee. 137.] DEPOSITS. 221 deposit, creates a lien upon the property of .the debtor in the writ or the execution, which is always considered to be a legal interest. The property sought to be reached may be either a legal interest in the chose in action, the deposit, or it may be merely an equitable one. Thus, if the deposit stands in the debtor's name, the debtor has a legal interest. If it stands in the name of some other person, but really be- longs to the debtor, the latter has an equitable interest. Legal interests can generally be reached in the method fixed by the statutes of the particular jurisdiction. Sometimes equitable interests may be reached, also, by legal process. Thus in Massachusetts a fund in the name of a guardian may be reached by trustee process against the beneficiary, 1 and in New York a deposit in the name of another is reached by an attachment against the true owner. 2 Whenever equi- table interests cannot be reached by process at law they can generally be reached by a creditor's bill. 3 The bank is al- ways a party to such an action, and the suit amounts to a lispendens, therefore, as against the bank; but generally an injunction should be issued. 4 In Pennsylvania that extraor- dinary thing called a scire facias bill of discovery seems to create a lien upon subsequent deposits. 8 But assuming that the proceeding, whatever it may be, is sufficient to notify the bank, the bank must respect the lien, or the claim amount- 1 Simmons v. Almy, 100 Mass. 239. U. S. 296; Rev. Stat. of 111., ch. 22, 2 Gibson v. National Park Bank, sec. 49. 98 N. Y. 87. Contra in Kansas (Scott 4 Payments made in violation of v. Smith, 2 Kan. 438) as to a mere an injunction are not good as to th& levy of execution and delivery of bank. Springfield Marine Co. v. the deposit by the bank. But see, Peck, 102 111. 265. But a state court as to New York rule, Bills v. Park cannot issue an injunction against Bank, 89 N. Y. 343; O'Connor v. Me- a national bank until final judg- chanics' Bank, 54 Hun, 272, reversed ment, while a United States court in 124 N. Y. 324; and 134, ante, can. See 352, post. note 23. & Schram v. Cartwright, 16 Pa. Co 3 Illinois is an exception if the Ct. R. 618. The early error of Penn- moneys are trust moneys for a bene- sylvania in refusing its courts chan- ficiary, where the trust has been eery jurisdiction has produced some- created by some one other than the singular results. beneficiary. Potter v. Couch, 141 222 BANKS AND BANKING. [ 137. ing to a lien, from the time it has notice thereof. 6 The garnishment only applies to the amount actually due at the time, 7 whatever be the condition of the account as shown by the books of the bank, for payments made before notice, although not entered upon the books, afe good. 8 The bank's prior lien is protected, 9 and the bank, if it has notice of the claim of some one else than the depositor, cannot pay the deposit to' the depositor's garnishing creditor. 10 But it seems to be held that money deposited to pay a check or other claim can be garnished as the property of the depositor until paid or promised to be paid to the third party called the "usee.". ll The true owner, whether indicated in the de- posit 12 or not, 13 is entitled to the deposit as against the de- positor's garnishing creditor. But even if the fund is depos- ited to the credit of an agent, if no third party claims the fund the garnishment is good. 14 The trustee must protect the rights of his beneficiary as well as his own. 15 If the bank is adjudged to pay over the amount after notice to the bene- ficiary, the payment will be a discharge as to the amount paid. 16 The bank must exercise the greatest care in regard to the garnishment, because a misnomer, even as to the middle initial, would exonerate the bank for not regarding the garnishment, if it had no other knowledge on the sub- 6 Merchants' Bank v.Meyer, 56 Ark. 1J Mayer v. Chattahoochie Nat. 499; Exchange Bank v. Gulick, 24 Bank, 51 Ga. 325. Kan. 359. All the cases cited to this la Cotton Mills Co. v. Cooper, 93 section recognize the principle. But Iowa, 054. The deposit was to the it is held that an assignment of the credit of a person as agent, deposit before garnishment gives 13 Skilman v. Miller, 7 Bush, 428. the assignee the better title. See 14 Proctor v. Greene, 14 R. L 42. 362, post, notes 8-10. 15 Randall v. Way, 111 Mass. 508. 7 Johnson v. Brant, 38 Kan. 754. Randall v. Way, 111 Mass. 506; 8 Foster v. Swasey, 3 Woodb. & Leonard v. New Bedford Bank, 116 M. 364 Mass. 210; Woods v. Milford Sav. 9 Rice v. Third Nat. Bank, 97 Mich, Inst., 58 N. H. 184. But if the bank 414. was negligent in defending the ao- 10 Adams Co. v. National Bank, 9 tion, or if it was guilty of collusion, N. Y. Supp. 75. it will not be a defense. See 363, post, note 1, as to savings banks. 138.] DEPOSITS. 223 ject. 17 The amendment of the writ would not cover inter- venient payments. 18 This matter is of special importance where the holder of a check can sue the bank after presenta- tion, while funds to meet the check were in the bank. The fact that checks are outstanding is no defense against the garnishment of the deposit, 19 unless the checks have been certified or accepted, 20 except in those states which permit the holder to sue the bank, and in that case checks outstand- ing would be a defense only after the checks had been pre- sented. 21 138. Death of depositor. "We have already examined the cases as to ownership of a deposit caused by a voluntary transfer or assignment, and those caused by a transfer by act of the law upon garnishment or other legal proceeding. We come now to the transfer that takes place upon the death of the depositor. If the depositor has made a valid assignment at law of the whole deposit in his life-time, 1 al- though the time of the assignee's enjoyment was postponed until the death of the depositor, 2 the deposit belongs to the assignee and not to the personal representative of the de- ceased depositor. 3 But where the depositor has died owning the deposit, the property of the deceased devolves, as to the personalty, upon the personal representative of the deceased. 17 German Nat. Bank v. National 19 This follows from the nature of State Bank, 3 Colo. App. 17, and the check. cases cited therein; Terry v. Sisson, 2 Certifying or accepting a check 125 Mass. 560. In the former case makes the bank the debtor and re- the court retails some interesting leases the drawer; but see note 23, morsels of knowledge. If it could 134, ante. have referred to the report of the 21 The levy gives a lien which is argument of Kinnersley v. Knott, legal, not equitable, which would 7 C. B. 980, found at 9 Am. Law prevail over any equitable assign- Rev. 176, copied from the Albany ment. See the next section. Law Journal, it might have quoted l Risley v. Phoenix Bank, 83 N. Y. one of the most amusing passages 318; Foss v. Lowell Sav. Ass'n, 111 in all legal literature. Ma&s. 285. 18 German Nat. Bank v. National 2 Schollmeier v. Schoendelen, 78 State Bank, supra; Terry v. Sisson, Iowa, 426. supra. s Gammond v. Bowery Sav. Bank, 15 Daly, 483. 224 BANKS AND BANKING. [ 138. The personalty devolves upon the executor by virtue of the will, upon the administrator by virtue of the law. The death is equivalent to an assignment by operation of law. Even a foreign administrator is entitled to the personalty. 4 It follows as a matter of necessity that all unaccepted checks outstanding are revoked by the death of the de- positor, 5 except that the bank will be protected as to pay- ments made before notice of the death, 6 just as it will be protected as to payments made before notice of the assign- ment. 7 The word " revoked " hardly expresses the fact ; the check is not revoked, but as an order to pay it is not bind- ing upon the bank because the depositor has no longer any funds; the deposit belongs to the personal representative. The idea, therefore, that the death is the revocation of a power given by the check is a total mistake. 8 The bank, of course, may pay the check or may accept it after the draw- er's death, just as the drawee of a bill of exchange may ac- cept or pay it after the drawer's death. But the bank, having paid, could not charge it against the depositor's account. Yet in equity the bank ought to be subrogated to the claim of the payee of the check against the drawer. But this would not be a right arising out of payment of the check as a check, but rather an equitable assignment of the payee's original claim. 4 Schluter v. Bowery Sav. Bank, check is to the payee a power 117 N. Y. 125. But he could not sue coupled with an interest and there- except by statute. fore irrevocabla This view be- 5 Nat. Coin. Bank v. Miller, 77 trays a confusion between owner- Ala. 168; Fordred v. Seamen's Sav. ship of the check itself and own- Bank, 10 Abb. Pr. (N. S.) 435; Sim- ership of the credit in the bank, mons v. Cincinnati Sav. Soc., 31 The two things are wholly distinct. Ohio St. 457. Even if it be drawn It is enough to say that all the ad- to pay funeral expenses by person judicated law is contrary to this in extremis. Second Nat. Bank v. theory. The check may be an au- Williams, 13 Mich. 282. thority to receive the money, but "Brennan v. Manuf. Nat. Bank, it gives no power over or owner- 62 Mich. 343, dictum. See Tate v. ship in the deposit. See Gardner Hilbert, 2 Ves. Jr. 111. v. First Nat. Bank, 10 Mont. 149, 7 Laclede Bank v. Schuler, 120 where a power to a bank to apply U. S. 511. deposit was held not a power 8 Mr. Daniel in 3 Va. Law Jour, coupled with an interest. 823, puts forward the view that a 138.] DEPOSITS. 225 So far the law seems reasonably certain, wherever the rule prevails that the holder of a check has no claim upon the bank until acceptance of the check by the bank. But in a few states the rule prevails that the holder of a check gains a right of action at law against the bank if it refuses payment of a check when it has sufficient funds credited to the drawer. 9 The rule, however, is fixed in these last named states, that if the bank has not funds when the check is presented, even if it had funds when the check was drawn, no liability arises against the bank. 10 It is the presentment of the check that is the inception of the holder's right against the bank. 11 If this be true, it follows as a matter of necessity that, in the states spoken of, the death of the drawer compels the bank to refuse payment of any check of the drawer which is for the first time presented after the death of the drawer, or rather notice thereof, 12 because the drawer ceased to own the deposit, and ceased, therefore, to have funds to his credit as soon as he died. His death ipso facto transferred the deposit to his personal representative, who, whether ap- pointed by will or by the court, takes title of the date of the death. This result also follows from the proposition that since presentment is necessary to fix any liability upon the bank, a check may be revoked under the Illinois rule at any time before presentment. 13 If it be kept in mind that 9 Illinois, Kentucky, Nebraska, Jones, 137 111. 634, 643, expressly South Carolina, and perhaps Texas, says that the assignment does not hold the rule. Missouri and Iowa take place until presentment. So have repudiated it. Louisiana has Daniel, Neg. Inst. (4th ed.), sec. decisions both ways. See 147, 1639. post 12 The bank has the right to ap- 10 Bank of Antigo v. Union Trust propriate the deposit on its own Co., 149 111. 343. It is rather singu- claim 4 before presentment. Na- lar that Mr. Justice Shope in this tional Bank v. Blumensweig, 46 111. case should have written himself App. 297. down as believing that the payee 13 Tramell v. Farmers' Nat. Bank, is the drawee of a check. The 11 Ky. Law R. 900. Except as to a bank is the drawee. bona fide holder, which means one 11 Shaffner v. Edgerton, 13 Bradw. who took it from the payee. Union 132; Lester v. Given, 8 Bush, 357. Nat. Bank v. Oceana Co. Bank, 80 The case of Met. Nat. Bank v. 111.212; Marine Co. v. Stanford, 28 15 226 BANKS AND BANKING. [ 138. the question is between the bank and the holder of the check, no court ought to experience any difficulty in reach- ing this conclusion. It may be urged that it is held that a check is a partial assignment; 14 and if equal to the deposit, a total assignment of the deposit ; 15 and that as between the drawer and the payee it transfers so much of the fund, 16 which amount passes to each successive holder of the check. 17 But it is apparent that the courts do not use this phrase in its proper sense ; (1) because an equitable assignment must have, like every other contract enforced in equity, a valu- able consideration. There is no consideration passing from the drawer to the payee, for the reason that, unless the check is expressly taken as payment, it pays nothing. 18 The original claim remains, and can be sued upon even after pre- sentment of the check. 19 It is not payment until it is itself paid. 20 If the check is purchased by or discounted to a third party for value, he may become a ~bona fide holder as against the drawer. The check is not an equitable assignment, (2) be- cause, until it is presented, it may be revoked, 21 which, of course, would not be possible if the check were even an equitable assignment. It is not an equitable assignment proper, (3) because a bank in these states with the abnormal HL 168; Bickford v. First Nat. have known of this case, if he Bank, 42 III 238; Brown v. Leckie, edited that edition personally. 43 III 497. * Brown v. Leckie, 43 III 497, 501, 14 Munn v. Birch, 25 III 35. recognizes this rule, and says the 15 Gardner v. Nat. City Bank, 39 checks are not payment but the Ohio St. 600. means of payment. That the 16 Bank of Antigo v. Union Trust holder is the agent of the drawer Co., 149 I1L 343, and cases cited which precludes him from having therein. the absolute title. See the place 17 Merchants' Nat. Bank v. Ritz- last cited. This is said even as to inger, 20 Bradw. 27. certified checks, and the same rule is Thompson v. Bank of Brit. No. is held as to certificates of deposit. Am., 82 N. Y. 8. Numerous cases Leake v. Brown, 43 111. 372. could be cited to this proposition. 21 Tramell v. Farmers' Nat. Bank, 19 Ridgeley Bank v. Patton, 109 III 11 Ky. Law R. 900; and see note 13, 479. Daniel, Neg. Inst. (4th ed.), a nte, to this section. Insolvency re- sec. 1639, says this, of course, would vokes it before presentation. Na- not be allowed. He seems not to tional Bank v. City Nat Bank, 68 III 39a 138.] DEPOSITS. 227 theory of a check is not compelled to pay part of a check ; M but if the check were an actual assignment when drawn, it would be good to the extent of the deposit. Finally, pre- sentment and acceptance by the bank of the check are nec- essary under this rule to release the drawer; 23 but if the check were an actual assignment, the drawer would have paid the claim against him to the amount of the check, and he would be liable only upon his implied representation that he had funds in the bank to the amount of the check. The failure of the bank to pay could not affect him if the bank had funds. Therefore it is only as to one who has taken as a bona fide holder the check from the payee that it can be said, under these decisions, that the check is an assignment before presentation. Yet, even if the check were conceded to be an assignment as between the drawer and payee, it confers no legal title, unless it is for the exact amount of the deposit. Being a partial assignment it is merely equi- table. 24 But to the executor or administrator a legal title passes by the death. As representing the creditors of the deceased, the personal representative has an equity equal to the equity of any other unsecured creditor, which a check- holder is until presentation of the check. So the equities being' equal, the legal title will prevail, and that is in the personal representative. He did not become personal rep- resentative until the death, and hence as personal repre- sentative could have received no notice prior to the very moment that he got the legal title. The same result would follow if the executor or administrator and the check-holder 22 Coates v. Preston, 105 111. 470. which held the check to be an It does not pass title to any part equitable assignment. If the check of the deposit. Pabst Brew. Co. v. was an order as an equitable as- Reeves, 42 III App. 154 signment, it conferred no right 23 Metrop. Bank v. Jones, 137 111. until presented. Such is the law 634; Ridgeley Bank v. Patton, 109 as to every other assignment, and III 479. nowhere is the law more clearly 24 Miller v. Bledsoe, 2 III 530; held than in Illinois. See Moore Stone v. Pratt, 25 111. 25. This last v. Gravelot, 3 Bradw. 442; Creigh- case was decided ten pages away ton v. Hyde Park, 6 Bradw. 272. from Munn v. Birch, 25 111. 35, 228 BANKS AND BANKING. [ 13&. are considered as having orders on the fund. The order first communicated to the holder of the fund would confer, as against the bank, the better right. 25 We may conclude, then, that in these states the check must be presented before notice of the other assignment by death comes to the bank. No bank, therefore, in these states which we are consider- ing, would be justified in paying a check not presented until after notice of the depositor's death unless, it may be in Illi- nois, to a lonafide transf error. 28 The rule is a just and sound one. It can injure no one. If the check-holder has an hon- est claim he will obtain it by presenting it to the personal representative. If his claim is not honest he ought not to obtain it merely because he has a check. If the estate is solvent, the claim will be paid in full, and the check could be used as evidence of an admission. If it is not solvent the check-holder ought not to obtain a preference. In all other states, and in cases subject to the jurisdiction of the United 28 Laclede Bank v. Schuler, 120 U. S. 511,and the cases cited therein. Compare Moore v. Gravelot, 3 Bradw. 443; Creighton v. Hyde Park, 6 Bradw. 272, which recog- nize this rule as to orders upon a fund, and those cases seem to be undisputed authority in Illinois. 26 The law unquestionably is in Illinois that as against a bona fide holder of a check the bank cannot refuse payment of the check. Nib- lack v. Park Nat. Bank, 169 111. 517, and the cases cited in note 13, supra. This is the most astonish- ing result of this weird rule that the holder can sue the bank. Even if the check were a bill of ex- change before acceptance, a bona fide holder has no rights against the drawee. Yet here is the Illi- nois court reverting to the rule that a check is an assignment, holding that as against the bank the check is an assignment before presenta- tion, while it has held over and over again that it is not an assign- ment until it has been presented, and not even then if the depositor has not the full amount of the check. Then it is held that there is no duty upon the bank to re- serve from future payments enough to pay an unpresented check. Gilliam v. Merchants' Nat. Bank, 70 III App. 593. Then the court reverts to its former idea of as- signment by the giving of the check, and holds that the check cannot be countermanded before presentation against a bona fide holder, so that the bank can refuse to pay. Gage Hotel Co. v. Union Nat Bank, 171 11L 531. These cases are another instance of the great confusion caused by this rule. See for further illustrations note 30 to 147, and note 23 to 140. 139.] DEPOSITS. 229 States courts, which in a matter of general commercial law would not follow the state decisions, a bank would not be justified in paying, after notice of the depositor's death, any check but a certified or accepted one. For if the bank in either case pays the check, the personal representative may, after demand, sue the bank. At law the bank would have no defense, although in equity it would, no doubt, be subrogated to the payee's original claim. 139. Insolvency of depositor. The effect of an assign- ment for the benefit of creditors by the depositor is to trans- fer the deposit as any assignment would transfer it. The right of the bank to appropriate the depositor's account will be considered in the next section. Whatever the bank pays before notice of the assignment will be, of course, a good payment. 1 Where statutory systems of insolvency prevail that would invalidate preferences secured prior to an appli- cation in bankruptcy, it would appear to be a reasonable rule that the bank's payments of checks would be good up to the time of receiving notice of the application in bank- ruptcy, 2 unless the statute should provide that any transfer by the insolvent after an act of bankruptcy was forbidden. 3 In the latter case the bank ought to refuse to pay unaccepted checks as soon as it receives any notice of an act of bank- ruptcy, unless in those states where the holder can sue, where the bank could not safely refuse to pay if the check had been presented, nor can it safely refuse even then, because the United States courts will refuse to recognize the rule. 4 There 1 Laclede Bank v. Schuler, 120 But even in the states which recog- U. S. 511. nize the presentment of the check as 2 Under the new bankruptcy law giving the right to sue, the United of the United States a fraudulent States courts in bankruptcy must conveyance, or a written recogni- refuse to recognize the state rule, tion of insolvency, or an applica- 3 The English statute, 12 and 13 tion, or an assignment for creditors, Viet., ch. 106, 133, so provides, are all acts of bankruptcy, and it is 4 See the last section for those very questionable if the bank ought states, note 9. Fourth Nat. Bank v. not to refuse unaccepted, or in some City Nat. Bank, 68 III 898. But states unpresented, checks, after Chambers v. Northern Bank, 5 Ky. notice of an act of bankruptcy. Law R 123, holds that the drawing 230 BANKS AND BANKING. [ 140. are a number of statutes against preferences Whose effect is to render an assignment of a deposit, after the depositor has become insolvent, void. 5 Therefore, a bank in such states could not recognize an assignment after notice of insolvency, and ought not to recognize an unaccepted check, or in a few states possibly an unpresented check ; but even if the check be presented, the trustee of the bankrupt can recover the payment in the United States court. 140. Bank applying deposit to its own claim. It is a recognized principle in banking law that a bank has" the right to apply the general deposit of the depositor to the pay- ment of the bank's unsecured claims against the depositor. The nature of the claim of the bank may be either a matured or an unmatured debt, an unliquidated claim for damages, and even a right to recover for a fraud, and the rights of the bank vary somewhat in the cases with the nature of the claim. But one rule is unvarying the claim must be really and in fact the property of the bank, 1 and in the next place the deposit must legally and equitably belong to the depos- itor. 2 Even though the bank has no notice that the deposit belongs to some one else than the depositor, it cannot appro- priate the deposit for a debt of the ostensible depositor, unless it has been misled, or has suffered an injury or given credit upon the strength of the apparent ownership, 3 and then of the check prevails over the peti- l Stetson v. Exchange Bank, 7 tion in bankruptcy, which does not Gray, 435. revoke check even if the bank had 2 Lawrence v. Bank of Republic, notice. 35 N. Y. 320; Tobey v. Manufact- 5 Stone v. Dodge, 96 Mich. 514; urers' Nat. Bank, 9 R. L 236; Na- Van Dykev. McQuade,85N. Y. 616; tional Bank v. Insurance Co., 104 In re Hamilton, 26 Oreg. 579. Con- U. a 54; Walker v. Manhattan tra, Moseby v. Williamson, 5 Heisk. Bank, 25 Fed. R 347; Union Stock 278. And compare Johnston v. Yards Bank v. Gillespie, 137 TJ. S. Humphrey, 91 Wis. 76. This rule 411; Clemmerv. National Bank, 157 applies to national banks. Ve- III 206; Coote v. Bank of United nango Nat Bank v. Taylor, 56 Pa. States, 3 Cranch. C. C. 95. 14 A different provision is noticed 3 Douglas v. First Nat Bank, 17 in Bank of Pennsylvania v. Spang- Minn. 35; Armstrong v. National ler, 32 Pa. 474. Bank, 53 Iowa, 752; Anderson v. DEPOSITS. 231 only to the extent to which it has suffered injury. But if the bank has a claim against the true owner of the deposit, it may apply the deposit though standing in another name. 4 It makes no difference how the claim arises, whether it be against the depositor alone or against himself and wife, 5 or against him as indorser or guarantor of a matured note, pro- vided the maker or principal debtor is insolvent. 6 But if the debt is fully secured the bank may not apply the deposit, 7 unless there be a special agreement to that effect. If the unsecured debt be matured there is no doubt of the bank's right to make the application. 8 It is said to be the law by a number of decisions that are not able to give any reason- able excuse for their existence, that the bank cannot apply the deposit of the individual depositor upon the debt of the firm of which he is a member; 9 but the better view of the Market Nat. Bank, 1 N. Y. Supp. 136; Davis v. Panhandle Nat. Bank, 29 S. W. R. 926; Wood v. Boylston Bank, 129 Mass. 358; Cady v. South Omaha Nat Bank, 46 Neb. 756. Contra, Boettcher v. Colorado Nat. Bank, 15 Colo. 16. Compare Burt- nett v. National Bank, 38 Mich. 430. 4 Garnett Bank v. Bowen, 21 Kan. 354; Falkland v. National Bank, 84 N. Y. 145. See also Hatch v. Fourth Nat. Bank, 147 N. Y. 184. Contra, Citizens' Bank v. Alexander, 120 Pa. 476. Haydon v. Alton Nat. Bank, 29 111. App. 458. But it is held that if a note is joint and several the bank cannot apply the deposit of one maker. Merchants' Bank v. Evans, 9 W. Va. 373; Dawson v. Real Es- tate Bank, 5 Ark. 283; Long Island Bank v. Town send, Hill & D. Supp. 204. These cases are not sound. See note 9, infra. 6 Ex parte Howard Nat. Bank, 2 Low. 487. Contra, National Bank v. Proctor, 98 III 558, as to note not due. Compare Appeal of Farmers' Bank, 48 Pa. 57; National Bank v. Gormley, 2 Walk. (Pa.) 493; New- bold v. Patrick, 25 Pitts. Leg. J. (N. S.) 299. But Mechanics' Bank v. Seitz, 150 Pa. 632, seems to be in accord, while First Nat. Bank v. Shreiner, 110 Pa. 188, denies the right as to a guarantor, but not an indorser. 'Schuler v. Israel, 120 U. S. 506; Farmers' Bank v. McFerran, 11 Ky. Law R. 183. 8 See cases in preceding notes and Commercial Bank v. Hughes, 17 Wend. 94; Blair v. Allen, 3 Dili 101; National Bank v. Hill, 76 Ind. 223. The application is to be made on the last day of graca Home Nat. Bank v. Newton, 8 I1L App. 563. 9 Watts v. Christie, 11 Beav. 546; International Bank v. Jones, 119 III 407; Raymond v. Palmer, 41 La. Ann. 425; Adams v. National Bank, 113 N. C. 332. See note 5, supra. 232 BANKS AND BANKING. [ 140. law is that it can. 10 If the unsecured debt is not matured, the great weight of authority and the reason of the rule of equitable set-off permits the application of the deposit, pro- vided the depositor be insolvent. 11 But death is not equiva- lent to insolvency; yet if the depositor died insolvent 12 the application can of course be made to unmatured and unse- cured indebtedness. 13 In Pennsylvania, if the debtor dies in- solvent, there is no set-off, but if he died solvent his deposit may be set off. 14 The reason for the rule stated above is that the bank has a lien superior to all other claims. 15 This is simply a. general business usage crystallized into a rule of law. But some courts wrongly deny the right to apply upon an unmatured indebtedness as against an attachment 16 or against an assignment. 17 Unliquidated demands may be set off against the deposit, 18 and so may a claim to recover for fraud. 19 The fact that checks are outstanding does not de- prive the bank of its right; 20 but in those states which rec- ognize the right of the holder to sue upon the check after 10 Eyrich v. State Bank, 67 Miss. 60. "Schiller v. Israel, 120 U. S. 506; Dermuon v. Boylston Bank, 5 Gush. 194; Georgia Seed Co. v. Talmage, 96 Ga. 254; Fidelity Co. v. Mer- chants' Nat. Bank, 9 L. R A. 108, and note; Flour Co. v. Merchants' Bank, 90 Ky. 225; Trust Co. v. Na- tional Bank, 91 Tenn. 336; Citizens' Bank v. Kendrick, 92 Tenn. 437. But contra, National Bank v. Proc- tor, 98 III 558. This last decision is incomprehensible. 12 Jordan v. National Bank, 74 N. Y. 467. 13 Ford v. Thornton, 3 Leigh, 753; Knecht v. Savings Inst, 2 Mo. App. 563. 14 Farmers' Bank Appeal, 48 Pa. 57: Bosler v. Exchange Bank, 4 Pa. 32: National Bank v. Shoemaker, 11 Wkly. Notes Gas. 215. 1 5 Ford v. Thornton, 3 Leigh, 695. 16 Manufacturers' Nat. Bank v. Jones, 2 Penny. 377. Contra, Schuler v. Israel, 120 U. S. 506. 17 Oatrnan v. Batavian Bank, 77 Wis. 501. This is one of the most absurd opinions in all the books. The court says counsel, in his brief, cites certain cases, and then the court puts those cases in the opin- ion. There are ten cases cited, but only one is in point, and that is Beckwith v. Union Bank, 9 N. Y. 211, which is no longer authority. 18 Ex parte Howard Nat. Bank, 2 Low. 487. Contra, Irvine v. Dean, 93 Tenn. 846. 19 Andrews v. Artisans' Bank, 26 N. Y. 298. For set-off in peculiar cases, see Clark v. Northampton Bank, 160 Mass. 26; National Bank v. Greene, 45 N. J. Eq. 546. 20 Georgia Seed Co. v. Talmage, 96 Ga.254. 141.] DEPOSITS. 233 presentation, no set-off exists in favor of the bank as against a lonafide holder of the check; 21 and in other states it is held that the right of set-off does not exist as against bona fide check-holders, whether the bank's claim is matured or unmatured. 22 There is no soundness in either rule. The bank may apply the deposit upon any of the depositor's debts of its own that it pleases; 23 but if it has received a deposit under a specific direction or agreement as to its disposition, it will be bound by the direction or agreement, 24 and this direction need not be in writing. 25 The application of a general deposit, if applied without notice of a valid adverse claim, can be justified in certain cases. 26 Collections made and properly credited are deposits, when mingled with the funds of the bank, and are applicable by the bank as deposits. 27 141. Duty of bank to apply deposit. It is a well- known principle of law that any dealing between the cred- itor and the principal debtor and one case holds any concealment of a relation between the creditor and the principal debtor 1 prejudicial to the indorser or guarantor of the contract, without the assent or concurrence of the surety, releases the latter. The bank having a lien upon 21 Fourth Nat. Bank v. City Bank, 23 Commercial Nat. Bank v. Hen- 68 III 898; Merchants' Nat, Bank ninger, 105 Pa. 496. v. Ritzinger, 20 111. App. 27. 24 Straus v. Tradesmen's Bank, 36 a Fidelity Trust Co. v. Merchants' Hun, 451, 122 N. Y. 379; United- Bank (Ky.), 9 L. R A. 108; Zeile v. States Bank v. Macalister, 9 Pa. German Sav. Inst., 4 Mo. App. 401, 475; Packing Co. v. First Nat. Bank, which latter case is no longer an 69 Miss. 700. authority. The Illinois cases are 25 Case last cited, express that as against a bonafide 26 McEwen v. Davis, 39 Ind. 109; check-holder the bank must have Allen v. Brown, 39 Iowa, 330; note applied the deposit before presenta- 3 to this section. tion of the check. Niblack v. Park Muench v. Valley Bank, 11 Mo. Nat Bank, 169 111. 517. This ruling App. 144. is of course wrong, because it gives 1 Jungk v. Reed, 8 Utah, 49. The the check-holder a better right than author reported this case, and then the drawer of the check; it is sim- thought, and still thinks, it wrongly ply another illustration of the wild decided upon the whole issue, result of the rule that says a check is an assignment. 234 BANKS AND BANKING. [ the deposit for its claims, and having the opportunity to protect the surety, ought in justice to do so. The situation of the surety is certainly altered to his disadvantage, unless he assents. But some courts admit this right in the surety, 2 while other deny it. 3 The courts of Pennsylvania have be- come involved in a singular net of conflicting dicta and de- cisions upon this question. 4 The cases will be found in the note. The duty, however, does not exist as regards the ac- ceptor of a bill of exchange, whether the deposit exists at the date of the maturity of the bill 5 or is deposited after- wards. 6 Wherever there is an agreement taking a particu- lar security out of the course of general dealing between the bank and the depositor, the surety cannot complain that his rights are prejudiced. 7 But it will be seen that the same result is achieved where a deposit exists, in a few cases, by 2 Dawson v. Real Estate Bank, 5 Ark. 283; German Nat. Bank v. Foreman, 138 Pa. 474; Mechanics' Bank v. Seitz, 150 Pa. 632; McDow- ell v. Wilmington Bank, 1 Harr. 369; Pursifall v. Pineville Bank, 30 S. W. R. 203; Faulkner v. Cumber- land Valley Bank, 14 Ky. Law R. 923; Armstrong v. Warner, 49 Ohio St. 376. This latter case holds that the surety upon a note on the in- solvency of the bank is entitled to the principal's deposit as a set-off against the note. 3 Wilson v. Dawson, 52 Ind. 513; Voss v. Germ. Am. Bank, 83 111. 599; Third Nat. Bank v. Harrison, 10 Fed. R. 243; Teconic Bank v. Johnson, 21 Me. 426; National Bank v. Smith, 66 N. Y. 271; and see the Pennsylvania cases in the next note. 4 People's Bank v. Legrand, 103 Pa. 309, held if deposit insufficient it need not be applied, but gave in- dorser maker's right of set-off. First Nat Bank v. Shreiner, 110 Pa. 188, held that subsequent deposits, if in- sufficient, need not be applied; but Commercial Bank v. Henninger, 105 Pa. 496, and Germ. Nat Bank v. Foreman, 138 Pa. 474, held that if the deposit was sufficient at the date of the maturity of the bill, it must be applied. But Mechanics' Bank v. Seitz, 150 Pa. 632, and First Nat. Bank v. Peltz, 176 Pa. 513, de- cide that the deposit must be suffi- cient at the maturity of the debt, and must be to the credit of the person primarily liable. It may be possible to induce some other court to accept these distinctions. 8 Flournoy v. National Bank, 79 Ga. 810. 6 Citizens' Nat. Bank v. Carson, 32 Mo. 191. ?Mahaiwe Bank v. Peck, 127 Mass. 298; but Germ. Nat Bank v. Foreman, 138 Pa. 474, denies the rule where the deposit remains a general deposit See Wilson v. Dawson, 52 Ind. 5ia 142.] DEPOSITS. 235 giving to the surety, where the drawer is insolvent, a set-off based upon his apparent subrogation to the rights of the depositor as they existed, presumably, at the date of the maturity of the claim. 8 142. Right of bank to apply deposit on other de- mands. If a note be made payable at a bank, it has been said, without good reason, that the bank has no authority to pay it out of the maker's deposit without a direction to do so. 1 But this rule is subject to the qualification, in those states which hold it, that if there is a custom to that effect known to the maker the bank may do so. 2 If the deposit is made for the purpose of paying a particular note, the bank may so apply, unless before payment it is notified not to do so. 3 As we have seen, such a deposit does not become necessarily the property of the person for payment of whose note it is deposited. 4 A certification of a note payable at the bank is the same as the certification of a check. 5 If pay- ment be made of such a note by the bank, even though the 8 Armstrong v. Warner, 49 Ohio able court); jEtna Nat. Bank v. St. 376; Van Wenke Gin Co. v. Citi- Fourth Nat Bank, 46 N. Y. 88; zens' Bank, 89 Tex. 147. The last Indig v. Bank, 80 N. Y. 100; Grif- case is clearly wrong; the drawer fin v. Rice, 1 Hilt 184; Frances v. was not insolvent It practically People's Bank, 1 Ohio N. P. 281. holds that non-residence is equiva- But if the bank pays, it may set the lent to insolvency where the ao note off against the deposit Bed- ceptor seeks to hold the bank for ford Bank v. Acoam, 125 Ind. 584; non-application of the drawer's de- but Grissom v. Comm. Nat Bank, posit See notes 5 and 6, supra. 87 Tenn. 350, is contra. See 173, !"Wood v. Merch. Trust Co., 41 post. , 111. 267; Ridgely Nat Bank v. Pat- 2 Grissom v. Comm. Nat Bank, 87 ton, 109 III 479. The case of Home Tenn. 350. But this is a general Nat. Bank v. Newton, 8 Bradw. 563, usage that every sane person ought does not establish a different rule to be held to know, in Illinois. It is considered at 1 3 Bedford Bank v. Acoam, 125 Daniel, Neg. Inst 326a, as doing so, Ind. 584. but that is a total mistake, because 4 .(Etna Nat. Bank v. Fourth Nat the note in question was to the bank Bank, 46 N. Y. 82. And see note 15 itself. Grissom v. Comm. Nat. Bank, to 136, ante. 87 Tenn. 350. But the better rule 6 Riverside Bank v. First Nat is that it can. Riverside Bank v. Bank. 74 Fed. R. 276, and cases First Nat Bank, 74 Fed. R. 276 (an therein cited. 236 BANKS AND BANKING. [ 143. bank acted under a clear mistake as to the state of the de- positor's account, it is final. 6 But payment through a clear- ing-house is provisional only, and may be rescinded on the ground of mistake. 7 143. Payment by the bank of deposit. The duty of the bank to its depositor is in some way to make payment. We have indicated certain methods by which this is done, as, for instance, by payment to the true owner, by payment to the assignee, by payment to the depositor's creditor under legal process, by payment to the personal representative, by payment to itself in discharge of its own claims, and by pay- ment upon other claims payable at the bank. But there are other methods of paying, such as by remittances, and finally by payments upon checks. A remittance to a distance is said to be at the risk of the depositor. 1 Generally the depositor gives his own check to the bank, and the bank remits the amount, or he simply deposits a- sum to be transferred, get- ting a draft. In either case, at whose risk is the transfer? is a vexed question. But it would seem that if the bank itself undertakes to remit it must bear the loss, 2 but if the remitter purchases a draft upon the other bank which he himself sends, the draft is not payment until it is paid itself. 3 Com- 6 Riverside Bank v. First Nat. 2 Cutler v. Am. Ex. Nat Bank, Bank, supra, and cases therein 113 N. Y. 593. See Weedsport Bank cited. v. Park Bank, 41 N. Y. 561. The 7 Nat. Ex. Bank v. National Bank point is as to when the transaction of North America, 133 Mass. 147. is complete so that the funds are But see 158, post. really transmitted and put to the 1 Jung v. Second Ward Sav. Bank, credit either of the transmitter or 55 Wis. 364. This case seems to be the person designated by him. the only known instance where a 3 But this proposition is denied in court was so deluded as to hold Ex parte Jones, 77 Ala. 330, to the that payment to a forger upon a extent that the depositor having forged indorsement was actual pay- taken a draft ceases to be a depos- ment of the deposit where the de- itor, and if the draft is not paid positor was not to blame. The cannot rescind and claim to be a court cited as its authority Graves depositor. But if the bank had v. Am. Ex. Bank, 17 N. Y. 205, been guilty of a fraud, the rule which exactly contradicts the opin- would be different Compare ion. Hogue v. Edwards, 9 Bradw. 148, DEPOSITS. 237 ing now to the payment by the bank itself through the me- dium of checks, the engagement of the bank to its depositor is to pay the deposit, if it is not a time deposit, upon de- mand, 4 and there can be no default until a demand is made.* A check upon the bank duly presented is a demand. 6 The bank can only refuse to pay the deposit (1) when it has not sufficient credit to the drawer to pay the whole check; 7 (2) when it has notice of the fact that the deposit does not belong to the drawer; 8 (3) when it is put upon inquiry as to the fact that funds deposited, but known to the bank to be trust funds, either by the form of the deposit or in some other way, are being misappropriated ; 9 but a deposit depos- ited by the trustee to himself as trustee must be paid out on the check of the trustee ; 10 and if the deposit is to the credit of some one as agent, and the bank knows or ought to know who is principal, it cannot pay on the check of the agent ; n but it is said if nothing appears as to the principal the bank may pay on the check of the agent ; 12 (4) when it has notice of an assignment or has accepted or certified checks to the 263. This case is a very peculiar one. The holder of a check ob- tained a draft for his check, which was payable in exchange. A rem- edy was refused the holder under the Illinois rule because the check was not payable in money. But the court recognizes that the check- holder still has a claim upon the drawer of the check. See note 30, 147, post. 4 Ward v. Johnson, 95 111. 215. 6 Girard Bank v. Bank of Penn Township, 39 Pa. 92. 6 But it is not the only form of a demand. Citizens' Bank v. Harri- son, 127 Ind. 128. 'Coates v. Preston, 105 111. 470; Pabst Brewing Co. v. Reeves, 42 111. App.154. Contra, Bromley v.Comm. Nat Bank, 9 Phila. 522. But the bank may agree to pay pro tanto. Dana v. Third Nat. Bank, 95 Mass. 445. 8 See 134, ante. 9 See 135, 136, ante. i<>Ihl v. St. Joseph Bank, 26 Ma App. 129. But see Munnerlyn v. Augusta Bank, 88 Ga. 333. But bank is bound if it has agreed to apply trust money to individual debt of the trustee. Sayre v. Weil, 94 Ala. 466. See 135, ante, note 14 11 See 135, ante, notes 8 and 9. 12 Patterson v. Marine Bank, 130 Pa. 419; Citizens' Bank v. Alex- ander, 120 Pa. 476; Lockhaven Bank v. Mason, 95 Pa. 113; German Bank v. Himstedt, 42 Ark. 62. The language, but not the actual decis- ion, in Honig v. Pacific Bank, 73 Cal. 464, is contra. And see 135 r note 8, ante, which states the bet- ter rule. BANKS AND BANKING. [ 143. amount of the deposit; 13 (5) when it has notice of a lien upon the deposit; 14 (6) when it has notice of the death of the de- positor; 15 (7) when it has notice of the insolvency of the depositor; 16 (8) when it has itself appropriated or has a valid lien upon the deposit for a claim paid to itself or to some one else. 17 The above cases constitute the exceptions to the necessity for payment by the bank when it has funds to the credit of the depositor. Otherwise the bank is estopped to dispute its depositor's title, 18 nor can it set up any illegality in the method by which the depositor acquired the moneys deposited. 19 "Where the bank, however, has notice of an ad- verse claim, it may exact indemnity as a condition of paying the check. 20 If there are separate accounts the bank must regard these separate funds. 21 The fact that the original de- posit was in notes taken as cash, which have depreciated in value, makes no difference, though there be a custom to the contrary; the bank must bear the loss in the case of a gen- eral deposit. 22 It must pay the cheek in current funds, 23 but if the money has been confiscated by the go .'eminent it has 13 See 146, notes 14 and 15, and Paine, 43 111. 432. But payment in 150. The certification takes so treasury notes is good where the much money from the depositor's state law requires the deposit to be account. It is an assignment to the paid in gold and silver. Reynolds bank. v. Bank of State, 18 Ind. 467. The 14 See 137, ante. legal tender cases affirmed this rul- 15 See 138, ante. ing. Custom cannot prescribe a 16 See 139, ante. legal tender different from that 17 See 140, 141, ante. fixed by law. Thompson v. Riggs, 18 Citizens' Bank v. Alexander, 5 Wall. 663; Marine Bank v. Chan d- 120 Pa. 476; Martin v. Minnekahta ler, 27 111. ,525. General deposits are Bank, 7 S. D. 263. payable in current funds. Gutribel 19 Porter v. Sher. Co. B'g Co., 40 v. Abrams, 20 La. Ann. 568; Fort Neb. 274 v. Bank of Cape Fear, 61 N. C. 417; 20 Starr v. York Nat Bank, 55 Pa. Ruffin v. Orange Co. Comm'rs, 69 364 N. C. 498. Deposit of .Confederate 21 Voight v. Lewis, Fed. Cas. No. notes not a deposit of money. Fos- 10,989. ter v. Bank of New Orleans, 21 La. 22 Marine Bank v. Chandler, 27 111. Ann. 338. Contra, Dabney v. Bank 525. See Chicago Marine Co. v. of State, 3 S. C. 124, as to the value Carpenter, 28 111. 360; Osgood v. deposited. McConnel, 32 III 74; Willets v. 23 Marine B'kv. Chandler, 27 III 525. 144.] DEPOSITS. 239 been held that the depositor bears the loss. 24 This decision is correct in case of a special deposit, but wholly wrong as to a general deposit, which creates the relation of debtor and creditor. Just as the bank must bear the loss where the de- posit was in money which afterwards depreciated, it obtains the benefit if the money deposited taken at its real value in- creases in value. 25 But an agreement to return in kind the deposit makes the deposit special, 26 and evidence of usage is admissible to show that a certain entry in the books pur- ported to be such an agreement. 27 Whatever payments the bank makes upon checks is payment of the deposit pro tanto. 28 Outstanding checks cannot excuse the bank's failure to pay. 29 144. Liability to depositor for set-off. The right of set-off between the bank and its depositor is reciprocal. The depositor has a right of set-off against the bank for his de- posit against the bank's claim, 1 or for any other direct and ascertained claim which constitutes a set-off. 2 But an unac- cepted check in his favor, drawn by another depositor, would not be a claim that could be set off, 3 except, perhaps, in those states which allow the holder of a check to sue the bank, and in that case only after the check has been presented. 4 If the bank is insolvent, the depositor or an indorser upon a note held by the bank may set off his individual deposit in 24 Mandeville v. State Bank, 19. 5 Har. & J. 489; Equitable Bank v. La. Ann. 392. Claasen, 23 N. Y. Supp. 310. 25 Gumbel v. Abrams, 20 La. Ann. 2 Whittington v. Farmers' Bank, 568. 5 Har. & J. 489. 26 Chesapeake Bank v. Swain, 29 3 Butterworth v. Peck, 5 Bosw. 341. Md. 483. But in those states which recognize 27 Case last cited. the holder's right to sue the bank, 28 Mayer v. Heidelbach, 123 N. Y. it would logically follow that the 332. check after presentment could be 29 Meridian Nat. Bank v. Hauser, set off after insolvency. This would 145 Ind. 496; Jackson Ins. Co. v. make it a simple process to wipe Cross,9Heisk.283. Unless, of course, out the bank's assets against sol v- they are accepted or certified, and ent debtors. in some states unless they have 4 See the last note. Surely those been presented. See 147, post. states would hesitate before mak- 1 Whittington v. Farmers' Bank, ing such a ruling. 240 BANKS AND BANKING. [ 144. the bank, although the note matured after the insolvency. 6 If the note was due at insolvency, all authority concedes the right. 6 This right of set-off is not lost by the appointment of a receiver 7 or an assignee ; 8 for such an assignee or re- ceiver obtains only the bank's right, no more. It is said that where a director has been sued by the bank or its representa- tive for securities which were transferred to him by the bank in the way of an illegal preference, he may set off his deposit to the extent of dividends he would have received upon his deposit in settlement of the bank's affairs. 9 In an- other case an insolvent bank indorsed defendant's note to another bank after maturity. The second bank did not claim to be a bona fide holder. The ruling was that the defendant could set off his deposit in the first bank against the note sued upon by the second bank. 10 The ruling would neces- sarily have been different if the plaintiff had been a bona fide holder. 11 But where a bank agrees to hold a note for a surety upon the surety's agreement that he will not reduce his deposit below the note, the note belongs to the depositor and the bank is a mere trustee and cannot sue the surety. 12 ^Schuler v. Israel, 120 U. S. 506; Hunger v. Albany Nat. Bank, 85 Jordan v. Sharlock, 84 Pa. 366; N. Y. 580, is also contra, but the S Idles v. Houston, 110 Pa. 254 In case is correct on other grounds. Pennsylvania the depositor is in See also 830, post. better position than the bank. So 6 State v. Brobston, 94 Ga. 95, also in Wisconsin. Jones v. Pien- where state had a lien upon the ing, 85 Wis. 264: Merchants' Ex. funds of the bank; Batty v. Scuddy, Bank v. Fieldner, 92 Wis. 415; Mo 10 La. Ann. 404; In re Van Allen, Cagg v. Woodman, 28 111. 84; Sick- 37 Barb. 225; Seymour v. Dunham, els v. Herold, 36 N. Y. Supp. 488; 24 Hun, 93. Clute v. Warner, 8 App. Div. 40; 1 Yardley v. Clothier, 49 Fed. R. Davis v. Industrial Mfg. Co., 114 337; Miller v. Franklin Bank, 1 N. C. 321 ; Second Nat Bank v. Paige, 444. Hemingray, 34 Ohio St. 381. In this 8 Fort v. McCulley, 59 Barb. 87. last case, by agreement, the firm 9 Lamb v. Pannell, 28 W. Va. 663. deposit was used as a set-off against 10 Merchants' Ex. Bank v. Field- the debt of an individual partner, ner, 92 Wis. 415. Yardley v. Clothier, 49 Fed. R. 337, " Philler v. Woodfall, 83 Wkly. a case which in a masterly way Notes Cas. 183. demolishes Armstrong v. Scott, 36 12 Harrison v. Harrison, 118 Ind. Fed. R. 63, which is contra; but 179. 145.] DEPOSITS. 2-il Certificates of deposit are governed by the same rule as other general deposits as to a depositor's right to set off. 13 This right if waived is ended, 14 and cannot be revived by a bill in equity. 15 145. Liability to drawer for dishonoring check. As to the drawer, where a bank dishonors his check while funds are deposited to his credit sufficient to meet the check, the remedy is twofold. He may immediately sue for the deposit, 1 because the check is a demand, 2 or he may sue for damages. The fact of dishonor is to be determined by the true state of the account, 3 not what the books show necessarily,.although they may be considered as prima facie correct as entries made in due course of business. 4 The depositor when suing for his deposit does not sue upon his check that is a mere order; 5 but it is proof of a demand if it was indorsed by the payee. 6 But this remedy will generally be considered in- sufficient by the depositor whose check has been dishonored, because the smaller the check the worse is the injury. 7 The common action, therefore, is an action on the case for dam- ages. It has been pointed out in the introduction how this remedy exists in favor of this particular creditor against his debtor, when it does not exist in favor of other creditors against their debtors. It is really a survival of the day when a deposit in a bank was a bailment, and is the old common- 13 Newberry v. Trowbridge, 13 2 Viets v. Union Nat. Bank, 101 Mich. 263. N. Y. 563. 14 In re Commercial Bank, 4 Ohio 3 See cases cited in notes 17, 18, 19 Dec. 108. and 20 to this section. 15 Bung Co. v. Armstrong, 34 Fed. 4 This is the general rule applica- R 94. ble to all transactions. 1 First Nat. Bank v. Shoemaker, 5 First Nat. Bank v. Shoemaker, 117 Pa. 94 The reading of this 117 Pa. 94. case reminds one of the artless 6 Rowley v. National Bank, 63 statement of the reporter in Year Hun, 550. But this allegation is dis- Book 30-31 Edw. L: "Defaute de pensed with if bank refuses to pay bon serjant fet B perdre sez den- for lack of funds. Eichner v. Bow- iers," quoted 1 Poll. & Mait. Hist, ery Bank, 45 N. Y. Supp. 68. Eng. Law, 199; Viets v. Union Nat. 7 Marzetti v. Williams, 1 B. & Ad. Bank, 101 N. Y. 563. 415. 1C 242 BANKS AND BANKING. [ 145. law action of the bailor against his bailee. It is proven by the fact that the depositor in this action can recover both his deposit and the other damages he has suffered. In this action reasonable and " temperate " damages, 8 and what that phrase means depends wholly upon the taste and fancy of the particular court, may be recovered without any proof of spe- cial damage or of malice. 9 Other courts say substantial dam- ages may be recovered without such proof. 10 These damages need not be immediately connected with a tangible pecun- iary loss. 11 But it was held that where the error was dis- covered and the check paid within a few days, only nominal damages could be recovered. 12 This ruling can be justified only on the maxim humanum est errare, because the dam- ages are not necessarily diminished by a rectification of the mistake. But damages, such as for the arrest of the drawer, 13 or the seizure of his business, 14 are too remote. It is a com- plete defense to the action that the check was not indorsed by the payee. 15 The fact that in some states the holder has a right of action on the check is no defense 16 in those par- ticular states. It is no defense that the dishonor was caused by negligence of the bank's employee, 17 but would the con- 8 Atlantic Nat. Bank v. Davis, 96 12 See Brooke v. Tradesmen's Ga. 334; Rolin v. Steward, 14 C. B. Bank, 69 Hun, 202. 595. 13 Bank of Commerce v. Goos, 39 9 Schaffner v. Ehrman, 37 III App. Neb. 437. The court in this case 340, 139 III 109; Rolin v. Steward, excluded such evidence, but the 14 C. B. 595. plaintiff's attorney, in his desire to 10 Schaffner v. Ehrman, 37 HI. App. swell the damages, got the evidence 340, 139 111. 109; Svendsen v. State improperly before the jury and Bank, 64 Minn. 40; Patterson v. Ma- then lost his judgment. But the rine Bank, 130 Pa, 419: Bircheli v. opinion on this latter point is quite Third Nat Bank, 15 Wkly. Notes weak. Cas. 174. 14 Brooke v. Tradesmen's Nat. 11 Patterson v. Marine Bank, 130 Bank, 69 Hun, 202. Pa, 419 (but should be the reason- 18 Rowley v. National Bank, 63 able and probable consequences); Hun, 550. But see note 6, siipra, Svendsen v. State Bank, 64 Minn, where this proof is dispensed with. 40. Contra, nominal damages only, 16 National Bank v. Boles, 12 Ky. Brooke v. Tradesmen's Bank, 69 Law R. 422. Hun, 202; Burroughs v. Trades- 17 Atlanta Nat. Bank v. Davis, 96 men's Bank, 87 Hun, 6. Ga. 334 146.] DEPOSITS. 243 tributory negligence of the plaintiff be a defense? 18 The fact that it has credited checks on itself as cash which were not good is no defense, but it would be a defense if the checks were on another bank. 19 If a purchased draft, which has been credited as cash, has been lost in going through the mail, and the bank has charged off the draft on account of the drawer's and indorsees failure to furnish another draft, it will be no defense. 20 Payment of the check on a forged indorsement will be no defense. 21 146. Liability of bank to holder. Since the check is a mere order on the banker, the holder acquires no right against the bank until the check has been accepted or cer- tified by the bank. Certification is, of course, an acceptance, but it is not the only method of accepting a check. Accept- ance is a question of fact, 1 and is provable by circumstantial as well as by direct evidence. 2 An unexplained delay in re- fusing payment may be an acceptance by the bank. 3 An oral statement or telegram 4 by the cashier, 5 or by the tel- ler, 5 that the check is good, either as to drawer or indorser, is an acceptance. 6 But payment to the wrong person on an unauthorized indorsement does not give the holder of the 18 Since it is not a suit for negli- 4 Henrietta Nat. Bank v. State gence the answer ought to be no. Nat. Bank, 80 Tex. 648; Espy v. 19 Am. Ex. Nat. Bank v. Gregg, Bank, 18 Wall. 605. Contra, Myei-s 138 HL 596, reversing 37 III App. v. Union Nat. Bank, 27 Til App. 425. 254. And see note 13, 150, post. 20 Kavanagh v. Farmers' Bank, 59 5 Barnet v. Smith, 30 N. H. 256. Mo. App. 540. Contra, Kahn v. Walton, 46 Ohio 21 Citizens' Nat. Bank v. Imp. & St. 195. Trad. Nat Bank, 119 N. Y. 195; State v. Morton, 27 Vt. 310. Viets v. Union Nat. Bank, 101 N. Y. 6 See also, as to oral acceptance, 563. Farmers' Bank v. Dunbar, 32 Neb. 1 First Nat. Bank v. McMichael, 487, and Morse v. Mass. Nat. Bank, 106 Pa. 460. 1 Holmes, 209. But if the statute 2 See the case next cited. requires a writing, the rule is dif- 3 First Nat. Bank v. McMichael, ferent. Duncan v. Berlin, 60 N. Y. 106 Pa. 460. Contra, Colo. Nat. 151; State Bank v. Lindeman, 161 Bank v. Boettcher, 5 Colo. 185. Pa. 199. Compare Overman v. Bank, 31 N. J. Law, 583. 244 BANKS AND BANKING. [ check the right to sue the bank as on an acceptance ; 7 yet, if the drawer is allowed credit for the check after wrongful payment thereof, some courts say that it is an acceptance. 8 A promise to accept is nudum pactum where the depositor has no funds, 9 but may be binding as an estoppel, if commu- nicated to the holder, according to one case. 10 If the bank does accept the check to the holder who is in good faith, the drawer is released, 11 and the bank becomes liable upon the check, whether it has funds or not. 12 The holder of an accepted check may therefore sue the bank. 13 But, unless the check has been either orally or otherwise accepted, the holder has no cause of action against the bank his re- course is upon the drawer. 14 A check drawn generally upon 7 First Nat. Bank v. Whitman, 94 U. S. 343; Grocer Co. v. Farmers' Bank, 71 Mo. App. 132. Contra, Peck v. People's Nat. Bank, 88 Tenn. 380; Millard v. National Bank, 3 Me Arthur, 54; Seventh Nat. Bank v. Cook, 73 Pa, 483; Dodge v. Nat. Ex. Bank, 20 Ohio St. 234; Com- mercial Nat. Bank v. Lincoln Fuel Co., 67 111. App. 166, 8 National Bank v. Cook, 73 Pa. 483, and last two cases cited. But in Pennsylvania this credit may be withdrawn in accordance with a clearing-house rule. German Nat. Bank v. Farmers' Dep. Bank, 118 Pa. 294. The rule of the Supreme Court of the United States (First *Nat. Bank v. Whitman, 94 U. S. 343) is the right one, because there is no novation. But Saylor v. Bush- oug, 100 Pa. 23, where the depositor directed, and the bank kept enough, to pay the check, is correct, because there was a novation. Commercial Nat Bank v. Lincoln Fuel Co., 67 111. App. 166, is wrong. 9 Morse v. Masa Nat. Bank, 1 Holmes, 209. 10 Nelson v. First Nat. Bank, 48 111. 36. The court says it is binding as a contract; but what right had the bank to go into the business of buy- ing corn? The promise might be turned into a representation as to credit, and thus be an estoppel. But the representation was not made to the check-holder, so how could he sue upon it? One case holds that he could sue. Chanute Nat. Bank v. Crowell, 6 Elan. App. 533. See Springfield Marine Bank v. Mitchell, 48 III App. 486, a unique decision. 11 French v. Irwin, 4 Baxt. 401; First Nat. Bank v. Leach, 52 N. Y. 350 ; Born v. First Nat. Bank, 123 Ind. 78. 12 Farmers' Bank v. Butchers' Bank, 69 N. Y. 125; Lynch v. First Nat. Bank, 107 N. Y. 179; Hill v. National Trust Co., 108 Pa. 1. 13 Lunt v. Bank of North America, 49 Barb. 221; Commercial Nat. Bank v. First Nat Bank, 118 N. C. 783; Bank of Republic v. Millard, 10 Wall 152; Ames v. York Nat Bank, 103 Mass. 326. " Bank of Republic v. Millard, 10 Wall. 152; First Nat Bank v. Whit- man, 94 U. S. 343; Florence Mining 147.] DEPOSITS. 245 a deposit is not an equitable assignment of any portion thereof, 15 nor an assignment of the whole thereof, where it is for the full amount of the deposit. 16 This is the necessary result of the rule as to checks that is held throughout the commercial world ; but if a check is drawn upon a particu- lar fund, and so understood as between the parties, it is operative upon that fund pro tanto, 11 but a check or draft drawn generally is not so. 18 147. Rule in some states. Yet in spite of the great weight of authority, the usage of the commercial world, the necessities of business, the convenience of banking transac- tions and the dictates of common sense, as settled by the courts of England and America, it is held in Illinois, 1 Ken- tucky, 2 South Carolina, 3 Nebraska, 4 and perhaps Texas, 5 that the holder of a check can sue upon it, if when presented at the bank the depositor has sufficient credit to meet the whole of it, 6 but not a lesser amount. 7 This same rule was adopted Co. v. Brown, 124 IT. S. 385, and every state in the Union, except those mentioned in the next section- u Fourth St. Bank v. Yardley, 165 U. S. 634; Florence Mining Co. v. Brown, 124 U. S. 385. 16 See cases last cited. ^ Fourth St. Bank v. Yardley, 165 U. S. 634. This case must be closely confined to the particular facts, or it is misleading. See also Coates v. first Nat. Bank, 91 N. Y. 26; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; First Nat. Bank v. Clark, 134 N. Y. 368. But compare First Nat. Bank v. Dubuque Ry. Co., 52 Iowa. 378. 18 Bush v. Foote, 58 Miss. 5; Jones v. Pacific Co., 13 N. W. R. 359; First Nat Bank v. Dubuque, etc. Ry. Co., 52 Iowa, 378; Hawes v. Blackwell, 107 N. C. 196. This last case suc- ceeds in being wholly unintelligi- ble as to the check-holder's rights against the bank. The court seemed not to have any well-defined idea upon the subject. See also the cases cited in the three preceding notes. 1 Munn v. Burch, 25 I1L 35, and cases to the present time. 2 Lester v. Given, 8 Bush, 357; Herndon v. Louisville Banking Ass'n, 10 Ky. Law R. 584 8 Fogarties v. State Bank, 12 Rich. Law, 518; Simmons Hardware Co. v. Bank of Greenwood, 41 S. C. 177. 4 Fonner v. Smith, 31 Neb. 107. 8 First Nat. Bank v. Randall, 1 White & W. Civ. Gas. Ct. App., sec. 975. 6 See cases last cited and those cited in note 27 to this section. 7 Coates v. Preston, 105 111. 470; Pabst Brewing Co. v. Reeves, 42 III App. 154 246 BANKS AND BANKING. [ 147. in the intermediate appellate courts of Missouri, 8 but was re- jected by the Supreme Court of that state. 9 Iowa adopted it, 10 but soon afterwards repudiated it. 11 Louisiana recognizes an assignment by check where the check corresponds to the whole deposit. 12 But all the cases agree that presentment is necessary to give the holder any right against the bank, 13 except, it has been said, that the drawing of the check gives the holder thereof precedence over a garnishment. 14 And finally, the rule must be in these states that the check takes effect upon moneys deposited after the check is drawn. 15 The situation of a banker in these peculiar states is most insecure. Suppose a check is countermanded after presentation. The owner of the deposit, if the jurisdictional facts exist, can sue him in the United States court and obtain judgment if the banker pays the check. For the federal courts will be gov- erned by the general rule, and will not follow the local law. But the holder of the check can sue him in the state courts and get judgment also. So it would be in the case of an unpre- sented check in the hands of a l)onajide holder. It is nothing less than monstrous that such a condition should exist. As we pointed out in section 139, ante, this very condition confronts every bank in case of an insolvent depositor. This rule in- troduces such difficulties into the law that the grounds of it are worthy of serious attention, not less so on account of the fact that both Mr. Morse and Mr. Daniel have given the 8 McGrade v. German Sav. Inst., 4 v. National City Bank, 39 Ohio St. Mo. App. 330; State Sav. Ass'n v. 600, was a check for the whole de- Boatmen's Sav. Bank, 11 Mo. App. posit. Compare Railway Co. v. 292; Senter v. Continental Bank, 7 Metrop. Nat. Bank, 54 Ohio St. 60. Mo. App. 532. 13 See cases cited in note 2 and 9 Dickenson v. Coates, 79 Mo. 250; note 30 to this section. Coates v. Doran, 83 Mo. 337. 14 Detheridge v. Crumbaugh, 8 Ky. 10 Roberts v. Corbin, 26 Iowa, 315. Law R. 592. Illinois holds other- 11 First Nat. Bank v. Dubuque, etc. wise. See note 30 to this section. Ry., 52 Iowa, 378. These courts cannot agree even 12 Gordon v. Muchler, 34 La. Ann. upon their own rule. 604 But it denied the general 15 Rosenbaum v. Lytle, 8 Ky. Law right Case v. Henderson, 23 La. R. 607. This is implied in all the Ann. 49. Perhaps Ohio belongs in Illinois cases. See note 30 to this this list with Louisiana. Gardner section. DEPOSITS. 247 rule their enthusiastic commendation. The leading case is Munn v. Burch?* The opinion is by Chief Justice Caton. He was no doubt a man of strong original power; but he cannot be said to have had any accurate scientific knowl- edge of the principles of the law. He put the holder's right upon three grounds: (1) that the check is an equitable as- signment; (2) that the promise of the bank to the depositor to honor his check is made for the benefit of the check- holder, who may sue upon it; (3) that there is an implied contract between the check-holder and the bank. The first ground is refuted by all the other decisions to the effect that no assignment takes place until presentation, up to which time the bank can apply the deposit on its own claim, 17 and the maker can revoke the check. 18 It cannot in fact be an 16 25 111. 35. This opinion was written at a comparatively early day. It really was a presumption for a court in a state that had so little banking to assume to talk with such absolute aplomb of com- mercial usage. The case was a hard one, and hard cases make bad law. It should be remembered that it was an equity case, and is no au- thority for the proposition that the holder can sue at law. The facts of the case were that a man had a check upon a bank for wheat sold to a buyer for eastern people. The check was brought to the bank and the buyer had funds. The check was left there and by the bank was charged against the account of the drawer. It was therefore accepted. But a draft of the buyer's came back protested, and the bank charged off the credit and refused to pay the check, but at the same time the bank had the bill of lad- ing for the wheat and actually got the proceeds. It would have been a simple matter to hold that the check had been accepted and that the holder could sue. But neither court nor counsel saw this obvious solution, and the consequence was a great mass of dictum now become law in Illinois. 17 See cases cited in note 30. It is probable that this peculiar idea is due to a confusion in the minds of the judges- between the relation of debtor and creditor, and the old idea that a man actually had his own money with his banker. This same confusion survives in common speech and the courts are compelled to give it effect in wills. A bank credit passes under a bequest of ready money or money in hand. Parker v. Marchant, 1 Ph 356; In re Powell, Johns. 49; Fryer v. Rankin> 11 Sim. 55; Stern v. Richardson, 37 L. J. Ch. 369; Varsey v. Reynolds, 5 Russ. 12; Langdale v. Whitfield, 27 L. J. Ch. 795. 18 This is implied in the Illinois cases. Fourth Nat. Bank v. City Nat. Bank, 68 111. 398, admits that an assignment in bankruptcy re- vokes an unpresented check. 248 BANKS AND BANKING. [ 147. equitable assignment, because no consideration is paid for it; it is not payment in itself; 19 it discharges nothing until ac- ceptance ; the original claim remains. It is merely an order to pay, and does not take effect upon the deposit as a fund existing when it was drawn, but upon what exists when it is presented. 20 Otherwise it might be an assignment of a credit not in existence when it was made, and hence not an assignment at law at all. It is only an order and not an as- signment, because the drawer is not released until it is ac- cepted. 21 Neither of the text writers spoken of above relies upon this ground as tenable. Next it is said that the promise of the bank to the depositor is made for the benefit of the third party, the check-holder, and therefore he can sue upon it. But this ground is based upon an actual contract, ex- pressly made. A quasi-coutract arising ex lege is not an obligation to a third party. Conceding such a contract act- ually made, the rule is that when a third party sues upon a contract made for his benefit, he must be a person ascer- tained at that time and pointed out by the contract. 22 He cannot be "all the world," as Chief Justice Caton seems to think. The very nature of the transaction is such that the third party cannot be ascertained at the time of making the contract. But the real difficulty with this proposition is that the engagement existing between the depositor and the bank is not a contract at all, but a quasi-con tract. It is a customary duty imposed as the result of a relation, and is not an actual express contract nor one implied as of fact from circumstances. 23 Therefore there is no chance left for this contention. The third ground is the one relied upon by the text writers, to wit: that there is an implied contract between the check-holders and the bank which creates a 19 Thomson v. Bank of Brit No. Nat. Bank, 46 N. Y. 82; Montgomery Am., 82 N. Y. 8. v. Reif, 15 Utah, 495, and cases 20 Rosenbaum v. Lytle, 8 Ky. Law therein cited; and see specially Na- R. 607. See note 15 to this section, tional Bank v. Eliot Bank, 5 Am. 21 Metrop. Bank v. Jones, 137 III. Law Reg. 711, and Simsonv. Brown, 634 68 N. Y. 355. 2 -' See ^Etna Nat Bank v. Fourth 23S 2e 128, ante. 147.] DEPOSITS. 249 duty. This duty must arise either when the check is given or when it is presented. It must be the latter, because no duty whatever on the part of the bank exists until that time. 24 This duty must arise out of a contract or out of a particular relation. It will not be contended that there is any express contract or one implied prior to the time of pres- entation. Kow, if the duty arises out of a contract, it must be a contract made either expressly or implied ly at the time of presenting the check. No contract is made then expressly or impliedly, because none such is contended for except a customary duty arising from the general practice, which is called a contract. The first objection is that there is no such customary duty, as is settled by the almost unanimous concurrence of the courts of England and America and the practice of the business world. But the very statement of the so-called implied contract shows that it is a quasi-con- tract, not a contract proper, i. e., one implied as a fact by agreement. Therefore it arises out of a relation and depends upon the fact as to whether such a customary duty has so long prevailed as to have become an absolute rule of law. This is shown by the analogous relations of carriers and inn- keepers. But here a court has invented a customary duty for itself and then enforced it, when it could only enforce such a rule of law if the customary duty had prevailed so generally or for so long as to become a fixed and permanent rule of law. On either ground, then, this rule is untenable. But the courts and text writers have lost sight of the fact that the depositor's right is a double one : first, an actual con- tract creating a debt; second, a customary duty creating an obligation ^wm-contractual. The debt is not at all the re- sult of a duty, but the rule that gives the holder a right to sue seeks to create an actual contract of debt out of a cus- tomary duty, which never creates more than a quasi-contract. It must be remembered that a debt and the common-law remedy of debt are not the same thing. The action of debt lies on quasi-contract, but a ^^-contractual obligation is not 24 See note 20 and note 18 to this section. 250 BANKS AND BANKING. [ 147. a debt. Text writers have confused debt with the action of debt, or they never could have said that a duty creates a debt. Yet the decisions going upon other grounds gener- ally contend that the alleged contract between the parties creates the duty, and, because the nature of quasi-contract has not been until lately well understood, 25 it had been con- ceded that there is a contract between the depositor and the bank to honor his checks upon his fund. The right of the check-holder to recover is denied, because he is not a party to the contract. 26 This rule is unvarying wherever a con- tract is insisted upon as creating a relation out of which a duty arises. A contract of carriage of passengers, 27 a con- tract between attorney and client, 28 a contract between a telegraph company and the sender or receiver, 29 can only be sued upon by one who is a party to the contract, not by some one who is injured by the manner in which the con- tract is failed to be performed. This analogy is complete and runs all through the law, that a man to claim the .bene- fit of a contract must be in some way a party to it. The point has already been noticed that the check-holder is not a party to any contract between the bank and its depositor, even if there can be said to be a contract between them as to the duty to pay checks. There is of course the contract of loaning, which creates a debt, but this duty is wholly out- side of that relation. Such are the reasons which lead us to think that the rule in Illinois and the other states men- tioned is unsound and has no excuse for existing. But the prolonged and never-ending trouble that it causes the courts of that state 30 would be good reason for its abolition. But 25 Keener on Quasi-Contract, a Q. B. D. 503, cannot be considered as most admirable work and one that overruling this case. reflects the highest credit upon the 28 Nat. Bank v. Ward, 100 U. S. 195. jurists of this country. 29 McCornick v. Western Union 26 See the opinions in the cases Tel. Co., 79 Fed. R. 449. cited in note 14 to 140, ante, 30 The course of Illinois decisions 27 Winterbottom v. Wright, 10 M. is an excellent illustration of the & W. 109. Heaven v. Fender, 11 fact that the disregard of a sound DEPOSITS. 251 the courts of the state seem so firmly wedded to this propo- sition, untenable as it is, and confusing as it renders the law principle of law is, as Pope Pius IX said of the marriage of a priest, " an act which carries its own pun- ishment with it." We have already pointed out the absurd results of this rule in the instances men- tioned in note 26 to 138, ante, and note 22 to 140, ante, as well as the monstrous situation of a bank in case of insolvency in note 2 to 139, ante. Af ter the decision in Munnv. Burch, 25 III 35 (which Chief Jus- tice Breese at 68 111. 401, calls Mon- roe v. Beach), the court was com- pelled to admit the right of the depositor to suo on the check even though it had been presented. Chicago Ins. Co. v. Stanford, 28 111. 168, But the modification had to be at once made that the holder gained no right until he presented the check. Shaffner v. Edgerton, 13 Bradw. 132; Fourth Nat. Bank v. City Nat. Bank, 68 III 398. The check was called an equitable as- signment.yetsuituponitatlaw was allowed. Next it was said that the check must be payable in money, not exchange. Hogue v. Edwards, 9 Bradw. 148. This case displays almost a genius for being wrong. A check was given on a bank with a memorandum statement on it to show it was to obtain a draft. The check was paid by the issuance of a draft. The draft was never paid, and the holder of the check sued the bank. And it was held he could not recover. The check, of course, was accepted for so much money, and could be sued on anywhere by the holder. The only question was as to whether the issuance of a draft, never paid, was- payment. Of course it was not payment, Indig v. Nat. City Bank, 80 N. Y. 100. The bank obtained just so much money without giving any- thing for it. The court intimates that -the holder of the check could sue the drawee on the draft, but that is absurd, because it was never accepted. The draft was in fact a check on another bank, and the payment of that check was stopped or rather countermanded. The check was no less a check because drawn by one bank on another. State v. Vincent, 91 Mo. 662. Here the court recognize the right of the drawer to stop payment on the check as against the holder. A re- hearing was had, and in 9 Bradw. 263, the court in a per curiam opin- ion, although its gross error had been pointed out to it, yet per- sisted in its error, and said that there was no privity between the holder of the check and the bank, although the bank had accepted the check. The court seemingly holds also that the payee of the check, called a draft, could not sue the person who issued it. A more iniquitous result cannot be con- ceived. Yet here we have the doc- trine of the holder suing, absolutely annihilated for want of privity in the case of a check drawn by a bank. Next we find that the as- signment of the check carries with it legal title to the drawer's de- posit for the sum named in the check. Merchants' Nat. Bank v. Ritzinger, 20 Bradw. 27. In other words, the assignment of an equi- 252 BANKS AND BANKING. [ of banking, that there is little hope of a change. "Ephraim is joined to idols; let him alone;" but a later saying of the table assignment gives the assignee an assignment at law. Then we are told that a demand of payment and acceptance by telegraph are not sufficient to give the holder the right to sue. Myers v. Union Nat. Bank, 27 III App. 254 Then a demand before banking hours is held sufficient to give the holder the right to sue. American Ex. Nat. Bank v. Chicago Nat. Bank, 27 III App. 538. Then we are told that the bank cannot set off its own debt against the depositor where a check has been presented. Fourth Nat. Bank v. City Nat. Bank, 68 111. 398; Niblack v. Park Nat Bank, 169 111. 517. This is perhaps the worst result of the rule. A banker carrying a customer on his deposit may iind the whole deposit wiped out by a check suddenly presented. This seems to be on the theory that title passes to the holder upon the drawing of the check, otherwise it -could not cut off the banker's set- off. But the court has abandoned this idea by holding emphatically, as it has, that there is no assign- ment until presentation of the check. But if this is so, the orig- inal demand of the holder of the check is ended, and the drawer ought to be released, because if there are funds the presentation is the same as an acceptance of the check. Yet Ridgely Bank v. Pat- ton, 109 III 479, holds that the holder can sue and attach on his original claim, and yet sue the bank on the check. Even such a devo- tee of the new doctrine as Mr. Daniel scouts this absurd idea. 2 Daniel, Neg. Inst. (4th ed.), 1639. The court, with the courage of its convictions, originally held that acceptance or certification of the check cuts no figure; it does not release the drawer. Bickford v. First Nat. Bank, 42 III 238; Rounds v. Smith, 42 III 245; Brown v. Leckie, 43 111 497. The court's lan- guage was not confined to a check certified at the instance of the drawer. The theory was that, if the check was an assignment, ac- ceptance was perfectly immaterial. But the court was compelled to re- cede from this position. It was im- possible to leave a great commercial city like Chicago in such a condi- tion. And Metropolitan Bank v. Jones, 137 111. 634, holds that accept- ance by the bank releases the drawer. The court courageously undertakes to say the former rul- ings of the court are not in point because they were cases of certifi- cation to the drawer of the check; but it overlooked Wood v. Merch. Sav. Co., 41 111. 267, which was a certification of a note. The opin- ion in Metropolitan Bank v. Jones, supra, says no title passes to the holder by way of assignment until presentation. But the assignment is the assignment of what is equal to so much cash, and if the holder of the check gets title to the cash by presentation, what further is needed to give him title to the cash, so as to discharge the drawer? But then comes Bank of Antigo v. Union Trust Co., 149 III 343, and says that the check is an assign- ment only as between the drawer DEPOSITS. 255 prophet asserts, as a celebrated writer wittily observes, that Ephraim shall remain " a wild ass, alone by himself." and drawee before presentation. The learned judge must mean payee instead of drawee, but the confu- sion produced by this doctrine is so great that an erudite court must go " thundering down the ages " as holding the belief that the payee of a check is its drawee. Then we are informed that although the check on presentation does not re- lease the drawer, yet the bank loses its right of set-off as against a pre- sented check, although the debt is matured. Brown v. Leckie, 43 ILL 497; Fourth Nat, Bank v. City Nat. Bank, 68 III 398. And it loses this right as against a holder on an un- matured demand even though the check be not presented (Merchants' Nat. Bank v. Ritzinger, 20 Bradw. 27), it being immaterial that the maker is insolvent. Merchants' Nat. Bank v. Robinson, 47 Ky. 552. Again it is held that the outstand- ing unpresented assignment by check is not good against the bank's assignment of the deposit to itself by application of it on the debt of the depositor. Fort Dearborn Nat. Bank v. Blumensweig, 46 111. App. 297. Yet it is plain that the same rule ought to apply to an unma- tured demand if the depositor is insolvent. The latter is a case of equitable set-off, which ought to be good against an equitable assign- ment. If the holder has a claim against the bank by reason of a check, he surely ought to be able to set off the check which he holds against the debt which he owes to the bank. But by this process any depositor, by giving checks to men who owe the bank, can get paid in full, while other depositors must take what is left. The bank's as- sets could be reduced to a mini- mum by such a process. See 224, post. Finally, the court long ago, in McCagg v. Woodman, 28 111. 84, held that a depositor could set off his deposits against a note of his own to the bank maturing after insolvency. This was right, as it was a good case of equitable set-off. Yet the bank cannot set off its un- matured demand against an in- solvent depositor. The result is most inequitable. To be consistent the court should hold that the holder of a presented or unpresented check can set it off against an insolvent bank for a debt which is unma- tured at the date of the insolvency. This doctrine has so confused the court that it has forgotten that a bank cannot lend its credit for ac- commodation. Turning now to overdrafts, the court holds that if an officer of the bank promises the drawer without funds to pay his check, and the drawer tells this to the holder, the holder can sue upon it as a contract made with himself. Nelson v. First Nat. Bank, 48 111. 36. And by this decision the court puts a bank in the position of guaranteeing a corn-merchant's ac- count merely for his accommoda- tion. It went further in Springfield Marine Bank v. Mitchell, 48 111. App. 486, and made a bank a horse- dealer by estoppel. This farrago of warring decis- ions, rudis indigestaque moles, all results from an attempt to disre- 254 BANKS AND BANKING. [ 148. 148. Order of payment of checks. It is a part of the duty of banks, which some courts mistakenly call an implied contract, 1 to pay the checks of a depositor in the order in 'which they are presented. 2 If checks are presented at the same time, the bank may pay in the order that it pleases. 3 If there are more accounts than one, and one or more of them are disputed, the bank may apply the check upon an undisputed account. 4 It follows from the rule as to order of payment, that where a creditor of the depositor has ob- tained a lien by trustee process and has taken a check and gard a plain and well-settled rule of law produced By the rules of business. The text writers who support this rule had not contem- plated the practical results of its working.* The history of the decis- ions in one state shows that "a good thing is," as Howells some- where says, "never so much of a good thing as when it gets thor- oughly started." The painful spec- tacle presented by these Illinois decisions ought to be a valuable lesson to code-tinkers and the per- petrators of crude judicial or other legislation. Those people cannot be made to understand that the vital principles of the common law are the result of ages of experience and common sense tried and tested in the discussions in courts from day to day, from year to year, f r< n century to century. The product of these discussions has been a sys- tem of law, imperfectly developed here and there, it is true, but one whose ideal is simply justice. " On the rock primeval, hidden in the past its bases be, Block by block the endeavoring ages built it up to what we see." Its principles are not for yester- day, but for to-day. Its marvelous capacity for a natural growth is proven every day by its rapid adaptation to new conditions. As the great Grecian said of the funda- mentals of morals we may say of the vital principles of the common law: "The power of the Lord is mighty in them and groweth not old." Take, for instance, the de- velopment of jury trial and the rules of evidenca What a jury or other trial is without such rules we see in the hideous travesties of France. Those rules are of the same character, for they, as Lord Erskine splendidly says, are founded in the philosophy of nature, in the truths of history and in the expe- rience of common life. Matters of mere forms of pleading, or of the competency of witnesses, may vary from day to day, but the principles of substantive law, being a natural growth, cannot be tampered with without great evil resulting. 1 Chambers v. Northern Bank, 5 Ky. Law R. 123. 2 National Safe Co. v. People, 50 III App. 336. 8 Dykers v. Leather Manuf. Bank, 11 Paige, 612. 4 Hauptmann v. First Nat Bank, 83 Hun, 78. 149, 150.] DEPOSITS. 255 released his lien, and another trustee process is levied before his check is cashed, he loses his lien. 5 The same result would follow if a check were paid before he presented his own check. 149. Refusal of payment. We have already noticed the instances' where a bank may refuse payment. It may refuse to pay a part of a check, 1 but may agree to pay pro tanto* If it refuses to pay on account of defects in the check, such as to the signature, the defect should be pointed out. 3 It cannot refuse to pay checks because they were given with- out consideration or illegally, 4 unless, of course, payment on the check has been stopped. The checks must be paid in the form and manner prescribed by the depositor. 5 The bank is entitled to a reasonable opportunity to examine its books before payment. 6 150. Accepted and certified checks. By common con- sent and the usage of the commercial world, the certifica- tion of a check, or the acceptance of it by the bank at the instance of the payee, discharges the drawer of the check 8 Bullard v. Randall, 1 Gray, 605. which is payable to one for the ae- ^oates v. Preston, 105 111. 470; count of another. Ridgeley Bank v. Lowenstein v. Bressler, 109 Ala. Patton, 109 111. 479. But in the ab- 326; Eichelberger v. Finley, 7 Har. sence of other knowledge, would a & J. 381; In Matter of Brown, 2 bank be justified in thinking from Story, 519. Contra, Bromley v. such a check that the person for Comm. Nat. Bank, 9 Phila. 522. whose account the check was given 2 Dana v. Third Nat. Bank, 95 assented to the arrangement ? But Mass. 445. But the bank cannot probably it would be said that the force the holder to receive part depositor had the right to direct payment. In Matter of Brown, 2 how payment should be made, and Story. 519. the bank owed no duty to the ben- 3 Illinois State Bank v. Batty, 5 eficiary of the check. The check 111. 200. in the above case was payable to 4 McCord v. CaL Nat. Bank, 96 an attorney for the account of his Cal. 197. client, and the question did not 6 Metrop. Nat. Bank v. Race, 32 arise. 111. App. 126; Gladstone Ex. Bank 6 State Nat. Bank v. Boettcher, 5 v. Keating, 94 Mich. 439. But a Colo. 185. bank cannot refuse to pay a cheek 256 BANKS AND BANKING. [ 150, and substitutes the bank as a debtor. 1 In other words, a novation takes place. The depositor owes his creditor, and the bank owes the depositor. The three agree that the bank may owe the creditor, and the depositor is discharged. The- result is that so much of the depositor's account as corre- sponds to the accepted or certified check at once becomes the property of the bank; 2 that is to say, the check is paid. But the -same result as to the bank becoming entitled to so much of the depositor's account follows upon a certification granted to the drawer of the check; but in this latter case the transaction is a different one, because there is in fact no novation, there being no third party to the transaction. Hence such a certified check delivered to the payee is not payment of a debt between the drawer of the check and the payee. 3 Upon both such descriptions of certified checks the bank becomes responsible to the payee, but with this differ- ence: a certification granted to the drawer of the check, not being payment of any claim as between the drawer and the payee, and not being, therefore, a novation, may be revoked by the bank for a mistake as to the drawer's credit with the bank, except when the check has passed to a bona fide in- dorsee, or when the payee of the check has parted with value or suffered a detriment on the faith of the certifica- tion. 4 The reasons for this rule are that the certification has 1 See note 11 to 146, ante, and 634; Born v. First Nat Bank, 12a Nat. Laf. Bank v. Cin'ti Oyster Co., Ind. 78; Minot v. Russ, 156 Mass. 458. 18 Wkly. Law Bui. 350. The bank This result follows even though the becomes liable. Drovers' Nat. Bank certification was obtained at the v. Packing Co., 117 111 100; Irving request of the payea Randolph Bank v. Wetherald. 36 N. Y. 335. Nat. Bank v. Hornblower, 160 Mass. 2 Merchants' Bank v. State Bank, 401. But this last decision is not 10 Wall 604 The certification need sound, because there was a nova- not be entered on the books or made tion. in banking hours. See the last case 4 Lynch v. First Nat. Bank, 107 and Brown v. Leckie, 43 111. 497. N. Y. 179; Goshen Nat. Bank v. But the bank is simply a debtor, Bingham, 118 N. Y. 349. The owner not a trustee. Girard Bank v. Bank, of the check can claim only to the 39 Pa. 92. amount actually expended upon it. 3 Larsen v. Breene, 12 Colo. 480; Brooklyn Trust Co. v. Toler, 65 Hun, Metropolitan Bank v. Jones, 137 III 187, 138 N. Y. 675. 150.] DEPOSITS. 257 been granted by a mistake of the bank. The drawer has no right to complain, because he knew that the official of the bank had no right to grant him a certification of his check when he had no sufficient credit with the bank. The payee of the check who has suffered no detriment, or his in- dorsee who did not pay value for the check, has no right to complain, because he has lost nothing by the certification. 5 But where a certification has been granted to the payee or the indorsee of the check, the situation is wholly differ- ent. The debt owing by the drawer to the payee, for which the check was given, has been paid by the payee choosing to go to the bank and accepting its certification in lieu of the drawer's debt to him. A complete novation has taken place, and on the strength of the certification the payee has parted with full value, to wit: the debt or claim owing to him by the drawer of the check, which has been paid. To this transaction there were three parties; to the former transaction there were but two. Therefore,' a certification granted to a payee or a bonafide indorsee of a check is final and cannot be revoked. 6 But here again courts have refused to see a plain distinction, and they are found holding, in spite of well-settled principles, that the bank may revoke its certification granted to the payee, where he has not altered his position and will lose nothing, as they say; 7 a statement 5 See the cases cited in the last ble; Dillaway v. Northwestern Nat. nota The word used in the text is Bank, 82 111. App. 71. This last case " indorsee," not " transferee." In- says the check's certification may dorsement is necessary. See the be rescinded where no rights have second case in last note. intervened. But by the very nature 6 Riverside Bank v. First Nat. of the transaction rights have in- Bank, 74 Fed. R. 276, and cases tervened, because the drawer's debt therein. to the payee was paid, and the 7 Second Nat. Bank v. Western payee has parted with full value, Nat. Bank, 51 Md. 128; Irving Bank as Metropolitan Bank v. Jones, 137 v. Wetherald, 36 N. Y. 335 (but see 111. 634, shows. This assumption this case explained in Riverside in the face of the absolute fact of Bank v. First Nat. Bank, supra); novation is inexplicable But the Louisiana State Bank v. Hibernia fallacy lies at the base of all these Bank, 26 La. Ann. 399; Bank of Re- erroneous decisions. But the rule public v. Baxter, 31 Vt. 101, sem- would protect actual expenditure^ 17 258 BANKS AND BANKING. [ 150. which is a contradiction in terms, for he has already taken the check as payment. As a matter of deduction, the same rule would apply to a certification obtained by fraud. It may be revoked, except in the hands of a bonafide holder. 8 The officers of the bank who have implied authority to certify checks are the president, 9 the cashier, 10 the paying teller, 11 and, of course, the board of directors. 12 The usual form of accepting is by writing or stamping the word "good," or " certified " upon it. But a verbal acceptance is good, 13 except where the drawer has no funds, 14 and except in those states whose statutes require a written acceptance. 15 Although it is said that a promise to accept a check is not binding where the drawer has no funds, 16 yet, if the bank has agreed to accept the check with one who advances value to pay the check, the bank becomes an acceptor. 17 A certification made where the drawer has no funds is not binding, except in the hands of a bonafide holder of the check; 18 but it should appear that the certification took place in the usual course of business, even in the case of one in good faith obtaining it. 19 But the bank's liability upon a mistaken or a fraudu- lent certification is only to the extent of the lona fide hold- See Brooklyn Trust Co. v. Toler, in the statute of frauds. But an oral note 4, supra. acceptance is good where the 8 Goshen Nat. Bank v. Bingham, drawer is acting for another who 118 N. Y. 349. See note 5, supra. has funds. Leach v. Hill, 76 N. W. Claftin v. Farmers' Bank, 25 N. Y. R 667. 293; Wild v. Passamaquoddy Bank, ls Those states consider an accept- 3 Mason, 506. ance of a check governed by the 10 Merchants' Bank v. State Bank, rule as to a bill of exchange. 10 Wall 604 i Bowen v. Needles Nat Bank, 87 u Farmers' Bank v. Butchers' Fed. R 430; Morse v. Massachusetts Bank, 28 N. Y. 475. But contra, Nat Bank, 1 Holmes, 209. Mussey v. Eagle Bank, 9 Met 373. "Allen Co. Bank v. Carter, 88 12 See the last two cases. Tenn. 287. This last case goes far 13 Jarvis v. Wilson, 46 Conn. 90; enough. The Illinois cases are fla- Pierce v. Kittredge, 115 Mass. 374; grant errors. See note 10, 146, ante. Farmers' Bank v. Dunbar, 32 Neb. 18 Stevens v. Com. Exchange 487; Barnet v. Smith, 30 N. H. 256; Bank. 3 Hun, 147; Gibson v. Na- and see note 4 to 146, ante. tional Park Bank, 98 N. Y. 87. 14 Morse v. Massachusetts Nat. 19 Dorsey v. Abrams, 85 Pa. 299. Bank, 1 Holmes, 209. It is within 151.] DEPOSITS. 259 er's loss. 20 "Where the certification is of forged or altered paper, so forged before certification, the certificate warrants the signature of the drawer, but not that of an indorser, 21 nor the amount of the check, 22 and a custom is not admissible proof to show that it does. 23 The bank is not liable to an innocent payee or holder of a certified check, which is altered after certification, unless its negligence gave an opportunity for the alteration. 24 A certification of a check payable to a fictitious payee is good in the hands of a lona fide holder. 25 A demand upon a certified check is necessary before suing upon it, but that demand need not be made within a reason- able time. 26 The certified check is good until its efficacy expires by virtue of the statute of limitations. 27 It is said that a bank cannot set off the holder's indebtedness to it as against its liability on a certified check, 28 but that proposi- tion is, of course, not sound. Possession of a certified check by the drawer raises the presumption that it belongs to the drawer. 29 151. Fictitious payees. The general rule is that a check payable to a fictitious payee is payable to bearer ; but if a real person is intended by the name of the payee, the check must be indorsed by that person or by some one with authority from him, otherwise a forgery is perpetrated in 20 Brooklyn Trust Co. v. Toler, 65 26 Farmers' Bank v. Butchers' Hun, 187, 138 N. Y. 675. Bank, 16 N. Y. 125; Bank of British 21 First Nat. Bank v. Northwestern North America v. Merchants' Bank, Nat. Bank, 152 111. 296. 91 N. Y. 106. - Parke v. Roser, 67 Ind. 500 ; Clews 27 French v. Irwin, 4 Baxt. 401. v. Bank of New York, 89 N. Y. ^ Brown v. Leckie, 43 III 497. 418; Marine Nat. Bank v. City Nat. This decision is utterly wrong, be- Bank, 59 N. Y. 67. cause as to the drawer as well as 23 Security Bank v. National Bank the drawee the check would be paid of Republic, 67 N. Y. 458. by the bank's credit to the payee 24 Helwege v. Hibernia Nat. Bank, by way of set-off. This case is an- 28 La. Ann. 520. other illustration of the Illinois 25 Meridian Nat. Bank v. First Nat. confusion. Bank, 33 N. E. R, 247; Merchants' 29 Buehler v. Gait, 35 III App. 225. Trust Co. v. Metropolis Bank, 7 Daly, 137. 260 BANKS AND BANKING. [ 152. indorsing the check. But a fictitious payee may be intended although the name of a real person is used. 1 Such checks when paid are good as against the drawer. 2 But a fictitious payee is not a person who is not in existence, but whom the drawer believes to be in existence. 3 Payment upon an indorse- ment representing such a payee is .lot payment. 4 Such is the rule where a drawer is imposed upon to draw a check pay- able to a fictitious person. 5 But if the drawer has been guilty of negligence in the manner of drawing the check and perhaps of delivering it that misleads the bank, the pay- ment is good. 6 The certification of a check made payable to a fictitious payee is good in the hands of a lona fide holder thereof. 7 152. Bate upon checks. It is said by a text writer that if a check is not dated it is never payable, 1 but the law is that such a check may be filled in with the true date, or if not filled in is payable upon demand, so far as the bank is concerned. The issuing of the check with a blank date is implied authority to any holder to fill in a date. 2 But caution would dictate to a bank a request to have the check properly filled in as a measure of protection to its depositor. But a check is not payable until its date. 3 A check post-dated 1 Irving Bank v. Alley, 79 N. Y. ford v. West Side Bank, 100 N. Y. 536; First Nat. Bank v. Farmers' 50, contra as to the negligence in Bank, 76 N. W. R. 430. the manner of delivering the check. 2 Phillips v. Merchants' Nat Bank, The true rule would be this: If the 140 N. Y. 556. bank was guilty of negligence in 8 Shipman v. Bank of the State, paying the check, the antecedent 126 N. Y. 318. Contra, Bank of Eng- negligence of the drawer is imma- land v. Vagliano, (1891) App. Gas. 107. terial, provided that negl igence did 4 Armstrong v. Pomeroy Nat. not throw the bank off its guard. Bank, 46 Ohio St. 512, and case 7 See note 25 to preceding section, last cited. * Morse on Banking, 238. 8 Case last cited. Such a case be- 2 See Crawford v. West Side Bank, comes merely a case of payment 100 N. Y. 50, and 2 Ency. Law upon a forged indorsement of the (2d ed.), 255. paj-ee's name. See154,156,t'n/ra. s Gordon v. Commonwealth Bank, 6 Burnet Sav. Co. v. German Nat. 6 Duer, 76. Compare Taylor v. Sip, Bank, 4 Ohio Dec. 290; Smith v. Me- 80 N. J. Law, 284. chanics' Bank, 6 La. Ann. 610; Craw- 153.] DEPOSITS. 261 on its face is an inland bill of exchange 4 and is entitled to days of grace. 5 A check signed before its date, which is altered by the depositor's book-keeper as to the date and cashed, the depositor having been guilty of no negligence in drawing the check, leaves the bank liable. 6 But the bank is only liable to the depositor upon an altered check for pay- ing ; as to other parties it is not liable, and takes no risk except that the drawer's signature is genuine. 7 If a bank pays a check before its date it is not entitled to charge it against the depositor's account. 8 153. Revocation of check. The cases where checks have been in effect revoked by an assignment of the deposit, or by the garnishment of the deposit, or by the death or in- solvency of the depositor, or by the bank's application of the deposit, have been already considered. But the drawer of a check has the right to revoke it at any time before it is accepted, 1 or, if not accepted, at any time prior to its pay- ment. 2 In those states which allow the holder to sue upon a check, it may be revoked at any time prior to its presenta- tion. 3 But a check may also be revoked by the payee, 4 4 See 205, post. be liabla Elder v. National Bank, See last note. 55 N. Y. Supp. 576. 6 Crawford v. West Side Bank, 2Dyk ers v. Leather Mfg. Bank, 100 N. Y. 50. 11 Paige, 612. Compare Freund v. 7 National Bank of Com. v. Na- Importers' & Traders' Bank, 76 tional Mechanics' Bkg. Ass'n, 55 N. Y. 352, where the check had N. Y. 211; Crawford v. West Side been certified. If notice is given, Bank, 100 N. Y. 50. This statement the burden is on the bank to show is inserted here to prevent the text payment prior thereto. Albers v. from being misleading. Commercial Bank, 85 Mo. 173. Pease 8 See cases cited in notes 3 and 6 to v. Landauer, 63 Wis. 29, denies this this section. arbitrary right and says it can only 1 Acceptance releases the drawer be exercised for good cause. See and substitutes the bank as debtor, also Bremer Co. Bank v. Mores, 73 It is merely another name for one Iowa, 289. species of payment. If the bank 8 Tramell v. Farmers' Nat Bank, pays a revoked check through neg- 11 Ky. Law R. 900. There is a pe- ligence, it is liable though the de- culiar case in Massachusetts, which positor agreed the bank should not held that the drawer of the check * Public Grain & Stock Ex. v. Kune, 20 Bradw. 137. 262 BANKS AND BANKING. [ 154:. when the check has been unindorsed by him, and, on prin- ciple, whenever the check has not passed into the hands of a lona fide, holder, at any time prior to acceptance, or in some states presentation, or, if not accepted, at any time prior to payment. But a check indorsed by the payee's author- ized agent, during the life-time of the payee, may be paid by the bank to the holder after the payee's death. 5 If the check is paid by the bank after having been properly re- voked, the bank becomes liable for the amount of the check either to the depositor revoking 6 or to the payee revoking. 7 154. Forged or altered paper. Forgery may consist of a forgery or alteration in the body of a check really signed by the depositor, or it may consist of the simulation of the depositor's signature, or it may be that the name of a payee has been forged upon the check. The difference between the three cases is very marked as regards the rights of a bank on the payment of forged or altered paper. The case of payment by a bank of a check on itself, where the drawer's signature is forged, is governed by the rule that a bank is bound to know the signature of its own depositor. 1 There- fore, taking the case first of certification of a check, which is a species of payment, if the bank certifies a forged check on itself, the certification ought to be, it might seem, at first blush, final and irrevocable as to an innocent holder of the check, where the forgery consists of a forgery of the name of the drawer. 2 But the rule that the certification of could not stop payment of his own which do not permit the holder to check given to one who had passed sue before certification or accept- it to the bank, but which the bank ance. But see note 8 to 146, ante. had not paid. Charles River Nat. The action should be for money Bank v. Davis, 100 Mass. 413. had and received, and should not 5 Brennan v. Merchants' Bank, 62 be upon the check itself. Mich. 343. l The cases cited in the notes fol- 6 Schneider v. Irving Bank, 1 lowing this all recognize this very Daly, 500. obvious proposition. 'Public, etc. Ex. v. Kune, 20 2 See the principle decided in Bradw. 137. And this ought to be Riverside Bank v. First Nat Bank, the rule in those jurisdictions, 74 Fed. R. 276, 38 U. S. App. 674, 154] DEPOSITS. 263 a check, forged as to the name of the drawer, only binds the bank as to the payee's loss upon it, is proper, because the bank cannot charge the check against the drawer. Herein lies the distinction between this case and that of certifi- cation to the payee, owing to a mistake as to the state of the account, spoken of in section 150, cvnte. The bank is, of course, held as to a lona fide indorsee, for he relied upon the bank's certificate when he paid value. Even if a certified check has been stolen, a ~bona, fide holder of ne- gotiable paper is protected as against the bank. 3 If the person obtaining the check to be certified had notice of the forgery, his conduct, it is plain, would be a fraud and he could claim nothing from the certification. If the holder of the check, however, believes it to be good and alters his position on the strength of the certification, he becomes a bonafide holder for value. 4 But in the case of a holder who has lost nothing by the certification, the rule ordinarily would be, both thinking the check genuine, that the certification could be revoked on the ground of mutual mistake. 5 The bank, it is true, is bound to know its drawer's signature, as it is bound to .know the state of the drawer's account; yet the holder of the check has parted with nothing of value on the strength of the certificate. 6 But there are cases where the bank can charge a check forged as to the maker's name against the But the rule is that the certifica- of the bank is based upon its con- tion of a check forged as to the tract of certification, name of the drawer can be revoked 5 It may be considered either a in the hands of the person to whom mistake as to the existence of the it has been certified, except as to his subject-matter or a mistake as to loss upon the certification. See its essential qualities, preferably 150, ante, where the authorities the latter. See for the rule, Clark are given as to a mistake in the on Contracts, 298. See 150, ante, drawer's account. notes 6 and 7. 3 Nolan v. Bank of New York, 67 6 See 150, ante, for the reasons Barb. 24 that govern this casa There is 4 Meads v. Merchants' Bank, 25 some question as to the rule in N. Y. 143. The element of knowl- case of a mistake as to the state of edge of the falsity is lacking to the account. See Riverside Bank make this a case of false represen- v. First Nat. Bank, supra, and note Cation by the bank. The liability 7 to 150, ante. 264 BANKS AND BANKING. [ 154. maker. 7 In such a case the bank, under any circumstances, ought not to be permitted to revoke its certification or to recover its payment, because it would otherwise charge the check against the drawer; yet the drawer would have paid nothing by the check. 8 Therefore, in a suit between the bank and the holder to whom it had certified a check forged as to the drawer's name, there would necessarily be litigated the right of the matter as between the bank and the drawer of the check. So that the common sense of the matter is that certification of a check forged as to the maker's name, where the bank can charge the check against the- drawer, ought to bind the bank to the person to whom the certifica- tion was given or into whose hands the certified check came, if he were in good faith. The same rule would apply to a check paid, whatever the circumstances, where the forgery was of the drawer's signature. 9 Such payment is final. But leaving out of view this exceptional case of a certified check, if the person to whom the check was paid was at fault, 10 or did not perform his whole duty in the matter, 11 the bank will not be estopped by its payment. These rules suffer some modification owing to the rules of clearing-houses and transactions between banks, as will appear in the next sec- tion. As regards the depositor, the bank cannot charge 7 See the cases cited in notes 13 of deposit. Stout v. Benoist, 39 and 14, infra. Mo. 277. See 2 Har. L. R 297. 8 In that case there would be no 10 Levy v. First Nat. Bank, 27 Neb. mistake, since the check would be 537; Merchants' Bank v. Melntyre, genuine as to the drawer. See 2 Sandf. 431; National Bank v. Levy v. First Nat. Bank, 27 Neb. Bangs, 106 Mass. 441. This last case 557, which apparently recognizes seems to say that where a payee has that the bank must be liable to given credit to the check by his the drawer if it pays the check. indorsement, he cannot claim that 9 See Bank of U. S. v. Bank of the bank was bound to know its Georgia, 10 Wheat 333; First Nat. depositor's signature. But this rule Bank v. Ricker, 71 111. 439; Deposit only applies between banks. See Bank v. Fayette Bank, 10 Ky. Law next section. R 350; Bank of St. Albans v. Farm- "City Bank v. First Nat. Bank, ers' Bank, 10 Vt. 141; Germania 43 Tex. 203; Rouvant v. National Bank v. Boutel, 60 Minn. 189. The Bank, 63 Tex. 610; First Nat. Bank same rule applies on a certificate v. Ricker, 71 III 439; Ellis v. Ohio Life Ins. Co., 4 Ohio St 62a DEPOSITS. 2G5 against him paper which he never signed. 12 But the de- positor may have been at fault in misleading the bank by his conduct prior to the time the bank paid the forged paper. In such a case, if his conduct amounts to an estoppel upon him, the bank may charge such checks against him. 13 The depositor may also have been guilty of wrong conduct after the bank has paid the check. The majority of courts, basing their holding upon the proposition that the subsequent neg- ligence of the depositor misleads the bank, recognize that a depositor owes to his banker the duty of examining the re- turned vouchers and at once notifying him of the forgery. 14 The failure in this duty is said to be an implied admission of the genuineness of the signature, 15 or a ratification of the payment. 16 Even if the depositor commits this duty to an agent who happens to be the forger, the depositor is bound by the agent's act, either in not communicating his own 12 Hardy v. Chesapeake Bank, 51 Md. 562; Hatton v. Holmes, 97 CaL 208; Frank v. Chemical Bank, 84 N. Y. 209; Georgia Banking Ass'n v. Love and Good Will Soc., 85 Ga. 293; Leavitt v. Stanton, H. & D. Supp. 413 (a very peculiar case). ^Crawford v. West Side Bank, 100 N. Y. 50, is negligence in draw- ing the check as to form. Smith v. Mechanics' Bank, 6 La. Ann. 610. is negligence in delivering the check. But with the last case compare Welsh v. Germ. Am. Bank, 73 N. Y. 424. The use of a rubber stamp as a fac simile signature is not negligence unless it was neg- ligently kept. Robb v. Pennsyl- vania Co., 186 Pa. 456. But this proposition must be very carefully examined, because if, in spite of the depositor's antecedent negligence, the bank could have avoided the payment by the exercise of due care, the general rule (see note 14 to 363, post) requires that the antecedent negligence of the de- positor should be considered imma- terial. 14 Leather Manuf. Bank v. Mor- gan, 117 U. S. 96; Janin v. London Bank, 92 Cal. 14; Dana v. Nat. Bank of Republic, 132 Mass. 156; Weinstein v. National Bank, 69 Tex. 38; Hardy v. Chesapeake Bank, 51 Md. 562; Wind v. Fifth Nat. Bank, 39 Mo. App. 72; First Nat. Bank v. Allen, 100 Ala. 476; Am. Nat. Bank v. Bushey,45 Mich. 135. But this rule is strenuously denied in New York. Welsh v. Germ. Am. Bank, 73 N. Y. 424; Frank v. Chemical Bank, 84 N. Y. 209; Shipman v. State Bank, 126 N. Y. 318 (the last was a very hard case). 15 Hardy v. Chesapeake Bank, 51 Md. 562. iDana v. National Bank, 132 Mass. 156. 266 BANKS AND BANKING. [ 154. forgery to his employer or in not notifying the bank to put him in the penitentiary. 17 But, nevertheless, the bank must show that it has suffered loss, 18 and, in reason, the depositor ought to be held only to the amount of that loss. 19 A part of the depositor's duty is to return at once the forged check to the bank. If he holds it after knowledge of the forgery he ratifies the bank's act, 20 unless it is done at the bank's re- quest. 21 The next case to consider is where the indorsement on the check is forged. As to this matter the bank owes a duty only to its depositor. 22 All other people through whose hands the check passes have an equal opportunity with it- self of discovering such a forgery. Therefore, if the bank pays a check which contains a forged indorsement, it may collect the amount paid from the person to whom it was paid. 23 If that person were innocent, there was a mutual mis- take. If he knew of the forgery he was guilty of fraud, and the same rule exactly applies to the certification of a check. 24 The bank by its certification does not in any sense warrant the indorsement upon the paper or check which it certifies. Its liability is confined to the signature of the de- positor in the bank, which would be, of course, the first in- dorsement on a certificate of deposit. 25 Now as to a forged " First Nat Bank v. Allen, 100 Merchants' Bank v. Marine Bank, 3 Ala. 476. This rule seems strange, Gill, 96. But where the payment but it is sound. See note 18 to is made upon an indorsement of a 111, ante. Contra, Weisser v. fictitious name assumed by the per- Denison, 10 N. Y. 68. son intended, there is no forgery; 18 Janin v. London Bank, 92 it is otherwise if the indorser per- CaL 14. senates a real person. First Nat. w Brixen v. Deseret Nat. Bank, 5 Bank v. Farmers' Bank, 76 N. W. R. Utah, 504. 430. See note 5 to 204, post. 20 Van Wert Nat. Bank v. First 24 Meads v. Merchants' Nat. Bank, Nat. Bank, 6 Ohio Cir. Ct R 130. 25 N. Y. 143; Irving Bank v. Weth- 21 Brixen v. Deseret Nat Bank, 5 erald, 36 N. Y. 335. Utah, 504. 25 See note 32 to this section. This 22 Crawford v. West Side Bank, statement in the text must be 100 N. Y. 50. understood with the qualification 23 Espy v. Bank of Cincinnati, 18 that the bank itself has done noth- WalL 605; Corn Exchange Bank v. ing to mislead the person to whom Nassau Bank, 91 N. Y. 74. Contra, it paid or gave its certification. DEPOSITS. 207 indorsement, the bank cannot charge such a check against the depositor if it pays it ; a and the situation is different as to the duty of the depositor. While he is under the duty of examining returned vouchers, he is not expected to discover a forged indorsement. 27 If he finds a forgery he should within a reasonable time notify the bank, and his failure to do so, if it causes injury to the bank, may be charged against him as a failure of duty. 28 The depositor in some cases has been said to be bound by a forged indorsement, where he has himself been guilty of negligence in not taking care as to the payee, 29 but this statement is not true. There must be an estoppel. 30 The last case to be considered is that of forged or altered paper, where the amount has been raised. It is necessary to consider first the case of certification and next the case of payment. The alteration may be made either before or after certification. If made before certifi- cation, the bank by its certificate simply warrants that the Bank, 46 Ohio St. 512. Compare Burnet Co. v. German Nat. Bank, 4 Ohio Dec. 290; De Feriet v. Bank of America, 23 La. Ann. 310; Hardy v. Chesapeake Bank, 51 Md. 562 - t Mackintosh v. Eliot Bank, 123 Mass. 393; Dana v. National Bank of Re- public, 132 Mass. 146; Robb v. Penn- sylvania Co., 186 Pa. 456. 30 Welch v. German-American Bank, 73 N. Y. 494. Compare Goetz v. Bank, 119 U. S. 560. It is diffi- cult to see how the antecedent con- duct of the drawer is material, unless it amounts to a representa- tion of a fact or a concealment of the truth. Otherwise it has no causal connection with the bank's neglect See the last note and Na- 26 See note 12 to this section. 27 Brixen v. Deseret Nat. Bank, 5 Utah, 504 But the bank must discover forged indorsements as against its depositor. Bank of Brit- ish North America v. Merchants' Nat. Bank, 91 N. Y. 106; Citizens' Nat. Bank v. Importers' & Trad- ers' Bank, 119 N. Y. 195. The fact that the last indorsement was good is immaterial. Atlanta Nat. Bank v. Burke, 81 Ga. 597. The bank need not regard the handwriting of the body of the check. Grain v. Hor- ton, 5 Wash. 479. 28 United States v. National Ex. Bank, 45 Fed. R. 163. But if the bank's officers could have detected the forgery before payment, the depositor's negligence is immate- tional Bank v. Nolting, 94 Va. 263. rial. Bank v. Morgan, 117 U. S. The depositor ought always to be 112. As to what is a reasonable permitted to assume that the bank time, see Cooke v. United States, will pay only on a genuine signa- 91 U. S. 389, 402. ture. See Dodge v Bank, 30 Ohio 29 Armstrong v. Pomeroy Nat. St. 1, 20 id. 234. 268 BANKS AND BANKING. [ 154:. drawer's signature is genuine and that he has funds. It does not warrant the amount of the check to be correct. 81 There- fore the bank is not bound to even a Tjona fide holder upon its certificate, if it acts in good faith. 32 It need not revoke the certificate, because it cannot be held on it; yet banks often take precautions to warn the public and other banks against forgeries and altered paper. 33 But the law, while it does not hold the banker liable in any case upon the certifi- cate as a contract, where paper is raised before certifying, nevertheless holds every man to fair and honest dealing to- wards others, so far as such dealing can be brought within legal principles. Therefore, if the certifying bank acted with such culpable negligence in not ascertaining facts which would have indicated to it the forgery that its con- duct amounts to bad faith, it will be held upon its certifi- cate. The court puts it upon the ground of negligence, but it is more consonant with legal conceptions to call it estop- pel. 34 If the alteration is made after the certificate was given (the drawer, of course, having the right to change the payee before he delivers the check), 35 it is not liable upon the cer- tificate, 36 or at any rate for not more than the check orig- inally was, 37 and on principle, if it pay the check without being at fault, it may recover from the payee, 38 although the 31 Clews v. Bank of New York, 89 34 Clews v. Bank of New York, 105 N. Y. 418; Parke v. Roser, 67 Ind. N. Y. 398, 114 N. Y. 70. Teller who 500; First Nat. Bank v. Northwest-- says his own forged certificate is ern Nat. Bank, 152 III 296 (as to good binds the bank. Continental the certificate being a warranty Bank v. Commercial Bank, 50 N. Y. only of the signature of the drawer 575. and the presence of funds); Marine 3 * Abrams v. Union Nat. Bank, 31 Nat. Bank v. National City Bank, La. Ann. 61. 59 N. Y. 67; Espy v. Cincinnati 36 Clews v. Bank of New York, 105 Bank, 18 Wall 605. N. Y. 398, 114 N. Y. 70. 32 Clews v. Bank of New York, 89 37 Merchants' Bank v. Exchange N. Y. 418. Custom is not admissi- Bank, 16 La. 457. ble to charge the bank. Security ^Redington v. Woods, 45 CaL 406; Bank v. Nat. Bank of Republic, 67 Parke v. Roser, 67 Ind. 500; Espy N. Y. 458. v. Cincinnati Bank, 18 Wall 605; 33 See Hagan v. Bowery Nat. Bank, Corn Ex. Bank v. Nassau Bank, 91 4 Barb. 197. N. Y. 74. See note 23, ante. 154.] DEPOSITS. 26D cases are not consistent in their language. 39 But there are cases which hold the bank liable where its own negligence gave an opportunity for the raising of the check. 40 It will be seen that in some cases the bank, even if it has paid a check that has been raised, may charge it against the depositor. 4 Therefore, if it can charge the check against the depositor, where the alteration was made before certifying, the bank ought to be bound to make the certificate good to the holder, because the check has actually become genuine. 42 The same rules exactly apply to payment. A certified check, when paid, is paid as the obligation of the bank, not of the drawer. Therefore the depositor is not concerned with an alteration which took place after certifying. He was no longer a party to the contract. It has already been stated that the bank paying without fault on its part a certified check, whether raised before or after certifying, may recover of the person to whom it paid. 43 If it pay an uncertified raised check without fault on its part it may recover of the last payee, 44 unless it can charge the check against the depositor, when in justice it ought not to recover against the payee. 45 The bank, as a general rule, cannot charge forged paper altered as to amount against the depositor. But where the depos- itor has- been guilty of negligence in so drawing the check as to facilitate the forgery, the bank may charge the check against its depositor. 46 "What would be negligence in the 39 National Bank of Commerce v. 43 See note 38 to this section. National Mechanics' Banking Ass'n, 44 See note 88 to this section. Mer- 55 N. Y. 211, seems to qualify the chants' Bank v. Exchange Bank, 16 right upon the holder not having La. 457. This rule as to an uncerti- suffered injury. But the bank, it fled check must be governed by the is said, must have paid without same qualification as to the bank's negligence. Redington v. Woods, exercise of due care in payment 45 CaL 406. that is made in Redington v. Woods, 40 Helwege v. Hibernia Nat. Bank, 45 Cal. 406. This qualification holds 28 La. Ann. 520; Godchauxv. Union as between banks. See note 1 to Nat. Bank, 28 La. Ann. 516. This next section. is the rule as to the drawer of the 45 See note 8 to this section, check. 4" Crawford v. West Side Bank, 41 See note 46 to this section. 100 N. Y. 50. 42 See note 8 to this section. 270 BANKS AND BANKING. [ 155. depositor will necessarily be a difficult question to solve. 47 But the bank's contributory negligence ought to be a com- plete defense. 48 The reason of this rule is that the bank was guilty of the last clear act of negligence without which the payment would not have been made. The negligence of the depositor after payment in failing to examine the vouchers, or to compare the amounts of the checks as drawn with the checks returned, may amount to a ratification or an implied admission, 49 for the depositor can always be expected to know the amounts of the checks which he has drawn. 155. Forged paper as between banks. The rule that payment by a bank of a check drawn on itself, where the drawer's name is forged, does not obtain as between banks. The rule is said to be by courts of not the highest authority that the first bank indorsing the check guarantees the sig- natures on the check, including the maker's. 1 It is impliedly decided in other cases, but this ^particular language is not used. 2 But if the second bank is guilty of negligence, 3 or of ment having been forged, the for- gery of the drawer's name was im- material. Custom may be admitted to prove this rule. Ellis v. Ohio Life Ins. Co., 4 Ohio St. 628. But if the paying bank was negligent it cannot recover. First Nat. Bank v. First Nat. Bank, 58 Ohio St. 207. Cases seemingly contra to the text are Deposit Bank v. Fayette Nat. Bank, 90 Ky. 10; Comm. Nat. Bank v. First Nat. Bank, 30 Md. 11, and Northwestern Nat. Bank v. Bank of Commerce, 107 Mo. 402. 2 First Nat. Bank v. First Nat. Bank, 151 Mass. 280; Third Nat Bank v. Allen, 59 Mo. 310; First Nat. Bank v. State Bank, 22 Neb. 769; State Nat. Bank v. Freedman's Sav. Bank, 2 Dili 11. 3 Salt Springs Bank v. Syracuse Sav. Inst, 62 Barb. 101. 47 See note 27 to this section, and Crawford v. West Side Bank, supra. 48 Leather Mfg. Bank v. Morgan, 117 U. S. 96. The statement in the text is what the case meant to decide, but in the case before it the court was concerned with the negligence of a depositor sub- sequent to the payment. As to that negligence the antecedent neg- ligence of the bank would be im- material, but as this case stands it is an authority to the contrary. 49 See notes 14, 18, 19, 20, ante, to this section. 1 First Nat. Bank v. Northwest- ern Nat Bank, 40 III App. 640; First Nat Bank v. First Nat. Bank, 4 Ind. App. 355; Indiana Nat. Bank v. First Nat Bank, 9 Ind. App. 185. The first case on appeal (152 I1L 296) was not affirmed as to this point, the court saying, the indorse- 156.] DEPOSITS. 271 a delay which caused injury, 4 the indorsing bank will not be liable to it. 5 If the paper is a forgery owing to a forged indorsement, or to the amount being altered, the first bank indorsing the paper is liable to the other banks taking the paper or paying it. 6 The reason of this rule is so plain that it needs no comment. It is said, however, that if the sec- ond bank is guilty of negligence or delay in reporting the forgery or negligence in discovering such a forgery, the in- dorsing bank will be exonerated. 7 But this statement is strenuously denied by very high authority. 8 But where the statute requires diligence to be shown, the failure to exhibit such diligence by the second bank will be a defense as to the bank first indorsing the paper. 9 The real ground of re- covery is upon the indorsement or receipt of the money, but some courts lay stress upon the indorsing bank's negligence. 10 The rules of the clearing-house are binding upon banks set- tling accounts by that medium, 11 so far as the rule extends, even upon forged paper. 156. Lost or stolen checks or certificates. The bank takes the risk as to the ownership of stolen or lost paper not negotiable. If it pay such paper upon forged indorsements 4 First Nat. Bank v. First Nat. N. Y. 12; Bank of Com. v. Grocers' Bank, 151 Mass. 280, semble; Third Bank, 2 Daly, 289. Nat. Bank v. Central Nat. Bank, 76 6 Corn Exchange Bank v. Nassau Hun, 475, semble. Bank, 91 N. Y. 74; First Nat. Bank 5 Some cases put the right of re- v. Northwestern Nat. Bank, 152 111. co very upon the ground of the first 296; Central Nat. Bank v. North bank's negligence. First Nat. Bank River Bank, 44 Hun, 114. v. First Nat. Bank, 151 Mass. 280; 7 Bank of St. Albans v. Farmers' People's Bank v. Franklin Bank, 88 Bank, 10 Vt 141. Tenn. 299. But see Comm. Nat. 8 Corn Ex. Bank v. Nassau Bank, Bank v. First Nat Bank, 30 Md. 11. 91 N. Y. 74 The basis of the rule ought to be 9 Corn Ex. Bank v. Nat. Bank of that the bank first receiving a Republic, 78 Pa. 233 : Iron City Nat. check ought to be compelled to Bank v. Fort Pitt Nat. Bank, 159 verify the various indorsements. Pa. 46. See also Van Wert Nat Bank v. 10 See note 5, ante, to this section. First Nat. Bank, 6 Ohio Cir. Ct. R. Preston v. Canadian Bank, 23 130; Allen v. Fourth Nat Bank, 59 Fed. R. 179. But if the clearing- 272 BANKS AND BANKING. [ 156. it does it at its peril. 1 Even though the stealing and forg- ing be done by a clerk 2 or a messenger 3 of the depositor, where the depositor has not been guilty of negligence, the bank .cannot charge the check, when paid, against the de- positor. But where the depositor has been guilty of negli- gence in leaving the paper in negotiable form, he will be liable to the bank. 4 The situation of the payee of stolen or lost paper, if not negotiable in form, is the same as if it were forged paper. The same rules precisely ought to govern as to certifying or paying such paper, whether as between the depositor and the bank or the bank and third parties. As between two banks, the same rules ought to govern as obtain in the case of forged paper. The principle is impliedly laid down in a case where stolen paper indorsed by a forged sig- nature was paid by the bank on which it was drawn to an- other bank. The first bank was held entitled to recover from the second. 8 Certificates of deposit when indorsed are nego- tiable. But where they are unindorsed they are not negotiable, and the owner may recover the amount of them from the bank without giving security. 6 The situation of overdue certificates of deposit would be the same. 7 A certified check, payable to order, unindorsed, ought to be subject to the same rule as certificates of deposit unindorsed. An unaccepted check, payable to order, if lost can be stopped, either by the drawer or payee, and the payee of a certified check may stop it. But a certified check payable to bearer or generally indorsed house rule has been violated, the * Bowden v. Third Nat. Bank, 12 case is to be determined under the Wkly. Law Bui. 184. general rules of law as if there were 6 State Nat. Bank v. Freedmen's no rule. National Bank v. Bangs, Sav. Bank, 2 Dill. 11. 106 Mass. 441. See 368, post 6 Citizens' Bank v. Brown, 45 Ohio !Belknap v. National Bank, 100 St. 39; National Bank v. Ringel, 51 Mass. 376; First Nat Bank v. Ind. 393. In this case a certificate Bremer, 7 Ind. App. 685. payable in current funds is said not 2 Belknap v. National Bank, to be payable in money. supra. 7 Citizens' Nat. Bank v. Brown, 11 8 Bristol Knife Co. v. First Nat. Wkly. Law Bui. 220, at the end of Bank, 41 Conn. 421. There was no the opinion recognizes this prin- forgery in this case. ciple, but the syllabus does not con- tain a reference to this holding. 157, 158.] DEPOSITS. 273 is negotiable, and a lonafide holder thereof has a good title, even though he gain it from a thief. 157. Overpayment and wrongful payment. If a bank overpays a check it may recover from the person to whom it paid. 1 If the bank pays the check to the wrong person, that is to say, a person who cannot claim that he had any authority to receive the money, the bank may recover the amount paid, or, if the bank pays money to a person who is charged with notice that he has no right to receive the money, the bank may recover. 2 In two preceding sections 3 has been discussed the bank's right upon payment of forged or altered paper. But if the payee of a check has no notice of any want of authority in himself to receive the money, and the check is a proper and genuine check, the bank can- not recover from him, even though the bank had no author- ity to pay the money. 4 But if the bank pays a check to the Avrong person, the depositor gains no right to sue that per- son, 5 nor does the person to whom the check was properly payable gain any right to sue the person to whom the check was paid, 6 nor, as we have already seen, can he sue the bank. 7 He must rely upon the drawer. 158. Effect of payment. In all cases where a bank pays a genuine check drawn upon itself to the person entitled thereto 1 (except in the single case of another bank 2 ), but not iKeene v. Collier, 1 Met. (Ky.) 3 See 154, 155, ante. 415. The amount of recovery is the 4 Manufacturers' Nat. Bank v. amount paid less the check. As Swift, 70 Md. 515. It seems that between banks in those states which statements on the check do not recognize the right of one bank to bind the payee. Citizens' Bank v. recover from another bank a pay- Grand, 33 La. Ann. 976. naent without funds, the amount of 6 Davis v. Smith, 29 Minn. 201. recovery is the check less the de- 6 Unless the funds were a trust, posit Merchants' Nat. Bank v. Na- for the holder, tional Bank of Com., 139 Mass. 513. 7 See 146, note 7. 2 The bank may pursue the di- J See United States v. Nat. Ex. verted funds until they come to a Bank, 45 Fed. R 163. The person bonafide holder. Anderson v. Kis- entitled is the person intended by sam, 35 Fed. R 699; Beard v. Lam- the drawer. son, 94 Fed. R 30. 2 As between banks such payment, 18 274: BANKS AND BANKING. . [ 159. perhaps where it certifies such a check, 8 or where a bank pays to the proper person a genuine note upon its depositor payable at the bank, 4 the payment is final and cannot be re- scinded, 5 except for fraud, as, for example, in obtaining an overdraft 6 participated in by the payee. 159. Liability of the bank for interest. A general deposit in a bank, except by agreement, does not draw in- terest, general deposits being always subject to check. 1 A certificate of deposit does not draw interest, 2 and no liabil- ity is imposed upon the bank to pay interest either upon general deposits or certificates of deposit; but the bank by agreement, either written or verbal, may bind itself to pay interest upon general deposits; 3 but it would seem that a certificate of deposit, being a written contract, must on its face determine whether it is to draw interest or not. A verbal agreement, proven as a part of the written docu- ment, would fall within the inhibition against parol evidence to add to or contradict the terms of a written document. is not final Merchants' Nat. Bank 6 Tradesmen's Bank v. Merritt, 1 v. National Eagle Bank, 101 Mass. Paige, 302. 281; National Ex. Bank v. National * Parsons v. Treadwell. 50 N. H. Bank, 132 Mass. 147; Merchants' 356; Atlanta Nat. Bank v. Burke, Nat Bank v. National Bank of 81 Ga. 597; Cohn v. St. Louis Ins. Com., 139 Mass. 513. But see Pres- Co., 11 Mo. 374. But it is said that ton v. Canadian Bank, 23 Fed. R. a bank is liable for interest on 176. every deposit not subject to check. 3 See 150, ante. Parkersburg Nat. Bank v. Als, 5 * Riverside Nat. Bank v. First Nat W. Va. 50. But as to deposits in Bank, 74 Fed, R. 276. court, see Insurance Co. v. National Riverside Nat Bank v. First Nat Bank, 93 Ky. 129, which holds they Bank, supra; Boylston Nat Bank draw interest. Contra, Haswell v. v. Richardson, 101 Mass. 287; First Mechanics' Bank, 26 Vt 100. Nat. Bank v. Ricker, 71 III 439; 2 See Parsons v. Treadwell, 50 Bank of U. S. v. Bank of Georgia, N. EL 356. If the certificates are not 10 Wheat. 333; Hull v. State Bank, paid on maturity, and are interest Dud. Law, 259. For other authori- bearing, they so continue without ties, see 133, ante, note & But a a demand, Payne v. Clark, 23 Mo. mistaken credit and remittance re- 259; Cordell v. First Nat. Bank, 64 covered from the postoffice is not Mo. 600. payment Carley v. Potters' Bank, 3 Pelham v. Adams, 17 Barb. 384. 46 S. W. R. 328. See McLochlin v. Bank, 139 N. Y. 514. 160.] DEPOSITS. 275 Whether a custom would be admissible to charge the bank with interest may be a matter of some doubt, but the better reason would be that it would be admissible. As in the case of other obligations payable upon demand, bank deposits or demand certificates of deposit 4 begin to draw interest from the date of the demand, 5 or the date when a demand was rendered useless by the suspension of the bank. 6 The bring- ing of suit is a demand, 7 and so is the claim of set-off by way of defense or affirmative relief. 8 If a bank refuses to pay upon garnishment, it will become liable for interest; this result could be avoided by payment into court. 160. Overdrafts. In connection with the criminal lia- bility of officers, we have already discussed to some extent the question of overdraft. 1 In connection with the bank's right to refuse payment of a check, the question was inci- dentally considered. It should be noted that the officer of the bank has no right to permit an overdraft, unless the board of directors give him that authority, either expressly or by permitting him to allow it by a course of dealing. But the board of directors can permit an overdraft if they please. The rule is that the state of the depositor's account is to be determined by its true condition, not necessarily by what is shown on the books. 2 An overdraft arises when- ever the bank pays upon a depositor's checks more money < Morse v. Rice, 36 Neb. 212; Citi- 7 Watson v. Phoenix Bank, 8 Met. zens' Nat. Bank v. Brown, 45 Ohio 217. Even though bank enjoined St. 39. afterwards. 8 If the liability is dependent on 8 Sickles v. Herold, 149 N. Y. 332. a condition, default after condition l See 92, ante, especially notes performed determines the liability 14-18. for interest. Cooper v. Townsend, 2 Merchants' Nat. Bank v. Nat. 13 N. Y. Supp. 760. A refusal to Bank of Com., 139 Mass. 513; Am. . pay on a garnishment will create Ex. Nat. Bank v. Gregg, 138 111. 596; a liability to pay interest. Jones McLean Co. Bank v. Mitchell, 88 v. Manufacturers' Bank, 10 AVkly. Ill 52. If Munn v. Burch, 25 111. Notes Cas. 102. But see Comm. 35, had recognized this ruling, there Bank v. Jones, 18 Tex. 81. would have been no necessity for a 6 McGowan v. McDonald, 111 Cal. ruling which has produced so much 57. error. 276 BANKS AND BANKING. [ 160 than the amount of his deposit. 8 It makes no difference whether this overpayment is guaranteed or not, 4 or whether an indorsement be required by the bank upon the check. 5 But if the depositor is given a credit at the bank in such a form, whether it be entered upon the books or not, that the depositor could sue the bank for dishonoring a check drawn upon the credit, then such a credit ought not to be called an overdraft, because there is no overdrawing of the ac- count. 6 The depositor has so much credit given to him at the bank, and the result is precisely the same as if he went to the bank and made a deposit of so much money, although it may very well be that if the bank .should promise the holder of a check to accept it, the promise would be a nudum jpactum, if the drawer had no funds. 7 The promise to the depositor, in the case we are considering, is performed by loaning him the money, and the reciprocal promise of the depositor to pay the loan makes a perfectly good contract. Therefore the term " overdraft " cannot with any propriety be applied to such a credit. 8 Every man who overdraws his 8 United States v. Allis, 73 Fed. there is also a loan, but it is a loan R. 65. There is no division as to which goes to the credit of the de- the definition. The difficulty is in positor, and he does not overdraw determining the amount of the de- his account. The transaction does posit not differ in the least from one 4 Low v. Taylor, 41 Mo. App. 517. where the depositor discounts his 5 Marine Bank v. Butler Colliery note and deposits the amount real- Co., 5 N. Y. Supp. 291, 125 N. Y. 695. ized in the bank. 6 See 92, ante. This is the re- 7 Morse v. Mass. Nat. Bank, 1 suit implied from the language of Holmes, 209. But it has been held the court in Graves v. United States, that a promise to pay checks made 165 U. S. 323. If a bank makes a to drawer communicated to the naked agreement with a depositor seller is binding upon the bank, to pay his overdrafts in considera- Nelson v. First Nat. Bank, 48 111. 36. tion of the depositor agreeing to See 146, ante, note 10, and Kol- pay thereon a certain rate of inter- lock v. Enmert, 43 Mo. App. 566. est, there is simply a verbal per- 8 But United States v. Allis, 7& mission to overdraw. If the de- Fed. R. 165, holds quite confused positor executes a demand note for language upon this point, and a certain sum, and the bank agrees Bacon v. United States, 97 Fed. R. to let the depositor overdraw up to 35, is hopelessly confused. This late the amount of the demand note, case holds that though a depositor 160.] DEPOSITS. 277 account at the bank, by the fact of overdrawing agrees to repay the amount upon demand. 9 But when a check is paid by a bank it is prima facie proof of a previous deposit to that amount, 10 and other proof than the checks is needed to show the fact of overdraft. 11 If the overdraft, or rather the right to overdraw, is granted by competent authority, to wit, by the board of directors or by some officer to whom the board by express authority or by acquiescence has granted the right to allow an overdraft, the overdrawing is not a fraud. But if the overdrawing be done without authority it is fraudulent, and no title in the money drawn passes ex- cept to a payee who is in good faith. If the overdraft is obtained by fraud from the bank, if it be a fraud in which the payee of the check can be held to have participated, the bank does not lose title to the money paid out, but may fol- low it into a credit in another bank. 12 But a person who merely acted in cashing a check without any participation in the overdraft or any interest in the check is not liable to the bank. 13 If the overdrawn depositor makes a general deposit it will be supposed to be in payment pro tanto of the overdrawn account; 14 yet government deposits for particular purposes known to the bank cannot be applied upon other who has executed a demand note 39 Ma 489. Compare Lancaster and had received a credit to the Bank v. Woodward, 18 Pa. 357. amount of the demand note, up to 10 Bank of U. S.v. Wilson, 3 Cranch, which he has the right to draw, is C. C. 213. nevertheless overdrawing his ao u State Bank v. Clark, 8 N. C. 36. count, because his note is not dis- 12 Tradesmen's Bank v. Merritt, 1 counted. But the apparent state Paige, 302. of the account is a mere matter of 13 Savings Bank v. Hubbard, 58 book-keeping. The books do not N. H. 167. and cannot show the credit, yet u Nichols v. State, 46 Neb. 715. It the depositor undoubtedly had it. seems that the bank may agree to This opinion represents the judi- receive what it knows is public cial superstition that the only way money to pay the officer's private in which a bank can loan money is overdraft, and be bound by the by discounting. agreement. Hale v. Richards, 80 9 Thomas v. Intern. Bank, 46 111. Iowa, 164. But if the public sued App. 461 ; Franklin Bank v. Byram, the bank for the money it would have no defense. 278 BANKS AND BANKING. [ 161. accounts. 15 This same rule has been applied in the case of a private depositor with two different accounts, but both belonging to him. 16 But in the nature of things this rule cannot be correct, unless the deposits were held by the de- positor in different rights, one for himself and the other for some one else. 17 In other cases if a deposit is made to a par- ticular account it is really immaterial whether the bank places the deposit to the particular account indicated and immediately charges it to balance another account, or places it to the credit of the second account in the first instance. If the overdraft is obtained, the depositor cannot refuse to pay because the cashier had no power to allow it. 18 An overdraft once permitted to be made cannot be revoked by the bank as to another bank, the payee of a check, except under a clearing-house rule. 19 An overdraft does not draw interest except by agreement 20 or custom, 21 or after demand for payment or rendition of an account, 22 or where the over- draft was wrongfully obtained. 23 161. Certificates of deposit. The power of a bank to issue certificates of deposit is a part of the power to carry 15 United States Bank v. Macal- 17 In such a case the bank must ister, 9 Pa. 475. respect the rights of the true owner 16 Simmons Co. v. Bank of. Green- or beneficiary, if it knows of the in- wood, 41 S. C. 177. This was a case terest. where the check-holder sued, and 18 Union Mfg. Co. v. Rocky M. is another of the astonishing decis- Bank, 2 Colo. 248. ions produced by this extraordi- 19 Preston v. Canadian Bank, 23 nary rula The decision held that Fed. R. 179. But this decision is the balance of one account could hardly reconcilable with the Mas- not be applied upon another ao- sachusetts case it cites. See 158, count without notice to the depos- ante, note 2. itor. But the decision gives no idea 20 Owens v. Staff, 32 III App. 653. of the real issue. As a matter of If no rate is fixed the legal rate will fact the account was insufficient govern. Loan Bank v. Miller, 39 including both accounts. The case S. C. 175. went to the jury on the theory that 21 This is within the general rula the bank was estopped by its books. 22 Casey v. Carver, 42 IlL 225; Yet the court charged exactly the Union Bank v. Solee, 2 Strobh. 390. other way. The whole case, when 23 Hubbard v. Charleston Co., 11 carefully examined, is incompre- Met 124. hensible. 161.] DEPOSITS. 279 on a banking business. Therefore national banks have power to issue certificates of deposit payable either upon demand or upon time. 1 Sometimes, however, the statute has for- bidden the issuance by banks of such paper; 2 yet even if the certificate itself be void as an illegal contract, 3 the deposit will remain enforceable as a deposit. 4 -Such certificates is- sued without consideration are, like other contracts without a consideration to support them, of no efficacy, 5 except in the hands of a ~bonafide holder. 6 This latter statement is true if the particular jurisdiction holds in accordance with the great weight of authority that the ordinary certificate of deposit of a banker is the promissory note of the bank or banker issuing it, payable upon demand. 7 But certain courts have denied this obvious proposition. 8 The certificates are therefore negotiable, 9 and an indorser upon one assumes the 1 See notes 5 and 6, 125. ante. 2 Darden v. Banks, 21 Ga. 297; Bank of Peru v. Farnsworth, 18 III 565. And see Hunt v. Divine, 37 111. 137, for a strict construction of such a statute. 3 Bank of Peru v. Farnsworth, supra; Bank v. Merrill, 2 Hill, 295; Leavitt v. Palmer, 3 N. Y. 19. Com- pare Curtis v. Leavitt, 17 Barb. 309. The case of Hargroves v. Chambers, 30 Ga. 580, is contra. 4 Pelham v. Adams, 17 Barb. 384 And see 33, ante. Where the stat- ute requires all contracts of the bank to be signed by both president and cashier, a certificate signed by either is good. Kilgore v. Bulkley, 14 Conn. 362; Barnes v. Ontario Bank, 19 N. Y. 152. 5 Murray v. Pauly, 56 Fed. R 962. But see Armstrong v. Am. Ex. Nat. Bank, 133 U. S. 433. Compare Hol- land Trust Co. v. Waddell, 75 Hun, 104; Logan Nat. Bank v. William- son, 2 Ohio Cir. Ct, R. 118; Citizens' Sav. Bank v. Blakeley, 42 Ohio St. 645. 6 Kirk wood v. First Nat. Bank, 40 Neb. 484: First Nat. Bank v. Clark, 42 Hun, 16. It is good though known to be for accommodation. Holland Trust Co. v. Waddell, supra. 7 Miller v. Austen, 13 How. 218; Beardsley v. Webber, 104 Mich. 88; Brummagim v. Tallent, 29 Cal. 503; Kilgore v. Bulkley, 14 Conn. 362; Swift v. Whitney, 20 III 144; Cur- ran v. Witter, 68 Wis. 16; Mitchell v. Easton, 64 N. Y. 155; Citizens' Bank v. Brown, 45 Ohio St. 39, and many other cases. 8 Shute v. Pacific Nat. Bank, 136 Mass. 487; Loudon Sav. Soc. v. Hagerstown Bank, 36 Pa. 498; Lebanon Bank v. Mangan, 28 Pa, 452; O'Neill v. Bradford, 1 Pin. 390. The latter case is no longer au- thority. 9 Miller v. Austen, 13 How. 218; Birch v. Fisher, 51 Mich. 86; Lynch v. Goldsmith, 64 Ga. 42; Springfield 280 BANKS AND BANKING. [ 161. same liability as the indorser of a promissory note. 10 The certificate passes by indorsement and delivery, 11 or by de- livery though unindorsed. 12 An assignment of the certifi- cate transfers the whole sum represented by it. 13 A certifi- cate must be delivered up upon payment, 14 unless it has been lost unindorsed. 15 The certificate is payable where the bank is located, 18 but one extraordinary case has lost sight of this obvious fact. 17 Payment by the bank upon an unauthorized indorsement is not payment at all, 18 even though the bank obtains the certificate. Yet it has been erroneously held that if the bank pay the certificate once it cannot be called upon after six years to pay it again, in spite of the fact that it did not get the certificate. 19 This decision ignores the fact that the certificate is a promissory note and is entitled to no weight whatever. Certificates of deposit are of two descriptions : those pay- able after a certain time and those payable upon demand. If a certificate is payable after a certain date it matures at that date, and becomes, so far as a transferee of the certifi- cate after maturity is concerned, overdue paper, and is sub- ject to defenses accordingly. 20 A demand certificate trans- Marine Co. v. Peck, 102 11L 265; and mand, and an injunction forbid- under a statute, Renfro v. Mer- ding a transfer was held to be chants' Bank, 83 Ala. 425. But good as against every one except contra where payable in current a bona fide holder. Springfield funds not negotiable under a stat- Marine Co. v. Peck, 102 111. 265. ute. Lafayette Nat. Bank v. Ringel, 15 See note 6 to 156, ante. 51 Ind. 393. 16 Sanbourn v. Smith, 44 Iowa, 152. 10 Gate v. Patterson, 25 Mich. 191. "Renfro v. Merchants' Bank, 83 11 See cases under notes 7 and 9, Ala. 425. supra. Contra, cases under note 8, 18 Honig v. Pacific Bank, 73 Cal. supra. 464. 12 Shanklin v. Madison Co. Com'rs, w Gregg v. Union Co. Nat. Bank, 21 Ohio St. 575; Cassidy v. First 87 Ind. 238. Nat. Bank, 30 Minn. 86. 20 First Nat Bank v. Security Nat 13 Springfield Marine Co. v. Peck, Bank, 34 Neb. 71. But the certifi- 102 111. 265. cate does not mature for the pur- 14 Fells Point Sav. Inst. v. Werdon, pose of presenting it and demand- 18 Md. 320. But Hunt v. Divine, 37 ing payment at the place where 111. 137, permits a suit without de- payabla It was upon this theory 162.] DEPOSITS. 281 f erred two years after its date is said to be subject to a set-off. 21 The certificate is governed by the general rule that the figures in the margin are governed by the amount stated in the body of the certificate. 22 Where a certificate was made payable to the order of the depositor or his wife by name, the bank was held liable for paying after his death upon the indorse- ment of the widow. 23 The certificate continues to draw in- terest at the same rate after maturity as before, 24 whether the certificate so states or not. 25 The damages for the de- tention of a non-interest bearing certificate are interest at the legal rate. 26 If a suit is pending upon a certificate and a new certificate is accepted instead of the one on which suit is pending, the cause of action is destroyed. 27 It is some- times difficult to decide whether a document is a certificate of deposit or not, 28 as the cases show. 162. Special deposits. The words "special deposit" are used in the cases in two senses one, as a deposit for safe- keeping; the other, as a deposit for a particular purpose. The latter kind of a deposit has been already noticed. 1 It that banks tried to establish the The rule as to certified checks is rule that an unpresented certificate different from the rule stated in ceased to draw interest after ma- Gregg v. Union Co. Nat. Bank, turity. Being payable at the bank, supra. the need of demand there of 22 Payne v. Clark, 19 Mo. 152. payment could only be met by 23 See Smiley v. Fry, 100 N. Y. 262; presenting the certificate at the First Nat. Bank v. Clark, 134 N. Y. bank for payment. It must be ad- 368; First Nat. Bank v. Greenville mitted that there is no logical es- Nat. Bank, 84 Tex. 40. cape from the claim made by the 24 Second Nat. Bank v. Wrightson, banks, but the decisions are all 63 Md. 81. otherwise. 2&Cordell v. First Nat Bank, 64 21 Tripp v. Curtenius, 36 Mich. 494. Mo. 600. This decision would be correct if 26 Payne v. Clark, 23 Mo. 259. an assignee or indorsee were not 27 Sleppy v. Bank of Commerce, bonafide; but the case in the last 17 Fed. R. 712. note is not sound, and National 28 Manuel v. Mississippi R. Co., 2 Bank v. Washington Co. Bank, 5 Pa. 198. Hun, 605, is contra. It is difficult x See 136, ante, and notes 14 and to see how the bank gets an equity 15; Moreland v. Brown, 86 Fed. R. by paying to the wrong person. 257; Montague v. Pacific Bank, 81 282 BANKS AND BANKING. [ 1C 2. remains to be said that certifying a check does not create such a deposit. 2 A deposit to pay a certain claim is revoca- ble unless assented to or acted upon by the beneficiary, 3 and such a deposit remains a special deposit, although mingled with the general funds of the bank; 4 but where a corpora- tion agreed to keep its general deposit up to a certain amount in order to protect certain loans, the deposit was general and not special. 5 But a deposit has been held in one case to re- main special, although upon its credit checks were drawn and paid. 6 Money delivered to a bank for transmission, 7 or paid to a bank for a note upon an order given for delivery of the note, 8 or for any other special purpose, 9 is a special deposit. But where the bank agreed to put a special amount in a separate package, but did not do so, no special deposit re- sulted ; lo although had the bank done so, a special deposit would have been created. 11 Paper delivered to a bank for collection, as we have seen, remains a special deposit as to that bank and all others with notice, unt^l it is collected and the procee'ds become mingled with the bank's funds. 12 The other cases of special deposit are where either money or se- curities or other valuables are delivered to a bank for safe- keeping. 13 Fed. R. 602: Am. Ex. Nat. Bank v. 6 Chesapeake Bank v. Swain, 29 Loretta Mfg. Co., 165 III 103. Md. 483, an extreme case. 2 People v. St Nicholas Bank, 28 7 Stoller v. Coates, 88 Mo. 514 N. Y. Supp. 407. 8 Massey v. Fisher, 62 Fed. R. 958; 3 See 136, ante, and notes 14 and Clots v. Dickson, 5 Alb. Law J. 286; 15; Star Cutter Co. v. Smith, 37 111. Peak v. Ellicott. 30 Kan. 156; Elli- App. 212; Bank of Leroy v. Hard- cott v. Barnes, 31 Kan. 170; Ryan ing, 1 Kan. App. 389. v. Phillips, 3 Kan. App. 704. *Kimmel v. Dickson, 5 S. D. 221; 9 Harrison v. Smith, 83 Ma 210. Star Cutter Co. v. Smith, 37 111. App. But see Edson v. Angell, 58 Mich. 212. This matter becomes of im- 336 (wrong). portance in case the bank is robbed 10 Bayor v. Shaffner, 51 I1L App or in the case of insolvency. See 180. 342, post. But the depositor in n In re Comm. Bank, 2 Ohio Dec. a case of robbery ought to ratify 304. the mingling and claim a general 12 See 133, ante. deposit 13 Pattison v. Syracuse Nat Bank, 6 State Building Ass'n v. Merch. 80 N. Y. 82. See Kupfer v. Bank of Sav. Bank, 36 S. W. R. 967. Galena, 34 III 328. Though a de- 163.] DEPOSITS. 283 163. When special deposit created. A special deposit is created, in addition to the cases stated in the preceding section, whenever a particular thing is delivered to a bank to be returned in corpore upon demand. 1 But if a note is merely delivered to a bank without any direction to or agreement by the bank, the bank is at liberty to either dis- count the note or hold it for collection at maturity. 2 The fact that a credit in a pass-book is marked as a special de- posit is not conclusive, it may be shown to have been gen- eral. 3 Certificates of deposit, or certified checks, are not special but general deposits, 4 and every deposit of money is- general unless expressly made special or deposited in some particular way. 5 Money deposited to indemnify the bank for its liability in becoming surety upon a bond is general where a certificate of deposit was issued and the money, to the knowledge of the depositor, went into the general funds of the bank; 6 but where the depositor did not know the bank was treating such a deposit as a general one, it remains a special deposit. 7 The addition of descriptive words to the depositor's name does not render the deposit special; 8 but where a mortgage was left with a bank for collection and not to be credited, and the amount to be kept until the de- positor could withdraw it after notification, the transaction was held to create a special deposit ; 9 but where such a secu- posit is marked "special" in the N. Y. Supp. 407; Mutual Ass'n v.. pass-book, it may be shown to be Jacobs, 141 111. 261. general Carr v. State, 104 Ala. 43. 5 Ward v. Johnson, 95 III 215; But whether this rule would apply Matthews v. Creditors, 10 La. Ann. between the bank and depositor is 342. questionable. 6 Mutual Ass'n v. Jacobs, 43 III 1 In re Mutual Building Soc., 2 App. 340. Hughes, 374 Receiver's moneys 'Anderson v. Pacific Bank, 112 deposited in a bank are not special CaL 598. See also Dearborn v. deposits. South Development Co. Wash. Sav. Bank, 13 Wash. 345. v. Houston, etc. Ry. Co., 27 Fed. R. McLain v. Wallace, 103 Ind. 562. 344. Compare Otis v. Gross, 96 111. 612, 2 Drawn v. Pawtucket Bank, 15 which was a deposit of public Pick. 88. funds. Carr v. State, 104 Ala. 43. 9 In re Johnson, 103 Mich. 109;. 4 People v. St Nicholas Bank, 28 State v. State Bank, 42 Neb. 896. BANKS AND BANKING. [ 164. rity was credited to the depositor as cash, the deposit was general; 10 and the invariable rule is that whether securities are deposited for collection or for credit, as soon as they are collected and go into the general funds of the bank the de- posit becomes a general one, creating the relation of debtor and creditor. 11 The proof to identify the special deposit is often necessarily circumstantial. 12 164. Liability of bank upon special deposit. The re- lation of the bank to its special depositor is that of bailee. 1 Whether it is a gratuitous bailment or one for hire depends upon circumstances. Since, by the very definition of the word "special" deposit, the bank can obtain no advantage by using the deposit, if it is not paid for the work which it does, it is a gratuitous bailee, the consideration being simply the delivery of the thing. 2 If the bank has any claim upon the thing deposited, such as a claim upon it as collateral security, the bank is pledgee and not gratuitous bailee. The degree of care required from a gratuitous bailee has been variously defined by courts. It is a liability for gross neg- ligence only, 3 for ordinary care under the circumstances, 4 or 10 Bennett v. Knapp, 9 N. Y. Supp. 766. 11 See 133, ante. And see also 343, post. The same rule applies to savings deposits, where savings banks are debtors to their depos- itors. Wetherell v. O'Brien, 140 III 146. This last case, however, gives the extreme rule against the pri- ority of a special depositor. The decision is not sound upon that point, although in accordance with the rule in "Illinois. The better rule is that stated in 342, post, where the right of priority is con- sidered. 12 . Dougherty v. Vanderpool, 35 Miss. 165. 1 McLain v. Wallace, 103 Ind. 562; Kinsela v. Cataract City Bank, 18 N. J. Eq. 158. It is the bank which is the bailee, not the officers. Fos- ter v. Essex Bank, 17 Mass. 479. This decision is in its result wholly and completely erroneous. The bank is also called agent. In re Johnson, 103 Mich. 109; L'Herbette v. Pittsfield Nat. Bank, 162 Mass. 137. 2 Robinson v. Threadgill, 13 Ired. 39. A statute sometimes makes a gratuitous bailment one for hire. Merchants' Nat Bank v. Guilmar- tin, 93 Ga. 503. 8 Foster v. Essex Bank, 17 Mass. 479; White v. Commonwealth Nat. See cases to notes 8 and 9, 217 r Storer v. Logan, 9 Mass. 55; Greele post, which do not seem to recog- v. Parker, 5 Wend. 414 The letter nize the distinction, may be pleaded as an acceptance 21 Woodard v. Commission Co., 43 (Ontario Bank v. Worthington, 12 Minn. 260. Practically the detri- Wend. 593) ; so of an authority to ment to the holder, who acts upon draw against shipments (Burke v. the authority, is always a consider- Utah Nat. Bank, 47 Neb. 247); but ation. See Carnegie v. Morrison, 2 the authority is conditional upon Met. 381, where no consideration the shipment. Germania Nat. Bank seems to have existed. v. Tooke, 101 N. Y. 442. l See the cases cited in next twa 16 Mayhew v. Prince, 11 Mass. 55; notes. Vance v. Ward, 2 Dana, 95; Beach 2 Crumb v. Phettiplace, 53 III. v. State Bank, 2 Ind. 488. App. 337. 17 Ulster Co. Bank v. McFarlan, 3 Union Bank v. Shea, 57 Minn. 5 Hill, 432; O'Donnel v. Smith, 2 180; Berckhead v. Brown, 5 Hill, E. D. Smith, 124, 634, 18 Ontario Bank v. Worthington, 12 Wend. 593. But see note 11, ante. 364: BANKS AND BANKING. [ 216. and the drawer, 4 unless such arrangements were known to the payee either from actual knowledge 5 or through knowl- edge imputed to him from customary methods of business. 6 In both the latter instances he will be bound by his knowl- edge. The construction of the writing determines the prom- ise or authority. A written authority to draw 7 or letter of credit 8 is sufficient. A telegram in answer to one describ- ing a certain check, which says: "T. is good, send on your paper," is sufficient. 9 A telegram promising to pay a certain draft is an acceptance, both at common law 10 and under the statute requiring a writing. 11 But a written statement that " we expect to take care of them and pay drafts as hereto- fore " is said to be not sufficient, 12 and though the writer says he will accept, the phrase may be controlled by other language in the letter. 13 A letter agreeing to carry the maker of a promissory note is no authority to draw a draft for the amount of the note. 14 A written promise to pay a bill when corrected is good as to the bill when corrected. 15 If the authority to draw is countermanded, it cannot after- wards protect any one. 16 lently by legislation or ignorantly by judicial error," and then pro- ceeds to perpetrate some violent sundering on its own account. The inference of ignorance is irresisti- ble. 2 Evans v. Norris, 1 Ala. 511; Ross v. Bedell, 5 Duer, 462; McLaren v. Marine Bank, 52 Ga. 131; Barba- roux v. Waters, 3 Met. (Ky.) 304. SNicolet v. Gloyd, 18 La, 417; La- coste v. Harper, 3 La. Ann. 385. But New Orleans Sav. Bank v. Har- per, 12 Rob. (La.) 231, seems contra. 4 Reid v. Morrison, 2 Watts & S. 401; Bank of Washington v. Way, 2 Cranch, C. C. 149; Martel v. Tu- reaud, 6 Mart. (N. S.) 118. Farmers' Bank v. Van Meter, 4 Rand. 553, applies the rule to an indorser who knew that the drawer was being accommodated. 394 BANKS AND BANKING. [ 23G. So it would probably be as to a regular indorser who did not share in the consideration, but lent his name for the ac- commodation of a subsequent indorsor. The accommoda- tion acceptor, however, is not entitled to have a demand made on the drawer. 5 Turning now to the case of irregular indorsers, that is to say, indorsers who indorse the paper without being either indorsee or payee thereof, which indorsement may be made before the paper is delivered or after the paper is delivered, the rules of law differ in different jurisdictions. If such an indorser shared in the consideration or was the party for whose benefit the paper was drawn, he ought not, under the rule before stated, to be permitted to claim that a demand should be made or notice given to him in any jurisdiction. If he be not interested in the paper beyond merely lending his name, the courts differ as to his rights and liabilities. In some jurisdictions the question is controlled by a statute, and the statute, of course, would govern. But in nearly all the states such an indorsement may be explained by parol, and the actual meaning of the indorsement may be shown. This ruling was no doubt produced by the varying construc- tions given to such an indorsement, and is an instance con- trary to the general rule that does not permit a written contract to be varied by parol. That actual contract would govern as to the rights of the parties, even as to a bonafide holder who had no notice of the agreement, since the in- dorsement is ambiguous. If the holder had notice, either actual or constructive, he would necessarily be bound by the agreement. But nothing more than the fact of the irregu- lar or anomalous indorsement appearing, the United States courts and the majority of the state courts hold that such an indorser is an original promisor. This must mean, as to the holder, an original promisor with the person, drawer or indorser, for whom, or to give credit to whom, he signed. If that person was entitled on the bill to claim demand and notice, he ought to be entitled; but the language of the Cox v. Mechanics' Suv. Bank, 28 Ga. 529. 237.] EXCHANGES, SECUKITIES, ETO. 395 courts is confined to cases on notes and does not warrant this statement. He ought not to be governed by the same rule as the anomalous indorser of a note, and is entitled to have a demand made or notice given. 6 This matter will rarely be of importance, since the question of authority or right to draw will usually control. In oth.er jurisdictions, as in Illinois, he is a guarantor; and no contract other than the writing being shown, he is not entitled to have demand. 7 In other jurisdictions, such as New York and Wisconsin, and under statutes, he is a first or second indorser, as cir- cumstances may determine, and hence is entitled as an ac- commodation indorser. 8 This subject will be examined in section 241, post. 237. Drawer and indorser of checks. A check being payable upon demand, the drawer, if he had funds in the bank, and the indorser are entitled to have demand of pay- ment made within a reasonable time; such is the law. 1 But the consequences of a failure to demand payment of the check within a reasonable time are not the same as those which attend the failure to demand payment of a bill payable on demand, so far as the drawer is concerned. Courts have recognized in the case of bank checks that the ordinarily prudent man will assume that a bank is solvent, and that there is no pressing necessity for prompt action ; but the con- trolling consideration has been, no doubt, that the drawer 6 For the rule as to notes, see drawer and not for the drawee, and Good v. Martin, 95 U. S. 90; Ben- hence is entitled to demand and dey v. Townsend, 109 U. S. 665; notice of non-payment to the Phipps v. Harding, 70 Fed. R. 468, drawer; but the cases seem to- 34 U. S. App. 148. The federal speak of anomalous indorsers of courts disregard the state courts' negotiable paper. See 240, post. holdings and enforce the general 8 See cases in note 6, supra, cited rule. Contra, Hooks v. Anderson, from California, Indiana and Ala- 58 Ala. 238; Jones v. Goodwin, 39 bama. Cal. 493 ; Fessenden v. Summers, 62 1 Daniels v. Kyle, 5 Ga. 245 ; Smith Cal. 484; De Pauw v. Bank of v. Janes, 20 Wend. 192; Sherman v. Salem, 126 Ind. 553. Comstock, 2 McLean, 19; Minturn "Strictly the rule ought to be v. Fisher, 4 CaL 85; Harker v. An- that he is a guarantor for the derson, 21 Wend. 372. 396 BANKS AND BANKING. [ 237. of the check is not injured in any way by the failure to pre- sent the check, except in case of the bank's failure. There- fore the rule is that as to the drawer of a check he can only complain of a failure to present the check to the bank to the extent that he has been actually injured; 2 but as to the in- dorser of a check the rule is the same as that which applies to the indorser of a bill of exchange. He is entitled to have a presentment of the check for payment made within a rea- sonable time after its delivery after his indorsement. 3 Accommodation drawers of checks are governed by the same rule as the ordinary drawer of a check. They can complain of a delay in presentation only if they are injured thereby. 4 A mere accommodation drawer, who has not re- ceived value, would seem to be in the same position of any other drawer of a check. 5 But an indorser or drawer who has received value for his check or for his indorsement would seem to be in the position of the ordinary drawer of a check. 8 If the check is given for the accommodation of an indorser upon it, the proper rule to apply to such an indorser does not seem to have received judicial examination. 7 It is need- less to say that, until a demand has been made, no suit can 2 Gough v. Staats, 13 Wend. 549. 5 He would be an accommodation The cases upon this point are very drawer of a bill under the same numerous. There is no contra- circumstances, and unless demand dictory authority. Of course the was excused for some reason, he holder of the check cannot sue could not be held without a de- the drawer until he has presented mand, and, if the bank failed, the the check. But Breese, J., says in question would be upon the time of Springfield Fire Ins. Co. v. Tincher, demand. 30 III 399, that he understands the 6 He could only claim exonera- rule differently, and as usual he tion where he had been injured by understands the matter wrongly. the delay. Where the bank had 3 Veazie Bank v. Winn, 40 Me. 60; failed, or some other injury had <3ough v. Staats, 13 Wend. 549. been suffered by the drawer, he 4 Diener v. Brown, 1 McArthur, would be released. But a mere ac- 350. This question is rarely of im- commodation indorser of a check portance, because, unless a demand before delivery is 'governed by the is excused, no suit can be brought rule stated in 236, ante, as to the on the check, and then the ques- anomalous indorser of a bill tion is whether the drawer is in- 7 He would be discharged where jured by delay. the drawer would be discharged. 238.] EXCHANGES, SECURITIES, ETC. 397 Tfe maintained against the drawer or indorser. Hence the question upon checks is always whether the demand was in time. The giving of a check in payment of a claim pays the claim where the drawer is released, just as in the case of a bill or note. 8 238. Maker of note or acceptor of bill. The maker of a promissory note stands in the same position as the acceptor of a bill of exchange. A failure to demand payment of the note does not prejudice him in any way. His engagement is to pay the note, and only payment will relieve him. A failure to demand payment from him or from an acceptor, except one supra protest, will not discharge the note 1 or ac- ceptance unless it was supra protest, nor prevent suit being brought upon it. 2 The suit itself becomes a demand. A valid tender will prevent the running of interest against him from the date of the tender to the date of a demand. Again, if the note be payable at a particular place, or the accept- ance be payable at a particular place, and the maker or ac- ceptor be present there, or a deposit be present there at the maturity of the note or bill, and the note be not there, 3 or the holder be not there prepared to receive payment, 4 the 8 See notes 4 and 5, 235, ante. port Gas Co. v. Pinkerton, 95 Pa. 1 Wallace v. McConnel, 13 Pet. 62; City of Nashville v. First Nat. 136, and many other cases. The Bank, 1 Baxt. 402. But attorney's same rule applies to a note payable fees provided for in note in order at a particular place. Dockray v. to be recovered require a demand Dunn, 37 Me. 442; Carter v. Smith, upon the maker. See Prescott v. 9 Gush. 321 ; Nichols v. Pool, 47 N. C. Grady, 91 CaL 518; Lindley v. Ross, 23. The maker, by a tender at the 137 Pa. 629. But this ought to be place, stops interest. See notes 3 true only as to a demand note. The and 4, infra. If the maker is in- maker, if the place of payment is dorser, he has been held not enti- not fixed, must look up the holder tied to notice. Schmidt v. Archer, and pay the note so far as he him- 113 Ind. 365. But if demand is re- self is concerned. Gale v. Corey, quired to make the note draw in- 112 Ind. 39. terest, as a demand note without - See note 4, 233, ante. interest, a demand is necessary if 3 Nichols v. Pool, 47 N. C. 23. interest is desired. Scovil v. Scovil, 4 Mulherrin v. Hannum, 2 Yerg. 45 Barb. 517. Coupons for interest 81; Montgomery v. Tutt, 11 CaL need not be demanded. Williams- 307; Pryor v. Wright, 14 Ark. 189; 398 BANKS AND BANKING. [ 239. maker or acceptor will be relieved from interest until a de- mand be made upon him, 8 when interest will again run. 239. Indorser of note. The regular indorser of a ne- gotiable promissory note is entitled to have a demand of pay- ment made upon the maker by the holder at the date of the legal maturity of the note, whatever that may be, 1 unless such a demand is excused or waived. Unlike certain bills of exchange, which, if put into circulation, may not require presentment for acceptance until after their maturity, 2 a promissory note must be presented for payment as to the in- dorser at the date of its maturity. 8 If due at a certain time, its maturity may be determined from inspection. If due upon demand, its maturity must be determined by circum- stances or by the statute; 4 but it seems plain that each suc- cessive indorsement is equivalent to a new demand note, and a,s each prior indorser is responsible to each subsequent in- dorser, the question of the propriety of the time of demand must be determined solely with reference to the date of the last indorsement, unless such a time has elapsed between two indorsements as to have relieved the prior of the' two indorsers, which fact would have necessarily released all Yeaton v. Beriiey, 62 III 61 ; Bud- dorser before maturity. See note 6 weiser Brewing Co. v. Capparelli, for indorsers after maturity. 38 N. Y. Supp. 972. But where the 2 See 251, post. maker of the note, payable at his 3 See note 1 to 236, ante. House factor's office, provided funds by v. Vinton Nat. Bank, 43 Ohio St. settling witli his factor, and there 346; Magruder v. Union Bank, 3 was no demand at maturity, and Pet. 87. The same rule is held as the factor failed, the maker of the to an assignor. Ruddellv. Walker, note was held released. Charles- 7 Ark. 457; Aides v. Johnson, 1 Vt ton Banking Ass'n v. Zorn, 14 S. C. 136. Statutes may affect this ques- 444 (wrong because factor was tion. See Frosh v. Holmes, 8 Tex. maker's agent). 29. Contra to the text is Hull v. 5 Mahan v. Waters, 60 Mo. 167. Myers, 90 Ga. 674 The subsequent demand must not 4 The general rule is that a de- include interest not due on account mand note is due within a reason- of the tender made. able time, but statutes place the 1 Farmers' Bank v. Small, 2 T. B. apparent maturity in various in- Mon. 88. This is true as to an in- stances from two weeks to six months. 240.] EXCHANGES, SECURITIES, ETC. 399 indorsers prior to the one actually released. 5 Indorsers after maturity are entitled to the same demand as drawers of demand bills of exchange. 6 240. Accommodation parties to notes. The accommo- dation maker of a promissory note, though known to be such to the holder, is nevertheless responsible as maker to the holder. 1 He certainly cannot claim any demand upon the party whom he accommodated. 2 The accommodation inclorser, if he be a regular indorser of a note, is of course entitled to have a demand made upon the maker. 3 But an indorser for whose accommodation a note was made is the real maker, and if he received the benefit of the note he is not entitled to have a demand made upon the maker. 4 An indorser for whose accommodation a bill is made really stands in a different position from an indorser for whose ac- 5 The last indorser indorsed an overdue note, and if the demand was good as to him he is held. He can hold any preceding indorser not discharged, and since, as we shall see, any party to the paper, who is subsequent to the person to whom the notice is given, may give not ice, the question becomes merely one of notice. 6 A note indorsed overdue be- comes a note or bill payable upon demand, and, as will later appear, must be presented within a reason- able time for payment. But there is some authority contra. See French v. Jarvis, 29 Conn. 347; Hall v. Monohan, 6 Iowa, 216. 1 Bank of Montgomery v. Walker, 9 S. & R 229 (here the holder was ignorant of the fact) ; Marion Nat. Bank v. Phillips, 35 S. W. R. 910; Hansborough v. Gray, 3 Grat. 356 (here the holder knew the fact). Contra, Connerly v. Planters' Ins. Co., 66 Ala. 432. See Hays v. North- western Nat. Bank, 9 Grat. 127. The same rule would apply as to makers who were accommodation makers for another maker. 2 See last note. 3 French v. Bank of Columbia, 4 Cranch, 141; Braley v. Buchanan, 21 Kan. 274; Rea v. Dorrance, 18 Ma 137; Bogg v. Keil, 1 Mo. 743; Perry v. Friend, 57 Ark. 437; Buck v. Cotton, 2 Conn. 126; Perry v. Green, 19 N. J. Law, 61 ; Sawyer v. Brownell, 13 R I. 141. The rule as to an irregular indorser is a differ- ent matter. 4 It makes no difference whether this indorsement is before or after delivery, or is regular or anom- alous. Bank of Washington v.Way, 2 Cranch, C. C. 149; Thornton v. Stoddert, 1 Cranch, C. C. 534; Mar- tel v. Tureaud, 6 Mart. (N. S.) 118; Blenderman v. Price, 50 N. J. Law, 296; Holman v. Whiting, 19 Ala. 703; Torrey v. Foss, 40 Me. 74; First Nat. Bank v. Ryerson, 23 Iowa, 508. 400 BANKS AND BANKING. [ 241. commoclation a note is drawn. It is true the one is really the drawer of the bill, and the other is really the maker of the note. But the drawer of the bill ordinarity has the right to have a demand of payment made, while the maker of a note has not. Therefore the rule is strictly logical that the indorser for whose accommodation a note is made, and who receives the benefit, is not entitled to claim that demand 'of payment should be made upon the ostensible maker. An accommodation indorser of a note after maturity is simply the accommodation indorser of a note payable upon demand, and should be governed by the same rule. The case of ir- regular indorsers of promissory notes varies with the rule of law held as to his liability, as will appear in the next sec- tion. 6 241. Guarantors of bills or notes. A guaranty of a negotiable instrument may result from an actual contract of guaranty upon the bill or in a separate written agree- ment, 1 or may result from the relation of a party to the bill. The actual contract of indorsement upon the bill itself may either be written upon the bill or may be provable by parol. Thus, if the indorser writes or signs upon the bill a guar- anty, 2 or such words as " holden for the within," or words of similar import, 3 he becomes a guarantor. But a blank in- 5 In those jurisdictions which therefore is entitled to notica For hold the anomalous indorser to be the authorities upon the rule, see an original promisor, he is a maker, 1 Daniel on Neg. Inst., 707 to and therefore no demand is neces- 714, and see the next section, notes sary as to him. Rey v. Simpson, 22 14 to 20. How. 341; Good v. Martin, 95 U. S. 1 Duvall v. Farmers' Bank, 9 Gill 90. See the note, Book 16, p. 260 & J. 44 (Law. ed.), Sup. Ct. U. S. Reports. 2 Furber v. Caverly, 42 N. H. 74; The actual contract may, however, Burt v. Parish, 9 Ala. 211. be shown. In other jurisdictions 3 Blanchard v. Wood, 26 Me. 358 ; he is held to be a guarantor, and Bay ley v. Hazard, 3 Yerg. 487; therefore subject to the rule in the Tatum v. Bowner, 27 Miss. 760; next section, and subject to the Baker v. Kelly, 41 Miss. 696; Furber rule that the actual contract may v. Caverly, 42 N. H. 74 ("account- be shown. In other states he is a able "). Contra, Vance v. Collins, second indorser, liable to be made 6 CaL 435. a first indorser by evidence, and 241.] EXCHANGES, SECURITIES, ETC. 401 dorsement if irregular, but not if regular, may by parol be shown to be a guaranty, and if the agreement at the time of the blank irregular indorsement was for a guaranty by the indorser, the indorsee may write the guaranty above the indorsement, 4 but not unless such was the agreement. 5 A transfer of the bill by delivery without indorsement may be shown to be a guaranty by parol, and certainly, if the parol agreement of guaranty was made at the date of delivery and receipt of value for the note, such an agreement would have a consideration to support it, and would not be within the statute of frauds. 7 The guaranty may also arise from the relation of the party to the paper. Thus the drawer of a bill for whose accommodation the acceptor accepts may be considered a guarantor, 8 and an indorser of a bill for whose accommodation the drawer acts may be considered a guaran- tor. 9 Likewise an indorser who is interested in the original consideration for the bill and receives it, or a part of it, may be considered a drawer or a joint drawer and, under some circumstances, equally a guarantor. 10 The indorser of a note for whose accommodation the note is made, or who is inter- ested in the consideration, or who receives the consideration or a part of it, may be considered a maker, or joint maker, or a guarantor. 11 Likewise irregular or anomalous indorsers 4 Beckwith v. Angell, 6 Conn. 6 Edwards v. Shields, 7 Bradw. 70; 315. But as to a regular indorser. Catlin v. Jones, 1 Pin. 130; Kimbro Rodney v. Wilson, 67 Mo. 123; v. Lamb, 4 Humph. 94; Hill v. Mar- Beeler v. Frost, 70 Mo. 185; Barnard tin, 12 Mart. (O. S.) 177. The last v. Galin, 23 Minn. 192; Barry v. cases are where a waiver was writ- Morse, 3 N. H. 132; Bank of Albion ten above a blank indorsement, v. Smith, 27 Barb. 489; Schmitz v. The two things practically amount Hawkeye Co., 8 S. D. 544 The rule to the same agreement, does not apply to irregular indors- 7 See King v. Summit, 73 Ind. 312; era. Their waiver may be shown Evans v. Stuhrberg, 78 Mich. 145; by parol. See notes 14 to 20, infra. Milks v. Rich, 80 N. Y. 269. 6 Fanner v. Rand, 14 Me. 225 ; Ed- 8 See 236, ante. wards v. Shields, 7 Bradw. 70 ; Beck- 9 See 236, ante, with v. Angell, 6 Conn. 315. For 10 See 236, ante. an assignment of a non-negotiable u See 240, ante. instrument, see Josselyn v. Ani*. 3 Mass. 274. 26 402 BANKS AND BANKING. [ 241. who indorse a note before delivery, certainly if interested in the consideration, 12 and by the weight of authority re- gardless of their interest, 13 will be considered guarantors of the note. But there is other authority holding that such an indorser is merely an ordinary indorser. 14 The weight of authority is that the real contract of the parties upon such an indorsement may be shown by parol. 15 In some states parol proof may be adduced to rebut the presumption of guaranty arising from such an indorsement, 16 but this rule is denied in other jurisdictions. 17 And in those jurisdictions which consider such an indorser to be an ordinary indorser a contract of guaranty may be shown by parol; 18 but other authority disputes this proposition. 19 In other states it is held that the presumption of guaranty cannot be denied by parol as against a bona fide holder. 20 But however the guaranty may arise, whether it be made by a party to the paper in connec- tion with his liability on the paper, or by one not a party, who binds himself only if he has a consideration, the guarantor or surety of the payment of a note, unless he has stipulated therefor, is not entitled, by the best opinion, to a demand of 12 See 236, 240, ante. ritt, 61 Ind. 425; Faulkner v. Faulk- See 236, 240, ante. ner, 73 Mo. 327. 14 This is sometimes caused by a 16 Kingsland v. Koeppe,137IlL 344: statute, but the rule is held without Strong v. Riker, 16 Vt. 554. But a statute. See Deering v. Creighton, not, of course, to contradict the 19 Oreg. 118; Tillman v. Wheeler, actual written guaranty. Jones v. 17 John. 326; Gulden v. Linderman, Albee, 70 III 34 But see Lane v. 34 Pa. 58; Cady v. Shepard, 12 Wis. Steward, 20 Me. 98. 639; Early v. Foster, 7 Black f. 35; "Gurney v. Giegling, 108 Mich. Fear v. Dunlap, 1 Greene, 331; 295; Watson v. Hart, 6 Grat. 633; Holmes v. Preston, 70 Miss. 152; De Allen v. Brown, 124 Mass. 77; Dale Pauw v. Bank of Salem, 126 Ind. 553. v. Gear, 38 Conn. 15. i Key v. Simpson, 22 How. 341; Heath v. Van Cott, 9 Wis. 516; Cady v. Shepard, 12 Wis. 639 ; Bright Stack v. Beach, 74 Ind. 571. v. Carpenter, 9 Ohio, 139: Feather- 19 Coulter v. Richmond, 59 N. Y. stone v. Hendrick, 59 111. App. 497; 478; Deering v. Creighton. 19 Oreg. O wings v. Baker, 54 Md. 82; Kuntz 118. v. Tempel, 48 Mo. 71 ; Stack v. Beach, *> Schneider v. Schiffman, 20 Mo. 74 Ind. 571; Chaddock v. Vanness, 571; Salisbury v. First Nat. Bank, 85 N. J. Law, 517; Browning v. Mer- 37 Neb. 872. 242.] EXCHANGES, SECURITIES, ETC. 403 payment by the holder of the note, 21 or to notice of non-pay- ment, whether he has been injured by delay or not. The reason is plain : he contracts to perform the maker's obliga- tion, which is to pay without notice. A guarantor for a drawer, however, is entitled to claim a demand and notice to the drawer. But a guarantor may contract for such demand and notice, and then the contract will control." Those courts which hold that a demand is necessary against the guarantor generally confine his right to complain to the extent of the injury suffered, and the notice of non-pay- ment is riot required to be of the strict character as to time that is given to an indorser. 23 242. Parties to non-negotiable instruments. The great weight of authority is that the drawer or assignor or the indorser, so called, of a non-negotiable instrument is not 21 Read v. Cutts, 7 Me. 180; Klein v. Currier. 14 111. 237; Gage v. Me- chanics' Nat. Bank, 79 111. 62 ; French v. Citizens' Nat. Bank, 97 Ind. 211 ; Tyler v. Waddington, 58 Conn. 375; Claflin v. Reese, 54 Iowa, 544, semble; Adams v. Gordon, 22 La. Ann. 41; Matthewson v. Sprague, 1 R. L 8; Clay v. Edgerton, 19 Ohio St. 549; Buchner v. Liebig, 38 Mo. 188; Don- ley v. Camp, 22 Ala. 659; Park man v. Brewster, 15 Gray, 271; Hunger- ford v. O'Brien, 37 Minn. 306; Wright v. Dyer, 48 Mo. 525; Bloom v. Warder, 13 Neb. 476; Stout v. Stevenson, 4 N. J. Law, 178; Hough v. Gray, 19 Wend. 202; Williams v. Irwin, 3 Dev. & B. 74 (indorsers sureties by statute); Carpenter v. McLaughlin, 12 R L 270. Contra, Pierce v. Kennedy, 5 Cal. 138. But see First Nat. Bank v. Babcock, 94 Cal. 96, for present rule. Lewis v. Brewster, 2 McLean, 21 ; Off utt v. Hall, 1 Cranch, C. C. 534; Bradley v. Phelps, 2 Root, 325 (see Williams v. Granger, 4 Day, 444) ; Second Nat. Bank v. Gay lord, 34 Iowa, 246; Par- ker v. Riddle, 11 Ohio, 102. But see Forest v. Stewart, 14 Ohio St. 246; Sibley v. Van Horn, 13 Iowa, 209; Fuller v. Scott, 8 Kan. 25; Wheton v. Mears, 11 Met. 563; Talbotv. Gay, 18 Pick. 534; Newton Wagon Co. v. Diers, 10 Neb. 284 22 Dickerson v. Derrington, 39 111. 574; Farmers' Bank v. Kercheval, 2 Mich. 504; Clay v. Edgerton, 19 Ohio St. 549; Hammond v. Cham- berlain, 26 Vt. 406. See Sylvester v. Downer, 18 Vt. 32; Woodson v. Moody, 4 Humph. 303. 23Rhett v. Poe, 2 How. 457; Reyn- olds v. Douglass, 12 Pet. 497 ; Martyn v. Lamar, 75 Iowa, 235; Parkman v. Brewster, 15 Gray, 271; Johnson v. Wilmarth, 13 Met. 416; Gibbs v. Cannon, 9 S. & R. 198; Sibley v. Van Horn, 13 Iowa, 209; Fuller v. Scott, 8 Kan. 25. And see cases contra, in note 21, supra. 404 BANKS AND BANKING. [ 242. entitled to have a demand made upon the drawee; 1 but if the instrument is a promise to pay money at a clay certain, there is no reason for holding that the indorser of such a docu- ment ought not to be entitled to all the rights of an ordi- nary indorser of a negotiable promissory note, or where the order is for money, a sum certain, words of negotiability are not necessarily required to make it a bill of exchange, and hence demand and notice ought to be necessary. 2 The reason, however, doubtless is that the law as to demand and notice is a part of the law merchant, applicable to negotiable instruments as such, and ought to have no ap- plication to instruments that do not fall within this class. But there are other decisions which require such demand as to the drawer and indorser of a non-negotiable order, 3 and one exception that might seem reasonable is that, if the in- dorsee shows that he treated the order as negotiable, then the indorser is entitled to the rights of an indorser of a ne- gotiable instrument. 4 But whether the instrument be nego- tiable or not is purely a matter of law, and a mistake of law is not usually held to give the man who makes it or who concurs in it any right from the standpoint of civil liabili- ties, unless the circumstances would amount to an estoppel. The courts which hold this rule that a demand must be 1 Seymour v. Van Slyck, 8 Wend, torney's receipt, Runnells v. Spen- 403; Ishv. Mills, 1 Cranch,C. C. 567; cer, 1 Miss. 362. Compare Wood v. Huse v. Hamblin, 29 Iowa, 501; Duval, 9 Leigh, 6. Briggs v. Parsons, 39 Mich. 400; 2 An order for money, see the next Smith v. Barnes, 24 Ga. 442; Rich- note. ards v. Waring, 1 Keyes, 576; Ford 3 Hawkins v. Barney, 27 Vt. 392 v.Mitchell, 15 Wis. 304 (a certifi- (injury must be shown): Adams v. cate of deposit held non- negotiable) ; Boyd, 33 Ark. 33 ; Hart v. Eastman, Lyell v. Lapeer Co., 6 McLean, 446 7 Minn. 74; Rhodes v. Morgan, 1 (municipal order); Steel v. Davis Baxt. 360; Brown v. Teague, 52 N. Co., 2 G. Greene, 469 (municipal C. 573; Henderson v. Griffin, 3 Mart, order); Pitman v. Brackenridge, 3 (N. S.) 403; Strader v. Batchelor, 8 Gratt. 127; Sinclair v. Johnson, 85 B. Mon. 168; National Bank v. Good- Ind. 527. A guarantor of an order ing, 87 Me. 337. For order on an can require no notice of non-pay- attorney, see Wood v. Duval, 9 ment. Gammel v. Parramore, 58 Leigh, 6. Ga. 54. See, for the effect of an at- 4 Haber v. Brown, 101 CaL 445. 243.] EXCHANGES, SECURITIES, ETC. 4:05 shown as to the indorser of a non-negotiable order must necessarily hold the same rule as to the drawer of an order, 5 but in no event ought the defense to be allowed except as to the amount of injury suffered. 6 But unless the order be for money, certainly it needs no demand as to the drawer or indorser. Thus an order for lumber needs no present- ment. 7 And orders of public corporations issued by author- ity of law need no demand as against an indorser. 8 243. Parties to certificates of deposit. Courts have spoken of certificates of deposit as the promissory notes of the bank issuing them, and apparently upon that theory it has been held that being, if payable upon demand, demand notes, as to one who made the deposit for the benefit of the payee as a payment they should be presented within a rea- sonable time. 1 Another court seems to have treated the certificate as a check and held that the certificate must be presented as against an indorser upon the next business day, 2 although it is certain that if the payee and indorser requested or acquiesced in the delay they could not object. 3 But the better authority is that such certificates are not subject to the rule as to the necessity of a demand in order to bind the indorser, 4 although the holding mentions the wholly unten- . able ground that the certificate was not negotiable. 5 The 5 See cases in note 3, supra. Citizens' Bank v. Brown, 45 Ohio Hawkins v. Barney, 27 Vt. 392. St. 39; Bean v. Briggs, 1 Iowa, 148; 7 Smith v. Barnes, 24 Ga. 442. Blood v. Northrup, 1 Kan. 28; Fells 8 Lyell v. Lapeer Co., 6 McLean, Point Sav. Inst. v. Weldon, 18 Md. 446: Steel v. Davis Co., 2 G. Greene, 320; Mitchell v. Easton, 37 Minn. 469. For rule as to presentment for 335; Frank v. Wessels, 64 N. Y. 155; acceptance, see 207, 208, ante. Curran v. Witter, 68 Wis. 16. Con- 1 Bower v. Hoffman, 23 Md. 263. tra, Shute v. Pacific Nat. Bank, 136 The great weight of authority is Mass. 487; Lebanon Bank v. Man- that these certificates of the bank gan. 28 Pa. 452. are promissory notes and negotiable 2 Piner v. Clary, 17 B. Mon. 645. as such. Miller v. Austin, 13 How. 3 Gate v. Patterson, 25 Mich. 191. 218; Brummagim v. Tallent, 29 Cal. Pinkham. v. Macy, 9 Met. 174. 28 N. Y. 561, and Davenport v. Gil- But see Clark v. Eldridge, 13 Met. bert, 4 Bosw. 532. 96. " Manchester Bank v. White, 30 Bank of U. S. v. Barry, 2 Cranch, N. H. 456. Any notice is sufficient C. C. 307; Union Bank v. Fonte- if the instrument dishonored was neaux, 12 Rob. (La.) 120. intended to be described and such 42 Wheaton v. Wilmarth, 13 Met. details are given as will put upon 422; Cook v. Litchfield, 5 Sand. 330, inquiry, and the person to be noti- 9 N. Y. 279; Burgess v. Vreeland, 24 2 TO.] EXCHANGES, SECURITIES, ETC. 471 ity contra, but they are overruled. 43 The mode of demand 44 or the time of demand need not be stated, 45 but if the time is stated it must be correctly stated, for notice of the naked fact of non-payment, if accompanied by a demand on the in- dorser, is sufficient. 46 If the paper is payable at a particular place, notice that it is due and unpaid is sufficient. 47 But notice of demand and non-payment is something that can be given so easily in proper form, or, if not given, the ex- cuse can be given in so few words, that no one ought to have difficulty in following a form; approved ones may be found in the note. 48 The difficulty is that a holder never thinks of consulting a lawyer until, by his ignorance, he has plunged himself into a difficult position. Notice should be given upon the first dishonor. 49 A holder cannot redeem himself for his failure by making a second demand and giving notice of that, 50 although if what took place was not in legal contemplation a demand, he may make a good demand. If acceptance is refused, notice of N. J. Law, 71; Glicksman v. Earley, paper is dishonored by the refusal 78 Wis. 223; Selden v. Washington, of payment, the clearing-house 17 Md. 379. paper is not to be protested, but 43 See Burkham v. Trowbridge, 9 the original check should be ob- Mich. 209; Cromer v. Platt, 37 Mich, tained from the bank refusing the 132. clearing-house paper, and demand 44 Sanger v. Stimpson, 8 Mass. 260. should be made on that original 45 See Tevis v. Wood, 5 Cal. 393; paper, and the check protested for Reynolds v. Appleman, 41 Md. 615. non-payment. Notice is to be given But see Stephenson v. Dickson, 24 upon this demand, not upon any Pa. 148. provisional presentation through 46 Mills v. United States Bank, 11 the clearing-house. Merchants' Nat Wheat. 431. Bank v. Procter, 1 Cin. R 1. 47 See note 40 and note 6, supra, Reynolds v. Appleman, 41 Md. and Sasscer v. Farmers' Bank, 4 615; Stephenson v. Dickson, 24 Pa. Md. 409. But where a clearing- 148. house is in operation, the exchange 49 See casss in the following notes, of checks at the clearing-house is 50 Rice v. Wesson, 11 Met. 400; not a demand; and if the bank Stanley v. Farmers' Bank, 17 Kan. presenting the check receives the 592. But this rule ought not to clearing-house paper upon the preclude a good demand on the drawee bank for the check, which same day. 472 BANKS AND BANKING. [ 271, 272. dishonor must be given, 81 whether presentation for accept- ance was needed or not ; if demand is made upon demand paper before there is any necessity for it, and payment re- fused, notice should be given. 52 If the paper does not re- quire any demand whatever, but a demand is made, notice need not be given ; M but the party to be charged by notice cannot object that a demand upon such paper was made. 54 271. Mode of serving notice. The methods of giving notice are by personal service, either actual or constructive, corresponding to an actual or constructive personal demand, by service at a place designated as the place of serving no- tices, or by mail, which is another kind of constructive per- sonal service. Oral notices of dishonor can only be served, of course, in the first two methods. The cases in which no- tices can be served by mail are dependent upon the resi- dences of the parties, unless the rule has been changed by statute. The natural order to consider the question is to first determine when notices can be served by mail, then the sufficiency of the service by mail, and then the cases of personal service. 272. When service by mail permitted, The propriety of a service by mail is dependent upon the residence of the parties. It is allowable in all cases, except when the party giving the notice and the one receiving the notice reside in the same place. It will be advantageous to consider the various situations that may arise. The holder may serve the notices himself or he may serve them through an agent. The agent may reside in the same place as the holder, or in the "United States v. Barker, 4 ' Adams, 48 Pa. 261. See Austin v. Wash. C. C. 464, 12 Wheat. 559; Rodman, 8 N. C. 194. Smith v. Roach, 7 B. Mon. 17; Pen- 2Ri ce v . Wesson, 11 Met. 400. dleton v. Knickerbocker Life Ins. 53 This is non-negotiable paper. Co., 5 Fed. R. 238; Landrun v. Some courts, as we have seen, allow Trowbridge, 2 Met. (Ky.) 281; Car- the drawer or indorserto claim de- michael v. Pennsylvania Bank, 4 mand. How. (Miss.) 567. Contra, House T. 54 Central Bank v. St John, 17 Wis. 157. 272.] EXCHANGES, SECURITIES, ETC. 473 same place as the party to be charged by notice, or he may reside in a different place from either. The holder serving may receive the notices from his agent in another place, or he may make them out himself. A.11 the parties holder, agent and party to be charged may reside in the same place. Confining ourselves first to a case where an agent does not supervene, if the holder giving notice and the party receiv- ing notice reside in the same city or town, service by mail is not permissible; the service must be personal, 1 except where there is a free delivery system covering the indorser's resi- dence, and the notice is mailed so that it will be delivered on the same day that it is mailed. 2 In other cases the serv- ice must be personal, if the parties reside in the same town. 8 But nevertheless if the mail is used, and the person to be charged is shown to nave received the notice on the same day that he would have been entitled to receive it by per- sonal service, 4 but not later, 5 the service is good; and a per- son may have a place of business in the city where service is being made and reside outside of the city. In such a con- tingency the service must be personal upon him, either act- ually or constructively so, 6 and some authority holds that the service must be personal even though he have no place of business in the city. 7 But if he have no place of business 1 Williams v. Bank of U. S., 2 Pet. Bank v. Warner, 92 Mass. 522; Hen- 96; Bowling v. Harrison, 6 How. dershot v. Nebraska Nat. Bank, 25 248; Spalding v. Krutz. 1 Dili 414; Neb. 127; Grinman v. Walker, 9 Curtis v. State Bank, 6 Blackf. 312, Iowa, 426; Foster v. Sineath, 2 Rich. and many other cases. The case of Law, 338. Farmers' Bank v. Battle, 4 Humph. 5 See cases in last note and Ter- 85, extends the rule as to the sams bell v. Jones, 15 Wis. 253; Nevins v. place to a neighborhood using the Bank of Laningsburgh, 10 Mich, same postoffice. 547; Gordon v. Pedrick, 6 Phila. 2 Morton v. Cammack, 4 Me A. 22 ; 254. Bell v. Hagerstown Bank, 7 Gill, 6 Vowell v. Patton, 2 Cranch, C. C. 216; Walters v. Brown, 15 Md. 285; 312; Patrick v. Beasley, 6 How. Shoemaker v. Mechanics' Bank, 59 (Miss.) 609; Brown v. Bank of Pa. 79. Abingdon, 85 Va. 95. 3 See cases in note 1, supra. 7 Louisiana State Bank v. Rowel, 20p ayn e v. Patrick, 21 Tex. 680. 16 West River Bank v. Taylor, 34 21 This particular case does not N. Y. 128; True v. Collins, 85 Mass, seem to have arisen. 438; Fitchburg Bank v. Perley, 84 "See cases in notes 17 and 18. Mass. 433; First Nat Bank v. Smith. 132 Mass. 227. 4-88 BANKS AND BANKING. [ 277. doubt as to an agent who was not indorsee. 23 Since, there- fore, the holder has the right to assume that the agent for collection or the indorsee for collection will transmit the notices to himself for service, he is not negligent in not giv- ing the agent an y information whatever as to the residences of the parties, 24 unless he direct that agent or indorsee for collection to serve the notices, when he should give the agent all the information in his possession in order to escape the imputation of a want of due diligence. 25 The party to the paper desiring to serve a notice may send the notice to a third party, a stranger to the paper, to serve where he does not know the address, and if that third person acts with due diligence the service is good. 26 But if the person knew the address, the sending of the notice to a third person not a party to the paper would not bo due diligence. 27 The second case cited in the last note applies wrongly a sound principle by mistaking the facts. There the president of the bank, who had received in his private capacity knowledge of the residence of a person to be charged with notice, was not in the bank, and took no part when the notice was sent, and his knowledge was clearly therefore not imputable to the bank ; so the case is one of that numerous list where courts have failed to understand properly the rules of agency. 28 Sometimes statutes require all indorsers to be served, and thus modify the preceding rules. 29 2Fish v. Jackmann, 19 Me. 467, 26 Sewell v. Russell, 3 Wend. 276; Slack v Longshaw, 8 Ky. Law R. Lafayette Bank v. McLaughlin, 4 166. But the other rule is correct. W. L. J. 70. It was held in the first Lawson v. Farmers' Bank, 1 Ohio case above that where the notice St. 206; Ellis v. Commercial Bank, was sent to an agent to serve, he 7 How. (Miss.) 294. See Tunno v. has not one day after receipt merely Lague, 2 Johns. Gas. 1, and note 17, to put in the mail. See Uarmena isupra. v. Dougherty, 1 La. Ann. 369. See Bartlett v. Isbell, 31 Conn. n Carmena v. Dougherty, 1 La. 296. But Clarke v. Ward, 4 Duer, Ann. 369; Central Nat Bank v. 206, seems contra, and so seems to Levin, 6 Mo. App. 543. But the be First Nat. Bank v. Farneman, 93 first case is wrong, since the notice Iowa, 161, but they are wrong. was sent to the holder. '- See Lawrence v. Meller, 16 N. Y. 28 See 112, ante. 235; Smith v. Fisher, 24 Pa. 222. 29 Bowling v. Arthur, 34 Miss. 41. 278.] EXCHANGES, SECURITIES, ETC. 489 278. By whom notice is to be given. The notice may be given by the holder or his agent. 1 It is not material whether the one or the other gives the notice. 2 Under this rule the notary employed is an agent, which fact may be inferred from his acting. 3 The cashier of a bank hold- ing for collection is an agent of the bank to give notices. 4 The indorsee for collection has been called also an agent under this rule ; but as we have elsewhere demonstrated, a bank holding paper for collection is a bailee, and therefore an actual holder, not an agent. 5 Notice given by the ac- ceptor 6 or maker, as agent of the holder, inures to the benefit of other parties to the bill. 7 The word " holder " in- cludes any one through whose hands the bill or note has passed, 8 even an assignor without indorsement. 9 Each one of them may give notice to all or any parties prior to them- selves. 10 In the last section was necessarily considered the giving of notices by successive obligors. 11 We saw that an agent could give notice to his principal instead of sending notices, 12 or he might give notice himself in his own name 13 or in his principal's name. 14 The holder can give notice to any or all the prior parties. 15 Each indorser must take precau- tion to see that all prior parties whom he desires to hold are See Jarnagin v. Stratton, 95 Tenn. as agent of the holder, and acted 619, as to the effect of a statute in due time. Sebree Deposit Bank making all joint obligations joint v. Moreland, 96 Ky. 150. and several. It does not change 7 See cases in last note. this rule. 8 Glasgow v. Prattle, 8 Mo. 336; 1 Burke v. McKay, 2 How. 66; West River Bank v. Taylor, 34 N. Y. Harris v. Robinson, 4 How. 336. 128; Stafford v. Yates, 18 Johns. 327. 2 See cases in last note. 9 He would be on the same foot- 3 Burbank v. Beach, 15 Barb. 326. ing as a holder to whom the note See Payne v. Patrick, 21 Tex. 680. was unindorsed. See Pate v. State 4 State Bank v. Vaughan, 36 Mo. Bank, 3 Ind. 176. 91. 1 See preceding section. 8 See 171, ante, and Manchester u See last section. Bank v. Fellows, 28 N. H. 302. 12 See last section. 8 Union Bank v. Grimshaw, 15 13 See note 17 to preceding section. La. 821; Brailsford v. Williams, 15 14 See 270, ante. Md. 150. But the allegation must 15 See preceding section, be that the maker or acceptor acted 400 BANKS AND BANKING. [ 278. notified, 16 unless a statute should change the rule. 17 Notice to a prior indorser from the holder inures to the benefit of the subsequent indorser, 18 and notice by a subsequent to a prior indorser inures to the benefit of the holder. 19 It has been held that notices to all the prior parties properly ad- dressed, inclosed in a letter to the last indorser, will hold all the prior indorsers to the holder, although the last in- dorser never received the letter, and the letter was lost in the mail. 20 Other authority seems to require that the notices be actually transmitted with proper diligence to the prior indorsers. 21 This modification is correct to this extent, that no intervening party be guilty of laches, and therefore the first statement of the rule is undoubtedly correct, even if the holder had knowledge as to the residences. If, however, the last indorser received the letter it must appear that he remailed or served the notices, 22 either to his prior indorser or the parties separately, and the same rule as to miscarriage in the mail would apply. 23 All the cases in the preceding section should be consulted in connection with this section. Notices given by those who are strangers to the paper are 16 See preceding section. But if a subsequent party not notified gives notice to a prior party, the notice does not inure to the other parties to the paper. Brown v. Ferguson, 4 Leigh, 37, semble. This decision is wrong. The rule ought to be that as soon as it appears that the holder mailed the notice under cover to the last indorser, then the indorser should be called upon to show that he did not receive it, and to show laches. See notes 20 and 21, and Stafford v. Yates, 18 Johns. 327. 17 See note 29 to preceding section. 18 See preceding section. 1 19 See preceding section. 2 Wamesit Bank v. Buttrick, 11 Gray, 387. Due diligence had been used to notify the prior parties. If the notices had not been lost, then the laches of an intervening holder would 'defeat recovery. Farmers' Bank v. Turner, 2 Litt. 13; Holland v. Turner, 10 Conn. 308. 2 'See Aldine Mfg. Co. v. Warner, 96 Ga. 370; Stix v. Matthews, 63 Mo. 371; Van Brunt v. Vaughan, 47 Iowa, 145. 22 Renshaw v. Triplett, 23 Mo. 213; Ohio Life Ins. Co. v. McCague, 18 Ohio, 54; Holland v. Turner, 10 Conn. 308. 23 There is no doubt that a notice properly mailed by a proper person is notice. 279.] EXCHANGES, SECURITIES, ETC. 491 wholly void ; 24 but a liberal presumption will be indulged in favor of the authority of the giver of notice. 25 279. Place to direct by mail. We have hereinbefore discussed the place of service where the service is not to be made by mail and the residence is known. 1 It will be nec- essary now to consider to what postoffice the notice should be directed when the postoffice address is known. The propriety of sending a letter to a discontinued postoffice has been considered in a former section. 2 It should first be observed that notice by mail is not compulsory, for notice may be sent by messenger, and if the messenger exhibit reasonable diligence in transmitting it the service is per- fectly good. 3 In the next place the particular postoffice which it is desired to address may be called by more than one name ; and if that be the case the use of either name is- proper. 4 Again, a particular place may have more than one postoffice, and a notice directed to the place without indi- cating which postoffice would be sufficient, unless it be shown that the holder or his agent serving was aware that the re- cipient of the notice used one of the postoffices exclusively,. or could have known it by reasonable diligence. 5 The place to be addressed may be a district of country with a post- office in it, and if the indorser lives in the district, notice to- him through the postoffice for the district would be suffi- cient, unless the holder knew that he made use of a post- * Lawrence v. Miller, 16 N. Y. 235. 4 Geneva Bank v. Hewlett, 4 25 Payne v. Patrick, 21 Tex. 680. Wend. 328. 1 See 274, ante. 6 Morton v. Westcott, 8 Gush. 425; 2 See 273, ante. Roberts v. Taf t, 120 Mass. 169 ; Man- 3 Bank of Columbia v. Lawrence, Chester Bank v. White, 30 N. H. 456; 1 Pet 578; Hazelton Coal Co. v. Downer v. Remer, 21 Wend. 10, 23 Ryerson, 20 N. J. Law, 129. But Wend. 620; Bank of Manchester v. the special messenger differs from Slason, 13 Vt. 334; Burlingame v. the mail in that notice put into the Foster, 128 Mass. 125. If the post- mail is good, but notice given to a office has two names, either name special messenger proves nothing may be used (Bank of Geneva v. until it is shown that the messen- Hewlett, 4 Wend. 328) ; but a notice ger exercised diligence. Jarvis v. addressed to a county which ha St Croix Mfg. Co., 23 Me. 287. more than one postoffice is bad. Bank of III. v.Taylor, 7 T. B. Mon. 576. 492 BANKS AND BANKING. [ 279. office outside of that district. 8 If the notice to be addressed is to a city of considerable size, it is not necessary to address the person receiving the notice by his street and house num- ber, 7 unless it be shown that the holder or his agent for service knew the house number and the street, or unless the address has been indicated in such a manner, e. g., upon the paper, that the holder, ought to have known the number. 8 There may be two places in different states with the same name; if one of those places be in the same state as the place where the notice is sent, the state need not be named in the address, but otherwise it should be. 9 Subject to the above limitations the notice should be sent, in the absence of a controlling agreement, to the postoffice of the place of actual residence of the indorser or other person to be charged with notice, provided that place be known to be the resi- dence of the party or represented by him to be such. 10 This rule is to be followed regardless of the place where the bill or the note is dated. 11 Sending the notice in this manner will always be considered sufficient if the mail is a proper method of service in the particular case. 12 People, however, will be found residing in one place part of the year and in another place part of the year, and it would seem to be cor- rect to address the postoffice of actual residence, regardless of the domicile. 13 Yet mere absence from his family does not constitute a change of residence under this rule. 1 * But cases must frequently arise where the indorser lives away 6 Rand v. Reynolds, 2 Gratt 171. " Fitler v. Morris, 6 Whart. 406. 7 True v. Collins, 85 Mass. 438; 12 See 272, ante. It is immaterial Webber v. Gotthold, 28 N. Y. Supp. that the notice was never received. 763. 273, ante, note 1. 8 Bartlettv.Robinson,9Bosw.305, ^This is the rule as stated in 39 N. Y. 187. Young v. Durgin, 15 Gray, 264. See Beckwith v. Smith, 22 Me. 125. Goodwin v. McCoy, 13 Ala. 271; 10 Young v. Durgin, 15 Gray, 264; Wooley v. Lyon, 117 III 244; Mc- Robinson v. Barber, 8 Am. Law J. Murtrie v. Jones, 3 Wash. C. C. 206; (N. S.) 59; Lewiston Falls Bank v. Gist v. Ly brand, 3 Ohio, 307. Leonard, 43 Me. 144 (represented by 14 Curtis v. State Bank, 6 Blackf. indorser to be his postoffice). See 312; Walker v. Stetson, 14 Ohio St. also Pierce v. Pendar, 5 Met. 352. 89. 279.] EXCHANGES, SECURITIES, ETC. 493 from a place with a postoffice. In that contingency the place to send the notice through the mail, if the server does not know where the person to be served receives his mail, is the postoffice nearest to the residence of the indorser or drawer. 15 In order to determine the nearest postoffice it is said that the holder may consider the nearest postoffice the one from which he will get mail the soonest, not necessarily the post- office nearest in point of distance. 16 But the case must be very rare where such a condition of affairs is likely to exist. It is the safer rule to choose the postoffice that is the nearer in point of distance, and that choice is proper though the postoffice be in another state. 17 But where the nearer post- office was separated from the indorser's residence by a wide and rapid river, while another postoffice, though two miles farther away, was on the same side of the stream, the choice of the latter place of address was justifiable. 18 This decision should have been put upon the ground that the holder had the right to assume that the indorser received his mail at the latter place. In yet another case, where the indorser lived three miles from the nearest postoffice and eleven miles from the place of demand, it was seemingly held, by an ap- parently foolish court, that the place of demand was the postoffice of the indorser, and that service by mail was im- proper. 19 If it were shown that the holder knew that the indorser did not get mail at his nearest postoffice, but did get it from the postoffice at the place of demand, this decis- ion might be upheld. 20 Another court has held that where the drawer or indorser lives outside of the city the notice may be by mail to the city postoffice, if it is the nearest 15 Forbes v. Omaha Nat. Bank, 10 "Harrison v. Bowen, 16 La, 282; Neb. 338; Hazelton Coal Co. v. Pollard v. Cook, 4 Rob. (La.) 199. Ryerson, 20 N. J. Law, 129; Reid v. 18 Bank of Louisiana v. Corl, 3 La. Payne, 16 Johns. 218; Seneca Co. Ann. 273. Nat Bank v. Neass, 3 N. Y. 442, 5 Nashville Bank v. Bennett, 1 Denio, 329; Bank of Columbia v. Yerg. 106. Magruder, 6 Har. & J. 172; Woods 20 See the cases cited in note 28, v. Neeld, 44 Pa. 86. infra. le Bank v. Lane, 10 N. C. 453; Bank of Louisiana v. Corl, 3 La. Ann. 273. 494: BANKS AND BANKING. [ 279. postoffice, and if he has no place of business in the city. 21 And there are decisions denying this rule as to an indorser who lived one and a half miles, 22 a few miles, 23 but applying it to indorsers who live four or five miles, 24 and nine miles out of the city. But the rule of the nearest postoffice is only a rule of pre- sumption. For a notice that is directed to the postoffice where the person receiving notice is in the habit of receiving his mail will unquestionably be sufficient regardless of the rule of the nearest postoffice. 25 And if the indorser should be in the habit of receiving mail at more places than one, notice to either of these places is sufficient; 26 yet in Louisiana (a state where almost any kind of a decision upon this phasa of the law may be found, and where the multitudinous de- cisions lead one to imagine that the most active pursuit of the population was the indorsing of notes, which the makers never paid), the court thought an indorser ought to be pro- tected against a postoffice twenty-two miles away from his residence, even though he was foolish enough to receive his mail there sometimes. 27 If now the holder or his agent knows that the indorser is in the habit of receiving his mail at a certain postoffice, the notice may be directed there even if it be not the nearest; 28 but he is not compelled, it appears, to 21 See note 8 to 272, ante. Walker v. Stetson, 14 Ohio St. 89; 22 Forbes v. Omaha Nat. Bank, 10 Hazelton Coal Co. v. Ryerson, 20 Neb. 338. And see notes 6-8, 272, N. J. Law, 129. ante. 26 Bank of U. S. v. Carneal, 2 Pet. 23 Ireland v. Kip, 10 Johns. 490, 11 543; Follain v. Dupre, 11 Rob. (La.) Johns. 231. See notes 6-8, 272, 454; Menzies v. Farmers' Bank, 3 ante, Ky. Law R. 822; Crawford v. Read, 24 See notes 6-8, 272, ante. 9 Rob. (La.) 243. See Shelburne 2 Bank of U. S. v. Carneal, 2 Pet Falls Bank v. Townsley, 107 Mass. 543; Glasscock v. Bank of Mo., 8 444; Mechanics' Bank v. Compton, Mo. 443; Mercer v. Lancaster, 5 Pa. 3 Rob. (La.) 4. 160; Nevins v. Bank, 10 Mich. 547; v Pritchard v. Scott, 7 Mart. (N. S.) Montgomery Co. Bank v. Marsh, 11 491. Barb. 645, 7 N. Y. 481; Shay lor v. 2 Follain v. Dupre, 11 Rob. (La.) Mix, 86 Mass. 351; Grief v. Mo- 434; Grand Gulf Co. v. Barnes, 12 Daniel, 14 La. Ann. 155; Farmers' Rob. (La.) 127; Bank of Illinois v. Bank v. Battle, 4 Humph. 86; Taylor, 7 T. B. Mon. 579; Reid v. 279.] EXCHANGES, SECURITIES, ETC. 495 do so. But if the holder does not know the. fact he needs not inquire, but should follow the rule of mailing to the nearest postoffice. 29 There is yet another consideration that will govern the rule of mailing to the postoffice nearest the residence of the recipient of notice. "While, as we have seen, the presence of an address for the indorser, not put upon the note by the indorser, will not justify the sending of notice there without inquiry, a direction to the holder to send notice to a cer- tain place can be deviated from only at the risk of the holder. 30 This direction as to notice will be reasonably and liberally and not strictly construed. 31 It governs the rule as to the nearest postoffice, 32 and the accustomed postoffice as well. The direction need not be given necessarily by the indorser, for the order to direct notice given by the drawer for an accommodation indorser, 33 or the direction as. to no- tice to indorser given by the person who presents the paper for discount, apparently for the indorser, is binding upon the indorser. 34 But the direction as to notices must be given to the holder. He cannot take advantage of a direction given to the postmaster as to the forwarding of mail, in order to avoid the force of the rule as to the nearest postoffice. 35 But it should not be forgotten that these rules are only compulsory when the indorser or drawer has not received Payne, 16 Johns. 218; Seneca Co. 33 Bank of Utica v. Bender, 21 Nat. Bank v. Neass, 3 N. Y. 442. Wend. 643. 29 See last case in last note and 34 Bank of Utica v. Davidson, 5 Taylor v. Bank of Illinois, 7 T. B. Wend. 587. Hon. 576. 85 Ireland v. Kip, Anth. N. P. 195. 30 Paterson Bank v. Butler, 12 N. J. In the upper courts the point was Law, 268. See as to address on missed. This point would seem to paper, Bowling v. Harrison, 6 How. be the only ground upon which 248. this decision can be justified. But 31 Menzies v. Farmers' Bank, 3 Ky. the point is really immaterial. It Law R. 822. See Follain v. Dupre, proves that the person has been 11 Pvob. (La.) 454; Priestley v. Bis- getting his mail at the place, and land, 9 Rob. (La.) 425. if the holder does not know of the 3 -Carmena v. Bank of La, 1 La. change, mailing to the place is good. Ann. 369; Crowley v. Barry, 4 Gill, McGrew v. Toulmin, 2 Stew. & P. 194. 428. 4:96 BANKS AND BANKING. [ 280. notice in due time. If he has received such notice in due time from the holder, or from some other party to the paper, as hereinbefore stated, it is immaterial how the notice was directed, 38 or to what place it was directed, 37 or who conveyed it, 88 or where it was received. 89 280. Absence from home. Incidentally, in the preced- ing section upon personal service, the effect of a person's ab- sence from his home was noticed. The rule may be stated to be that the temporary absence of a person from his resi- dence does not require any different method of service whether the absence be for several days or several months. 1 If his place of business or his residence is kept open, service there otherwise good ought in all cases to be upheld. 2 If the person is traveling, it would be absurd to expect the holder to pursue him from place to place with a notice. It is the duty of the person leaving home to make provision for proper attention to his business while he is away. The rule is reasonable and proper from every standpoint. It has been so held as to a person traveling in Europe, 5 and as to a person who has accepted a consulship, 4 and in a number of other contingencies, such as temporary absence from one's boarding house 5 or office 6 or residence. 7 The rule ought to be that in case of absence from his residence the indorser or drawer should be served at his residence without attempt- 36 See note 22, 281, post. 2 See Murray v. Ormes, 3 MacA. 60. 37 See note 22, 281, post. 'McMurtrie v. Jones, 3 Wash. 88 See note 22, 281, post. C. C. 206. 39 See note 22, 281, post. < Burkhardt v. Fourth Nat. Bank, 1 McCrummen v. McCrummen, 5 6 Wkly. Law BuL 138. Mart. (N. S.) 159; Walker v. Stetson, * See Bradley v. Davis, 26 Me. 45; 14 Ohio St. 89; Goodwin v. McCoy, Bank of U. a v. Hatch, 6 Pet 250. 13 Ala. 271; Wooley v. Lyon, 117 See Rives v. Parmley, 18 Ala. 256. HL 244; McMurtrie v. Jones, 3 Hobbs v. Straine, 149 Mass. 212; Wash. C. C. 206; Gist v. Ly brand, State Bank v.Hennen, 4 Mart (N.S.) 3 Ohio, 307; Isbell v. Lewis, 98 227. Ala. 550 ; Burkhardt v. Fourth Nat. ' Lawrenoe v. Ralston, 3 Bibb, 102 ; Bank, 6 Wkly. Law BuL 138. But Curtis v. State Bank, 6 Blackf. 312. see Runyon v. Montfort, 44 N. C. 371. 280.] EXCHANGES, SECURITIES, ETC. 497 ing to ascertain his whereabouts or waiting for his return. 8 Even though the house be closed during the absence, the no- tice may be left with a neighbor with directions to deliver. 9 But it has been held that where an indorser with his family had left his home, which was kept open and occupied by servants, a notice left at the house was not a good service, if the holder by reasonable diligence could have ascertained that the family were absent. 10 The family had gone south within the rebel lines, and there was no showing whatever that they had an established residence or even a nomadic stopping place elsewhere. The case is undoubtedly a wretch- edly erroneous decision. In another case the indorser was away from his residence and within the Confederate lines, and a notice by mail was sent to his place of residence, and the notice was held bad. 11 In yet another case the indorser was away from his residence and serving in the rebel army, and a notice left at his residence was held bad. 12 On the principle of these decisions, if a man in the far west should absent himself from his residence and go out upon the range for the purpose of stealing cattle, a notice left at his house or mailed to his postoffice would be badly served, a conclu- sion absurd enough; yet the two cases do not differ except in the species of illegality that actuated the person leav- ing home. It is exceedingly difficult to avoid the impres- sion of a political prejudice in these rulings of the court. The court seems to have thought that the interruption of communication by war cut some figure, but that is material 8 See Walker v. Stetson, 14 Ohio whether that fact was known to the St. 89. server. The opinion is accurately 9 Williams v. Bank of U. S., 2 described by the word " btte." Pet 96. 12 McVeigh v. Allen, 29 Gratt. 588. 10 Alexandria Sav. Inst. v. Me- See the same case 26 Gratt. 785, Veigh, 84 Va. 41. where the opinion by Moncure, J., 11 Gilroy v. Brinkley, 12 Heisk. 392. who seemed to be much more of a The court in this case does not see lawyer than the judge who deliv- that the whole point is whether ered the controlling opinion, cor- the residence of the indorser had rectly states the law. It is pitiful been established anywhere else, and to read the opinion of Anderson. J.. 4:98 BANKS AND BANKING. [ 280. only when the residences of the party serving and the one to be served are separated by the theatre of war. ' Here the only question to determine was that of residence or no resi- dence at the place of serving. But even conceding that the indorser had obtained a residence in Kichmond, nevertheless he kept his house at Alexandria, and there was nothing to show that the server had not exercised full diligence. It is difficult to speak of such opinions with anything but impa- tient distaste. Judges who make them simply certify to their own either incompetence or unfitness. The cases of members of legislatures, while on service with their legislative bodies, may be considered sometimes as cases of change of residence, sometimes of temporary absence from home. If the legislator keeps a residence at his home, no- tice may be served there, though the proprietor is in Wash- ington serving in the legislature. 13 A notice left at the "Washington lodgings after congress had adjourned, where the congressman had returned, as was his habit, after ad- journment to his home in Virginia, a home which he kept open all the time, was held to be not properly served. 14 Again, it has been held that a notice left at the postoffice of the House or Senate for a member of either body was not good without showing an actual reception of it; l5 but a no- tice left at the legislator's room in the hotel where he stopped was properly served. 16 If the congressman retains a resi- dence in his state it is wrong to send the notice to "Wash- ington by mail, 17 although afterwards the court held it a proper proceeding where the member had no residence or 13 Marr v. Johnson, 9 Yerg. 1. There was no right to make mail Compare with Gilroy v. Brinkley, service. 12 Heisk. 392. The two cases are 16 Graham v. Sangston, 1 Md. 59. irreconcilable. The court was compelled to make 14 Bayley v. Chubb, 16 Gratt. 284 the presumption that the room was The learned reporter informs us the member's residence, that in this case Lee, J., did not 17 Walker v. Tunstall, 3 How. " set" Compare McVeigh v. Allen, (Miss.) 259. This case amounts to 29 Gratt. 588. saying that the domicile and not 15 Hill v. Norvel, 3 McLean, 583. the residence is the place to serve notice. 2SO.] EXCHANGES, SECURITIES, KTO. 499 agent in the state. 18 Another court held that when a mem- ber of congress was in Washington, a notice sent to him there was good. 19 But in a case where Daniel Webster, with his easy facility in matters of business, had indorsed a note, he was served with notice by mail to Washington while he was there attending a session of the senate. He had an agent in Boston who attended to his business (at Webster's place of business in Boston) in his absence, but the holder did not know this, although it is a fair inference that he could have found it out if he had tried to do so; yet the notice was held to have been properly served. 20 From the foregoing decisions it is difficult to say what is the rule. Certainly, a legislator's absence from his place of residence is but temporary; he retains his legal residence there. Most of the members have their businesses and places of business at their homes. They may achieve a somewhat precarious residence while battening in some Washington boarding house, or may even attain to the dignity of a rented house. Under such circumstances a service at their homes ought to be held good, yet it is no less certain that a service by mail to Washington during the session, or a personal service, act- ual or constructive, at Washington during the session ought to be good. Perhaps the riddle is best solved by saying, under the circumstances above stated, that the member has his place of business at his home and his residence during the session in Washington, and a service at either place is good. Fortunately, the place of sojourn of congressmen is so thoroughly exploited by our indefatigable press that a service, either personal or by mail, is always possible, unless the member should be absent upon one of those admirable 18 Tunstall v. Walker, 2 Smedes compared with the cases in the last & M. 638. The record in this case section. The courts have been un- shows that a man may be secretary able to agree upon any reasonably of the treasury and have little sense fixed rule, and the same court has of business honor. been unable to agree with itself. 19 Commercial Bank v. Chambers, The question is complicated by the. 14 Mo. App. 152. distinctions that are sought to be 20 Chouteau v. Webster, 6 Met. 1. made and are made between actual The cases in this section should be residence and domicile. 500 BANKS AND BANKING. [ 281 junketing expeditions which so justly permit a little relax- ation from arduous duties, and which are so thoroughly de- signed to reflect credit upon our representative institutions. 281. Change of residence. Some of the instances men- tioned in the former section Ynay be considered as cases where the indorser or drawer has changed his residence, and no further reference needs be made to them here. It is need- less to say at this point that if the maker of the note or the drawee or acceptor of the bill of exchange has changed his residence so that for any reason a demand of payment can- not be made after due diligence, or is excused, notice to the drawer or indorser is not thereby excused, but notice should be given just as well as where a demand is made and pay- ment actually refused. 1 The instances which are now being considered are those where the indorser or the drawer has changed his residence so as to interfere with the service of notice. This change of residence may be known or not known to the holder. If known to the holder it may not be known to the agent serving the notices. Whether the holder will be chargeable with negligence for not giving the agent all his knowledge as to the indorser's residence has been already discussed. 2 Considering now the person serv- ing the notice, whether it be the holder or his agent, if the person serving knows of a change of residence on the part of the indorser or drawer and knows the new residence, no- tice must be sent to the new place of residence, 3 wherever it maybe, except if the removal be into another state; 4 and this rule is not changed by the place where the instrument is dated 5 nor where it is made payable. 6 If the change of residence is known, and it is said if it be not known but 1 Taylor v. Snyder, 8 Denio, 145; Gray, 503; Hilborn v. Artus, 4 Itl. Michaud v. Legarde, 4 Minn. 43; 844 Williams v. Matthews, 3 Cow. 252; 6 Taylor v. Snyder, 8 Denio, 145; Haber v. Brown, 101 CaL 445. Lowery v. Scott, 24 Wend. 858. 2 See 277, ante, note 24 8 See cases cited in preceding 8 Taylor v. Snyder, 3 Denio, 145. notes, and Baker v. Clark, 20 Me. 4 See Graf ton Bank v. Cox, 13 158. 281.] EXCHANGES, SECUKITIES, ETC. 501 ought to have been known in the exercise of due diligence, 7 the person serving the notice proceeds to serve as if the per- son to be charged had resided at his new residence when the bill was drawn or note was indorsed. 8 But in case the fact of the change of residence is known, but the new resi- dence is not known to the person serving, the whole matter of proper service is resolved simply into a question of due diligence to ascertain the new address, a matter which will be examined in the next section. But even if the change of apparent address be known, there are instances such as those mentioned in the former section, where the change may be treated merely as an absence from the residence. 9 An ex- ample of such a case is found where the indorser had left the house in Washington where he lived at the time he in- dorsed and had removed to New York, where he was living with his wife, although his residence in "Washington re- mained in the occupancy of his daughter and his former servants; the notice served at the house in Washington was considered good. 10 The facts in this case were not plain, but it seems reasonably certain that the server must have been able to ascertain and did ascertain the change of residence on the part of the indorser; therefore the above statement is correct. Where the change of residence is not known certain pre- sumptions may be indulged, subject to the limitation as to the manner of service suggested below, and those presump- tions are that the maker of the note lives where the note is dated, 11 and the drawer of the bill, provided diligent inquiry gives no information, lives where the bill is drawn ; 12 but this same presumption does not necessarily exist in the case of an 7 Baker v. Clark, 20 Me. 156 ; Har- Heisk. 793. If the address is on the ris v. Memphis Bank, 4 Humph. 519. note the place of dating is second- 8 See notes 3 and 4, supra. ary. Nicholson v. Barnes, 11 Neb. 9 See preceding section. 452. 10 Murray v. Armes, 3 Mac A. 60. 12 Robinson v. Hamilton, 4 Stew. 11 White v. Wilkinson, 10 La. Ann. & P. 91; Tyson v. Oliver, 43 Ala. 394; Smith v. Philbrick, 10 Gray, 455; Loweryv. Scott. 24 Wend. 358; 252. But see Gal pin v. Hard, 3 Me- Hill v. Varrel, 3 Ma 233; Barn well Cord, 394; Mason v. Pritchard, 9 v. Mitchell, 3 Conn. 101. 502 BANKS AND BANKING. [ 281. indorser, 18 yet it has been upheld. Therefore in serving by mail, in the absence of other knowledge, the notice to the drawer u or the indorser, 15 by some authority (certainly as to the indorser or drawer after diligent inquiry), 16 may be directed to the place of dating. Again, the server has the right to assume in the absence of other knowledge that the drawer and the indorser have continued to reside or to have a place of business where the residence or place of business was at the time of the indorsement or drawing of the bill. 17 It is beyond doubt that if the server has notice of the change of residence, ne must direct his notice to the new residence if he knows it, 18 and if he does not his duty is confined to exercising due diligence as will appear in the next section. This question of presumption is not as likely to arise where the service being made is personal. If the service is being made at the former residence, if it is found closed and un- occupied, diligence will require further inquiry. If it is occupied, inquiry will necessarily be made for the person to be charged, and the fact of non-residence at the place will be ascertained, or the reason of absence. But a person may change his residence and still maintain a place of business at his former place. Service by mail to the place of business so retained will necessarily be good, as will personal service at that place under the rules hereinbefore stated, 19 wherever the residence may be. Or if the sign is retained at the place of business the server may act upon the apparent fact of 13 Runyon v. Montfort, 44 N. C. 371. Howe, 48 Conn. 432; Bank of Utica 14 Robinson v. Hamilton, 4 Stew. v. Phillips, 3 Wend. 408; Importers' & P. 91, semble. Nat. Bank v. Shaw, 144 Mass. 421. 15 Page v. Prentice, 5 B. Mon. 7, ^Wilcoxv. Mitchell, 4 How. (Miss.) semble. 272. If he does not know, must in- 1 Dickens v. Beal, 10 Pet 574 See quire with due diligence. Barker v. cases in note 12 as to drawer. Clark, 20 Me. 156. It is needless to Runyon v. Montfort, 44 N. C. 371, say that personal notice may be and Carrol v. Upton, 3 N. Y. 272, as given to the indorser at the place to indorser. of demand whether it is his resi- 17 Ward v. Perrin, 54 Barb. 89; dence or not. Austin v. Latham, Menzies v. Farmers' Bank, 3 Ky. 19 La 88. Law R. 822; Union Bank v. Govan, * 9 See preceding section. 10 Smedes & M. 333; Rowland v. 282.] ' EXCHANGES, SECURITIES, ETC. 503 occupation, 20 unless he has other knowledge. And the serv- ice upon an agent retained in the place of former residence will be equally good if he have the requisite authority. 21 The above rules are of importance only when the person to be charged with notice has not actually received the notice in due time. If he does receive in proper time the notice sent, however wrongly it may have been directed, and how- ever irregular the means, he will none the less be charged with notice. 22 282. Diligence to find address. The question of notice to an indorser is never one of the actual receipt of notice, except where the server has failed to exercise due diligence in the manner of service. 1 Assuming the server not to know the present address or residence or place of business of the person to be served, and eliminating the cases where the place of service has been designated, 2 a duty devolves upon the server to ascertain the address if he can do so by the exercise of due diligence. 3 The server may never have known any address, or he may not know the address on account of a change of residence, of which he has information. 4 It perhaps needs not be stated that if the server, knowing the right address, serves at a wrong one, the notice is not good ; 5 or if, having information, he does not act upon it to the best of his knowledge, the notice will not be sufficient. 6 The 2 Beier v. Strauss, 54 Md. 278. what was done, not by information 21 Bliss v. Nichols, 94 Mass. 443. received after the fact. Brighton See Blakeley v. Grant, 6 Mass. 386. Market Bank v. Philbrick, 40 N. H. 22 Cadillon v. Rodriguez, 25 La. 506. Ann. 79; Thomas v. Marsh, 2 La. 2 See 235, ante. Ann. 353; First Nat. Bank v. Wood, 3 See the cases in note 1, supra, 51 Vt 471; Moreland v. Citizens' and note 18 to last section. Sav. Bank, 97 Ky. 211; Matthewson 4 This requires due diligence in v. Stafford Bank, 45 N. H. 104; inquiring. Bank of U. a v. Corcoran, 2 Pet. 8 Bacon v. Hanna, 137 N. Y. 379. 121. Randall v. Smith, 84 Barb. 452. 1 See cases in note 22 to last sec- And see Bacon v. Hanna, supra, tion, and Hitner v. Finney, 1 Wkly. where the address was upon an old Notes Cas. 50. The question of due note, of which the particular note diligence is to be determined by was a renewal 504: BANKS AND BANKING. [ 282. test of reasonable diligence has been defined to be the amount of care a reasonably prudent man of business would exercise in regard to matters upon which he desired to act with correct information. 7 "Whether or not these phrases define anything at all more than the fact that the standard of the law is a reasonably prudent man it is difficult to say, but they have at least received the full meed of judicial ap- probation. From the decisions a number of rules for the determination of correct diligence can be derived, but the application of them will vary with varying circumstances. For after all, due diligence is an ultimate fact to be gathered from the probative facts in evidence. If those facts are in dispute, the question of due diligence, in this case as in all others, is one for the jury under cautionary instructions from the court. If the facts are such that reasonable men might differ in regard to the -conclusion from them of due dili- gence, the question is none the less a matter for the jury. If the facts, however, are undisputed and the matter is one about which reasonable men could not differ, the question is one for the court. Assuming now that the server of notice has inquired of the owner, and the holder of the paper has no knowledge as to the place of residence of the indorser o'r drawer, he must govern himself by making proper inquiries. He cannot as- sume that the indorser has retained a residence which he had some considerable time prior to the date of indorsing; 8 although, as we have said, he may assume that the residence at the time of indorsement or drawing has been retained. 9 If he has reasonable ground to think that he knows the resi- dence or has ascertained it, he exercises due diligence in act- ing upon his belief. 10 Subject to this presumption he should examine the paper itself. If it be payable at a particular place, aj a bank, inquiries must be made at that place. 11 He may act 7 Palmer v. Whitney, 21 Ind. 58. Palmer v. Whitney, 21 Ind. 58; Planters' Bank v. Bradford, 4 Wood v. Corl, 4 Met. 20& Humph. 39. Goodloe v. Godley, 13 Smedes & 9 See the preceding section. M. 233. 10 Barr v. Marsh, 9 Yerg. 253; 282.] EXCHANGES, SECURITIES, ETC. 505 upon information received there if it indicates the residence of the person to be charged. 12 If he does not receive suffi- cient information there he should inquire of the parties to the paper, such as the maker or drawer or other indorsers; 13 he cannot rest upon the bank's lack of information as to the residence. If it be the drawer he is seeking, however, he may not address him at the place where the bill is drawn without inquiry, 14 according to some authority, but may do so without further inquiry, according to other authority. 1 ' Where the paper is not payable at a particular place, if it be a note he should inquire of the maker or of the other parties, if he knows the residences of those parties. 16 He is justified in acting upon the information indicating the resi- dence which he receives, 17 even though the information be incorrect; as, for example, where another person had the same name. 18 But information from a casual stranger (this term is used for want of a better), which turns out to be incor- rect owing to the identity of names, ought not to have been acted upon. 19 But this seems to be an instance of ex post facto wisdom. If information be not received in the preceding man- ner, inquiry should be made from those who are most likely to know where the person to be charged is, 20 and if informa- 12 Herbert v. Servin, 4 N. J. Law, 17 Harris v. Robinson, 4 How. 336; 225; Hunt v. Nugent, 10 Smedes & Gawtry v. Doane, 51 N. Y. 84 (in- M. 541; Cabot Bank v. Russell, 4 formation from the maker); Eager Gray, 167. v. Brown, 11 La. Ann. 625 (informa- 13 Gilchrist v. Donnell, 53 Mo. 591. tion from the drawee). See the language of the court in 18 Libby v. Adams, 32 Barb. 542. Whitridge v. Rider, 22 Md. 548; 19 Lawrence v. Miller, 16 N. Y. 235. but Goodloe v. Godley, 13 Smedes See Chapman v. Lipscomb, 1 Johns. & M. 233, says that no further in- 294. quiry is necessary. 20 Bartlett v. Isbell, 31 Conn. 296. 14 See the preceding section. And This case makes, as applied to the he must make due inquiry as to facts, an untenable distinction be- whether there be a postoffice at the tween a servant and agent. The place. Tyson v. Oliver, 43 Ala. 455. case is really wrong, because the 15 See the preceding section. agent did not inquire of the holder. 18 Gilchrist v. Donnell, 53 Mo. 591 ; Harris v. Robinson, 4 How. 836. Earnest v. Taylor, 25 Tex. Sup. 37; Garver v. Downie, 83 Cal. 176. Mitchell v. Young, 21 La. Ann. 279. 506 BANKS AND BANKING. [ 282. tion is obtained from such persons it may be acted upon. 21 If the information received indicates a residence in some- other place than where the server lives, he mails the notice accordingly. 22 But it would not be safe to follow any other method without inquiry, such as mailing to the indorser di- rectly to the place where the note is dated, 23 or mailing di- rectly to the drawer or indorser at the place where the bill is drawn. 24 Nor if the paper is pa} r able at a particular place, can the notice be left there or mailed to that place, without inquiry for the drawer or indorser. 25 But the inquiry may designate a district as a county for the residence of the party to be charged without indicating his postoffice address. If the notice is mailed to the county generally, where it has more than one postoffice, 26 or to a parish which is in the same condition, 27 it will be insuffi- cient. But if diligent inquiry does not develop the post- office beyond indicating the county, the notice may be mailed to the county seat. 28 But a letter should not be directed to any place without knowledge or inquiry as to their being a postoffice at the place. 29 If the information derived indi- cates that the person to be served has a residence in the same place with the server and the place has" no free-deliv- ery system, the notice, under the rule, must be personally served ; it cannot be served by mail, 30 unless by force of a statute. 31 As soon as the fact appears that the server has mailed a letter containing notice directed to the same place where it is mailed, that particular place having no free- 21 Harris v. Robinson, 4 How. 336; ^ See preceding section. Branch Bank v. Pierce, 3 Ala. 321, 24 See preceding section. and last note. 25 Greves v. Tomlinson, 19 La. 22 Brighton Market Bank v. Phil- Ann. 90. brick, 40 N. H. 506; Beals v. Par- 2 Taylor v. Bank of Illinois, 7 T. ish, 24 Barb. 243. The liability B. Mon. 576. having been fixed by due diligence, ' a Freeman v. Wikoff, 16 La. 20. the right to hold such indorser 28 Whitridge v. Rider, 22 Md. 548. passes to every subsequent holder 29 Tyson v. Oliver, 43 Ala. 455. of the note, even though that 30 See 272, ante. holder was an indorser who had 3l See 272, ante. knowledge which the server had not. 282.] EXCHANGES, SECURITIES, ETC. 50T delivery system, the burden is thrown upon the server, at once, to show due inquiry before such mailing, and failure to ascertain information. 32 But this is subject to the rule that the server may always send the notices to a particular place to be served either personally 33 or by mail, 34 where he does not know the address. In making his inquiries to find the residence or place of business of the party to be served, in the same place where the server resides, he cannot act upon the identity of a name in the directory alone. 35 He should make other inquiries. He must resort here as well to the people most likely to know the address, 36 to the place where it is payable, if it be payable at a particular place, 37 to the parties to the paper, 38 and to the usual means of pub- lic information. 39 If he cannot find the residence or place of business, he may leave the notice at the place where the paper is payable. 40 If he does find the address or place of business and there be no free-delivery system, he must pro- ceed to make personal service as indicated in a preceding section. 41 Where a change of residence has taken place, inquiry should be made in the manner before indicated, to the place where the paper is payable, 42 to the parties to the paper, 43 to those people most likely to know, 44 and to the usual sources of public information. 45 But inquiry should be made at the last place of residence as well as the new place of residence, if it is ascertained. 46 Where the new place of res- 32 See 272, ante. a party's agent. Barker v. Hall, 8 83 See 272, ante. Tenn. 183. 34 See 272, ante. 39 The cases in the notes just cited 35 Bacon v. Hanna, 137 N. Y. 379; indicate these means. See note 35, Greenwich Bank v. De Groodt, 7 supra. Hun, 210. The directory should be 40 He needs not serve notice at all consulted if it is accessible. Law- 41 See 272, ante. rence v. Miller, 16 N. Y. 231; 42 See cases in note 11, supra, Cooley v. Shannon, 20 La. Ann. 548. 43 See cases in note 16, supra, 36 See cases in note 20, supra, 44 See cases in note 20, supra. 37 See cases in note 11, supra. 45 See note 39, supra. 38 See cases in note 16, supra. 46 Hume v. Watt, 5 Kan. 34. The Pierce v. Fender, 5 Met. 352. Or to first head-note to this case ought 508 BANKS AND BANKING. [ 283. idence is in another place than the former, and not in tho same place where the server resides, the mail will be used. If the person to be served with notice has moved into an- other state, notice needs not be given to him; 47 but if the party to be served has absconded 48 or has departed without leaving any address * 9 or agent, 80 notice to him will not be necessary. Since in all cases diligence to find is equal to a good service, it follows that, if afterward information be obtained as to the residence, notice then will not be neces- sary; 81 but on this point there seems to be a doubt suggested in a certain case which is not authority. 52 But even if dili- gence has not been used in any case, the receipt of the no- tice in due time by the person to be served from some one competent to give it, however irregular the means, renders the lack of diligence immaterial. 53 These rules as to service are all of them modified by the right to transmit notices, and to serve them as between successive obligors upon the paper. 54 283. Time for service. Subject to excuses for no no- tice at all, and subject to reasons for delay which are ade- quate, the rule as to the necessity of promptitude in giving notice is strictly held. The parties who may claim this right to prompt notice have been hereinbefore indicated as the indorser of a note, 1 the drawer of a bill, 2 the indorser of to be put among the genuine curi- 83 Witeford v. Burckmeyer, 1 Gill, osities of the law. 127; Thomas v. Marsh, 2 La. Ann. 47 See 281, ante, note 4. 353; First Nat Bank v. Wood, 51 <8Madderom v. Heath Mfg. Co., Vt. 471; Cadillon v. Rodriguez. 25 35 111. App. 588; Williams v. Bank La. Ann. 79; Matthews v. Straf- of U. S., 2 Pet. 96. ford Bank, 45 N. H. 104; Moreland 49 Williams v. Bank of U. S.. 2 v. Citizens' Sav. Bank, 97 Ky. 211; Pet. 96. Freeman v. Wikoff, 16 La. 20; Bank ^Williams v. Bank of U. S., 2 of Columbia v. Lawrence, 1 Pet Pet 96. 578. Lambert v. Ghiselin, 9 How. 552; 64 See 277, 278, ante. Rowland v. Howe, 48 Conn. 432. l See 239, ante. w Canonge v. La. St Bank, 7 Mart 2 See 235, ante. Havens v. Talbot, 11 Ind. 323. 14 See cases in note 2, supra. 2l Braine v. Spaulding, 52 Pa. 247. 15 See the next section. 22 Grant v. Spencer, 1 Mont. 136. 16 See cases in note 1, supra. 23 Isham v. McClure, 58 Iowa, 515. 17 See cases in note 1, supra. A contrary decision in this case 18 Teconic Bank v. Johnson, 21 would have been proper. Ma 426; Oswego Bank v. Knower, 24 Marsh v. Badcock, 2 D. Chip. 124; Hill & D. Supp. 122; Lary v. Hudson v. Wolcott, 39 Ohio St. 618 ; 299.] EXCHANGES, SECURITIES, ETC. 535 holds that it is not so as to demand and notice at the expi- ration of the extension. 25 If the indorser himself gives se- curity upon the note, it seems that the security may be en- forced, although the note was not demanded nor notice of non-payment given. 26 The commonest form of waiver be- fore maturity is examined in the next section. 299. Promise to pay before maturity. A promise by the indorser to pay the note, made before maturity, is a promise essentially different from the promise made by the indorsement. If this promise is orally made at the time of the indorsement, the difficulty, as we have already indi- cated, is that the indorsement makes a written contract, while the parol contemporaneous agreement to pay at all events contradicts the engagement which the written in- dorsement shows. 1 The difficulty is not obviated when, in- stead of a promise to pay, the parol contemporaneous agree- ment is one of guaranty. 2 The exception where such proof of waiver is allowed is generally as to the contract of the anomalous indorser. 3 But where the indorsement is regu- lar, such parol proof is in general inadmissible where it is to show a contemporaneous waiver. 4 Where a promise to pay is made before maturity upon a regular indorsement, the question that theoretically presents itself is one of con- sideration. But since a consideration may be a detrinv-nt to the promisee as well as a benefit to the promisor, there is one branch of the rule which says that if the indorser's promise to pay induces the holder to refrain from making Whittier v. Collins, 15 R. L 44 The security must be considered Contra, Michaud v. Legarde, 4 that of the maker. But the in- Minn. 43. But see Hart v. Eastman, dorser may become absolutely lia- 7 Minn. 74 See note 6 to the fol- ble. Hoover v. Glasscock, 16 La. lowing section. 242. 25 See Hart v. Eastman, 7 Minn. iBaskerville v Harris, 41 Miss. 74; Worden v. Mitchell, 7 Wis. 161. 535. But contra, Worden v. Mitch- Contra, Sheldon v. Horton, 43 N. Y. ell, 7 Wis. 161. 93, and the cases in notes 5 and 10 2 See 298, ante, notes 5, 6. to the following section. 8 See 298, ante. 26 Cardwell v. Allen, 33 Grat. 160. 4 See 298, ante. 536 BANKS AND BANKING. [ 299. a demand and from giving notice, the promise is binding, whether express or by implication. 5 This promise may be the offer of a new note in renewal, 6 or an implied promise to pay. 7 Considered as a promise the legal theory of the con- tract of waiver must be that the new promise is a continu- ing offer to pay, including therein a waiver of demand and notice, which is accepted by the holders acting upon it by not making a demand. This theory is inadequate, for if it be a continuing offer, it could be accepted at any time after it was made and before the time came for a demand. An express acceptance ought in that event to bind the prom- isor. But this statement of the obligation shows no con sideration. The new promise cannot be considered an es- toppel, even if acted upon, because it is a promise, not a representation of any fact. So we are driven to the conclu- sion that the new promise, a nullity in itself, 8 becomes, and can become, binding as an actual contract only by the giv- ing of some consideration. A consideration is given by the detriment to the holder in acting upon the promise. Till that is done the promise ought in theory to be revocable as an offer. If, however, the holder, relying upon the promise, should release the maker or his surety, could such a detri- ment be an acceptance of the offer? Probably it would not be so, because the new promise is merely a waiver. It does not render the indorser any the less a surety sub modo for the maker, and the act of releasing the maker or his se- 8 Sigerson v. Mathews, 20 How. 143; Lititz Nat Bank v. Siple, 145 496; Leffingwell v. White, 1 Johns. Pa. 49. Cas. 99; Lane v. Stewart, 20 Me. 98; 6 First Nat. Bank v. Ryerson, 23 Hale v. Danforth, 46 Wis. 554; Kyle Iowa, 508; National Hudson R. Bank v. Green, 14 Ohio, 490; Markland v. v. -Reynolds, 57 Hun, 307; Jenkins McDaniel, 51 Kan. 350; First Nat. v. White, 147 Pa. 303, and Glaze v. Bank v. Connoway, 4 Houst 206; Ferguson, 48 Kan. 157. And see Schley v. Merritt, 37 Md. 352; Sie- note 24 to the last section, ger v. Second Nat. Bank, 132 Pa. 7 Stahl v. Wolfe, 6 Wkly. Notes 307; Lary v. Young, 13 Ark. 401; Cas. 143. Bryant v. Wilcox, 49 CaL 47; Blaf- 8 It is not a promise to pay a debt, fer v. Herman, 7 La. Ann. 659; because no debt exists. Reiff v. Stahl v. Wolfe, 6 Wkly. Notes Cas. McMiller, 45 Leg. Int. 26. 299.] EXCHANGES, SECURITIES, ETC. 537 curity -would probably release the indorser. Therefore it seems reasonably certain that the only way in which the offer can be accepted is by the holder's acting upon it at maturity, except where the time of pa} T ment is extended. The extension of time, with the concurrence of the parties before maturity, is theoretically, but not legally, a waiver only until the extended day of maturity. 9 But if the ex- tension of time is, or is not, accompanied on the part of the indorser with a promise to pay the note upon maturity, or a guaranty or a waiver, there is an absolute waiver of de- mand and notice at any time. 10 This may be treated on the theory that the indorser thereby becomes a maker. The cases, however, show that the new promise is merely a waiver going in support of the original contingent liability on the paper. Nothing short of an unqualified promise to pay seems sufficient as a waiver. Thus, if the holder noti- fies the indorser before maturity that he looks to him for payment, he does not thereby affect the right of the indorser to demand and notice, 11 or if the holder and the indorser, at the time of indorsement, agree that the maker is not to be sued until the indorser notifies the holder to sue, the demand and notice is not waived by the indorser. 12 The indorser who appears at a meeting of the creditors of the maker, and by reason of his indorsement takes the position of a creditor, does not waive notice and demand, 13 nor is a request by the indorser of the holder not to sue during the former's absence. 14 But if the demand* is omitted at the indorsees request at maturity, 15 there is a waiver both of the demand and notice. 9 See note 25 to last section. But Good v. Arrowsmith, Anth. N. P. see the cases cited in note 6, supra. 289. See Boyd v. Cleveland, 4 Pick. K>Cady v. Bradshaw, 116 N. Y. 524. 188; Sheldon v. Horton, 43 N. Y. 12 Freeman v. O'Brien, 38 Iowa, 93; Amoskeag Bank v. Moore, 87 406. N. H. 539; Norton v. Lewis, 2 Conn. 13 Miranda v. City Bank, 6 La. 740. 478; Farmers' Bank v. Catlin, 13 14 Button v. Bratt, 11 S. W. R. 821 Vt. 39; Long v. Moore, 2 Brev. 172; (Ark.). Blanc v. Mutual Nat. Bank, 28 La. 15 Whittier v. Collins, 15 R L 44 Ann. 921. And see note 10, supra, 11 Da vis v. Go wen, 19 Me. 447; 538 BANKS AND BANKING. [ 300. 300. Indemnity as a waiver. An indorser who pro- tects himself by receiving security from the principal debtor, the maker of the note, or from a prior indorser, waives his right to demand and notice, 1 provided the security is suffi- cient to cover his contingent liability, 2 or provided the se- curity is the whole estate of the indorser whether it be sufficient or not. 3 Or if the note is secured by a mortgage or pledge of property of the maker, and the indorser takes the property from the maker, agreeing to take care of the note, he waives thereby demand and notice; 4 or if the in- dorser takes property of the maker, and as the price thereof agrees to pay the note, he likewise binds himself by waiver.' If the indorser holds, however, security to which he is en- titled not by virtue of a transfer to cover his liability, he does not waive his rights. 6 The limitations upon this rule are that the indorser agree to the transfer to himself; 7 that the transfer must either be of the whole estate of the maker or of sufficient property to cover his liability, 8 and that the 1 Stephenson v. Primrose, 8 Port. 3 See cases in two preceding notes 155; Mead v. Small, 2 Me. 207; and Mechanics' Bank v. Griswold, Lewis v. Kramer,8 Md. 265; Walker 7 Wend. 165; Coddington v. Davis, v. Walker, 7 Ark. 542; Barrett v. 3 Denio, 16, 1 N. Y. 186; Barton v. Charleston Bank, 2 McMul. 191; Baker, 1 S.& R 334; Bank of South Durham v. Price, 5 Yerg. 300; Beard Carolina v. Meyers, 1 Bailey, 412. v. Westerman, 32 Ohio St. 29. But See Moses v. Ela, 43 N. H. 557; see Woodbury v. Crum, 1 Biss. 284; Woodbury v. Crum, 1 Biss. 284. Woodman v. Eastman, 10 N. H. 4 Armstrong v. Chadwick, 127 359; Kramer v. Sanford, 4 Watts & Mass. 156. "But see Coghlan v. S. 328: Seacord v. Miller, 13 N. Y. Dinsmore, 9 Bosw. 453. 55. Contra, Whittier v. Collins, 15 6 Whitridge v. Rider, 22 Md. 548; R. 1. 44. The rule applies as against Andrews v. Boyd, 3 Met. 434. Or a prior indorser in favor of a if he receives property upon an subsequent indorser. Walker v. agreement to pay the note. Wright Walker, 7 Ark. 542; Duvall v. v. Andrews, 70 Ma 86; Ray v. Farmers' Bank, 9 Gill & J. 81. Smith, 17 Wall. 411. 2 See cases in preceding note and 6 Cruger v. Luedheim, 16 S. W. R Burrows v. Hannegan, 1 McLean, 420 (Tex.). 309; Spencer v. Harvey, 17 Wend. 'Holman v - Whiting, 19 Ala. 703. 489; Brunson v. Napier, 1 Yerg. 199; 8 See notes 1, 2 and 3, supra. Marine Bank v. Smith, 18 Me. 99. 301.] EXCHANGES, SECURITIES, ETC. 530 transfer was made to cover the particular claim, and not all his claims in the aggregate against the maker; 9 and finally, that the security be given while the indorser's liability con- tinued. 10 If he had already been discharged by a failure to- give him notice, he may take security with impunity. It seems that if the assignment is to a third party in trust to pay the indorser and others, there is no waiver. 11 But an assignment of all the maker's property to a trustee for the purpose of paying all the debts of the maker ought to be equivalent to a waiver, since the theory of this rule as to indemnity is that the indorser has no remedy over against the drawer. 12 The whole rule is illogical, but since it is established it ought to be consistent. Since the indorser, under the rule, is entitled to all the property of the maker, where the indemnity is insufficient, a transfer to the indorser of part of the maker's property, if it be insufficient to cover the indorser's liability, is not a waiver, although it should turn out to be all the property of the maker at maturity. 13 The taking of indemnity was in one court construed to be a provision against a liability, provided the liability should be fixed by demand and notice. 14 301. Waiver after maturity. The waiver of demand and notice after maturity presupposes that the indorser has already been released. For such a waiver there would seem to be no consideration, if it is gratuitous. But the question is: Is a waiver a contract? One set of courts replies to the question that demand and notice are but steps in the rem- 9 Van Norden v. Buckley, 5 CaL "Denny v. Palmer, 5 Ired. 610. 283; Haskell v. Boardman, 90 Mass. See Coddington v. Davis, 8 Denio, 38 (here all the property was con- 16; Creamer v. Perry, 17 Pick. 332. veyed); Carlisle v. Hill, 16 Ala. 398. "See Ray v. Smith, 17 Wall 411, See Barton v. Baker, 1 S. & R. 334. and cases in note 3, and Second 10 Tower v. Durell, 9 Mass. 332; Nat. Bank v. Maguire, 33 Ohio St Sanderson v. Sanderson, 20 Fla. 292 ; 295 ; Woodbury v. Crum, 1 Biss. 284. Carlisle v. Hill, 16 Ala. 398; Wai- 13 Brandt v. Mickle, 28 Md. 436. ters v. Munroe, 17 Md. 154; Peets 14 Selby v. Brinkley, 17 a W. R. v. Wilson, 19 La. 478; Moore v. Co- 479. But see cases in notes 1, 2 and field, 1 Dev. 247; Swan v. Hodges, 3, supra, 3 Head, 251. -540 BANKS AND BANKING. [ 302. edy, and may be waived at any time without any necessity for a consideration appearing. 1 The other set of courts maintains that it is a contract, and, after maturity, must be supported by a consideration, or by a new and valid prom- ise to pay, supported by a consideration. 2 But all the courts admit that a waiver before maturity needs no consideration to support it. 3 They do not find it necessary to seek out a consideration from the fact that the waiver has been acted upon, and hence the position of those courts which deny efficacy to a waiver after maturity has no support in their own reasoning. 4 But an agent could not bind his principal by a waiver after maturity, 5 unless he had express authority to waive,-or unless his act were ratified. A bankrupt in- dorser may waive demand and notice, prior to the choice of an assignee, either before or after maturity, and without consideration in those jurisdictions which do not require a consideration for a waiver after maturity. 6 | 302. New promise after maturity. A n,ew promise to pay the note after maturity, made by the indorser with knowledge of his release, is binding upon him as a new and valid contract, 1 dispensing with the proof of demand and 1 Yeager v. Farwell, 13 Wall. 6 Teague, 52 N. C. 573; Robinson v. (this is a rambling sort of an opin- Barret, 19 Fla. 670, semble; Wyckoff ion by Justice Davis); Matthews v. Andrews, 50 N. Y. Super. Ct 196. v. Allen, 16 Gray, 594; Harrison v. 3 See the foregoing cases, and Bailey, 99 Mass. 620; Rindge v. Kim- Neal v. Wood, 23 Ind. 523. ball, 124 Mass. 209; Lockwood v. 4 If the waiver is made af ter in- Bock, 50 Minn. 142; Cheshire v. Tay- dorsement and before maturity, no lor, 29 Iowa, 492; Barclay v. Weaver, extension being granted, where is 19 Pa. 396; Pollard v. Brown, 57 there any consideration until the Ind. 232 : Bank of Columbia v. Mack- waiver is acted upon ? all, 2 Cranch, C. C. 631; Hoadley v. * Grosvenor v. Stone, 8 Pick. 79. Bliss, 9 Ga. 303 (if waiver of proof). 6 Ex parte Tremont Nat Bank, 2 2 Seebree Bank v. Moreland, 96 Low. 409. Ky. 150, semble; Landrum v. Trow- l Yeager v. Farwell, 13 Wall. 6; bridge. 2 Met (Ky.) 281; Ralston v. Curtis v. Sprague, 51 Cal. 239; Har- Bullits, 3 Bibb, 261; Huntington v. mon v. Moffett, 6 D. C. 297, semble, Harvey, 4 Conn. 124; Walters v. are as to indorsers of notes; Stone Swallow, 6 Whart 446 (an ac- v. Smith, 30 Tex. 138; Benoist v. commodation indorser); Brown v. Creditors, 18 La. 522, are as to drafts. 302.] . EXCHANGES, SECURITIES, ETC. 541 notice. 2 But either the promise must be unqualified,' or, if conditional, it must appear that the condition has been per- formed. 4 This rule applies to indorsers and drawers of all kinds of commercial paper. 5 The reason for such a rule is not apparent. The case has no analogy to one under the statute of limitations, although it is so treated. There is no consideration for the promise, if it is considered a promise, not even a moral or meritorious consideration, because the indorser was never under any obligation to pay. The new promise after maturity is perhaps considered as a waiver of demand and notice, but a promise to pay before maturity required, as has been seen, a consideration to support it by being acted upon. 6 Probably it is for the reason that no consideration exists that the promise after maturity must ap- pear to have been made with full knowledge on the indors- er's part that he has been released by a failure to give him notice of demand and non-payment. 7 One court applying a distinction made by Lord Westbury between ignorance of an abstract principle of law and ignorance of the applica- tion of the principle to the facts has held that the indorser must know not only that no demand has been made or no- tice not given to him, but must also know all other facts material to form a conclusion as to his liability. 8 The prom- ise to pay is presumptive evidence of demand and notice, 9 See also cases in note 7, infra. As v. Dresser, 90 Mass. 435; Miller v, to the language of a new promise, Hackley, 5 Johns. 375; Landrum v. see Glendenning v. Canary, 5 Daly, Trowbridge, 2 Met. (Ky.) 281, and 489; Martin v. Perqua, 65 Hun, 225. many other cases. But negligence 2 Campbell v. Varney, 12 Iowa, as to means of knowledge may 43, and cases in the last note. amount to knowledge. Hayes v. 3 See next note. Werner, 45 Conn. 246. * Keith v. Mackey, 5 Rob. (La.) 8 Low v. Howard, 10 Gush. 159. 277; Turnbull v. Maddox, 68 Md. See Matthews v. Allen, 16 Gray, 594, 579; Campbell v. Varney, 12 Iowa, and Breen v. Buttorf, 3 Tenn. Clu 43. 285 (this case is absolutely wrong). * See cases in note 1, supra. 9 Yeager v. Farwell, 13 Wall 6, 6 See 299, ante. and the cases in note 1, supra, and 'Thornton v. Wynn, 12 Wheat. Pierson v. Hooker, 8 Johns. 68; 183; Walker v. Rogers, 40 111. 278; Breed v. Hillhouse, 7 Coiin. 523; Moore v. Cofield, 1 Dev. 247; Arnold Hazard v. White, 26 Ark. 155; M2 BANKS AND BANKING. [ 303 and it follows from the fact of such a promisa appearing that the burden is thrown upon the indorser to show that he had no knowledge of his release. 10 But so far is the mat- ter of necessity of knowledge on the indorser's part carried, that a note given by the indorser for a draft upon which the indorser had been released is invalid for want of considera- tion if the indorser did not know that he was released. 11 The transfer of the note after dishonor by the indorsers, 12 or the act of the indorsers in causing the holder to take the note overdue," is a waiver of demand and notice. The rule at common law is that the admission of liability by one joint contractor binds his co-contractor. 14 The same rule would probably apply to a new promise. "Where a failure to notify one joint indorser has released all the indorsers, the new promise of one released imposes the liability to pay upon all. 15 The new promise must be made just as a waiver must be made, to some one interested in the paper, 16 who can hold that indorser liable upon the paper, and it inures, perhaps, to the benefit of all the holders of the paper to whom he is liable. 17 303. Part payment after maturity. A partial pay- ment of the note by the indorser is equivalent to a new promise to pay, 1 if the money to make payment came from Walker v. Laverty, 6 Munf. 487; "Libbey v. Pierce, 47 N. EL 309. Lewis v. Brehme, 33 Md. 412; Rob- Dickerson v. Turner, 12 Ind. 223. bins v. Pinckard, 5 Smedes & M. 51. 15 See Sherer v. Easton Bank, 33 10 This presumption ceases as soon Pa. 134, as to a partial payment, as it appears that the notice was 16 Olendorf v. S warty, 5 Cal. 480; defective, it is said, but certainly Gassaway v. Jones, 2 Cranch, C. C. incorrectly. See Newberry v. Trow- 834; Clark v. Tryon, 23 N. Y. Supp. bridge, 13 Mich. 263. That is the 780; Caldwell v. Porter, 17N.H.27. principle which is applied to an ac- 17 McKennon v. McEae, 7 Port. 175; knowledgment of due service of Little v. Blunt, 9 Pick. 488; and see notice. But an agreement to con- last case in preceding note. sider the demand and notice as l Curtiss v. Martin, 20 III 557; good is practically a new promisa Washer v. White, 16 Ind. 136: Frost Duryee v. Denison, 5 Johns. 248. v. Harrison, 8 La. Ann. 123; Sigour- Todd v. Neal, 49 Ala. 266. See Boll- ney v. Witherell, 6 Met 553; Bibb ing v. Mackenzie, 89 Ala. 470. v. Peyton, 11 Smedes & M. 275; 11 Fernald v. Bush, 131 Mass. 591. Johnson v. Crane, 16 N. H. 68; Shaw i-'St John v. Roberts. 31 N. Y. 441. v. McNeill, 95 N. C. 535; Levy v. 304.] EXCHANGES, SECURITIES, ETC. the indorser, 2 and if the indorser knew that he had been re- leased. 3 The partial payment without more appearing is presumptive proof of demand and notice, just as a new prom- ise is, 4 and the burden is upon the indorser to show that he had no knowledge of his release. 5 A confession of judg- ment, or a judgment by default suffered by the indorser for the amount of the note, may be considered, perhaps, in the light of a partial payment, for it is certainly not a new prom- ise to pay, because it creates a g'twwz-contract, not an actual contract. The absolute presumption of waiver resulting arises rather from the rule of law that a party having had an opportunity to plead a certain defense, and failing to do so, is forever concluded, or it results from the form of the authority to confess judgment. It is an absolute waiver of demand and notice, or, what is the same thing, absolute proof thereof. 6 At common law a partial payment by one joint indorser released would bind perhaps the other indorsers. 7 There is a difficulty here, however, in the fact that the in- dorser who makes the payment may have knowledge that he is released, while the other joint contractors may not have such knowledge. In the latter case probably they would not be bound. A partial payment inures to the bene- fit of all the holders of the paper. 8 304. Acknowledgment of liability. An unconditional acknowledgment of liability upon the paper after its matu- rity, made with knowledge of a release, operates as a waiver Peters, 9 S. & R. 125. See, however, case becomes a conclusive and in- for a partial payment in depreci- disputable presumption, ated paper, Newberry v. Trow- Hall v. Jones, 82 HI. 88; Winn bridge, 13 Mich. 263. v. Levy, 2 How. (Miss.) 903; Grigsby 2 Reinke v. Wright, 93 Wis. 368; v. Ford, 3 How. (Miss.) 184. But it Whitaker v. Morrison, Branch, 25. is said to be merely prima facie 3 Buckley v. Bentley, 42 Barb. 646; proof. Eichter v. Selin, 8 S. & It Shaw v..McNeill,.95 N. C. 535. 425. 4 See preceding section. 'Sherer v. Easton Bank, 38 Pa. 5 See preceding section. If the 134. But see note 14 to preceding knowledge existed, the prima facie section. 8 Johnson v. Crane, 16 N. H. 68. 544: BANKS AND BANKING. [ 304. by an indorser or a drawer of demand and notice. 1 This waiver may arise either from, a party's words or his acts. 2 A promise to give a note for the amount, 3 or the giving of a note for the amount, by the indorser, being an acknowledg- ment of liability, is a waiver, 4 provided it be done by one who has knowledge of his release. But there is some author- ity which might seem, but really is not, 5 to the contrary ; and certain rulings have been made which might seem to dispute the general rule. Thus, an admission after maturity of due service of protest did not bind the indorser as by a waiver apparently, for it was held that such an admission was prima fade evidence of notice of protest, rebutted as soon as it appeared that there was in fact no legal protest. 6 But an agreement by an indorser to give security for his liabil- ity, although it was made after maturity, was not a waiver. 7 This decision can be justified on the ground that there was no proof of the indorser's knowledge. The giving of secu- rity raises a presumption of waiver. 8 If it were given with knowledge, that presumption becomes absolute. As soon as the fact appears, the burden is thrown on the indorser to show his lack of knowledge. Therefore the decision is wrong, for judgment on this question should have been for the plaint- iff, the burden of proof being on the defendant. The offer to indorse another note was not a waiver, because it was not perhaps an unconditional admission of liability. 9 Nor can an offer of payment in depreciated bank bills, 10 or in Confed- !Bogart v. McClung, 11 Heisk. Todd v. Neal, 49 Ala. 266. And 105; Leonard v. Gary, 10 Wend, see Newberry v. Trowbridge, 13 504; Oglesby v. Stacy, 10 La. Ann. Mich. 263 (wrong). 117 (after suit brought); Parsons v. 7 Carter v. Burley, 9 N. H. 558. Dickinson, 23 Mich. 56. 8 Union Bank v. Govan, 10 Smedes 2 Staylor v. Ball, 24 Md. 183; Par- & M. 333. sons v. Dickinson, 23 Mich. 56. 9 Laporte v. Landry, 5 Mart. (N. S.) 3 Fell v. Dial, 14 S. C. 247. This 359, 4 Mart. (N. S.) 125. But this is could be considered, perhaps, as a a questionable ruling. new promise. 10 Newberry v. Trowbridge, 13 4 Leonard v. Hastings, 9 Cal. 236 Mich. 263. Or in Confederate money, (made with knowledge, possibly). Tardy v. Boyd, 26 Grat 631. 5 See the cases following. 305.] EXCHANGES, SEC DEITIES, ETC. 545 erate money," be considered a waiver, since neither acknowl- edgment is unqualified. An offer to pay part of the note at the time of the offer and a part later raised no presumption of waiver. 12 On the other hand, an admission of the justice of the claim, even after suit brought, 13 and a statement by the indorser to the holder that he expected to have to pay, coupled with a request for the holder to keep on trying to collect from the maker, 14 were both held to be waivers. In all cases of acknowledgments which are not new promises after maturity, or partial payments after maturity, or ex- press waivers after maturity, it is the rule that, if made with full knowledge, the admission becomes absolute. 1 " The ac- knowledgment alone appearing, the defendant indorser may rebut the prima facie case by proof of his lack of knowl- edge, or by showing that the admission was a mistake. 16 ARTICLE YI. PROTEST AND CERTIFICATE. 305, Meaning and form of protest. - The word "pro- test" as used by judges and lawyers has two meanings: one, those acts necessary to charge a drawer or indorser; 1 the other, the formal certificate drawn up by a notary or some one acting in place of a notary, which shows the demand and dishonor with the accompanying proof of notice, if any. 2 The form and sufficiency of the certificate of protest is nec- essarily governed by the law of the place where the protest is made. 3 The admissibility of the certificate in evidence 11 See the last case cited. l White v. Keith, 97 Ala. 668; 12 Barkalow v. Johnson, 16 N. J. Ayrault v. Pacific Bank, 47 N. Y. Law, 397. 570. is Oglesby v. Stacy, 10 La. Ann. 2 Townsend v. Lorain Bank, 2 117. Ohio St. 345. Parsons v. Dickinson, 23 Mich. 3 Neederer v. Barber, Fed. Cos. 56. No. 10,079; Tickner v. Roberts, 11 is The preceding cases treat the La. 114; Carter v. Burley, 9 N. H. matter in this light 558; Chew v. Read, 11 Smedes & iA mistaken admission maybe M. 182; D wight v. Richards corrected. Commercial Bank v. Smedes & M. 325. Clark, 28 Vt 325. 35 546 BANKS AND BANKING. [ 306. is governed, however, by the law of the place of trial of the action. 4 In the certificate the paper protested must be in- telligibly described. 5 306. Execution of the certificate. The certificate should be made by a notary l or by some one who has no- tarial powers; it may be a justice of the peace, 2 or, where there is no notary, by a private person in the presence of witnesses. 3 The certificate need not be under seal 4 unless the statute require it. 5 It need not be under oath unless the statute so provide. 8 In some jurisdictions it must be witnessed, 7 but the witnesses need not be present at the act of protest. 8 The notices need not be actually annexed to the certificate by the notary. 9 The certificate may be drawn up in due course of business, 10 some authorities re- quiring it to be done on the same day. 11 A second certifi- cate may be made if the first is lost. 12 The original protest may be issued. The certificate need not appear to be a tran- script from some record, 13 unless the statute require a rec- ord. 4 See 307, post. 7 Allain v. Whitaker, 5 Mart. 5 Lionberger v. Meyer, 12 Mo. (N. S.) 511 ; Gale v. Kemper, 10 La. App. 575; Fulton v. Maccracken, 205. 18 Md. 528; Collins v. Bank, 4 Bast. 8 Bradford v. Cooper, 1 La. Ann. 422. 325, and cases in last case of last 1 See 247, 278, ante, as to the note cited. notary's deputy or clerk. 9 Jones v. Berry hill, 25 Iowa, 289; 2 Austin v. Miller, 5 McLean, 153. Barstow v. Hiriart, 6 La. Ann. 98. 3 See 246, ante. See Jordan v. Long, 109 Ala. 414. 4 Lambeth v. Caldwell, 1 Rob. and Winchester v. Winchester. 4 (La.) 61; Bank of Kentucky v. Purs- Humph. 51. ley, 3T. B. Mon. 238; Second Nat. 10 Bailey v. Dozier, 6 How. 23; Bank v. Chancellor, 9 W. Va. 69. Chatam Bank v. Allison, 15 Iowa, See Morris v. Foreman, 1 Dall. 193. 357. Rindskoff v. Malone, 9 Iowa, 540. " Aiken v. Cathcart, 2 Spears, 642 ; A statute may require the certifi- Commercial Bank v. Barksdale, 36 cate to be verified. See Dorsey v. Mo. 563. Merritt, 6 How. (Miss.) 390; Faulk- 12 Killam v. McKoon, 31 Hun, 510. ner v. Faulkner, 73 Mo. 327. "Starr v. Sandford, 45 Pa. 193. 6 See last two cases cited. 307.] EXCHANGES, SECURITIES, ETC. 547 307. Certificate as evidence. A certificate of protest by a notary upon foreign bills proves a demand of payment and notice, if it so recites; 1 but if the protest certificate is made by some other officer than a notary, his authority to protest must be proven as a fact under the foreign law. 2 The allowance of such proof by certificate upon foreign pro- test exists by virtue of the law merchant, and foreign protest can be proven in no other way. 3 But there are numerous statutes of various states which permit protest of other paper than foreign bills, and there are various statutes which pre- scribe the effect of such protest as evidence. These statutes may be: 1st. A statute which allows within the particular state the protest of other paper than foreign bills and makes the certificate thereof evidence either of demand or of notice and demand. Such a statute, it is plain, would have no bear- ing upon paper protested out of the state, and would have no bearing upon the admissibility of a certificate made out of the state. 4 2d. A statute may make all protests in another jurisdiction admissible in evidence when made upon paper not properly protestable by a notary. 5 In such case it makes no difference whether the law of the other jurisdiction where the protest was made provides for such protest or not. 6 3d. A statute in the jurisdiction where the protest is made may provide for protest upon paper other than foreign bills, but the protest may be offered in evidence in another state where there is no statute which makes the certificate evi- dence. In the latter case, since the protest is valid where made, according to the principle hareinbefore stated, 7 the 1 Dickens v. Beal, 10 Pet. 572; Rush worth v. Moore, 26 N. H. Pierce v. Indseth, 106 U. S. 546. 188; Dakin v. Graves, 48 N. H. 45; 2 So of a French huissier. Cha- Daniel v. Downing, 26 Ohio St. 578; noine v. Fowler, 3 Wend. 173. Douglas v. Bank of Commerce, 97 3 See 246, ant e, note 1. Tenn. 133; Bradley v. Northern White v. Engelhard, 2 Smedes Bank, 60 Ala. 252. & M. 38; Sims v. Hundley, 6 How. 1. 8 Union Bank v. Middlebrook, 83 Such a statute would not make Conn. 95; Kern v. Von Phul, 7 Minn. good a certificate of a state notary 426. acting outside of his state. Dutchess 7 Townsley v. Sumrall, 2 Pet 170. Co. Bank v. Ibbotson, 5 Denio, 110. 548 BANKS AND BANKING. [ 308. certificate ought to be admissible in evidence when supple- mented with proof of the foreign law, if the paper was pay- able where protested, 8 but this position is apparently denied in other courts; no reason is given, but it must be for the reason that no sovereignty can prescribe rules of evidence for another one's courts. 9 If the certificate is admissible it needs no proof of its execution ; it proves itself. 10 And this is true both of protest on a foreign bill and of protest per- mitted by a statute. If the notary be dead, the books of the notary, 11 or certified extracts from them made by competent authority, 12 are in all cases admissible to prove the notary's demand and notice, provided the notary made the entries himself, and they were not made by some one who is alive. 13 A statute, also, on this subject exists in some jurisdictions. 14 308. Recitals of certificate. The certificate to be suf- ficient as proof of demand and notice should state in some way that a demand was made, that payment was refused, and that notice of non-payment was given. 1 The fact of de- mand should be stated, but the certificate Deed not state the hour. 2 If it states that demand was made at a place of busi- 8 Carruth v. Walker. 8 Wis. 252; "Austin v. Wilson, 24 Vt. 630; Lawson v. Pinckney, 40 N. Y. Super. Nichols v. Webb, 8 Wheat. 326; Ct 187. See Teconic Bank v. Stack- Bank of Wilmington v. Cooper, 1 pole, 41 Me. 302; Carter v. Burley, 9 Har. 10. N. H. 558. Both these cases treat a 12 Portas v. Painboeuf, 1 Mart, promissory note indorsed in an- (O. S.)267; Halliday v. Martinet, 20 other state as a foreign bilL Dunn Johns. 168 (sworn copy); Homes v. v. Adams, 1 Ala. 527, semble. Smith, 16 Me. 181; Bodley v. Scar- 9 Corbin v. Planters' Bank, 87 Va. borough, 5 How. (Miss.) 729. Con- 661; Etting v. Schuylkill Bank, 2 tra, Williamson v. Patterson, 2 Mc- Pa. 355; Schoneman v. Fegley, 7 Cord, 132. Pa. 433. See Union Bank v. Hyde, 13 Wilber v. Selden, 6 Cow. 162. 6 Wheat 572; McAllister v. Smith, ^McKnight v, Lewis, 5 Barb. 681. 17 III 328; Sumnerv. Bowen, 2 Wis. *Crowley v. Barry, 4 Gill, 194; 524. The certificate can be used Gardner v. Bank of West Tennessee, as a memorandum by the notary as 1 Swan, 419; Langley v. Palmer, 30 a witness. Bernard v. Barry, 1 G. Me. 467. Greene, 388. 2 The certificate should show pre- 10 Harrison v. Brown, 16 La. 282; sentment to the proper person Dickens v. Beal, 10 Pet. 572; Shank- (Duckert v. Von Lilienthal, 11 Wis. lin v. Cooper, 8 Blackf. 41. 56), or presentment at his residence 308.] EXCHANGES, SECURITIES, ETC. 549 ness it will be presumed to have been during business hours. 1 If it states that a demand was made at a bank, for example, it need not state upon what officer'it was made. 4 But a de- mand upon a partnership made upon one partner must show the names of the partners, and the name of the particular partner upon whom the demand was made. 5 If the person upon whom demand is made has more than one place of business, the certificate should state at which place the de- mand was made, if the paper was payable at a particular one of the two places. 6 If the demand is stated to be made upon some one for the maker or drawee, the place of making the demand ought to be stated, in order to show the demand was at a proper place. 7 If the certificate states a present- ment, it will be presumed that the demand was in accord- ance with the tenor of the paper. 8 The certificate may state along with the usual statements all that transpired at the demand, 9 and it has been held that if payment was refused the reason given for refusal should be stated. 10 It must ap- or place of business. See notes 4 and 12, infra. It is said that the certificate should show a present- ment of the paper (Musson v. Lake, 4 How. 262); but the better rule is that the fact stated as to the paper being in his possession is sufficient (Warren v. Briscoe, 12 La. 472 ; Union Bank v. Fowlkes, 2 Sneed, 555; Nailor v. Bowie, 3 Md.251) ; and even this is not required. Ross v. Bedell, 5 Duer, 462; Bank of La. v. Satter- field, 14 La. Ann. 80. In case of paper payable at a bank, it is enough to say that the paper was at the bank. Seneca Co. Bank v. Neass, 5 Denio, 329; Barbaroux v. Waters, 3 Met. (Ky.) 304 (not neces- sary); Cayuga Co. Bank v. Hunt, 2 Hill, 635; Adams v. Wright, 14 Wis. 408, as to the hour. 3 Bank of Louisiana v. Satterfield, 14 La. Ann. 80; Fleming v. Fulton, 6 How. (Miss.) 473; De Wolf v. Mur- ray, 2 Sandf. 166. 4 Hildeburn v. Turner, 5 How. 69. See Stix v. Matthews. 75 Mo. 96. The certificate need not state the name of the bookkeeper to whom presented at the maker's counting room. Austin v. Latham, 19 La. 88. And see McFarland v. Pico, 8 Cal. 626. 5 Otsego Co. Bank v. Warren, 18 Barb. 291. e Brooks v. Higby, 11 Hun, 235. 7 Saul v. Brand, 1 La. Ann. 95. 8 Dakin v. Graves, 48 N. H. 45. Reapers' Bank v. Willard, 24 III 439. 10 Dupre v. Richard, 11 Rob. (La.) 495. This is certainly not the law. A mere statement of payment re- fused is sufficient See note 1, supra. 550 BANKS AND BANKING. [ 308. pear that the demand was made on the right day " and at the proper place, 12 but misnomers as to a name or a place of business will not vitiate the certificate. The certificate as proof of notice should recite the fact of giving notice. 13 In stating the giving of notice the certificate should state the day of giving personal notice and the place. 14 It is enough to state that the notice was left at the place of business of the person to be charged, 15 and it need not state with whom it was left. 16 In case of notice by mail, the place of address of the notice sent., 17 and that it was the postoffice of the per- son to be charged. 18 The burden is then upon the other party to show that the place was not his postoffice, 19 and in rebuttal thereto the notary should show due diligence. The day of giving of notice but not the date of the letter need be given. 20 The postoffice at which the notice was mailed should be stated, 21 and the notice should show that the mail- ing or the giving of notice was in proper time. 22 The cer- tificate need not state that postage was prepaid upon a 11 Walmsley v.Acton, 44 Barb. 312; to the day both for personal and Nailor v. Bowie, 3 Md. 251. mail notice. 12 At residence is sufficient Man- 15 Gardner v. Bank of Tennessee, I due v. Kitchin, 3 Rob. (La.) 261; Swan, 420; and see note 3, supra. Louisiana State Bank v. Dumar- 1(i See note 4, supra, as to demand, trait, 4 La. Ann. 483. At office. 17 Curry v. Bank of Mobile, 8 Port. Curry v. Bank of Mobile, 8 Port 360. 360. See Coster v. Thomason, 19 18 Peabody Ins. Co. v. Wilson, 29 Ala. 717. Misnomers as to name of W. Va. 528. But see Legg v. Vinal, bank. Worley v. Waldron, 3 Sneed, 165 Mass. 555. 548; Whittington v. Farmers' Bank, 19 Wamsley v. Rivers, 34 Iowa, 463. 5Har. & J. 489; Stix v. Matthews, 75 It need not be stated that it was Mo. 96. Other misnomers see Reid the nearest postoffice. Gas Bank v. Reid, 11 Tex. 585; Branch Bank v. Desha, 19 La. 459. But contra, v. Rhodes, 11 Ala. 283. The location Rogers v. Jackson, 19 Wend. 383. of the bank need not be stated. See Barber v. Ketchum, 7 Hill, 444. Thatcher v. Goff, 13 La. 360. 20 Palmer v. Lee, 7 Rob. (La.) 537; 13 If it is silent upon the point of Knox v. Buhler, 6 La. Ann. 104. notice it proves simply the demand. 21 Pritchard v. Hamilton, 6 Mart " Palmer v. Lee, 7 Rob. (La.) 537; (N. S.) 457. Knox v. Buhler, 6 La. Ann. 104, as w Menard v. Winthrop, 2 La. Ann. 333 (wrong). 309.] EXCHANGES, SECURITIES, ETC. 551 letter, 23 and if it states a mailing the prepayment of postage will be presumed. 24 But if the certificate states without giving any particulars that the person was notified or duly notified, it will be sufficient as stating a fact, 25 unless a stat- ute requires a more particular statement. 26 If due diligence is relied upon as an excuse for a failure to demand or notify, the facts constituting the diligence should be set forth. 27 Whatever would be evidence of proper notification if stated by a witness upon the stand would be evidence of notice when stated in a certificate ; M therefore the rules stated in the previous sections upon notice w and upon demand would hold good here. 30 309. Facts of which certificate is evidence. The cer- tificate of protest, where it is admissible as evidence, either under the general law or by reason of a statute, is competent to prove demand, refusal of payment, and notice. 1 The cer- tificate, therefore, ought to be competent proof of all facts connected with and a part of the demand and giving of no- tice. Thus, the recital that the paper was presented at or 23 Pier v. Heinriohshofen, 6 Cent, the con verse of the rule given above, L. J. 285. for the great weight of authority - 4 Brooks v. Day, 11 Iowa, 46. is that conclusions may be stated 25 Orons Bank v. Wood, 49 Me. 26; in a certificate. But the courts of Bettis v. Schrieber, 31 Minn. 329; Louisiana, Tennessee and Maryland O'Niel v. Dickson, 11 Ind. 253; Rob- hold the contrary. See Reier v. erts v. State Bank, 9 Port. 312; Strauss, 54 Md. 278; Cockrill v. Fuller v. Dingman, 41 Iowa, 506; Lowenstine, 9 Heisk. 206. Case v. Getchell, 21 Pa. 503; Seneca 29 See 269, ante, et seq. Co. Bank v. Neass, 3 N. Y. 442; 80 See 245, ante, et seq. Simpson v. White, 40 N. H. 540. ' Nichols v. Webb, 8 Wheat 826. Contra, Bank of Alexandria v. While this case states the rule as Wilson, 2 Cranch, C. C. 5; Union to a deceased notary's notice on Bank v. Humphreys, 48 Me. 172. paper not protestable, it shows that 26 See Burk v. Shreve, 39 N. J. L. 214. the rule is the same on paper prop- 27 Bauragardner v. Rieves, 35 Pa. erly protestable. Townsley v. Sum- 250. See Nailor v. Bowie, 4 Md. rail, 2 Pet. 170; Sims v. Hundley, 290 (this case is wrong as to the How. 1; Brandon v. Loftus,4 How. contents of the notice). 127. The learned Justice Catron in 28 See Saul v. Brand, 1 La. Ann. 95. this case talks about " fixing an in- But this case is wrong in stating dorser." 552 BANKS AND BANKING. [ 310. notice sent to the place of business or residence of an in- dorser or drawer is competent proof of the fact of residence, and is prima facie sufficient. 2 So it is of the fact as to whom the paper is presented and of his relation to ttoe indorser, 8 and as to the time, 4 and of the reasons for not making a per- sonal demand, 5 such as that the person was absent or that the office was closed. But the certificate is not proof of col- lateral facts stated therein, such as that the person -upon whom the demand was made or notice served was an agent of the person who should have received the demand or the notice; 6 nor are the statements of hearsay contained in the certificate proof of anything more than that such statements were made; they are, of course, not sufficient to prove the truth of the matters of fact stated by way of hearsay. 7 310. Conchisiveness of the certificate. The certifi- cate, whether it be of a protest of domestic paper made evidence by statute or a foreign protest, is not conclusive, but it is prima facie evidence. 1 The statements contained therein may be contradicted, whether as to the fact of de- mand or the recitals of demand or notice contained in the certificate, 2 but the evidence to contradict must be legally 2 Bell v. Lunt, 24 Wend. 230. 1 Nichols v. Webb, 8 Wheat. 326; a Elliot v. White, 51 N. C. 98. But Gordon v. Price, 10 Ind. 385 (under see note 6, infra. statute); Cockrill v. Lowenstine, 9 4 See the preceding section. Heisk. 206. 6 See note 27 to preceding section, 2 See cases in last note and Spence and Bell v. Lunt, 24 Wend. 230. v. Crockett, 5 Baxt. 576; Adams But see Reier v. Strauss, 54 Md. 278, v. Wright, 14 Wis. 408; Orono and Weems v. Bank of Maryland, Bank v. Wood, 49 Me. 26; Kellogg 15 Md. 231. v. Pacific Box Factory, 57 Cal. 327; 6 Coleman v. Smith, 26 Pa, 255; Applegarth v. Aybott, 64 Cal. 459; O'Connel v. Walker, 1 Port. 263; Sather v. Rogers, 10 Iowa, 231. The Fortin v. Field, 17 La. 587. Com- certificate, it seems, may be im- pare Elliot v. White, 51 N. C. 98. peached by particular or general "Dumont v. Pope, 7 Blackf. 367; malpractice of the notary. Wood Moore v. Worthington, 2 Duv. 307; v. Am. Ins. Co., 7 How. (Miss.) 609; Adams v. Wright, 14 Wis. 408; Seltzer v. Fuller, 6 Smedes & M. Maccoun v. Atchafalaya Bank, 13 185. As to evidence see Buckley v. La. 342. See Gage v. Dubuque R. Seymour, 30 La. Ann. 1341; Young Co., 11 Iowa, 310. v. Pattison, 11 Rob. (La.) 7; Fales 310.] EXCHANGES, SECURITIES, ETC. 553 sufficient for that purpose; for, as we have seen, the fact, standing alone, that notice was not received has no tendency to contradict the fact that it was mailed. 3 But it has been held that the notary himself cannot impeach his own cer- tificate, 4 and it has been held that he can. The certificate of protest upon a foreign bill of exchange is necessary, and the certificate, while it may be contradicted, cannot be added to or helped out by parol evidence. 5 But upon do- mestic paper the statutes permitting protest are permissive, not compulsory. 6 So the certificate of protest upon domes- tic paper not only may be contradicted, but may be added to, explained or assisted by parol evidence. 7 Whatever facts the certificate fails to state may be added by the oral testi- mony of any witness competent and able to testify upon the point. 8 v. Wadsworth, 23 Me. 553 ; Caruth- 4 Gartkwaite v. Seipe, 23 La. Ann. ers v. Harbert, 5 Cold. 362. 218. Contra, Adams v. Wright, 14 Wilson v. Richards, 28 Minn. Wis. 408. 337; Roberts v. Wold, 61 Minn. 291. 8 Ocean Nat, Bank v. Williams, Contra, Townsendv. Auld,31 N. Y. 102 Mass. 141: Carter v. Union Supp. 29. The court's statement is Bank, 7 Humph. 548. really dictum. There was evidence 6 See cases in note 1, supra. to show that the notice was never 7 Dickerson v. Turner, 12 Ind. 223; deposited in the postoffice. See Applegarth v. Aybott, 64 CaL 459. also Young v. Pattison, 11 Rob. 8 Saul v. Brand, 1 La. Ann. 95. (La.) 7. See Morris v. Foreman, 1 Dall. 193. CHAPTER XI. CIRCULATING NOTES. 311. Power to issue circulating notes. The power to issue bank-notes by an incorporated bank must always be a question of statute. In the case of a private banker it must always be an inquiry as to a statutory prohibition. As to a corporation it is a question of grant of power, although the want of a grant is to be inferred either from a failure to grant the power or a prohibition against its exercise. Cer- tificates of deposit are not forbidden^by the prohibition of the issuance of bank-notes, 1 nor a time certificate of deposit forbidden by a prohibition directed against post-notes. 2 A bank must have an existence in order to make a contract, and hence the bills of an unconstitutional bank are void. 5 A banking corporation with general banking powers may issue bank-notes or post-notes, 4 but the power to receive de- posits and give acknowledgments therefor does not author- ize the issuance of certificates to circulate as money. 5 An insurance company, 6 or a canal company, 7 or a loan corn- 1 Talladega Ins. Co. v. Landers, 43 4 Campbell v. Mississippi Bank, 6 Ala. 115; Hargroves v. Chambers, How. (Miss.) 625. The power to issue 30 Ga. 580. Compare Mum ford v. notes is one of the ordinary funo American Life Ins. Co., 4 N. Y. 463. tions of a bank; but if post-notes But see In re Homer, 10 Leigh, 700. are forbidden they are void when 2 See notes 5 and 6 to 125, ante, issued. Swift v. Biers, 3 Denio, 70; But compare National Life Ins. Co. Leavitt v. Blatchford, 3 N. Y. 19. v. Beebe, 7N. Y. 364; Weed v. Snow, So as to a post-dated draft Oneida 3 McLean, 265. Bank v. Ontario Bank. 21 N. Y. 490. 3 Skinner v. Doming, 2 Ind. 558. 8 Bliss v. Anderson, 31 Ala. 612. See 30, ante. While the bills might Compare People v. River Raisin Co., in this case be considered worth- 12 Mich. 389. less, yet a remedy would exist 6 In re Ohio Life Ins. Co., 9 Ohio, against the corporators or those 291. conducting the business. See 30, 7 Lawler v. Walker, 18 Ohio, 151. ante. But its bonds, although negotiable, 311.1 CIRCULATING NOTES. 555 pany 8 cannot issue bills, where such power is either not granted or forbidden to all except banks ; but an army sutler seems to be able to issue currency in spite of law. But this might be called another case of the " war power," by one who had a sense of humor. At any rate he does not fall within the terms of the prohibition. 9 Drafts issued by a bank to circulate as money are not unlawful unless expressly forbidden by a valid law ; 10 but under a prohibition against bills to circulate as money, which are not made payable in gold or silver, certificates payable in current bank-bills, and of course drafts or notes to circulate as money, payable in bills, are forbidden. 11 If forbidden to issue bills not for im- mediate circulation, a bank which issues its notes upon the understanding that they are not to be returned for a period violates the prohibition. 12 Municipal corporations have no- pOAver to issue bills to circulate as money, where all corpo- rations except banking corporations are forbidden to do so, and it would seem even if there were no such prohibition l3 The state may incorporate a state bank and own all the stock 14 and pledge the faith of the state to redeem the notes ; '* and yet, as we are informed by the bench that decided the Dred Scott case, would not violate the prohibition of the Federal Constitution directed against the issuance by a state are not forbidden. McMasters v. Wall. 349; Cothranv. City of Rome, Reed, 1 Grant Cas. 36. 77 Ga. 582. Contra, Allegheny City 8 Southern Loan Co. v. Morris, 2 v. McClurken, 14 Pa. 81 ; Devely v. Pa. 175 (the bill was negotiable and Cedar Falls, 27 Iowa, 227. unlawful). 14 Lampton v. Commonwealth 9 Weston v. Myers, 33 III 424 (the Bank, 2 Litt. 300; Briscoe v. Bank documents were due-bills purport- of Commonwealth, 11 Pet. 257; ing to call for so much money). Woodruff v. Trapnall, 10 How. 190. 10 King v. Dedham Bank, 15 Mass. Contra, Bank of Commonwealth v. 447; State v. Mathews, 48 N, C. 451. Clark, 4 Mo. 59; Linn v. State Bank, But see as to checks, Utica Ins. Co. 2 111. 87. These last two cases were v. Cadwell, 3 Wend. 296. right. See 16, ante, note 5. 11 Darden v. Banks, 21 Ga. 297. is Darriugton v . State Bank, 13 12 Commonwealth v. Bank of Mut. How. 12. This is perhaps the wild- Redemption, 86 Mass. 1. est decision ever made by that 13 Thomas v. City of Richmond, 12 court. 556 BANKS AND BANKING. [ 312. of bills of credit. 16 Two state decisions very properly held otherwise. 17 312. Statutory prohibitions. Where there is a prohi- bition against the issuance of bank-notes, in order to show a violation of the act where the paper in itself is not a viola- tion of the act, an intent to do so must be shown; 1 but the fact that the document did circulate as money is proof of its adaptation to that purpose. 2 Sometimes the statute is di- rected not against the issuance of such paper, but against the putting of it in circulation. 3 But the issuance of orders upon a store payable in goods, 4 whether issued by the store 5 or by some one else, 6 or tickets upon railroads good for one trip, 7 or dray tickets, 8 are not violations of such acts. But even though the note be issued unlawfully, it is proof of an in- debtedness, 9 but the notes themselves are no consideration for a contract. 10 If the holder of such unlawful bills is in pari delicto with the bank or the person or corporation issu- ing the bill, there can be no recovery on the debt; 11 yet if there be a penalty imposed only on the person or corporation issuing the notes, the holder is not in pari delicto with the issuer. 12 16 The bench that decided Barring- 7 United States v. Monongahela ton v. State Bank, supra, was prac- Bridge Co., Fed Cas. No. 15,796. tically the court that decided the 8 State v. Teak, 8 Sneed, 695. Dred Scott case. 9 Parmley v. Tenth Ward Bank, 17 Bank of Commonwealth v. 3 Edw. Ch. 895. Clark, 4 Mo. 59; Linn v. State Bank, 1 Skinner v. Deming, 2 Ind. 558; 2 111. 87. Bank of Commonwealth v. Clark, 1 State v. Humphreys, 2 Dev. & B. 4 Mo. 59; Pratt v. Adams, 7 Paige, 555. But a due-bill for money is a 615; Doty v. Knox Co. Bank, 16 violation of the act in itself. Hazle- Ohio St. 133; Wilson v. Spencer, 1 ton Coal Co. v. Megargal, 4 Pa. 324. Rand. 76; Hamtramck v. Selden, 12 2 Barnett v. State, 54 Ala. 579. Grat 28. See Reznor v. Hatch, 7 Norvell v. State, 50 Ala. 174; Ohio St. 248. Downing v. State, 4 Mo. 572. " Thomas v. Richmond, 12 Wall 4 Durr v. State, 59 Ala. 24. 349; Root v. Godard, 3 McLean, 102. 8 United States r. Van Auken, 96 See g 27, 32, ante. U. S. 366. 12 Atlas Bank v. Nahant Bank, 3 Durr v. State, 59 Ala. 24 Met. 581; Buffalo City Bank v. 313, 314.] CIRCULATING NOTES. 557 313. State bank tax. The state bank tax applies to amounts paid out by the bank in its previously issued notes, as well as to payments in the notes of other banks. 1 But it applies only to notes payable in money. 2 Due-bills upon stores payable in goods or upon railroads payable in money are not taxable under it. 3 Certificates of deposit nor drafts of one bank upon another, nor any other evidence of indebt- edness not intended to circulate as money, would be subject to the tax. But there do not seem to have been any attempts to evade the tax by state banks, nor any attempt to put their paper into circulation. 4 The pitiful attempts of the states by penalties imposed to compel state banks to maintain their notes at par 5 or to pay specie for them 6 are good illustra- tions of the utter worthlessness of the old state bank cur- rency. 314. Payment of notes. A bank note is an engage- ment by the bank to pay bearer a certain amount of specie upon demand. 1 Being negotiable it passes by delivery; hence if it be lost the holder loses his cause of action, if the note passes to a bonafide holder. 2 But if a bank-note is lost Codd, 25 N. Y. 163; Thomas v. Rich- These certificates are as a matter mond, 12 Wall 349, and cases of law taxable under the state bank therein cited. tax, but it is not likely that the law 1 Deposit Sav. Ass'n v. Mayer, Fed. will be enforced. See 366 and Cas. No. 3813. 367, post, for contrary decisions ap- * In re Aldrich, 16 Fed. R. 369. parently. 3 United States v. White, 19 Fed. s Hurrisburg Bank v. Common- R. 723. Due-bills to railroad em- wealth, 26 Pa, 451 ; Bank of Cham- ployees for wages, though used as bersburgv. Common wealth, 2 Grant money, are not taxable under this Cas. 384 tax. Phila. R. R. Co. v. Pollock, 19 6 Bank of Kentucky v. Thorn- Fed. R. 401. And see United States berry, 8 B. Mon. 519; Bryant v. v. Wilson, 106 U. S. 620. Damariscotta Bank, 18 Me. 240; 4 A clearing-house being a volun- Brown v. Penobscot Bank, 8 Mass, tary association of banks, whether 445; Wendell V.Washington Bank, national or state, is a private insti- 5 Cow. 161 ; State v. Banks, 12 Rich, tution. It issues certificates which Law, 609. are used as money. In fact in 1893 1 Suffolk Bank v. Lincoln Bank, 3 in New York city the banks would Mason, 1. use nothing else for large sums. 2 City Bank v. Farmers' Bank, 558 BANKS AND BANKING. [ 314. or stolen, the holder, like the holder of any negotiable paper, may recover from the bank, if the bank has not paid the note, upon giving indemnity. 3 If the notes are destroyed, they may be sued for at law and a recovery had, 4 without proof of a preliminary affidavit of loss, 5 although such proof would have a bearing upon the question of interest. 6 But a demand is necessary, 7 at least to the recovery of interest. 8 It was once a common practice to cut notes in two for safety in sending through the mail. If half of the note should be lost the holder was entitled to recover, certainly in equity, upon proof of loss and his ownership. 9 Whether he was required to give security or not is questionable. Some courts held that half of a bank-note was not negotiable and hence no security was needed. 10 Other courts held that in- Fed. Cas. No. 2738. This has been the settled law ever since Miller v. Race, 1 Burr. 452. 3 Waters v. Bank of Georgia, R. M. Charlt 193. But see Hinsdale v. Orange Bank, 6 Wend. 379. But where bank-notes are passing fr.om hand to hand in the manner of na- tional bank-notes, which are never presented for redemption, no recov- ery should be permitted. Mobile Bank v. Meagher, 33 Ala. 622. No such suit could be brought on ac- count of the difficulties in the proof. 4 Bank of Louisville v. Summers, 14 B. Mon. 2-17; Wade v. New Or- leans Banking Co., 8 Rob. (La.) 140; Hagerstown Bank v. Adams Exp. Co., 45 Pa. 419; Ross v. Bank of Burlington, 1 Aiken, 43. If it were proved that the notes were de- stroyed no indemnity was re- quired. Mobile Bank v. Meagher, 33 Ala. 622; Hagerstown Bank v. Adams Exp. Co., 45 Pa 419. But if the proof were doubtful it was required. Wade v. New Orleans Banking Co., 8 Rob. (La.) 140. 5 Bank of Mobile v. Williams, 13 Ala. 544 Contra, Ross v. Bank of Burlington. 1 Aiken, 43. 6 No liability to pay would arise until proof of loss to the bank. Farmers'*Bank v. Reynolds, 4 Rand. 186. 7 Streater v. Bank of Cape Fear, 55 N. C. 31; Ross v. Bank of Bur- lington, 1 Aiken, 43. See 310, post. 8 There is no default and hence no liability for interest. 9 Allen v. State Bank, 21 N. C. 1; Bank of Virginia v. Ward, 6 Munf. 166; Arrnat v. Union Bank, 2 Cranch, C. C. 180; State Bank v. Aersten, 4 111. 135; Hinsdale v. Bank of Orange, 6 Wend. 378; Patton v. State Bank, 2 Nott & McC. 46 i; Union Bank v. Warren, 4 Sneed, 167. "Mobile Bank v. Meagher, 33 Ala. 622: United States Bank v. Sill, 5 Conn. 106; Murdock v. Union Bank, 2 Rob. (La.) 112; Hinsdale v. Orange Bank, 6 Wend. 379. So held where the part of a note torn off 314:.] CIRCULATING NOTES. 559 demnity was necessary and the remedy therefore in equity." The fact that the bank had given notice that it would not pay the notes unless the whole note was produced would have no effect, 12 nor, it is conceived, would a law forbidding the mutilation of a note. 13 But if the mutilation was fraudu- lently made, or for a fraudulent purpose, the bank could not be compelled to pay upon the production of part of a note. 14 "Worn-out notes are governed by the same rules. 15 Forged notes upon a bank are adopted by the bank when it receives them without objection, 16 but it cannot be made liable upon them when it merely receives them for examination, 17 nor by the fact that it was negligent in the manner in which it kept its blank notes. 18 Notes of a bank issued contrary to law bind it in the hands of bona fide holders. 19 A bank in paying its own notes must pay specie. It cannot pay an- other bank presenting the notes and demanding specie in bills of the latter bank. 20 If it gives a draft for the notes the draft is not payment, unless it is made so by express agreement, and such an agreement is vitiated by fraud. 21 But the bank may set off a debt of the holder to the bank. 22 It must pay the face value of the notes to one who took the notes below par. 23 But the bank may pay the notes in legal was not negotiable. Martin v. Ely- 10 Wheat, 333; Third Nat. Bank v. denburgh, I Daly, 314. Allen, 59 Mo. 310. 11 Allen v. State Bank, 1 Dev. & n Salem Bank v. Gloucester Bank, B. Eq. 3; State Bank v. Ward, 6 17 Mass. 1. Munf. 166; Commercial Bank v. 18 See last case. Benedict, 18 B. Mon. 307; and see ^McDougald v. Bellamy, 18 Ga. note 9. 411. 12 Martin v. Bank of U. S., 4 Wash. 20 Suffolk Bank v. Lincoln Bank, C. C. 253; United States Bank v. 3 Mason, 1. The rule would be dif- Sill, 5 Conn. 106. ferent where a statute compelled 13 This would be so unless the stat- the bank to take its own notes as ute made the note void. a tender. 14 Northern Bank v. Farmers' 21 Bank of St. Mary's v. St. John, Bank, 18 B. Mon. 506. 25 Ala. 566. 15 Miner v. Bank of Louisiana, 1 22 Long v. Farmers' Bank, 1 Clark, Mart. (O. S.) 20; Note Holders v. 284. Funding Board, 84 Tenn. 46. 23 Robinson v. Beall, 26 Ga. 17; 16 Bank of U. S. v. Bank of Georgia, Taylor v. Cook, 14 Iowa, 500; Dab- 560 BANKS AND BANKING. [ 314 tender where they are not made payable in a particular medium of payment. 24 If foreign coin is tendered it may be taken by weight at its intrinsic value. 25 Silver coin of this country would not be a valid tender unless the silver were a legal tender; 26 but each note may be considered a separate debt as to payment in silver, where silver is a legal tender for a debt up to a certain amount. 27 Interest must be paid upon the notes from the date of a demand and a re- fusal of payment, 28 but, as to mutilated paper, proof of owner- ship must first be made. 29 A refusal to redeem may be inferred from an evasive and dilatory method resorted to by- the bank for the purpose of delaying or harassing the holder. 30 Sometimes the state took upon itself the redemp- tion of state bank notes out of deposited securities. 31 In one ney v. State Bank, 3 Rich. 124; Olinstead v. Winstead Bank, 32 Conn. 278. But see Collins v. Cen- tral Bank, 1 Kelly, 435. 24 Treasury notes good payment Reynolds v. State Bank, 18 Ind. 467; Metropolitan Bank v. Van Dyck, 27 N. Y. 400. These state decisions were in accord with the judgment that prevailed. Knox v. Lee, 12 Wall. 457, overruling Hep- burn v. Griswold, 8 Wall. 603. The power to pass the legal tender act was originally justified as a war measure. But it is constitutional even in time of peace. Juilliard v. Greenman, 110 U. S. 421. But the best opinion on the subject, singu- larly enough, is found in a maga- zine article. See 1 Harv. Law Rev. 73, by Prof. Jas. B. Thayer. 25 Suffolk Bank v. Lincoln Bank, 3 Mason, 1. 26 Silver prior to 1853 was a legal tender. It is now. After 1873, for a time, it was a limited tender. Silver notes are not made legal tender by law; but treasury cer- tificates for silver purchases are. 27 Boatman's Sav. Inst. v. State Bank, 33 Mo. 497. The allegation of a tender of silver must allege it to be legal tender silver, where some coins are legal tender and oth- ers are not. State Bank v. Lock- wood, 16 Ind. 306. And see Strong v. Farmers' Bank, 4 Mich. 350. 28 Crawford v. Bank of Wilming- ton, 61 N. C. 136; Ringo v. Biscoe, 13 Ark. 563. But a suspension was held not to start interest. Bank of Louisiana v. Fowler, 10 Rob. (La.) 196. See also, contra, Attwood v. Bank of Chillicothe, 10 Ohio, 526, which states a better rule. 29 Farmers' Bank v. Reynolds, 4 Rand. 186. The same rule as to preliminary proof would apply to lost or destroyed paper. 30 People v. Whittemore, 4 Mich. 27; Reapers' Bank v. Millard, 24 111. 433. These two cases illustrate the state bank system in all its vicious- ness. si Willard v. Dubois, 29 111. 48; People v. Whittemore, 4 Mich. 27; People v. Holmes, 3 Mich. 544. The national government now redeems 315.] CIRCULATING NOTES. 501 instance the bank made a valid agreement with a third per- son to redeem its notes. 32 315. Stockholders' liability. If the association is un- incorporated, each of the members of it is liable for all notes issued while he was a member. 1 This liability is not, it seems, varied by an express notice that the terms of the partnership are otherwise, nor by prior notice to all creditors that by becoming creditors they disavow any recourse upon the asso- ciates. 2 Stockholders in a corporation must be made liable for anything beyond their subscription by the charter or statute. 3 If the liability be to the extent of the par value of the stock held by the stockholder, it is in proportion to the number of shares held, 4 but if all the shares are not issued it will be in proportion to the issued shares. 5 The liability arises whenever the bank refuses to pay its notes or is noto- riously insolvent. 6 A perpetual injunction against the bank's doing business dissolves the charter of the bank, 7 but the lia- bility survives the dissolution of the charter, 8 and the lia- bility extends in favor of those who took the bills after the expiration of the charter. 9 There must first be an exhaus- tion of the assets, including the state deposit, of the bank, 10 all national bank notes. From the 8 Wiswell v. Starr, 48 Lie. 401. destruction of national bank notes This question could not arise where of the national banks that have the whole capital was required to failed, the government has made a be subscribed and paid in. handsome profit. 6 Terry v. Tubman, 92 U. S. 156; 32 Central Bank v. Empire Stone and see 71, ante. Co., 26 Barb. 23. ?Wiswell v. Starr, 48 Ma 401; 1 Riggs v. Swan, 8 Cranch, C. C. Dane v. Young, 61 Me. 160. This 183. is sometimes a substitute for a 2 Riggs v. Swan, supra, and Hess judgment of dissolution. v. Werts, 4 S. & R. 356, semble. See 8 Thornton v. Lane, 11 Ga. 459; 13, ante, Robinson v. Lane, 19 Ga. 337. 3 This must be understood in con- 9 Crease v. Babcock. 10 Met. 525. nection with 48, 58, 59, 63 et seq., But there is no liability for interest ante, 10 Toucey v. Bowen, 1 Biss. 81; 4 Lane v. Harris, 16 Ga. 217; Ad- Crease v. Babcock, 10 Met 525. kins v. Thornton, 19 Ga. 325; Wis- Under a different system, see Hatch well v. Starr, 48 Me. 401. And see v. Burrows, 1 Woods, 439. Some- the sections ante cited in last note, times the liability accrues upon in- 36 562 BANKS AND BANKING. [ 316. unless the bank is insolvent, but a return of nulla lona is said not to be conclusive against the stockholders. 11 But if the bill holder fails to present his claim to the bank re- ceiver, he can recover from the stockholders only the amount remaining after deducting what he would have received had he presented his claim. 12 If stock is owned by the bank it does not increase the liability of the stockholders. 13 The stockholders, unless made jointly liable by statute, are sever- ally liable; M and it was held in one state that a stockholder's voluntary redemption of notes was a pajnnent of his liability pro tanto but this cannot be correct. 16 Where the directors are also made liable for the notes of the bank, the liability of the stockholders is not thereby made secondary to that of the directors. 17 On the theory of a joint liability the re- lease of a director was held to release the stockholders. 18 316. Remedies for refusal to pay notes. The action against the bank upon its notes should be at law, and under a statute it may be for money had and received ; l and the action for destroyed notes, where no indemnity is needed, is at law. 2 Where the action is against the stockholders, if at law, the first judgment creditor would obtain a preference, solvency or dissolution. See 62, This could not be the rule if the ante. liability was several, and where 11 Lane v. Harris, 16 Ga. 217. But the remedy can only be pursued in in almost every statutory system it equity and no creditor can obtain is conclusive. See 69, ante. a priority, it is difficult to see how 12 Grew v. Breed, 10 Met 569. such a release could be effective 13 Crease v. Babcock, 10 Met. 525. unless made by all the creditors. 14 Crease v. Babcock, 10 Met. 525. Most of the states have statutes, See 64, ante. however, abolishing this rule as to 15 Belcher v. Wilcox, 40 Ga. 391 ; joint debtors. Branch v. Baker, 53 Ga. 502. But l Goodenow v. Duffield, Wright, the general rule is otherwise. Sac- 455; Attwood v. Bank of Chilli- ramento Bank v. Pacific Bank, 56 cothe. 10 Ohio, 526. See People v. Pac. R 787. This ruling destroys New York C. P., 19 Wend. 113. The the equality among the note hold- note-holders are not assignees in ers. any sense of the term. Wood v. 16 See 59, ante, note 10. Dummer, 3 Mason, 308. * T McDougald v. Lane, 18 Ga. 444. 2 Bank of Mobile v. Meagher, 33 is Robinson v. Bealle, 20 Ga. 275. Ala. 622. 316.] CIRCULATING NOTES. 563 but this action is generally in equity. 8 There is no limita- tion upon the action while the notes are in circulation, 4 but it has been unadvisedly said that after the notes have ceased to circulate the rule is different. 5 The proper rule is that the statute should begin to run from a demand, 6 and a fail- ure of the bank dispenses with a demand ; 7 yet it is not suffi- cient to put the statute in motion. 8 Where the notes are payable generally it is not necessary to allege a demand at the banking house or at all, 9 although if they are payable at the banking house it is necessary to allege a demand there. 10 Failure of the bank, 11 as just stated, or a state of war preventing a demand, 12 dispenses with the necessity. The proper party plaintiff is the owner of the bills, though he holds them as trustee, 13 and the proper party defendant is the bank. If it be a suit to hold the stockholders, the proper parties must be determined according to the rules stated in a former section. 14 In pleading upon the bank- notes it is not necessary to describe the notes by their num- bers nor letters, 15 nor dates, nor where payable, 16 but they must be sufficiently described to show that the bank issued 'Lowry v. Parsons, 52 Ga. 356. Law, 382; Bryant v. Damariscotta See 67-69, ante. Bank, 18 Me. 240; Haxton v. Bishop, 4 Dougherty v. Western Bank, 1.3 3 Wend. 13; Dougherty v. Western Ga. 287; Long v. Bank of Yancey- Bank, 13 Ga. 287. ville, 81 N. C. 41. 10 Bank of Kentucky v. Hickey, 4 Kimbro v. Bank of Fulton, 49 Litt.225; Bank of Uticav. Magher, Ga. 419. Contra, State v. Bank of 18 Johns. 341. Tennessee, 5 Baxt. 101. . See Bullard J1 See note 7, supra, and Taylor v. v. Bell, 1 Mason, 252; Ballard v. Cook, 14 Iowa, 501. Green bush, 24 Me. 336; Solomons v. 12 Hall v. Bank of Virginia, 14 W. Bank of England, 13 East, 135. Va. 584 6 Thurstonv. Wolf borough Bank, iGrew v. Breed, 10 Met 569. 18 N. H. 391; Bank of Memphis v. And the beneficiaries need not be White, 2 Sneed, 482. joined. 7 Lane v. Morris, 8 Ga. 468. See 14 See 67-69, ante. And see Wil- as to certificates of deposit, 169, son v. Bank of Lexington, 72 N. C. ante. 621. 8 See two cases in note 6, supra.. 15 Carey v. Greene, 7 Ga. 79. Contra, Samples v. Bank, 1 Woods, 16 Bank of Mobile v. Meagher, 83 r>23, following the rule in Georgia. Ala. 622. 9 State Bank v. Van Horn. 4 N. J. 564 BANKS AND BANKING. [ 316 them. 17 If the notes are alleged to be destroyed it is doubt- ful whether such a description would be sufficient. 18 Cer- tainly in proof the contents should be proven by something more than the aggregate amount. 19 Since the liability of the stockholders or directors, as engaged in the corporation, arises from the charter, it must be proven, 20 unless the court takes judicial notice of the existence of the charter.- 1 It is not a matter of defense against note-holders, either in plead- ing or proof, that the organization was not properly made by paying the capital stock in full, either on behalf of the bank or its stockholders. 22 It has been said that if the note- holder took the notes with the agreement that they were not to be put into circulation, he cannot hold the stockhold- ers, 23 but this conclusion is very properly denied. 24 17 Irwin v. Planters' Bank, 1 court say the corporation's exist- Humph. 145. ence was not proven. 18 The record would fail to show 21 This must be the case wherever what notes were recovered upon. the liability is created by statute, 19 Bank of Mobile v. Meagher, 33 unless the court in the particular Ala. 622. Circumstantial evidence jurisdiction refuses to take judicial of loss was held insufficient. Tower notice of a private act v. Appleton Bank, 85 Mass. 387. 22 Johnston v. Southwestern Bank, Under such circumstances indem- 3 Strob. Eq. 263. nity will not be permitted. See M Johnston v. Southwestern Bank, last case. supra. 20 Gardner v. Post, 43 Pa. 19. The ** Grew v. Breed, 10 Met 569. CHAPTEK XII. DISSOLUTION AND INSOLVENCY., 317. Surrender of charter. The charter having been granted by the state, it may be surrendered with the con- sent of the state, 1 but not without it. 2 This consent may be given by a special act 3 or in accordance with a general law. 4 The state may accept the surrender, but continue the cor- poration for a time for the purpose of settling its affairs, 5 and during such time a cashier may be appointed 6 and a commissioner for winding up its affairs may sue in the name of the corporation. 7 The appointment of a receiver or of trustees does not dissolve the corporation. 8 It may appoint officers, 9 sue 10 and be sued. 11 The corporation does 1 Savage v. Walshe, 26 Ala. 619. There is often a general statute in accordance with which the bank, may dissolve even by action of the directors. People v. Olmstead, 45 Barb. 644 Under the national bank act the two-thirds majority of the stockholders can dissolve against the wishes of the minority. Watkins v. National Bank, 51 Kan. 254. 2 Mechanics' Bank v. Heard, 87 Ga. 401. 3 Many instances will be noticed in cases cited in this section. 4 See note 1, supra, 5 Cooper v. Curtis, 80 Ma 488. This is absolutely necessary to pre- vent the destruction of the rights of the corporation. 6 Cooper v. Curtis, supra. 1 Commercial Bank v. Villavoso, 6 La. Ann. 542. 8 Merchants' Nat. Bank v. Gaslin, 41 Minn. 552; Central Bank v. Con- necticut Mut. Life Ins. Co., 104 U. S. 54; Ahrens v. State Bank, 3 S. C. 401. A bank is not dissolved although it has gone into volun- tary liquidation, has transferred all its assets to another bank, which assumed its debts, and has given up its organization and its business. Pritchard v. First Nat. Bank, 76 N. W. R. 1106. 9 Richards v. Attleborough Bank, 148 Mass. 187. 10 See cases cited in note 8, supra. "Merchants' Nat. Bank v. Ma- sonic Hall, 65 Ga. 603. But if a re- ceiver is appointed in Maine it is provided that the bank cannot be sued. Leathers v. Shipbuilders' Bank, 40 Me. 386. But the bank may sue. American Bank v. Cooper, 54 Me. 438. As to national banks, see 334, post. 566 BANKS AND BANKING. [ 318. not cease to exist except by decree of dissolution, 12 or a stat- ute having such effect, 13 or by expiration of the charter. 14 After such a dissolution the corporation ceases to exist; a judgment against it is void; 15 any action taken in its name is nugatory, 16 in the absence of a statute providing a differ- ent rule. 318. Reorganization and consolidation. A reorgan- ization of a bank or consolidation of banks can take place only under statutory authority. The national bank act per- mits the reorganization of a state bank into a national bank. 1 The new national bank is the same corporation under an- other name. 2 The new bank may sue on a claim or prose- cute an appeal of the old bank. 8 The national bank is liable for all the liabilities of the state bank out of which it was reorganized. 4 There is no closing of the business of a state bank under such a reorganization, so as to release it under a statute on bills not presented within six years. 5 But the corporate existence of a former state bank ceases on the expiration of three years from its reorganization, its exist- ence as a national bank having also expired. 6 The liability on a continuing guaranty continues in favor of the new na- 12 National Bank v. Onondaga Co. 2 Coffey v. National Bank, 46 Mo. Bank, 7 Hun, 549. 140. 13 Even where the statute dis- 3 Atlantic Nat. Bank v. Harris, solves the corporation the affairs 118 Mass. 147; Claflin v. Farmers' thereof must be wound up under Bank, 54 Barb. 228. the direction of a court unless the * Kelsey v. National Bank, 69 Pa. act lodges that duty in certain per- 426. sons. 6 Metropolitan Nat. Bank v. Clag- " This, of course, ends the corpo- gett, 141 U. S. 520, 125 N. Y. 729. rate existence, unless it be con- It is not a payment for its stock. tinued for certain purposes. Maynard v. Mechanics' Nat. Bank, 15 Hayden v. Bank of Syracuse, 1 Brewst. 483. 15 N. Y. Supp. 48; Hodgson v. Mo- 6 Hayden v. Bank of Syracuse, 15 Kinstrey, 3 Kan. App. 412. But N. Y. Supp. 48. See 20, ante. But there was no dissolution in this under 22 Stat 167, 7, a national case. bank does not cease to be able to sue 16 Bank of U. S. v. McLaughlin, 2 and to be suable until its affairs Cranch, C. C. 20. are settled. Farmers' Nat Bank v. 1 See 20, ante. Backus, 77 N. W. R 142 (Minn.). 318.] DISSOLUTION A.ND INSOLVENCY. 507 tional bank. 7 The new bank is liable for the costs of a scire facias, although it was properly issued on a judgment in favor of the old bank in the name of that bank. 8 But rights of the state over the bank, such as to require a payment of a bonus upon its business, cease upon reorganization. 9 When a national bank is reorganized into a state bank, all property rights of the national bank pass to the new state bank, 10 and when one national bank is reorganized into another national bank it is liable for deposits in the old bank, 11 and special deposits of bonds recognized by the payment of interest on the bonds by the bank become special deposits in the new bank. 12 In case of such a change, where the affairs of the former bank were liquidated, and all but one stockholder has taken part in the organization of the new bank, the omitted stockholder having accepted dividends from assets of the old bank cannot claim to be a stockholder in the new one. 13 Similarly where a state savings association is reor- ganized into another state bank, those depositors who took stock in the new bank for their deposits and participated in the new bank are estopped from saying that their sub- scription to the stock of the new bank was conditional upon all the depositors taking stock in the new bank for their de- posits. 14 A defect in the reorganization under a new char- ter cannot be set up by a debtor to the old bank against his liability. 15 If the reorganization consists in a liquidation of 7 City Bank v. Philips, 86 N. Y. u Eaves v. Exchange Bank, 79 Mo. 484. 182. 8 Thomas v. Farmers' Bank, 46 12 First Nat Bank v. Strang, 28 Md. 43. Ill App. 325. 9 State v. National Bank, 33 Md. "First Nat Bank v. Marshall, 26 ?"). The conversion of state into 111. App. 440. national banks was strongly op- 14 Dallemand v. Odd Fellows' Sav. posed because the state derived a Bank, 74 Cal. 598. large benefit in some instances from 15 Spahr v. Farmers' Bank, 94 Pa. those banks. Until the national 434. This was a case of an original banking law was supplemented by usurious note taken up by renew- the state bank tax, there was little als, which passed to the new bank, success in the national banking act. The indorser was not permitted to 10 First Comm. Bank v. Talbert, plead the usury of the old against 103 Mich. 625. the new bank. 568 BANKS AND BANKING. [ 319. the affairs of the old bank, even though the new bank with the same name as the old, and with generally the same stockholders, receives bills of the old bank and pays them out, the new bank does not become responsible for all the bills of the old bank, 16 but simply those very notes which were received. 17 A depositor in the old bank does not re- lease it, unless he consents to the change. 18 Nor does a cor- poration formed by the consolidation of a bank with another corporation, where trustees are appointed to wind up the affairs of the bank, become liable by the act of consolidation for the debts of the bank without some express assumption of the debts. 19 319. Forfeiture of charter. The state has the right to forfeit a charter either for failure to observe the law in forming the corporation or for acts done in violation of law after the corporation is formed; thus, a failure to pay in the capital stock as required by law, 1 or any other failure to observe the provisions of the law governing the formation of the corporation. But the commoner grounds of forfeiture are those based upon acts done by the corporation after the formation thereof. But the act must be the act of the cor- poration. The unauthorized act of the cashier is no ground 16 Bellows v. Hallowell Bank, 2 tion without paying value there- Mason, 31. for. 17 Wyman v. Hallowell Bank, 14 l People v. City Bank, 7 Colo. 226; Mass. 62. It is needless to say that People v. Nat. Sav. Bank, 129 111. these last two cases were not cases 618. Compare Commercial Bank v. of a transformation of one bank State, 6 Smedes & M. 599, which into another bank. The change held that a failure to sell stock on from one bank to another does not account of non-payment of an in- release the old corporation unless stalment thereon was not a ground the creditor consents. Ray v. Bank of forfeiture. Chief Justice Shar- of Kentucky, 10 Bush, 344 key found himself in such an astoii- 18 See the last note. ishing state of mental fog that he 19 Donally v. Hearndon, 41 W. Va. held that the state by suing the 519. If the statute or agreement corporation in quo warranto for a imposes a liability on the new cor- forfeiture admitted the due and poration, the rule is just the oppo- regular incorporation of the bank, site. So it is if the new corporation This error was not indorsed by the receives assets of the old corpora- other judges. 319.] DISSOLUTION AND INSOLVENCY. 5G9 for forfeiture. 2 Nor do the acts as to which a discretion may be said to exist, such as the propriety of selling stock for a failure to pay assessments. 8 The grounds of forfeiture will be as various as are the devices of men to escape statutory restrictions or their capabilities in the way of poor banking. But the corporation by abandoning its corporate franchises and surrendering its assets certainly incurs a liability for forfeiture. 4 Suph ground would be an assignment of all its effects for creditors, 5 or the failure to hold an annual elec- tion of officers for five years. 6 Its refusal to report its con- dition as required by the law, 7 its suspension of specie pay- ments continued for a long period, or absolutely and gener- ally, 8 but not a suspension for a short period ; 9 exchanging bills contrary to law; 10 the making of unauthorized loans by 2 State v. Commercial Bank, 5 Smedes & M. 218. 3 Commercial Bank v. State, 6 Smedes & M. 599. 4 State v. Seneca Co. Bank, 5 Ohio St. 171. 8 State v. Real Estate Bank, 5 Ark. 595; People v. Hudson Bank, 6 Cow. 217. But State v. Commer- cial Bank, 21 Miss. 569, holds that an assignment of all its property is not sufficient, and that the bank must reach such a condition that it cannot fulfill its purposes. Capital and assets seemed not to be neces- sary to a bank m those halcyon times " befo' the wall." This opin- ion is the joint effort of Chief Jus- tice Sharkey and another judge. It is impliedly reversed in the next case cited. 6 State v. Commercial Bank, 33 Miss. 474 7 State v. Seneca Co. Bank, 5 Ohio St. 171. 8 State v. Real Estate Bank, 5 Ark. 595; State v. Commercial Bank, 50 Ohio, 535; Commercial Bank v. State, 6 Smedes & M. 599; State v. Bank of South Carolina, 1 Spears, 433; Planters' Bank v. State, 7 Smedes & M. 163. Compare State v. Louisiana Savings Co., 12 La. Ann. 568; and State v. Tombeckbee Bank, 2 Stew. 30, is contra. Under statutes. Bank of Circleville v. Iglehart, 6 McLean, 568; State v. New Orleans Gas Co., 2 Rob. (La.) 529; Lockhart v. U. S. Bank, 2 Ashm. 406; Atcha- falaya Bank v. Dawson, 13 La. 497. Payment of legal tenders was, of course, not a ground of forfeiture. Reynolds v. Bank of State, 18 Ind. 467. A statute might require specie payments from a bank chartered before the statute was passed. Commercial Bank v. State, 6 Smedes & M. 599; but contra, State v. Tom- beckbee Bank, 2 Stew. 30. But for- feiture statutes are not retroactive. People v. Niagara Bank, 6 Cow. 196. 9 State v. Comrn. Bank, 10 Ohio, 535. ! Bank Comm'rs v. Buffalo Bank, C Paige, 497. 570 BANKS AND BANKING. [ 320. the directors; 11 the contraction of debts or the issuance of bills to an amount greater than allowed by its charter; 12 the declaration of large dividends, while suspending specie pay- ments, or the embezzlement of special deposits, 13 have been held grounds for forfeiting the charter. Insolvency and a refusal to pay its debts, united with violations of its char- ter, 14 or "gross and illegal" mismanagement under a stat- ute, 15 or without a statute, are sufficient grounds for forfeit- ure. Usurious agreements have been held to be no ground for forfeiture. 16 Under the national banking act forfeitures are incurred by a violation of the various provisions of law applicable to the national banks. 17 The act charged, what- ever it may be, must be alleged, as to national banks, to have been done by the directors or with their knowledge. 18 Stat- utes providing for forfeitures do not apply to acts done be- fore their passage, 19 but banks may be required to make their payments in specie, though chartered before the passage of the law. 20 320. "Waiver or remission of forfeiture. Whenever a forfeiture has been incurred it may be remitted by the state by legislative act, 1 and it seems by borrowing money from the bank after a forfeiture has been incurred. 2 The forfeiture for insolvency is waived where the bank resumes 11 See last case and State v. Sen- 18 Trenholm v. Comm. Nat Bank, eca Co. Bank, 5 Ohio St. 171. But 38 Fed. R 323. usurious loans were not ground for 19 People v. Niagara Bank, 6 Cow. forfeiture. State v. Com in. Bank, 196. 10 Ohio, 535. Contra, Common- 2 See note 8, supra, wealth v. Comm. Bank, 28 Pa. 383. 1 Bank of Missouri v. Bredow, 31 12 State Bank v. State, 1 Blackf, Mo. 523; Atchafalaya Bank v. Daw- 270. son, 13 La. 497; Nevitt v. Bank of 13 See last case. Port Gibson, 6 Smedes & M. 513; 14 Attorney-General v. Oakland State v. Bank of Charleston, 2 Mo- Co. Bank, Walk. Ch. 90. MuL 439. !5 Bank Comm'rs v. Central Bank, 2 State v. Real Estate Bank, 5 5 R I. 12. Ark. 595. This seems to be the 16 See note 10, supra, species of estoppel noticed by the 17 See sec. 5239, Rev. Stat United States Supreme Court in the " sugar bounty " case. 321.] DISSOLUTION AND INSOLVENCY. 571 payment before a suit is begun. 8 A forfeiture is not waived by laches, 4 but the limitation as to a suit for forfeiture in the case of a national bank is five years. 5 The legislature may suspend proceedings already begun, and if the suspen- sion of the proceeding is conditional, the bank by perform- ing the condition has contracted with the state. 6 The court itself, it has been held, may, in effect, waive the forfeiture by refusing, in its discretion, to enforce it. 7 321. Proceedings to forfeit. The action to forfeit a charter is an action at law on behalf of the state in a direct proceeding for that purpose unless a different procedure is- fixed by statute. 1 The proceeding is of a civil nature and is not a criminal proceeding. 2 The courts of equity have no- power to dissolve a corporation, 3 unless the power be given by statute. 4 An ancillary injunction is sometimes permitted by statute, 5 and in the nature of things, if the state could show sufficient grounds therefor, there is no reason why it should not have an injunction without a statute from a court 3 People v. Niagara Bank, 6 Cow. See Commonwealth v. Bank of 196. Contra, Comm. Bank v. State, Mutual Redemption, 86 Mass. 1. 6 Smedes & M. 599. 2 Commercial Bank v. Rodney, 4 4 People v. Bank of Pontiac, 12 Smedes & M. 439. Historically this Mich. 527. is not true as to quo warranto, be- 5 Welles v. Graves, 41 Fed. R. 459. cause a fine could be imposed as 6 Long v. Farmers' Bank, 1 Clark, well as a judgment of ouster en- 284. 2 Pa. Law J. 230. forced. The proceeding was in the- 7 Bank Commissioners v. Bank of name of the sovereign in the nat- Buffalo, 6 Paige, 497. ure of a writ of right superseded 1 Attorney-General v. Bank of by information. Niagara, Hopk. Ch. 354; Murphy v. 3 This is the general rule. There Farmers' Bank; 20 Pa. 415; State is but one case which directly holds Bank v. Snelling, 35 Mo. 190; Hunt- otherwise, and that case is wholly ington v. Crescent City Bank, 18 unsound. La. Ann. 350. A court of equity 4 Such statutes are numerous, has no such power except by stat- See note 1, siipra; and se^ Mitchell ute. Such statutes sometimes make v. Bank of St. Paul, 7 Minn. 252. an injunction a dissolution of the 'Attorney-General v. Bank of charter. Wiswell v. Starr, 48 Me. Chenango, Hopk. Ch. 596; Cora mon- 401; Dane v. Young, 61 Ma 160. wealth v. Bank of Mutual Redemp- tion, 86 Mass. 1. 572 BANKS AND BANKING. [ 322. of equity or from the same court, where the equitable and common-law jurisdictions are amalgamated. 6 Sometimes the power to sue for a forfeiture is given to bank commis- sioners, 7 but under one act it was held that the court on the application of the commissioners was given no power to ap- point a receiver or to grant an injunction exparte where the statute required a hearing. 8 In other cases trustees or com- missioners were nominated by acts of the legislature, but their powers were so various that it would serve no useful purpose to review these decisions. 9 322. Declaration of forfeiture. There has been an instance where the statute itself has operated to declare the forfeiture; 1 but the forfeiture under statutes which define grounds for a forfeiture must be declared by a court. 2 Until that declaration no one can plead the forfeiture as against the bank. 3 A decree finding the bank insolvent and ap- pointing a receiver is not a declaration of forfeiture. 4 The 6 This is a very old proceeding in chancery, and was originally brought by information. It would remain unless abolished. But At- torney-General v. Bank of Niagara, Hopk. Ch. 354, denies this on the authority of Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371. 7 People v. Superior Court, 100 CaL 105; Bank Commissioners v. Central Bank, 5 R L 112; Bank Commissioners v. Bank of Buffalo, 6 Paige, 497. 8 Murray v. American Surety Co., 70 Fed. R 341, 44 U. a App. 43; People's Sav. Bank v. Superior Court, 103 CaL 27. 9 See Long v. Superior Court, 102 Cal. 449; Saltmarsh v. Planters' Bank, 17 Ala. 761 ; Jemison v. Plant- ers' Bank, 23 Ala. 168; Savage v. Walshe, 26 Ala. 619; Atwood v. aldwell, 12 111. 96; Morris v. Thomas, 17 III 112; Miners' Bank v. Thomas, 4 G. Greene, 336; Martin v. Belmont Bank, 13 Ohio, 250. 1 Wilson v. Tisson, 12 Ind. 285. See United States v. Church, 5 Utah, 361. 2 Atchafalaya Bank v. Dawson, 13 La. 497; Huntsville Bank v. Mc- -Geehee, 1 Stew. & P. 306; City Ins. Co. v. Commercial Bank, 68 111. 348; Union Bank v. McDonald, 15 La. 25; Bank of Louisiana v. Green, 20 La. Ann. 214; People v. Bank of Pontiac, 12 Mich. 527; Montgomery v. Merrill, 18 Mich. 338. 3 Hughes v. Bank of Somerset, 5 Litt. 45; Farmers' Bank v. Gasten, 34 Mo. 119. Contra, North Ma River Bank v. Winkler, 33 Mo. 354 Ahrens v. State Bank, 3 S. C. 401; Richards v. Attleborough, 148 Mass. 187; Central Bank v. Con- necticut Life Ins. Co., 104 U. S. 54. 323.] DISSOLUTION AND INSOLVENCY. 573 bank still has a corporate existence. 5 So, under the national banking act, the appointment of a receiver does not dissolve the corporate franchises. 6 Suits pending against the bank are not affected by the appointment, except that the receiver may be substituted. 7 The bank may be sued in spite of the appointment of the receiver. 8 323. Effect of forfeiture or expiration of charter. When a charter has been duly declared forfeited, the bank has no longer any corporate existence. The bank only has such powers as are given to it by the statute. 1 It is exactly the same with the expiration of the charter or its repeal. 2 Unless the statute preserves some right, all debts owing to the bank are extinguished at law, 3 and all suits pending against the bank are abated. 4 But where the statute gives certain rights after forfeiture or expiration of the charter, the corporation may exercise them. 5 Yarious statutory schemes of liquidating banks and various special acts have 6 It may be sued. Merchants' Nat. Bank v. Gaslin, 41 Minn. 552. See National Bank v. Onondaga Co. Bank, 7 Hun, 549. And see cases in last note. 6 Nat. Pahquioque Bank v. First Nat. Bank, 36 Conn. 325; First Nat. Bank v. Nat. Pahquioque Bank, 14 Wall. 383; Chemical Nat. Bank v. Hartford Deposit Co., 161 U. S. 1; Chemical Nat. Bank v. Hartford Deposit Co., 156 111. 522. The ap- pointment supersedes the power of directors to carry on the bank. 7 See cases cited in last note and American Bank v. Cooper, 54 Me. 438. 8 See note 6, supra, as to national banks. But in Maine the bank cannot be sued after a receiver is appointed. Leathers v. Shipbuild- ers' Bank, 40 Ma 386. 1 Smith v. Frye, 5 Cranch, C. C. 515; Folger v. Chase, 18 Pick. 63; Saltmarsh v. Planters' Bank, 14 Ala. 668; Wilson v. Tesson, 12 Ind. 285 ; Cunningham v. Clark, 24 Ind. 7. 2 Pomeroy v. State Bank, 1 Wall. 23; Whitman v. Cox, 23 Me. 335; Merrill v. Suffolk, 31 Ma 57; Bank of Mississippi v. Duncan, 56 Miss. 166; Fox v. Horah, 1 Ired. Eq. 358. 3 Commercial Bank v. Chambers, 8 Smedes & M. 9; Coulter v. Rob- ertson, 24 Miss. 278. < Bank of U. S. v. McLaughlin, 2 Cranch, C. C. 20. But in case of national banks it is not so. Bank of Montreal v. Fidelity Nat. Bank, 1 N. Y. Supp. 852, 112 N. Y. 667. 6 It may defend a suit (Pomeroy v. State Bank, 1 Wall. 23), or assign paper (Hallowell Bank v. Hamlin, 14 Mass. 178). And see also Cun- ningham v. Clark, 24 Ind. 7; Folger v. Chase, 18 Pick. 63; Smith v. Frye, 5 Cranch, C. C. 515. 574 BANKS AND BANKING. [ 324, 325. been passed. 6 Trustees are sometimes appointed as required by the statutes. 7 In the case of national banks a dissolution of the bank by a decree does not affect a pending action. 8 But a judgment of forfeiture and appointment of trustees under a state statute vested the assets in the trustees. 9 324. Insolvency. A bank is insolvent when it is un- able to meet its obligations out of its assets in the due course of business. 1 A general suspension of specie payments, or notorious and continued inability to pay its debts, is insolv- ency, 2 but not necessarily a suspension in a sudden crisis. 3 When a bank suspends or is insolvent, the assets are not so much a trust fund that the bank, where permitted to make such an assignment at all, cannot make an assignment with preferences. 4 But an assignment for creditors or a suspen- sion is proof of insolvency, or any other, admission by the corporation of insolvency, even though the assets are suffi- cient to pay all the debts of the bank. 5 325. Assignments for creditors. There is no doubt of the right of the directors of a bank to make assignments for creditors, unless such an act be forbidden by statute. 1 6 See cases cited in note 9 to 321, i See 85, 90, ante, and see Har- ante. manson v. Bain, 1 Hughes, 188; Ex- 7 See People v. Ridgley, 21 111. 65; change Bkg. Co. v. Mudge, 6 Rob. Commercial Bank v. Chambers, 8 (La.) 387. Smedes & M, 9. Unless a trustee -Godfrey v. Terry, 97 U. S. 171; or receiver be appointed within the In re Empire City Bank, 10 How. time after dissolution by forfeiture Pr. 498. the bank's claim is extinguished at 3 Livingston v. Bank of New law. Conwell v. Pattison, 28 Ind. York, 26 Barb. 304 509. See Bank of U. S. v. Leathers, * Catlin v. Eagle Bank, 6 Conn. 8 B. Mon. 127. 233. 8 Bank of Montreal v. Fidelity 8 Dodge v. Mastin, 17 Fed. R. 6GO; Nat Bank, 1 N. Y. Supp. 852, 112 State v. Mechanics' Bank, 35 La. N. Y. 667. See also McCann v. Ann. 562. Rogers, 15 Ky. Law R. 127. The re- 1 Union Bank v. Ellicott, 6 Gill ceiver may be substituted as a mat- & J. 363; Town v. Bank, 2 Doug, ter of course. 530; Chew v. Ellingwood, 86 Mo. 9 Nevitt v. Bank of Port Gibson, 260; Haxton v. Bishop, 3 Wend. 13; 6 Smedes & M. 5ia Farmers' Bank v. Willis, 7 W. Va. 325.] DISSOLUTION AND INSOLVENCY. 575 There is also no doubt of the bank's right to prefer creditors where such an act is not forbidden by statute. 2 Whether such preferences are valid or invalid in the absence of a prohibitory statute must depend upon the rule held in the particular jurisdiction as to such assignments. It is not our purpose to examine that question, nor the other question as to whether the assignment is void. But there are two cases peculiar to banking law which ought to be noticed. A bank on the eve of insolvency extended a debt owed by a stock- holder by taking his notes due in two and three years, with the president of the bank as sole surety. The act was held to be fraudulent, and that the bank could proceed directly against the debtor in equity, without a judgment at law or a garnishment. 3 This case is called one. of preference, but it is really an act to hinder and delay creditors, and there- fore a fraudulent conveyance. In another case it was held that a power given to the assignee to pledge the assets of the bank did not render the assignment fraudulent at law. 4 Certainly, however, such a power would be void, whatever might be held .as to the fraud in the assignment. Assum- ing, however, that the assignment is a valid one, a court will not take the assets from the assignee and give them to a receiver afterward appointed. 5 The court, however, in the exercise of a chancery jurisdiction, might, if the receiver 81. But an assignment made after 3 Bank of St. Mary's v. St. John, the appointment of a receiver, or 25 Ala. 566. proceedings therefor, is not good. 4 Montgomery v. Galbraith, 11 State v. Bank of New England, 55 Smedes & M. 555. The reservation Minn. 139. But see, in Pennsyl- of a surplus after paying creditors vania, In re Banking Co., 12 Phila. is lawful. Dana v. Bank of U. S., 469. 5 Watts & S. 223. 2 Preferences may be either ex- 5 Garden City Banking Co. v. Geil- pressly or impliedly forbidden, fuss, 86 Wis. 616. Under some stat- Compare Dana v. Bank of U. S., 5 utes the approval of the court is Watts & S. 223; Bank Commis- required for the assignee's appoint- sioners v. Bank of Brest, Har. 100; ment. See Ex parte Banking Co., Shryock v. Bashore, 11 Phila. 565; 34 Leg. Int. 204, 230, 12 Phila. 214, Exchange Bank v. Knox, 19 Grat. . 469. When approved by the court, 739, semble; Ex parte Con way, 4 the receiver must turn over the Ark. 302. assets to the assignee. In re Union 576 BANKS AND BANKING. [ 325. was appointed and the assignee an improper person, substi- tute the receiver for the assignee, even though the assign- ment was not held to be fraudulent. But if the assignment was made after the appointment of a receiver or notice of proceedings therefor, the assignment would not prevail.* The assignment, when expressed to be general, will convey all property of the bank, though it be not mentioned in the schedule. 7 It transfers all the property of the bank, though checks are outstanding against the deposits, whether ac- cepted or unaccepted; 8 but in those states which recognize the presentation of a check as a sub modo assignment, the situation is peculiar. The courts speak of the check pre- sented, where funds are to the credit of the drawer, as an assignment of the money. If that were true, the money in the bank to the amount of the check belongs to the holder of the check. But even an accepted check only creates the relation of debtor and creditor between the bank and the check-holder in these very states. So the relation of debtor and creditor must exist between the bank and the check- holder after presentation. Therefore the bank's assignment would transfer the money in the bank against outstanding checks in those states which speak of the check as an assign- ment. 9 Under the national bank act an assignment for Banking Co., 12 Phfla. 469. A stock- check dpes not appropriate any par- holder may be assignee. Creditors ticular portion of the assets or ore- may object, but cannot appoint, ate a special deposit. See note 4 News v. Shackamoxon Bank, 16 to 163, ante. Wkly. Notes Gas. 307. 9 This reduces the check to an as- 6 State v. Bank of New England, signment of a portion of a credit, 55 Minn. 139. or a partial assignment of a chose 7 Eppright v. Nickerson, 78 Mo. in action. This whole theory of 482. This is the general rule. This the states spoken of above seems particular case is wrong in not ad- to be a case of what the biologists mitting that the schedule is a part call reversion to an antecedent of the deed. type, to the idea that a depositor 8 Coates v. First Nat Bank, 91 has money in the bank. This idea N. Y. 20. This case was decided on is noticed in daily speech. Thus, the ground of an assignment, of under bequests of ready money or which the check was considered money on hand, credit in the bank merely a voucher. An accepted passes. Langdale v. Whitefield, 2T 326.] DISSOLUTION AND INSOLVENCY. 577 creditors by a national bank is a vain proceeding, because the comptroller at once takes possession. 326. Preferences. A preference by a bank in an assign- ment for creditors is permissible, unless forbidden by law. 1 Such is the great weight of authority in spite of the protests of some courts and text writers. But preferences may be created by other means than an assignment for creditors general in its nature. Statutes are numerous which forbid any preference in contemplation of insolvency. 2 The na- tional bank act has fixed the rule for national banks that all such preferences and all acts that amount to preferences are void. That act does not preserve the rights of lonafide transferees, but other acts do. 3 There is no question under these statutes that any transfer to a transferee with or with- out notice of insolvency, if it be made by the bank with an intent to prefer, is absolutely void, 4 and if void the assignee receives no title.* Thus transfers to a director by the bank for his stock after he had heard rumors of insolvency are void; 6 or transfers to a creditor not in the ordinary course of business, being notice to him from the nature of the trans- action, are void. 7 Payments to depositors or others, if made in the regular course of business to persons who have no L. J. Ch. 795; Stein v. Richardson, 5 Brighton v. White, 128 Ind. 320. 37 L. J. Ch. 369. 6 Roan v. Winn, 93 Mo. 503. In x Ringo v. Trustees of Bank, 13 this, case there was no statute. Ark. 563; Arthur v. Commercial Other states permit a preference Bank, 9 Smedes & M. 394; Catlin v. to a director under some circum- Eagle Bank, 6 Conn. 233. See note stances. Thus it was so held as to 2 to 325. a transfer to a corporation whose 2 See Gillett v. .Moody, 3 N. Y. 479 ; officer had knowledge. O'Brien v. Leavitt v. Tyler, 1 Sandf." Ch. 207; Bridge Co., 55 N. Y. Supp. 206. Hill v. Western R. Co., 86 Ga. 284; 7 Atkinson v. Rochester Printing Exchange Bank v. Knox, 19 Grat Co., 114 N. Y. 168; Lamb v. Cecil, 25 739. W. Va. 288. A transfer to secure 3 See Hill v. Western R Co., 86 a loan to a creditor without knowl- Ga. 284. edge is good as to the loan though 4 Case v. Citizens' Bank, 2 Woods, it is also security for past advances. 23; Nat. Security Bank v. Price, 129 Stapylton v. Stockton, 91 Fed. R U. S. 223; Stone v. Jenison, 70 N. 326 (C. C. A.). W. R. 149. 37 578 BANKS AND BANKING. [ 326. notice of the insolvency of the bank, are not preferential. 8 So it was held under the national bank act even where the depositor was a director. 9 But difficult cases arise where " runs " are made upon banks. The very fact that a " run " is made is proof positive that doubts as to the solvency of the bank are abroad. Every depositor who draws his money does it because he thinks the bank unsafe. If the bank fails, can depositors who have drawn their money be required to repay to the bank's representative on the ground of a fraud- ulent preference ? The bank may not have been insolvent when the " run " upon it began, but sometime during the course of the run the bank became insolvent. How is that particular time to be fixed ? Not one of the depositors could say that he had no notice of the insolvent condition, and he certainly secured his deposit in contemplation of insolvency. The question is one of the greatest difficulty. This much seems plain. If the bank was really insolvent when the "run" began, all payments made were in violation of the statute. It was the duty of the bank officers to close its doors. If, however, the bank was solvent when the " run " was initiated, the fair rule would seem to be that as long as the bank officers keep open its paying teller's window and pay checks or depositors, relying in good faith upon the bank's capacity to withstand the " run," all payments ought to be treated as payments in due course of business and not preferential. 10 The last depositor paid before the window was closed ought to be in the same condition as the first depositor paid during the run. But all payments made to "Dutcher v. Imp. & Trad. Nat S. W. R 439. It. was curiously Bank, 59 N. Y. 5; Hayden v. Chem- enough held that a transfer by a ical Nat. Bank, 84 Fed. R 874 (C. C. cashier and a stockholder to a cred- A.), a transmission of remittances itor was void because not for the in ordinary course of business. And benefit of all the creditors, on the see McDonald v. Williams, 174 U. S. singular ground that it would give 397. a right of set-off against the bank. Hayes v. Beardsley, 136 N. Y. Gatch v. Fitch, 34 Fed. R 566. The 299. decision represents an aberration 10 Stone v. Jenison, 70 N. W. R of an exceedingly able lawyer. 149. See also McAfee v. Bland, 11 327.] DISSOLUTION AND INSOLVENCY. 579 depositors, upon withdrawals from intimations by the bank officers are, of course, fraudulent preferences. An instance occurred in a western state which permits preferences, where a bank had large deposits; all the bank officers as well as the other large depositors withdrew their deposits. A.n assignment was then made and the bank was found to have but nine dollars in cash. Yet, miraculous as it may appear, no one was sued by the assignee. The small depositors, with but few exceptions, bore the whole loss. One of the great advantages of the national banking system is that such assignees are impossible. The excuse of an assignee, in the above case, would be that the bank could prefer creditors in that way as well as by assignment. 327. Preferences by national banks. Sections 5234, 5236 and 5242 of the Eevised Statutes of the United States forbid preferences by insolvent national banks and require a, pro rata distribution of its assets among its general cred- itors after prior claims are satisfied. Every transfer in con- templation of insolvency, as well as transfers by insolvent banks, are declared void. Insolvency under this statute is the general meaning of the phrase, not such an act alone as gives the comptroller the right to close the bank. 1 The bank is insolvent when it is reasonably certain that it must suspend. 2 But the payment to a depositor, though a director, by a bank insolvent, though long before suspension, in the ordinary course of business, has been held to be no prefer- ence. 3 The rules governing the payments to depositors, dur- 1 Irons v. Manufacturers' Nat. be fraudulent. But Stapylton v. Bank, 6 Biss. 301. Stockton, 91 Fed. R. 326, lends some 2 Roberts v. Hill, 24 Fed. R. 571, little countenance to this idea. An which was a rehearing of Roberts Alabama court held that renewals v. Hill, 23 Fed. R. 311, where the of notes, where the originals were court delivered itself of the fol- not given up, were not evidences of lowing astounding proposition: A debt under the statute. First Nat. transfer of collateral to prevent Bank v. Johnston, 97 Ala, 655. a failure is not fraudulent, even "Hand equidem invideo, miror though the bank is insolvent; but magis." a transfer in order to keep the 3 Hayes v. Beardsley, 136 N. Y. securities out of the assets would 299. See the next note. 580 BANKS AND BANKING. [ 327. ing the course of a run, would be those stated in the last section. If insolvency actually exists, known to the di- rectors, any transfer which results in a preference is con- clusively presumed to be fraudulent. 4 The creditor's igno- rance of the insolvency is immaterial. 8 Thus, a clearing-house which has issued loan certificates had in its possession paper for collection upon which it had no lien when it received, notice of the bank's insolvency. It also held what might be termed due-bills for balances on settlements for former days as a set-off against proceeds of collections. It natu- rally desired to offset against the proceeds of collections the due-bills and the loan certificates which the insolvent bank owed. After the circuit court of the United States and the circuit court of appeals had both entangled themselves in errors upon the question, the Supreme Court held that the clearing-house could set off the due-bills against the pro- ceeds of the collections made after notice of the insolvency, but not the loan certificates. 8 The propriety of the holding was obvious, but the diverse rulings of the lower courts show the uncertainty of judicial conclusions. In another case a certain bank used a second bank as its clearing agent. On Saturday evening the directors determined to close the first bank. The comptroller appointed a receiver at ten o'clock on Monday morning, but a half hour before that time the cashier of the insolvent bank sent to the clearing agent a lot of checks and drafts and its check for its deposit with the clearing agent, and the clearing agent sent back its ne- 4 Nat Security Bank v. Price, 129 6 Yardley v. Philler, 167 U. S. 344, U. S. 223. Although this is the reversing both 62 Fed. R. 645, and statement of this case a late decis- 58 Fed. R 746. The case of Philler ion of the court should be con- v. Jewett, 166 Pa. 456, is distin- sulted. It seems that any payment guishable because the clearing- made while the bank is a going house there had a lien. So it may concern, in the due course, without be said of Philler v. Patterson, 168 any intent to prefer, is not forbid- Pa. 468. But it may be said that the den. See McDonald v. Williams, clearing-house arrangement was 174 U. S. 397. made because the bank was in dif- 5 Case v. Citizens' Bank, 2 Woods, ficulties, and hence there was no- 23. tice of insolvency. 327.] DISSOLUTION AND INSOLVENCY. 581 gotiable certificate for the amount. At the time the clear- ing agent held the first bank's certificate of deposit. This attempt to give the clearing agent an offset against its cer- tificate in the hands of the insolvent bank was frustrated by the holding that it was an attempt to fraudulently prefer. 7 But this statute does not invalidate liens, equities or rights between parties which arose prior to and were not insti- tuted in contemplation of insolvency; 8 nor does it in validate a set-off which another bank has against the insolvent bank. 9 It has been held that security given to protect a loan which was perfectly legal at the time it was made is not invali- dated though the creditor knew of the threatened insolv- ency. 10 This ruling can be justified on the ground that insolvency was not certain ; otherwise it gives a preference as to certain assets. Another case held that after a sus- pended bank had resumed with the consent of the comp- troller, and in order to lift an attachment gave a bond with sureties, the bank transferring property to the sureties, this preference of the sureties was not unlawful. 11 The fallacy of this case is that the attachment was not good, 12 and the comptroller's action was no proof that the bank was not in- solvent. The fact is that this statute ought always to be so construed as to defeat any inequality among creditors. It is the duty of the courts to be exceedingly vigilant, and every doubt ought to be resolved against the creditor who obtains an advantage. Many and devious will be the ways in which it will be attempted to avoid this statute, for even if men are made upright some of them are capable of seek- ing out " many inventions." 'Nat. Security Bank v. Butler, Bank, 41 Fed. R 234; Casey v. 129 U. S. 223. But the clearing Credit Mobilier, 2 Woods, 77. agent ought to have been permitted u Price v. Coleman, 22 Fed. R 694. to set off the first bank's deposit 12 It was against a national bank, See note 9 to this section. which is protected from an attach- 8 Scott v. Armstrong, 146 U. S. ment either from a state court or 499. from a United States court See 9 In re Armstrong, 41 Fed. R 381. 336, post. 10 Armstrong v. Chemical Nat 582 BANKS AND BANKING. [ 328. 328. Receivers or trustees for state bants. However a receiver or assignee or trustee may be appointed, he ac- quires title to the bank's assets. 1 The appointment under a statute of trustees, the appointment of an assignee by deed in trust for creditors, or the appointment of a receiver by the court, are all methods of attaining this result. The suit to secure the appointment of a receiver may be brought by a creditor or a stockholder, with the proper averments to show the necessity. 2 The bank is the necessary defendant ; the officers need not be made parties. 3 Where the suit is by a creditor, it is on behalf of all other creditors, 4 and after other creditors have come in the plaintiff cannot discontinue the suit without their concurrence. 5 Only one suit of the kind can be maintained; other creditors must come into that particular suit. 6 Sometimes a judgment at law must have been obtained and at other times not. 7 The control- ling statute determines this fact. Where the stockholders sue for a receiver on account of corporate mismanagment, they must show their inability to obtain relief in the corpo- ration itself. 8 But if the suit is for the purpose of winding up the corporation, or of obtaining the stockholders' liabil- ity, the suit will not be brought, except by a creditor. In 1 Nevitt v. Bank of Port Gibson, 4 See 86 et seq., ante. 6 Smedes & M. 513; Haxton v. 5 Atlas Bank v. Nahant Bank, 23 Bishop, 3 Wend. 13; De Wolf v. Pick. 480. Sprague Mfg. Co., 11 R L 380. But SHurlbut v . Kelley, 62 Wis. 590. in some states he holds only an Compare Palmer v. Bank of Zum- equitable title. Chicago Co. v. brota, 65 Minn. 90. A special pro- Park Nat. Bank, 44 III App. 150; cedure is sometimes given by stat- Crews v. Farmers' Bank, 31 Grat ute. SeelnreShackamoxonBank, 348. 4 Pa. Co. Ct R 194; Tefft v. North 2 See 86, ante. River Bank, 14 N. Y. Supp. 8. 3 But in practice they will al- 7 See g 86 et seq., ante. Compare ways be made parties, because re- Am. Sav. Ass'n v. Bank, 65 Minn, lief will be asked against them. 139. When the right to a receiver arises 8 This rule is embodied in the upon insolvency, the bank is the ninety-fourth equity rule of the only necessary defendant Attor- United States Supreme Court. Use- ney-General v. Columbia Bank, 1 , lessness of such an application is Paige, 51 L an excuse for not making it 329.] DISSOLUTION AND INSOLVENCY. 583 such a suit where a receiver is appointed, it is really imma- terial as to the defendants who are served whether the suit for the stockholders' liability should be brought by the cred- itors or the receiver. The relief is granted in the one action. Where a receiver may be sued for by a state officer, such as an auditor of state, 9 or bank commissioners, 10 the courts are not ousted of their jurisdiction to grant a receiver on the application of creditors or stockholders. 11 A receiver may be appointed by the court ex parte^- where the stat- ute does not require notice. 13 Where there is no corporate management u or where the corporation is dissolved, 15 a re- ceiver is appointed as a matter of course. Where two courts attempt to appoint receivers, the right depends upon the priority of judicial action. 16 The number of receivers is dis- cretionary with the court. 17 If he acts, his failure to take an oath is no bar to his action. 18 The payment allowed for his services is to be determined by the responsibility as- sumed, the skill and labor expended and the rate of com- pensation usually allowed for services of a like character. 19 His bond is liable for his defaults. 20 329. Bights of receivers or trustees of state banks. The rights of an assignee in insolvency are determined by the deed of assignment unless a statute controls his action. 9 Dickerson v. Cass Co. Bank, 64 w See United States v. Church, 5 N. W. R 395. Utah, 361, 136 U. S. 1. 10 People's Sav. Bank v. Superior 16 People v. Central City Bank, 53 Court, 103 Cal. 27; Bank Commis- Barb. 412. sioners v. Bank of Buffalo, 6 Paige, "Wiswell v - Starr, 50 Me. 381, 497; Bank Commissioners v. Cen- under a statute; but the rule is the tral Bank, 5 R L 12. same without a statute. "Dickerson v. Cass Co. Bank, 64 18 Day ton v. Borst, 7 Bosw. 115. N. W. R 395. w Bank Comm'rsv. Franklin Sav. Warren v. Fake, 49 How. Pr. 430. Inst., 11 R L 557. 13 People's Sav. Bank v. Superior 20 But only for the original ap- Court, 103 Cal. 27. Compare Mur- pointment, where the bond was ray v. Am. Surety Co., 70 Fed. R executed for that purpose. Gov- 341. ernor v. Bowman, 44 III 499; Qov- 14 Day ton v. Borst, 7 Bosw. 115; ernor v. Lagow, 43 III 134 Dobson v. Simonton, 78 N. C. 63. 584: BANKS AND BANKING. [ 329. A receiver upon his appointment takes the title that the bank possessed, no more and no less. 1 But where a fraudulent conveyance has been made by the corporation or a fraudu- lent preference has been given, the receiver may sue to set it aside. 2 "Where the statute forbids preferences by an in- solvent bank, the receiver's title is superior to an attach- ment levied while the bank was insolvent. 8 It would also be an unlawful preference. 4 The receiver will not be es- topped by the fact that he has paid part of the claim with- out knowledge thereof. 5 He becomes an assignee of the assets, 6 and represents both the bank and its creditors. He may revive a judgment in favor of the bank though a for- feiture has been decreed. 7 He may sue upon the note of directors given to the bank to replace reduced capital. 8 He supersedes the officers of the bank in the management of it, 9 and may, of course, be substituted in all actions pending against the bank. 10 He is entitled to seek the advice of the court, 11 and one case has held that he can transfer the as- sets of the bank in payment of claims against it. 12 There is 1 Casey v. Credit Mobilier, 2 Bank, 7 Met. 340; Arnold v. Wei- Woods, 77; Lincoln v. Fitch, 42 Me. mer, 40 Neb. 216. Foreign receiv- 456; Hubbard v. Hamilton Bank, ers are not protected against at- 7 Met. 340; Bank of Lyons v. Dun- tachment. Hibernia Nat. Bank v. more, Hill & D. Supp. 398. Lacombe, 84 N. Y. 367. 2 Carey v. Giles, 10 Ga. 9; Casey 5 Lamb v. Cecil, 25 W. Va. 288. v. Cavaroc, 96 U. S. 467; Lamb v. 6 Bradford v. Jenks, 2 McLean, Cecil, 25 W. Va. 288. These two 130. Holders of notes, on the other cases were suits by the assignee, hand, are not assignees. Wood v. There is some authority to the ef- Dummer, 3 Mason, 308. feet that an assignee cannot sue to 7 Robertson v. Agricultural Bank, set aside the assignor's fraudulent 28 Miss. 237. conveyance. Leavitt v. Yates, 4 8 Sickles v. Herold, 36 N. Y. Supp. Edvr. Ch. 139; Atkinson v. Roch- 488. ester Printing Co., 114 N. Y. 168. 9 This follows from the order ap- 8 Crane v. Pacific Bank, 106 Cal. pointing the receiver. 64 Compare New Orleans Imp. Co. 10 This is usually upon motion in v. Citizens' Bank. 10 Rob. (La.) 14 the action. But contra, Dodson v. Wightman, "In re Van Allen, 37 Barb. 225; 49 Pac. R. 790 (Kan. App.) ; and see People v. St. Nicholas Bank, 76 Hun, cases in the next note. 522. 4 But see Hubbard v. Hamilton 12 Atkinson v. Davidson, 2 Pin. 48. 330.] DISSOLUTION AND INSOLVENCY. 585 one other species of claim which a receiver may sue for under some statutes, 13 while under other systems he cannot. 14 It is useless to seek to reconcile the decisions upon this subject, but the clear weight of authority is that the stockholders' liability belongs to the creditors, and a receiver without an express statute or a fair implication from a statute cannot sue for this liability. 15 But since this liability will not be enforced except when the bank is insolvent, and since the rule of equality ought to prevail among general creditors, the rule ought to be that the receiver can sue. Yet in those states which permit a creditor to sue a stockholder at law and gain a preference, this suit by the receiver cannot well be allowed. 16 But in all those jurisdictions which permit or require a suit for the stockholder's liability only in equity, where all the creditors and stockholders are parties, the re- ceiver and no one else ought to be permitted to bring the action. 17 And this may be said to be the general trend of the cases 330. Right of set-off as to insolvent bank. The de- positor's right of set-off has already been noticed, 1 as well as the bank's right against the depositor. 2 The debtor to the 13 See 65, ante, note 1. The case be achieved by a suit in equity of Steinke v. Loof bourrow, 54 Pac. against all the stockholders, except R. 120, is a good instance of the un- that non-resident stockholders can- certainty of the statute law. It not be reached in this way. See held that under the Iowa statute Howarth v. Ellwanger, 86 Fed. R. the receiver could not sue, yet at 54. about the same time the Supreme 16 Both a suit at law and an equi- Court of Iowa held that he could table action are possible in Massa- sue. State v. Union Stock Yards chusetts as alternative remedies. Bank, 70 N. W. R. 752. See also Stebbins v. Scott, 52 N. E. R. 535. Howarth v. Ellwanger, 86 Fed. R. Equity has the jurisdiction without 54 (C. C. A.); Watterson v. Master- the aid of a statute, son, 15 Wash. 511 ; Ueland v. Hau- 17 This is to be understood with gan, 73 N. W. R. 169. the qualification that, if the receiver 14 See 65, ante, note 1, and cases will not sue, the creditors may in cited in Steinke v. Loofbourrow, equity. Anderson v. Seymour, 73 supra. N. W. R. 171. 15 See 65, ante, note L But at ' See 144, ante. the same time the same result can 2 See 140, ante. 586 BANKS AND BANKING. [ 330. bank may set off against his debt owing to the bank any claim due to him at the time of insolvency, 3 but not any claims purchased by him after insolvency. 4 In equity he may set off any claim owned by him, but not matured at the date of insolvency, 5 but the debtor has no right of set-off upon an unliquidated demand. 6 A claim for pay for services rendered the bank is a good ground of set-off. 7 The state may set off taxes due to it against its debt to the bank. 8 The debtor or his surety may set off against his check upon another bank, cashed Toy the insolvent bank, an unpaid draft given for it, 9 or his balance in the bank agreed by him to be appropriated to the debt. 10 A bank holding a cashier's check upon the insolvent bank, though only for collection, may set it off against its debt to the insolvent bank. 11 Cer- tified or accepted checks would no doubt be a good set-off. 12 In a few states where the holder of a check can sue upon it after presentation, when the drawee has sufficient funds, a holder of a presented check would probably have the right to set it off. 13 But in those states holders of unpresented 3 Fennell v. Nesbit, 16 B. Mon. 351 ; 9 Armstrong v. Warner, 49 Ohio Salladin v. Mitchell, 43 Neb. 859. St. 376. See Jackson v. Bank of Paterson, 1 10 Chase v. Petroleum Bank, 66 Pa. Stockt. 205. 169. 4 Smith v. Mosby, 9 Heisk. 501; n Farmers' Dep. Bank v. Penn Colt v. Brown, 12 Gray, 233; Davis Bank, 123 Pa. 283. The bank as v. Knipp, 92 Hun, 297; In re Middle bailee had the right to recover the Dist. Bank, 1 Paige, 585. One case whole amount. See the case of allows a set-off where the claim Shryock v. Brashore, 33 Leg. Int. 56, was assigned to the debtor after as to the effect of notice of the in- suspension. Beers v. Hussey, 1 solvency of the drawing bank upon Bailey, Eq. 168. It is wrong. a bank draft. It becomes a check 5 In re Middle Dist Bank, 1 Paige, revoked. 585; Arnold v. Nies, 36 Leg. Ink 12 Such a check has become a debt 437; Jones v.Robinson, 26 Barb. 310; of the bank, but the holder must and see 144, ante, have had it at the date of the bank's 6 In re Van Allen, 37 Barb. 225. suspension. 7 Davis v. Industrial Mfg. Co., 114 13 The theory is that so much of N. C. 321. the deposit as the check represents 8 Common wealth v.Pbcenix Bank, passes to the holder upon presenta- 11 Met. 129. tion. See 147, ante. Whether the 330.] DISSOLUTION AND INSOLVENCY. 587 checks, perhaps, and in all the other jurisdictions, including the United States courts in those very states, holders of un- accepted or uncertified checks cannot set them off against the bank's claim. 14 Under the national banking act a set- off does not create an illegal preference, even if the claim against the bank is unmatured. The highest authority has permitted an equitable set-off where the bank while insolv- ent discounted a note and placed the proceeds to the credit of the discounter; the depositor was allowed a set-off for the balance of his deposit, though the bank's debt against him was not matured. 15 But even if the depositor's claim were not connected with the bank's claim, he would none the less have an equitable set-off. 16 But the claim must have be- longed to the debtor at the date of the suspension of the bank. 17 Ko demand for the set-off prior to bringing the cross-suit is needed where the bank has suspended. 18 The debtor who is entitled to a set-off, but pays the bank's claim r may recover his demand in full, where he paid under pro- courts of Illinois will hold that the holder of an unpresented check gets no right of set-off no one can say with certainty on account of the language which that state's courts hold in regard to the check being an assignment at law. If it is, then the right of set-off arises because the check holder owned the claim at the date of insolvency if he then had the check. But imagine for one moment the iniquitous result. A man with a large deposit, who has suspicions of the bank, can give checks upon the bank to the bank's debtors, who can set them off against their debts to the bank, thus enabling themselves to pay him for the checks their face value. In this way he would get a full preference. The courts must there- fore hold that unpresented checks are not subjects of set-off by the check holder, nor are presented checks when the holder or the drawer has notice of insolvency. 14 The holder has no right of ac- tion against the bank, and hence he could not have set-off. 1 5 Scott v. Armstrong, 146 U. S. 499, reversing 36 Fed. R. 63. iYardley v. Clothier, 51 Fed. R, 506, 3 U. S. App. 207; Adams v. Spokane Drug Co., 57 Fed. R. 888; Clots v. Bentley, 5 Alb. Law Jour. 286; Mercer v. Dyer, 15 Mont 317. I'Venango Nat. Bank v. Taylor, 56 Pa. 14; Beckham v. Shackelford, 8 Tex. Civ. App. 660. In this case the receiver allowed the set-off, and the debtor gave up his security. Contra, Davis v. Knipp, 92 Hun, 297. is Chemical Nat Bank v. Bailey, 12 Blatch. 480. 588 BANKS AND BANKING. [ 331. test. 19 The bank has a right of set-off for a bill, whose pro- ceeds represented the claim of an insolvent depositor, where the receiver of the bank had obtained the bill after the in- solvency of the depositor. 20 331. Allowance and payment of claims. It is usual, after a trustee or a receiver is in possession of the assets of the bank, for such officer to advertise the time for the pres- entation of claims. But he may pass upon claims before the date fixed in the notice; 1 nor does one who has failed to present his claim within the time lose it, where he has been guilty of no laches; 2 but he loses his right if the fund is distributed and he had knowledge of the proceedings, 3 although, in the absence of a statute preventing such action, he could still sue the bank, if it had a corporate existence. The claim may be filed in the action wherein the receiver is appointed. 4 The claim of a debtor is a single one in the sense that he cannot claim the right to have two claims allowed for the same claim, and have dividends upon each until he has received enough to satisfy the claim. 5 Yet, if he holds collaterals, he is entitled to the allowance of his whole claim, without regard to payments received by him upon the collaterals, whether before or after the insolvency." He is entitled, of course, to but one satisfaction, and the re- oeiver may redeem the collaterals if they are more than suf- " In re Bank of Minnesota, 73 N. 6 Merrill v. National Bank, 173 W. R 1096. U. S. 181; In Matter of Bates, 118 *> Robinson v. Hawes, 20 N. Y. 84. 111. 524; Chemical Nat Bank v. 1 Bissell v. Heath, 98 Mich. 472. Armstrong, 59 Fed. R 372, 16 U. S. 2 Glenn v. Farmers' Bank, 80 N. C. App. 465, reversing 50 Fed. R 798; 97. People v. Remington, 121 N. Y. 336; 3 Glenn v. Farmers' Bank, 84 N. C. Bank v. Haug, 47 N. W. R 33. Con- 631. tra, First Nat. Bank v. Williamson, * Blake v. State Sav. Bank, 12 35 S. W. R 573. Here the creditor Wash. 619. This decision is wholly had his principal claim, and also wrong as an authority on the loss collateral notes, indorsed by the of the deposit in the insolvent bank bank; he claimed dividends on the by mingling. See 344, post. principal debt and on the collat- 9 Latimer v. Wood, 73 Fed. R erals. 1001, 36 U. a App. 581. 331.] DISSOLUTION AND INSOLVENCY. 580 ficient. 7 Or, if two corporations, both insolvent, are liable upon the same claim, the holder may receive dividends from both corporations until he receives one satisfaction. 8 But where the claim has been actually satisfied by a recovery of a judgment against a bank officer and a satisfaction thereof, the claim is not entitled to allowance. 9 Officers of the bank 10 or stockholders ll holding claims may share in the distribution for claims which they hold. But a claim based upon an ultra vires sale by a stockholder of his stock to the bank is not entitled to allowance. 12 Stockholders who have paid off depositors are entitled to be subrogated to the depositors' rights, 13 and even though they bought up claims at a discount, they may share in the distribution for the face value of claims, 14 although, of course, such claims would not be a good set-off for their stockholders' liability, except, perhaps, to the amount of dividends upon them. 15 The allowance of a claim does not, of course, satisfy it or change its nature. 16 The creditor by submitting his claim has been held to waive the right to raise a question as to the constitutionality of the appointment of the receiver or as- signee. 17 If the claim is disallowed by the receiver the holder may contest the matter in the same action, 18 or may sue the bank if it has any legal existence, 19 or may sue the receiver. 20 7 In the Matter of Bates, 118 111. 13 City Bank v. Grassland, 65 Ga. 524. 734. Bank v. Kendrick, 92 Tenn. 437. 14 Appeal of Craig, 92 Pa. 396. 9 Dobson v. Simonton, 95 N. C. 15 This would be possible in an 312. equity suit, where the judgment 10 In re Insurance Co., 9 Lane. Bar, could be so drawn. It would be 119. impossible at law. "In re Humboldt Trust Co., 3 16 Warrensburg Asso. v. Zoll, 83 Pa Co. Ct. R. 621. The agent of Mo. 94. the shareholders of a national bank 17 Dowd v. City Bank, 59 N. H. cannot set off against the pledgee 391. of stock of a shareholder the stock- 18 Citizens' Sav. Bank v. Ingham, holder's indebtedness. McConville 98 Mich. 173. v. Means, 21 Wkly. Law Bui. 193. 19 See 317, ante. 12 In re Columbian Bank, 147 Pa. 20 See 323, ante. 422. 590 BANKS AND BANKING. [ 332. 332. Holders of notes of the bank. The vicissitudes of holders of the notes of insolvent banks in the days of state banks of issue form a melancholy chapter in the history of state banks. Owing to what may be termed an inherent defect in the article, they were in a state of chronic insolv- ency. Sometimes the holders of their notes were given a preference upon insolvency. 1 At other times they were not entitled to share in the assets because the notes were se- cured. 2 Stockholders with bills were in the same situation as other bill holders. 3 The bank was compelled in some way to redeem its notes, yet some cases permitted the notes to be charged against the bank only for the amount that was paid for them by the holder. 4 If the note holder escaped this calamity he was likely to find that the assets of the bank had been appropriated by the state for trustees to admin- ister upon. It is true that he could follow these assets into the hands of the trustees, 5 and that he would not be preju- diced by the state's attempted embezzlement. 6 But the notes became worthless upon insolvency. They could not be sold to debtors of the bank, because, whether transferred after insolvency or not, they were not a set-off against the as- signees in insolvency 7 or against the receiver, except by stat- 1 Moses v. Ocoee Bank, 1 Lea, 398; 5 Ringo v. Real Estate Bank, 13 Woodward v. Central Bank, 4 Ga. Ark. 563. 323; Miller v. Andrews, 3 Cold. 380; 6 Barings v. Dabney, 19 Wall 1. Robinson v. Bank of Darien, 18 Ga. 7 Eastern Bank v. Capron, 22 65; In re Pennsylvania Bank, 39 Pa. Conn. 639; Ringo v. Biscoe, 13 Ark. 103. But this preference did not 563 (see 29 Am. Law Rev. 94, 459); apply to voluntary assignments by Northampton Bank v. Winder, 3 the bank. Dobbins v. Walton, 37 Clark, 284; In re White Mountain Ga. 614. In another state there Bank, 46 N. H. 143. And compare was no preference. Cochituate Commercial Bank v. Thompson, 7 Bank v. Colt, 1 Gray. 382. Smedes & M. 443; Clarke v. Haw- 2 People v. Holmes, 3 Mich. 544. kins, 5 R. L 219; Fanners' Bank v. See Appeal of Hogg, 22 Pa. 479. Willis, 7 W. Va. 31; Gee v. Bacon, s Belcher v. Willcox, 40 Ga. 391. 9 Ala. 699. But under statutes they 4 Griffin v. Central Bank, 3 Ga. were held to be a set-off against 371; Belcher v. Willcox, 40 Ga. 391 ; the assignee and sometimes with- Robson v. Benton Banking Co., 7 out the aid of a statute. Robinson Smecles & M. 724. v. Bank of Darien, 18 Ga. 65; Morse 333.] DISSOLUTION AND INSOLVENCY. 591 ute. But if the note holder was indebted to the bank, by the aid of a statute he could set off the notes which he held as against the bank, 8 provided he owned them at the date of in- solvency, except in one state, which held that the set-off was not permissible in spite of the statute, because all creditors should be placed on an equality. 9 333. Receivers of national banks. The national banks are governed by the provisions of the national banking act, with the amendments thereto. Whenever a national bank has failed to make specie payments upon its notes or has become insolvent, the power is given to the secretary of the treasury, exercised in fact through the comptroller of the currency, to take possession of the bank by a receiver. This power has been frequently decided to be not a power granted to the comptroller to perform a judicial act, so that the Supreme Court of the United States has peremptorily refused to reopen the question. 1 This proceeding may be obviated where the capital is simply impaired by the im- position of a voluntary assessment upon the stockholders, wherein the assessment is collectible only by a forfeiture of the shares of stock. 2 The sale of the stock is void unless it brings the amount of the assessment. 3 Another method of meeting losses would be a reduction in the capital stock, which has been frequently resorted to in order to obviate an assessment. But where the comptroller decides that the v. Chapman, 24 Ga. 249; Belcher v. v. Rosevelt, 9 Cow. 409; Mann v. Willcox, 40 Ga. 391 (for what was Blount, 65 N. C. 99; Clarke v. Haw- paid for them by the holder); Dun- kins, 5 R. I. 219. lap v. Smith, 12 111. 399; Exchange 9 Exchange Bank v. Knox, 19 Banking Co. v. Mudge, 6 Rob. (La.) Gratt. 739. 397; Union Bank v. Ellicott, 6 Gill 1 Bushnell v. Leland, 164 U. S. 684, & J. 363. In Mel v. Holbrook, 4 citing the former cases. Edw. Ch. 539, the set-off was al- 2 This assessment is under section lowed for the same notes the debtor 5205, Revised Statutes. The direct- received for his note. ors cannot levy it. Hulitt v. Bell, 8 Williams v. Planters' Bank, 12 85 Fed. R. 98. Rob. (La.) 125; American Bank v. 3 Merchants' Nat Bank v. Foucho, Wall, 56 Me. 167; Mandeville v. 103 Ga. 851. Bracy, 31 Miss. 460: Niagara Bank 592 BANKS AND BANKING. [ 334: bank is insolvent, his decision is conclusive. 4 The bank- ruptcy law formerly in force did not apply to national banks.* The power of the comptroller to appoint a receiver applies to the cases specified in the national banking law and no others. 6 But the courts may appoint receivers at the suit of either the stockholders or creditors, and where a receiver has been appointed the comptroller cannot appoint another. 7 A state court may appoint a receiver at the suit of a creditor, although the stockholders are applying for an appointment in the federal court. 8 The appointment of the receiver by the comptroller is presumed to be made by the secretary of the treasury. 9 334. Effect of appointment of receiver of national bank. The appointment of the receiver does not dissolve the corporation. The bank may be sued l without joining the receiver, 2 but he may be substituted and then the bank becomes merely a nominal party. 3 But the receiver maybe sued also with 4 or without the bank being joined. 5 But he supersedes the officers of the bank in its management, and the title to all the assets of the bank vests in him. 6 He may Anheuser-Busch Ass'n v Clay- cott, 30 Kan. 156 ; Ellicott v. Barnes, ton, 56 Fed. R 759. And see 133, 31 Kan. 170. 187, 188, ante. 4 See the references in notes 2 6 See 133 and 188, ante. and 3 preceding, and Wallace v. 7 Evansville Bank v. Germ. Am. Stone, 107 Mich. 190; Griffin v. Bank, 155 U. S. 556; Beal v.Somer- ville, 50 Fed. R 647. 313.] DISSOLUTION AND INSOLVENCY. 611 bank, 8 or if no collection is made from the party liable that party still remains liable. 9 If it be a correspondent bank, which becomes liable by reason of having the proceeds of the collection in its custody, he may claim a priority in the funds of that bank if it has received money, 10 or he may claim the particular thing which it has received, 11 provided that bank has no lien upon the proceeds by reason of ad- vances upon it, 12 or credit given upon it, 13 or by reason of a set-off which it has against the transmitting bank by a course of dealing. 14 But in those jurisdictions which recognize that the correspondent bank is the agent of the transmitting or primary bank, he may hold the latter liable for its agent's default; 15 but if the latter bank is also insolvent, he has only the claim against the latter bank of a general creditor, 16 where that bank has not received the proceeds either by credit to it or set-off against it. 17 But in those states which maintain that the correspondent or secondary bank is not the agent of the transmitting bank, but the agent of the 8 Evansville Bank v. Germ. Am. Bank, 155 U. S. 556. 9 This, of course, must be the re- sult. There is no payment. Crane v. Fourth Street Bank, 173 Pa. 556, carries this idea too far, for there was a payment. w See 187, 188, 189 and 190, ant e, and Commercial Bank v. Arm- strong, 148 U. S. 50; Beal v. Somer- ville, 50 Fed. R. 647. 11 See Levi v. National Bank, 5 Dili 104. This applies even to a deposit for credit. 12 See 189, ante. This only can apply as to a deposit for credit. Where the indorsement is to the first bank for collection the second bank has no claim. 13 The form of the indorsement is notice to every other bank that the collection does not belong to the first bank. Evansville Bank v. Germ. Am. Bank, 155 U. S. 556. See 189, ante. This only can apply as to a deposit for credit. See the preceding note. 14 See 189, ante, and Comm. Bank v. Armstrong, 148 U. S. 50; and see the preceding note. 15 See 181, ante, for those juris- dictions. The transmitting bank could claim the priority unless cut off by the insolvent bank's set-off or lien. 16 This follows because his claim is simply one for damages. 17 If the bank has received the proceeds by credit to it or set-off against it, the money has been re- ceived by it, and the depositor has a priority or has the claim of a general creditor as determined by his contract with it. See notes 4 and 5 to this section. 612 BANKS AND BANKING. [ 343. owner of the collection, 18 the rights of the owner over the collection, where the proceeds are in the hands of a second- ary bank, insolvent, can be secured for a priority, if the transmitting bank can claim a priority, which it can do where it has indorsed the paper for collection, 19 or the owner himself can claim a priority in the funds of the secondary bank, where his indorsement to the primary bank was merely for collection. 20 But while the true rule is that the owner of the collection indorsed merely for collection 21 can insist upon his priority whenever the proceeds have come to and remain in the hands of an insolvent bank, 22 still some juris- dictions maintain the mistaken doctrine that if those funds have been mingled with the general assets of the bank there can be no priority. 23 The incorrectness of this doctrine has already been pointed out. 24 The third case is a collection indorsed to a bank for credit of the depositor or for collec- tion and credit; the two cases do not differ. The relation established by such a transaction is a bailment to collect the money and deposit it to the credit of the depositor. 25 As soon as that collection is made and the proceeds credited, the depositor is a general creditor of the bank which re- ceived the paper for collection. 26 But until that time he is 18 See 181, ante, for those states. 22 See note 8, supra. 19 This is the custom. But if the 23 Phila. Nat Bank v. Dowd, 38 indorsement is for collection and Fed. R 172; State v. State Bank, 5 credit by the first bank to the sec- Baxt. 1 ; 111. Trust & Sav. Bank v. ond bank, and the second bank First Nat. Bank, 15 Fed. R 858; fails with the proceeds in its hands, Burnham v. Barth, 89 Wis. 362; St. the first bank is a general cred- Louis Brew. Ass'n v. Austin, 100 itor, but the owner of the collec- Ala. 313. Some courts limit the tion can hold the first bank. priority to the bank's cash. Nat. 20 See 188, ante, and cases in Bank v. Lattimer, 67 Fed. R. 27. note 4, supra. 24 See 341, note 12; Bowers v, 21 This applies as between the Evans, 71 Wis. 133 (now wrongly owner and the primary bank, where overruled); Windstanley v. Second that is insolvent The same prin- Nat. Bank, 13 Ind. App. 544. ciple applies as between the pri- 25 gee 133, ante. mary bank and the secondary 26 gee 133, 187 and 188, ante. bank, where the latter is insolvent, with the proceeds in its hands. 343.] DISSOLUTION AND INSOLVENCY. 613 not a general creditor. If the proceeds reach that bank after its insolvency, its power to collect being ended, the owner of the collection has a priority upon the funds of the bank. 27 If the funds are in the hands of a correspondent bank he may claim them from that bank as a priority if it is insolvent, 23 provided that bank has no lien upon the pro- ceeds or right of offset against the bank transmitting to it. 29 In this latter case he may hold the bank in which he de- posited for its agent's default in most jurisdictions, 30 but in other jurisdictions he cannot; 31 but the primary bank having received the deposit by set-off or credit, he has the right to recover from it; but if it is insolvent, he is merely a general creditor. 32 But in some states the rule is held that a deposit for credit passes title in the paper to the bank, where the depositor has the privilege of checking against it, 33 and hence the depositor in such case becomes a mere general creditor of the first bank upon the deposit. 34 He could not reach the proceeds in the hands of a correspondent bank 35 so as to 27 Beal v. Somerville, 50 Fed. R. 647, 5 U. S. App. 14 28 Evansville Bank v. Germ. Am. Bank, 155 U. S. 556. In this case the form of the indorsement was not for credit, but for collection, yet the court recognizes the prin- ciple. The case cited in the last note states the principle in its best form. 29 See notes 12, 13 and 14 to this section. See 181, ante. 31 See 181, ante. 32 This is said on the assumption that the deposit was simply for credit without there being any course of dealing or understanding to control the effect of the indorse- ment. See 188, ante. But if the credit be given by the secondary to the primary bank, it is an absolute nullity, if that bank had notice of the preliminary bank's insolvency. If it had not notice the owner can claim the proceeds from that bank in spite of the credit. Germ. Am. Bank v. Third Nat. Bank, 5 Dill. 104; Evansville Bank v. Germ. Am. Bank, 155 U. S. 556; Beal v. Somer- ville, 50 Fed. R. 647; Jones v. Kil- breth, 49 Ohio St. 401. Or he can claim the remittance received. Beal v. Somerville, supra. 83 See 133, ante. 84 This rule places the depositor in the situation that if the second bank fails the primary bank has the priority. If the primary bank fails it has a claim in full against the secondary bank, but the depos- itor is only a general creditor of the primary bank, and all the time the collection, if not made, can be charged back against him. 33 He has no title. 614: BANKS AND BANKING. [ 344. claim any priority at all. In such jurisdictions, if the cor- respondent bank fails with the proceeds of a collection in its custody, the transmitting bank must enforce the priority against the correspondent bank. 36 In such cases also the doctrine is held by some courts that the proceeds of the bank upon being mingled with its general funds lose their right of priority, and in consequence the person or bank claiming the priority becomes a mere general creditor. 37 But the better rule is otherwise even as to bailments, because a bailment presents a case of a fiduciary relation giving rise in equity to a trust. 38 344. Deposit in insolvent bank as a priority. The act of a banker in keeping open his bank for the reception of deposits when he knows his bank is insolvent is a gross fraud, as such an act is on the part of an incorporated bank whose officers know that it is insolvent. 1 In such a case, by reason of the fraud, the bank obtains no title in equity and becomes a constructive trustee. 2 The case then becomes one of those mentioned in the former section upon trust funds, and is governed by the same rules. 3 But it must ap- pear that there was actually a deposit after insolvency, for if a general depositor is induced by the fraudulent repre- sentation of the bank officers to allow his general deposit to remain, he does not acquire the rights of a depositor on 36 See the preceding note. Erie R Co. v. National Bank, 65 37 See cases in note 23 to this sec- Fed. R 690; American Trust Bank tion. v. Gueder Mfg. Co., 150 III 336; 38 Evansville Bank v. Germ. Am. Terhune v. Bank of Bergen Co., 34 Bank, 155 U. S. 556; Knatchbull v. N. J. Eq. 367; Francis v. Evans, 69 Hallett, L. R 13 Ch. D. 696. Wis. 115; Bowers v. Evans, 71 Wis. 1 Importers' & Traders' Bank v. 133; Comm. Ex. Nat. Bank v. Solic- Peters, 123 N. Y. 272; Peck v. First itors' Trust Co., 188 Pa. 830; and Nat Bank, 43 Fed. R 857; St. Louis see 187, 188, ante. & San Francisco By. Co. v. Johns- 2 See cases cited in preceding ton, 133 U. S. 566; Furber v. Ste- nota phens, 35 Fed. R 17; City of Somer- 3 See 341, ante, and Atkinson v. villev.Beal,49Fed.R790; Wasson Rochester Printing Co., 114 N. Y. v. Hawkins, 59 Fed. R 233; Lake 168. 344] DISSOLUTION AND INSOLVENCY. 615 insolvency. 1 But if there be a deposit made after insolv- ency, it makes no difference whether it be a deposit of paper requiring collection, 5 or a deposit of money; if the bank is known to its officers to be insolvent, a trust results. 6 The depositor has tKe right to reclaim the money from the bank as a special deposit, or if it has become mingled with the bank's property he has the right to claim a priority in the assets. 7 If it be a deposit of paper for collection, he may follow the proceeds until they come to the hands of a lona fide holder, which would be a bank having the right to re- tain them, as explained before; 8 but if the proceeds come back to the insolvent bank by credit to it, whether before its suspension 9 or afterwards, 10 he has the right to claim those proceeds as a priority upon the assets of the insolvent bank. 11 But here again we are confronted with the ruling of certain courts that the mingling of the proceeds with the assets of the bank reduces the depositor to the condition of a general creditor, 12 and the erroneous ruling of other courts that a mere shifting of credit does not augment the assets of an insolvent bank. 13 This latter position seems so wholly 4 Venner v. Cox, 35 S. W. R. 769. 7 St. Louis & San Francisco Ry. s Importers' & Traders' Bank v. Co. v. Johnston, 133 U.S. 566: Fran- Peters, 123 N. Y. 272. cis v. Evans, 69 Wis. 115; Bowers SKlepper v. Cox, 97 Tenn. 534; v. Evans, 71 Wis. 133; Wasson v. Friberg v. Cox, 97 Tenn. 550; Wil- Hawkins, 59 Fed. R. 233; and see son v. Coburn, 35 Neb. 530; Bruner cases cited in note 12 to 341, ante, v. First Nat. Bank, 97 Tenn. 540; 8 See 189, ante. Philadelphia Nat. Bank v. Dowd, This cannot change the relation. 38 Fed. R 172. All these cases rec- w The identical thing can then ognize the creation of the trust, be ascertained, and replevin lies but make a wrong application of for it. Comm. Ex. Nat. Bank v. the doctrine of mingling, and are Solicitors' Trust Co., 188 Pa. 330. good reading by way of horrible u See citations in note 7. examples. The presumption is that 12 See cases cited in note 6, and the officers knew the bank's condi- Blake v. State Bank, 12 Wash. 619; tion. Craigie v. Hadley, 99 N. Y. Nonotuck Silk Co. v. Flanders, 87 131; Rochester Printing Co. v. Wis. 237, overruling previous cases Loomis, 45 Hun, 93, 120 N. Y. 659. correctly decided. See note 18, to But Williams v. Cox, 37 S. W. R 341, ante. 282, fails to notice the point. 13 Beard v. Independent District, 616 BANKS AND BANKING. [ 315. indefensible that it is hardly credible. As a matter of fact almost the whole of banking transactions between banks is a mere shifting of credit. It is just the purpose that banks exist for. And a shifting of credit represents a transfer of money, just as well as if the money were actually transmitted. The right to claim the funds a trust is not waived by the fact that the claimant took a dividend upon his claim as a general creditor, where he was ignorant of the fact that ho was entitled to a trust. 14 345. Public funds. As we have seen, public funds rightfully deposited in a bank are not entitled to a priority, 5 but if the deposit was made contrary to law a trust results against the bank, 2 and this trust creates a priority upon the funds of the bank. 8 If, however, the bank allows public funds to be appropriated to a purpose which it knows is illegal it becomes a constructive trustee, 4 and the public is entitled to a priority for the amount of the money misap- S8 Fed. R. 375; City Bank v. Black- 52 Fed. R. 59. This decision by an more, 75 Fed. R. 771. If a bank accomplished lawyer is one of the cancels its debt to one person by best upon this subject. State v. giving another credit, how does the Thum, 55 Pac. R. 858. Compare transaction differ from one where State v. Midland Sav. Bank, 71 N. a man takes money out of the bank W. R. 1011. and gives it to another to pay his 3 See cases cited in last note. But debt and that other thereupon de- Merchants' Nat. Bank v. School posits it in the bank? Even the Disk, 94 Fed. R. 705, confines the case of Nonotuck Silk Co. v. Fland- priority to the bank's cash. And ers, 87 Wis. 237, admits this to be see Stevens v. Williams, 91 Wis. 58. the case. Other courts confine the * This is to be understood, accord- priority to the cash on hand where ing to some cases, if the bank mis- there has been a mingling. Com- appropriates to itself the money, pare Merchants' Nat. Bank v. School thereby increasing its assets. But District, 94 Fed. R. 705; State v. if some one else than the bank re- Foster, 5 Wyo. 199; National Bank ceives the money the public has v. Lattimer, 67 Fed. R. 27. only the claim of a general cred- 14 In re Johnson, 103 Mich. 199; itor. See Beard v. Independent Wallace v. Stone, 107 Mich. 190. Dist, 88 Fed. R. 375. This rule at- 1 See 340, ante, note 5. tempts to make a distinction where 2 San Diego Co. v. CaL Nat Bank, none exists. 3iG, 347.] DISSOLUTION AND INSOLVENCY. 617 propriated. 5 Taxes due from the bank have been held to be entitled to priority. 6 346. Liens upon particular funds. As we have here- tofore noticed, liens existing at the time of insolvency upon particular assets of the bank are not affected by the insolv- ency. 1 So where the bank has not fraudulently drawn a check or draft upon a particular fund which the parties agreed or understood should be payable out of a particular fund, the check operates as an assignment of a portion of the fund corresponding to the check or draft, 2 and the holder of it has a priority as to that particular fund. 3 Any other lienholder is entitled to insist upon his lien against the bank or its creditors or representative. 4 347. Statutory preferences. Under one system, at least, the creditors of a bank are divided into classes, as note- holders, depositors, and creditors, and a preference upon the assets is given in the order stated to the respective classes. Under this system it is held that balances due banks are the claims of creditors, not depositors, 1 and the word " depos- itors " covers only general depositors, but not holders of cer- tificates of deposit; the latter are creditors. 2 Under another system, savings banks as depositors are given a preference 5 See note 2, supra. Nat. Bank v. Dubuque Ry. Co., 52 6 Taxes are necessarily preferred. Iowa, 387. But where a depositor 1 See 327, ante, notes 8 and 9. obtains drafts by his checks, which These liens may be legal or equi- drafts are not paid, he gains no lien table in their nature. Liens at law upon the fund, nor does he become are spoken of in the cases referred a special depositor entitled to a pri- to in section 327. In the next note ority. Jewett v. Yardley, 81 Fed. will be found cases where the liens R 920. were equitable. A right of set-off 3 See cases cited in precedingnote. is equivalent in some instances to < See 331, ante, note 6. an equitable lien. 1 In re State Bank, 13 Pa. Co. Ct 2 Coates v. First Nat. Bank, 91 R. 433; Appeal of Parkersburg N. Y. 26; Fourth St. Bank v. Yard- Bank, 6 Wkly. Notes Cas. 694. ley, 165 U. S. 634; First Nat Bank 2 In re State Bank, 13 Pa. Co. Ct v. Clark, 134 N.Y. 368. But see First R. 43& 618 BANKS AND BANKING. [ 347. upon the assets for any balance due to them, 8 but this pref- erence given by the state statute is not binding upon a na- tional bank. 4 3 Rosenback v. Manuf. Bank, 69 N. Y. 358; In re Patterson, 18 Hun, 221, 78 N. Y. 608. The savings bank was held to be a depositor, though interest was paid to it. 4 Sixpenny Sav. Bank v. Stuyve- sant Bank, Fed. Gas. No. 12,919; Davis v. Elmira Sav. Bank, 161 U. S. 275, reversing 142 N. Y. 590. It is singular how frequently the Su- preme Court reverses national bank cases from New York, CHAPTER XIIT. ACTIONS AND JURISDICTION. 348. Summary remedy. In the days when banks were considered as the favored creatures of the law, a summary remedy was given to them in some states and jurisdictions. Especially in the early Alabama reports will be found a great deal of law upon this subject. Cranch's Circuit Court Reports are also thickly sown with cases upon this subject. The matter possesses only an antiquarian interest at the present day. These statutes permitted a judgment upon a bank's claims to be taken without pleadings, 1 but took away no defense that the maker of a note possessed. 2 They were held to apply only to paper acquired after the act was passed, 8 and only to paper payable at the bank ; 4 but in sorre instances the remedy extended to all paper due the bank. 5 The statute was required to be strictly followed, 6 but one case held it to be remedial, 7 and the right to exercise the remedy could not be had against the personal representa- tive of a deceased debtor. 8 Under special charters the bank could insist upon a right to an immediate trial, 9 and could have special privileges as to waiver of proof of notice, de- mand and protest, 10 which privilege applied to notes not made payable at the bank. 11 1 Lyon v. State Bank, 1 Stew. 442; 7 Branch of State Bank v. Harri- Crawf ord v. Planters' Bk., 4 Ala. 313. son, 2 Port. 640. 2 Bank of Columbia v. Sweeney, 8 Murphy v. Branch Bank, 5 Ala. 2 Pet. 671. 421; Andrews v. Branch Bank, 10 3 Levert v. Planters' Bank, 8 Port Ala. 375. 104. 9 Bank of Alexandria v. Young, 1 4 See last case cited. Cranch, C. C. 458. 5 Hancock v. Branch Bank, 5 Ala. 10 Merchants' Bank v. Central 440. Bank, 1 Kelley, 418; Mahone v. Cen- 6 Logwood v. Huntsville Bank, 1 tral Bank, 17 Ga. 111. Minor, 23; Levert v. Planters' Bank, ll Donald v. Central Bank, 8 Kel- 8 Port 104. ley, 185. 20 BANKS AND BANKING. [ 349. 349. Matters of procedure. Certain miscellaneous mat- ters of procedure are grouped in this section. In those states which gave the president the right to bring suit for the bank, it was held that he, as the bank, could sue or be sued, 1 under the allegation that he was the president of the bank, 2 or the bank itself could sue. 3 A failure to file reports as provided by statute may prevent a bank from suing under a statute, 4 but the statute will not be applied in a federal court. 5 Serv- ice upon a bank must be had in accordance with the statute applicable in the jurisdiction. A garnishment may be prop- erly served on the cashier, 6 but the answer thereto should be made by the president, 7 yet the cashier generally would have the same power. A garnishment may be had without first making a demand upon the bank. 8 In a suit against an unincorporated association whose members are nflmer- ous, it is not necessary to serve all the members before judg- ment can be taken. 9 A bank could formerly, where it had not the legal title to paper, sue in the holder's name to its use. 10 But this matter is to-day of some importance in suing upon paper made to the cashier. The cashier's successor may sue upon it without an indorsement by the cashier, 11 and the bank itself may sue, certainly where the allegation is made that the paper was given to the bank in the name of the cashier; 12 or the cashier may sue in his own name to the use of the bank, 13 or he may indorse to himself and sue 1 Hallett v.Harrower,33 Barb. 537; 8 Birmingham Nat. Bank v. Mayer, Delafleld v. Kinney, 24 Wend 345; 104 Ala. 634. Thomas v. Dakin, 22 Wend. 9; 9 Mandeville v. Riggs, 2 Pet. 482. Stanton v. Wilson, 2 Hill, 15,3. 1 Moore v. Penn, 5 Ala. 135. 2 Hallett v.Harrower, 33 Barb. 537. Dutch v. Boyd, 81 Ind. 146; Bar- 3 Leonardsville Bank v. Willard. ney v. Newcomb, 9 Gush. 46. The 25 N. Y. 574 bank should sue where the real 4 Bank of British North Am. v. party in interest is required to sue. Improvement Co., 97 Cal. 28. Camden Bank v. Rogers, 4 How. Barling v. Bank of British North Pr. 63. Am., 50 Fed. R. 260. l -See cases cited in note 15. 6 Rosenberg v. First Nat. Bank, "O'Brien v. Smith, 1 Black, 99; 27 S. W. R 897. Merchants' Bank v. McClelland, 9 7 Sturgis v. Rogers, 26 Ind. 1 Colo. 608; Johnson v. Catlin, 27 Vt 87. 349.] ACTIONS AND JUKISDICTION. 621 upon it. 14 An indorsement to the cashier as cashier is an indorsement to the bank, and may be so alleged ; 15 or if al- leged to be indorsed simply to the cashier, the allegation is sufficient. The general rule as to pleading the existence of a corporation is applicable to banks. It is not necessary to allege the corporate character specifically, 16 and if the plaintiff sues as a corporation the corporate character must be denied ; " and under common-law pleading the general issue might not put in issue the corporate character of the plaintiff, where the plaintiff sued as a corporation. 18 Mat- ters of evidence have been incidentally noticed in many places in the preceding sections. It remains to be said here that an indorsement upon a note of the sum for which it was discounted, and the date of the discount, is an admis- sion binding upon the bank. 19 A defense by a stockholder to a note to the bank is immaterial where it is based upon illegal proceedings whereby he lost a dividend upon his stock. 20 In an old case it was held that an action on the case against a bank did not lie for failure to pay over money which it had collected and credited. 21 A judgment where all the parties liable are sued under a statute may be against any or all of the defendants. 22 Proceedings supple- mentary to execution may be had against the officers of the bank, as holding property of the bank. 23 Statutes of limita- tion govern banks, unless they are exempted by statute or charter. 24 But it was held in Illinois that the state bank 14 Young v. Hudson, 99 Mo. 102. 2ixinkham v. Hey worth, 31 111. 15 Bank of U.S. v. Davis, 4 Cranch, 519. The bank here had the right C. C. 533; Pratt v. Topeka Bank, 12 to credit the owner of the collec- Kan. 570. tion. The language of the case 16 Ryan v. Farmers' Bank, 5 Kan. goes far beyond anything neces- 658; Lewis v. Bank of Ky., 12 Ohio, sary to be decided. The case shows 132. a deposit for collection and credit, 17 Ryan v. Farmers' Bank, 5 Kan. and is therefore correctly decided. 658, semble. See the next note. 22 Bussey v. Branch Bank, 15 Ala. 18 See the conflicting authorities, 216. 5 Encyc. Plead. & Pr. 77 et seq. 23 Ballston Spa Bank v. Marine 19 Colgin v. State Bank, 11 Ala. 222. Bank, 18 Wia 490. 20 Whittington v. Farmers' Bank, 2*Mahone v. Central Bank, 17 Ga. 5 Har. & J. 489. HI. See the queer discussions of 622 BANKS AND BANKING. [ 350. was the state, and hence a statute of limitation did not run against it. 25 For the same reason it was held that ministe- rial agents of the bank sued with it were not liable for costs. 28 But in Arkansas the state bank was required to give a bond upon an injunctional order. 27 350. Jurisdiction of courts over national banks. The law of June 30, 1864 (13 Stat. 99), and of June 3, 1866, carried into section 5198 and section 629 of the Revised Stat- utes, gave jurisdiction in cases relating to national banks to the state courts, and also to the circuit courts of the United States. The act of June 30, 1876, gave federal courts juris- diction of equity suits where brought to enforce the statu- tory liability. 1 The act of July 12, 1882 (22 Stat. 163), re- stricted the jurisdiction of federal courts over national banks to such cases as those courts would have jurisdiction to en- tertain over individuals. 2 Cases involving usury by national banks were governed by sections 5197 and 5198, which gave concurrent jurisdiction to federal courts and to state courts; 3 but by 22 Stat. 163, and. by 25 Stat. 433, courts of the United States have jurisdiction in such suits only on the ground of diverse citizenship or the presence of a federal question; but an exception is made in 25 Stat. 436, as to cases for winding up the aifairs of national banks. Therefore in suits for re- ceivers, etc., the United States courts have the same juris- the state's right to delegate its sov- l Irons v. Manufacturers' Nat. ereignty in Bank of Alabama v. Bank, 17 Fed. R 308. Gibson's Adm'rs, 6 Ala. 814, and 2 Union Nat. Bank v. Miller, 15 also the case first cited in this note, Fed. R. 703; National Bank v. Fore, which should be compared with 25 Fed. R. 209; Price v. Abbott, 17 the cases cited in the next two Fed. R 506. And see Wilson Co. v. notes. It is interesting to conjee- Third Nat. Bank, 103 U. S. 770; ture what the Alabama court, in Commercial Nat. Bank v. Simmons, its then condition of mind, would 1 Flip. 449, for the rule. have held as to the delegated power 3 First Nat. Bank v. Morgan, 132 to condemn private property. U. S. 141. The defense of usury was 25 State Bank v. Brown, 2 111. 106. governed by the same rule. Na- See the last note. tional Bank v. Eyre, 52 Iowa, 114. 28 Duncan v. State Bank, 2 111. 262. See 200, ante, for other authorities. 27 Ex parte State, 15 Ark. 26a 350.] ACTIONS AND JURISDICTION. 623 diction presumably which they had prior to the passage of 22 Stat. 163; but that is a close question, because 25 Stat. 436, left this particular jurisdiction over winding-up suits :as it existed prior to its passage, and that jurisdiction was controlled by the statute of 1882 (22 Stat. 163), which had probably taken it away. To obtain a review of a usury case by the Supreme Court of the United States in error to the Su- preme Court of the state, a claim of a right under a federal statute must be specially set up and claimed in the state court. 4 The statute of July 12, 1882, has practically been incorporated into the act of 1887 (24 Stat. 373), amended and corrected in 1888 (25 Stat. 433),-whereby the national banks are made citizens of the state where they are located, and the jurisdiction of the United States courts over them is dependent upon the diverse citizenship of the parties or the presence of a federal question. 5 It is difficult to see what effect the exception as to winding-up suits has, for that juris- diction was taken from the United States courts by 22 Stat. 163. Sfince a state court cannot issue an injunction against a national bank (see 35%, post), these suits are left in a very unsatisfactory condition. A national bank cannot, any longer, remove a case simply because it is a national corpo- ration. 6 "Where jurisdiction is conferred by reason of diverse citizenship, the matter involved must reach the jurisdictional .amount, 7 which is $2,000 by 25 Stat. 434. Kon -residents may of course remove a suit to the federal court. But where a federal question is involved, the circuit courts of the United States have concurrent jurisdiction, 8 and the suit may be re- 4 Schuyler Nat. Bank v. Bollong, Union Nat. Bank, 9 Biss. 178, a 150 TJ. S. 85. case wrongly decided as the law 5 Whittemore v. Amoskeag Nat. then was. Bank, 134 U. S. 527; Petri v. Comm. 7 See cases cited in last two notes. Nat. Bank, 142 U. S. 644; Danahy 8 Union Nat. Bank v. Miller, 15 v. National Bank, 64 Fed. R 148, Fed. R 703; Auburn Sav. Bank v. 24 U. S. App. 351. The provision as Hayes, 61 Fed. R 911; Walker v. to jurisdictional amount of $2,000 Windsor Nat. Bank, 56 Fed. R 76, governs. 5 U. S. App. 423. The suit may go 6 Leather Mfg. Nat. Bank v. on in the state court and be taken Cooper, 120 U. S. 778; Wilder v. to the United States Supreme Court BANKS AND BANKING. [ 350. moved upon that ground from the state court, provided the matter in dispute is $2,000 or over. The receiver of a na- tional bank being an officer of the United States may sue in the circuit court of the United States or in the district court, 9 regardless of citizenship or of the amount involved. He may remove a suit against him from the state court upon this ground. 10 The same rule applies to the agent of the stock- holders after the termination of the receivership. 11 Either of these officers may sue or be sued in the state courts. 12 But the receiver must be really involved as to his rights directly and not remotely, 13 and adversely to the party litigating. If he be merely a formal, party, or joined because he holds the fund in litigation, 14 the federal court does not thereby gain jurisdiction. The receiver is not estopped from asking a re- moval by causing himself to be substituted in an action in the state court. 15 But where a national bank, as a going concern and not in the hands of a receiver, is a party, the rule applied to determine the jurisdiction of a United States court is precisely the rule that would be applied to any citi- zen of the state where it is located, 16 unless in winding-up where a federal question is spe- 607; Thompson v. Sehaetzel, 2 S. D. cially raised. Miller v. National 395; Witters v. Sowles, 61 Vt. 366. Bank, 106 U. S. 542. 13 Le Sassier v. Kennedy, 123 U. S. SYardley v. Dickson, 47 Fed. R 521; Van Antwerp v. Hulburd, 8 835 ; Price v. Abbott, 17 Fed. R 508 ; Blatch. 282. Armstrong v. Ettlesohn, 36 Fed. R u St. Luke's Church v. Sowles, 51 209; National Bank v. Crawford, Fed. R 609. 69 Fed. R 532; Thompson v. Pool, ^Cadle v. Tracy, 11 Blatchf. 101. 70 Fed. R 725; Stephens v. Bernays, 16 See cases cited in notes 2 and 5 119 Mo. 143; S. a, 44 Fed. R 642. A to this section, and Petri v. Comm. petition to compromise may also be Nat. Bank, 142 U. S. 644; Danahy brought in the federal court. In re v. National Bank, 64 Fed. R 148, 24 Platt, 1 Ben. 534 U. & App. 351. It may be worthy w School Dist v. First Nat Bank, of note that the first United States 61 Fed. R 417; Bartley v. Hayden, Bank could not sue in the federal 74 Fed. R 913. Contra, Bird v. courts (Bank of U. S. v. Devaux, 5 Cockrem, 2 Woods, 32. Cranch, 85), but could on the ground 11 McConville v. Gilmour, 86 Fed. of diverse citizenship of its officers. R 277. The second United States Bank was 12 Brinckerhoff v. Bostwick, 88 given the right Osborn v. Bank of N. Y. 52; Peters v. Foster, 56 Hun, U. S., 9 Wheat. 73& 351.] ACTIONS AND JURISDICTION. 625 suits a jurisdiction remains in federal courts. A national bank bringing suit in another state than the one where it is located may sue in the United States court on the ground of diverse citizenship, if it bring itself within the jurisdic- tional requirements. 17 The method of alleging the residence of the bank is to allege its due organization and the place and state where located, but it has been held to be sufficient to describe it as of a certain city. 18 But where a note was executed to a national bank, a denial on information and belief of its corporate existence in a suit on the note is friv-, olous. 19 351. What court of state or United States has juris- diction. The rule as to jurisdiction of the various federal courts in the act of 1888 is that the suit, where diverse cit- izenship exists, must be brought either in the district of the residence of the plaintiff or the defendant. 1 Hence a na- tional bank could be sued in a United States court in another district than the one where it is located if a good service could be obtained. But section 629 of the Kevised Statutes limits the district where a national bank may bring suit or be sued to the district where it is located. 2 That statute must be considered as modified by the later statute. But in equity suits to remove a cloud from title and the principle would apply to all suits of a local nature the United States court where the property is situated would have jurisdic- " Manuf. Nat. Bank v. Baack, 8 McCormick v. Walthers, 134 U. S. Blatchf. 137; Petri v. Comni. Nat. 41, citing many other decisions, and Bank, 142 U. S. 644. But see First Bostwick v. American Finance Co., Nat. Bank v. Smith, 6 Fed. R. 215; 43 Fed. R. 897. Therefore a national Farmers' Nat. Bank v. Mcllhaney, bank could sue a non-resident in 42 Fed. R. 801, wrong. the district either where the bank 18 Farmers' Nat. Bank v. Rogers, 1 resides or where the non-resident re- N. Y. Supp. 757. Compare Third sided. And the bank could be sued Nat. Bank v. Teal, 5 Fed. R 503. in its own district as well as where 19 Huffaker v. National Bank, 75 the plaintiff resided. Ky. 287. 2 If this statute is applied to suits 1 See 25 Stat. 433. The decisions against national banks it would upon this point are the following: conflict with the later statute. 40 626 BANKS AND BANKING. [ 351. tion, provided the parties were either of them non-residents, regardless of the fact as to whether either of them resided in the district where the property was situated. 3 This cov- ers cases where both are non-residents of the district but residents of different states, but it does not seem to cover the case where both are non-residents, but residents of the same state. Such was the holding of the courts as to suits against national banks, and it was decided that ju- risdiction in another district was not gained by a serv- ice upon an officer of the bank in the foreign district. 4 ^here a national bank sues in a federal court it may sue the defendant in a transitory action in the district where he resides. 5 But if the action is local in its nature it could only be brought in the district where the property was lo- cated, and if that was not the district wherein either the plaintiff or the defendant resided, it would seem to follow that the bank would be required to sue in the proper court of the state where the property was; but the courts have, as we have seen, held otherwise. 6 If part of the defendants re- side in one district in the state and part in another, the ac- tion, if not local, may be brought in either district. 7 The act of congress of February 18, 1875 (18 Stat. 320), confer- ring jurisdiction on the state courts, gives it to the state, county or municipal court of the city or county where the bank is located. 8 The same statute applies to suits for usury sued for as a penalty. 9 A very remarkable judicial deliver-- ance has denied the power of congress to impose upon the 3 See cases in note 6, supra. McCrary, 316. If part resided in 4 Maine v. Second Nat. Bank, 6 the state where the bank was lo- Biss. 26. A state statute as to serv- cated and part in another state, ice upon a foreign corporation gov- what then would be the case ? erns the federal courts. Ex parte 8 See Rev. Stat., 5198. Thisstat- Schollenberger, 96 U. S. 369. ute was held to apply to suits by, as 6 Manuf. Nat. Bank v. Baack, 8 well as- against, a national bank. Blatch. 137. This is now especially necessary, or 6 Dick v. Foraker, 155 U. S. 404; a national bank could not sue a United States v. S. P. Co., 63 Fed. citizen of its own state at all R481. Rev. Stat, 519& 7 Third Nat Bank v. Harrison, 3 351.] ACTIONS AND JUKISDICTION. 627 courts of a state, called in the opinion a foreign jurisdiction, the duty of enforcing this penal statute against usury. 10 But assuming that a state court will not refuse to take jurisdic- tion on any such wild and untenable ground, a suit for a usurious penalty must be brought in a state court at least having the requisite jurisdiction under the state laws. "Where usury is insisted upon as a defense it may be set up in any court where the usurious contract is sued upon. 11 But as to other suits against national banks it is a vexed question whether the bank can be sued in any state court other than that of the district or county where it is located. One series of cases holds that as to actions transitory in their nature a national bank may be sued in any state court where service can be gained upon it, though it be the court of another state than the one where it is located. 12 But since the means of gaining jurisdiction by attachment upon non-residents has been wrested from the New York courts, 13 such jurisdiction could be gained only by service upon an officer within the state, and such service, on principle, would be bad. 14 But it would still remain the rule that within the state the national bank could be sued in transitory actions, under these decis- ions, in a county of the state other than where the bank is located. 15 Other cases have strenuously contended that a national bank can be sued only in that state court which has jurisdiction in the district or county where the bank is 10 Miss. River Tel. Co. v. First Nat. 13 See the laconic submission in Bank, 74 111. 217. The judge who de- Bank of Montreal v. Fidelity Nat livered this opinion had the longest Bank, 112 N. Y. 667; and see 336, service on the bench of any judge ante. who ever sat in the Illinois Supreme 14 The officer would not be acting Court. How he came to make such officially. See Maine v. Second Nat. an incomprehensible decision, and Bank, 6 Biss. 26. why the other judges concurred, is 15 Fresno Nat. Bank v. Superior a mystery. Court, 83 Cal. 491 ; Talmage v. Third " See 200, ante. Nat. Bank, 27 Hun, 61, 97 N. Y. 531. 12 Cooke v. State Nat Bank, 52 But this idea is abruptly dismissed N. Y. 96, which contains some amus- by the Supreme Court of the United ing ratiocination in regard to the States (First Nat. Bank v. Morgan, power of congress; Robinson v. Na- 132 U. S. 141) with the short state- tional Bank, 81 N. Y. 385; Holmes ment that so the law is, without v.Wilmington Nat. Bank, 18 S. C. 31. any examination of the decisions. 628 BANKS AND BANKING. |~ 352. located. 18 The Supreme Court of the United States, whose decision controls, holds that if the action is local the national bank should be sued in the court that has jurisdiction, wher- ever that may be, but in all other cases the bank must be sued in the county or district where it is located. 17 The opin- ion in note 15 to this section does not examine the cases upon the subject, but shortly says that the statute so provides. Yet if the objection to the jurisdiction is not raised in the lower court it is waived. 18 352. Injunctions and attachments against national banks. No state court, under section 5242 of the Ee vised Statutes, can issue an injunction against a national bank prior to final judgment. 1 This would seem to cover any injunction against officers of the bank which would suspend the operations of the bank. But whether it would cover an injunction against a particular officer, not a managing offi- cer, of the bank, who was enjoined from acting in the bank, is a matter of some doubt. Certainly the words of the statute do not cover such a case. But an injunction di- rected against the board of directors would be prohibited, as well as an injunction against the cashier or any general officer of the bank interfering with the operations of the bank. But a federal court may enjoin a national bank, and it may continue, after the cause is removed, an injunction improperly granted by a state court. 2 As we have already seen, an attachment against a national bank issued by any court is void.* "Cadle v. Tracy, 11 Blatch. 101; 2Hower v. Weiss Malting Co., 55 Crocker v. Marine Nat. Bank, 101 Fed. R. 356, 14 U. S. App. 210. Mass. 240; Miss. Riv. TeL Co. v. First 3 See 336, ante. If the federal Nat. Bank, 74 111. 217. courts have not jurisdiction of 17 Casey v. Adams, 102 U. S. 66. suits for winding up national banks 18 First Nat. Bank v. Morgan, 132 under section 4, 25 Stat. 433, and U. S. 141; Lee v. Citizens' Bank, 5 if a state court cannot grant an in- Ohio Dec. 2L junction, it is difficult to see how 1 See 336, ante, and Pacific Nat. a suit of that character can be suo Bank v. Mixter, 124 U. S. 721; cessfully conducted, unless some Hower v. Weiss Malting Co., 55 stockholder who is a non-resident Fed. R. 356, 14 U. S. App. 210. can be found to bring the action. See 350, ante, as to this matter. CHAPTER XIV. SAVINGS BANKS. 353. The nature of savings banks. The original con- ception of a savings bank was a place where the savings of working people could be deposited and united so as to form loanable capital. The funds were managed without pay by officers who were philanthropic individuals, and the profits upon the capital earned went to the depositors. This was the original type of savings bank and it yet survives, except that the officers are generally paid a salary. 1 But there was certain to arise a kind of savings bank, where the profits, over and above a certain interest on the deposits, would go to the managers of the institution ; and therefore there are sav- ings banks which are regularly stocked corporations, where the deposit creates a debt and the stockholders are liable for the usual double liability upon their stock. 2 There are still other savings banks which have two kinds of depos- itors, those who become stockholders and those who are not. 3 The peculiar nature of these banks has caused them to be separately noticed. 354. Illustrative cases on the nature of savings banks. Whether a bank is a savings bank or not depends upon its functions and not its name. 1 A savings bank which is au- thorized to do a commercial banking business is an ordinary commercial bank; 2 and a statute creating savings banks which were authorized to receive deposits and declare divi- 1 Huntington v. Savings Bank, 96 Bank, 32 N. J. Eq. 163. But a bet- U. S. 388. See the remarks made ter case is Murphy v. Pacific Bank, in the opinion. 119 CaL 834. 2 See Queenan v. Palmer, 117 III l State v. Lincoln Sav. Bank, 82 169, and Ward v. Johnson, 5 Bradw. Tenn. 42. 30, for this kind of a savings bank. 2 Mitchell v. Beckman, 64 CaL 117. 3 Stockton v. Mechanics' Sav. 630 BANKS AND BANKING. [ 355. dends was held to be within a constitutional requirement which provided that any banking law establishing banks, whether of deposit, discount or circulation, should be ap- proved by a vote of the people of the state. The consti- tutional provision was not confined to stockholders who owned the bank. 3 A savings bank formed for the pecuniary benefit of its members is not a benevolent or charitable so- ciety. 4 But if formed merely for the investment of money, and the payment of the income therefrom, it is a trustee, and a court of chancery may regulate the distribution of its assets, 8 but it cannot change, any more than the legislature can change, the terms of the incorporating act. 6 But even in ordinary savings banks the claim of the depositor is a chose in action it is not a bailment. 7 It is immaterial, where the bank has engaged to pay a certain interest, that it has invested in stocks which have depreciated. 8 But the man- agers have no right to profits as such where the profits are divisible among the depositors. 9 In savings banks the de- positors are not stockholders 10 unless the form of the organ- ization makes them so ; the relation of debtor and creditor arises in most savings banks upon a deposit u unless it be a special deposit. 12 355. Officers of sayings banks. The statutes are some- times drawn so as to prevent an officer of a bank of circula- tion or deposit from becoming a director of a savings bank s Reed v. People, 125 I1L 592. Makin v. Inst for Sav., 19 Me. Shenn v. Mendenhall, 23 Minn. 128; Makin v. Sav. Inst., 23 Me. 350. 92. 9 Huntington v. Savings Bank, 96 5 In re Newark Sav. Inst, 28 N. J. U. S. 388. Eq. 552; Savings Inst v. Makin, 23 10 Savings Bank v. New London, Ma 360. 20 Conn. 111. Dodd v. Una, 40 N. J. Eq. 672. Ward v. Johnson, 5 Bradw. 30; 7 Lund v. Seamen's Bank, 37 and compare the cases in note 7, Barb. 129; People v. Mechanics' supra. Sav. Inst, 92 N. Y. 7; Ide v. Pierce, "Zinn v. Mendel, 9 W. Va. 580, 134 Mass. 260; Pope v. Burlington semble. The bank is in such case Sar. Bank, 56 Vt 284; Ward v. bailee and is liable at law for a con- Johnson, 5 Bradw. 30. version. Davenport v. Underwood, 13 Am. Law Reg. (N. S.) 211 (Ky.). 355.] SAVINGS BANKS. 631 an exceedingly wise provision ; but a court is likely in such case to produce one of those convenient presumptions of which courts keep a liberal supply, to the effect that, if the director allows himself to be voted for, it will be presumed that he has resigned his other office. 1 The officers of the bank are selected generally by the board of trustees by ma- jority vote; 2 but where the trustees are elected annually, and the officers are to be appointed during their pleasure, the office of treasurer is not an annual one. 3 If the compen- sation of the officers is dependent upon net profits, a rise in the government securities owned by the bank has been held to be not a part of the profits. 4 The officers being trustees are liable to the bank as are officers of other banks. 5 If they make a loan to a greater amount than is permitted by the statute they are liable for the loss, although the statute fixes no penalty. 6 Where a treasurer of a savings bank assigned to his bank a note and mortgage of lands not worth double the amount of the note as the law required, and without sub- mitting the loan to the finance committee as required by the by-laws, he is liable irrespective of a failure on the part of the directors to repudiate the loan for so long a period as six years, and irrespective, too, of the knowledge of the direct- ors. 7 The treasurer is liable for permitting the funds of the bank to be used in making an unlawful and imprudent loan not submitted to the finance committee. 8 The president is liable for loss upon an improvident loan made to him not authorized by or submitted to the finance committee. 9 The treasurer is also liable where he signed the check for the loan. 10 The purchase of realty which was not authorized by the charter and not submitted to the finance committee ren- 1 People v. Conklin, 7 Hun, m 7 Williams v. Riley, 34 N. J. Eq. 2 See the last case cited. 398. 3 Commonwealth v. Reading Sav. 8 Williams v. McKay, 46 N. J. Eq. Bank, 129 Mass. 73, a suit on a bond. 25. See 79, ante, where the con- 4 Jenneiy v. Olmstead, 36 Hun, elusions from this case are stated 536. in the text. 6 See 79, ante, et seq. 9 See last case cited. 6 Thompson v. Greeley, 107 Ma 10 See last case cited, 577. 632 BANKS AND BANKING. [ 355. ders liable for the loss those officers ^ho took part in the transaction. 11 The treasurer who signed the checks therefor in blank is also liable. 12 All those officers who participate in making unlawful loans are liable for the loss thereon to the bank. 13 For a release of securities on a loan by the presi- dent where the loan is to a manager, the president and manager are both liable. 14 The secretary of the bank, who knew that a loan was unlawful, but acquiesced in it, must respond to the bank; 15 but a director who took no part in the loan, but found out the fact after it was made, and made no objection, cannot be held. 16 The trustees who act in good faith and with ordinary care and prudence in making a loan on a mortgage are exempt from blame. 17 If they are directly concerned in making unlawful loans they are, of course, re- sponsible for the loss. 18 Where an executive committee of the trustees is acting, they are liable for not exercising the proper control of the bank's affairs. 19 But the managers are also responsible if they fail to bestow upon the affairs of the bank that reasonable care which the law requires of them, in consequence of which their associates are enabled to cause loss. 20 The habitual disregard by the president of the bank of the charter and the by-laws shows negligence in the managers. 21 They are presumed to have failed to ex- ercise ordinary care. 22 Where money has been secretly with- drawn from the bank and covered by a system of false entries for a series of years, and the fact has not been dis- 11 See last case cited. 17 Williams v. McDonald, 37 N. J. 12 See last case cited. Eq. 409. 13 Paine v. Barnum, 59 How. Pr. 18 See cases cited in note 13. 303: Williams v. McDonald, 43 N. J. Williams v. McKay, 46 N. J. Eq. 392; Knapp v. Roche, 44 N. Y. Eq. 35. Super. Ct. 247; Hun v. Gary, 82 20 Wilkinson v. Dodd, 40 N. J. Eq. N. Y. 65. 123, 42 id. 234, 42 id. 647; Williams "Williams v. McKay, 46 N. J. v. McDonald, 42 N. J. Eq. 392. Eq. 25. 21 Williams v. McKay, 40 N. J. Eq. 15 See last case cited. 189. 16 Knapp v. Roche, 44 N. Y. Super. -' 2 See case last cited, reversing Ct 247. Williams v. Halliard, 38 N. J. Eq. 355.] SAVINGS BANKS. 633 covered by the executive committee or the board of trustees, who would have discovered it had they exercised reasonable diligence, they are bound to respond to the bank for the loss. 23 They cannot escape by averring that they did not know of the fact and had not time to give to the affairs of the bank. 24 But for single transactions they are not respon- sible if they were not otherwise negligent; 25 nor would they be liable for the first of a series of transactions by the presi- dent in disregard of the charter, if they could not reason- ably have anticipated it. 26 For declaring unlawful dividends they can be held; 27 but if in regard to a particular transac- tion a trustee did not act he is not responsible for it, if he is not made liable on some other ground of failure to exercise care. 28 But a trustee is released for a loss where the loss is paid by a subsequent trustee. 29 And if a trustee gives the bank security to provide against loss upon a particular loan already made, he does not thereby become surety for money loaned to the bank. 30 The suit against the officers may be brought by the bank or its receiver. 31 It maybe at law where no accounting is necessary. 32 But under one statute the state auditor alone can sue. 33 If, however, the bank and its receiver, or any other officer whose duty it is, refuses to bring the action, the creditors may sue, making the bank or the receiver and other officers parties. 34 The recovery belongs to the assets of the bank. 35 But the parties who profited by the improvident loans of the bank are not nec- 23 Williams v. McKay, 46 N. J. Eq. See 79, 81, ante, and Wilkin- 25; Paine v. Irwin, 59 How. Pr. 816. son v. Dodd, 41 N. J. Eq. 566. 24 Williams v. McKay, 46 N. J. 32 Thompson v. Greeley, 107 Mo. Eq. 25. 577. 25 See case last cited. 83 Ryan v. Pvay, 105 Ind. 101. 26 See case last cited. 84 Chester v. Halliard, 34 N. J. Eq. 27 Van Dyck v. McQuade, 57 How. 341 ; Maisch v.Savings Fund,5 Phila. Pr. 63. 30, an excellent opinion by Shars- 28 Compare Hun v. Gary, 59 How. wood, and Leffman v. Flannigan, 5 Pr. 426, with S. C., 83 N. Y. 65. Phila, 155, an opinion by Hare. And 29 Hun v. Van Dyck, 26 Hun, 567, see 83, ante. 92 N. Y. 660. 86 Chester v. Halliard, 84 N. J. Eq. 30 Best v. Thiel, 79 N. Y. 15. 841. 63-t BANKS AND BANKING. [ 356. essary parties. 36 The question of negligence, where the acts are improvident but not forbidden by law, is a question of fact. 37 But even where the loans are illegal it seems that the officers would not be liable if they had misconstrued the charter, unless the act were foreign to the business of the bank. 38 Where a corporation is a fraud because organized by corporators who are not the persons designated by the legislature, those officers who act are responsible personally to the depositors; 39 and such is the case where no corpora- tion whatever is formed. 40 But trustees who did not accept office and act are not liable. 41 356. Stockholders. "Where the stockholders of a sav- ings bank are bound upon their stock subscription in double the amount of the stock, the liability does not differ from that imposed upon ordinary bank stockholders ; it is not a penalty or a forfeiture. 1 It has been held that the liability could not be enforced while the original stock subscription was unpaid. 2 The original stock subscription can be col- lected as in the case of any other corporation. It is an asset of the corporation which passes to the assignee of the bank ; * but while an assignee appointed by a court under a statute is in possession of the assets, it is held in one court that a creditor cannot maintain a creditor's bill. 4 Where a savings bank is insolvent a court of equity may order all stockhold- ers joined in an action which is brought for the determina- 36 Wilkinson v. Dodd, 41 N. J. Eq. As to proof of no incorporation, see 566; Paine v. Barnum, 59 How. Pr In re Gibbs, 157 Pa. 59. 303. 41 Maisch v. Savings Fund, 5 Phila. 37 French v. Redman, 13 Hun, 502. 30. If the act is forbidden by law the l Queenan v. Palmer, 117 III 619. question of the officer's negligence 2 Herron v. Vance, 17 Ind. 595. is immaterial. He is liable for the And a joint action was held not to loss. Williams v. McKay, 46 N. J. lie at law against all the stock- Eq. 25. holders. ss Williams v. McKay, 46 N. J. 3 See 61, ante. Eq. 25. 4 Brown v. Folsom, 62 N. H. 527. 39 Leff man v. Flannigan, 5 Phila. See also Schoyer v. Creswell, 3 Mac- 155. Arthur, 5. 40 Ridenour v. Mays, 40 Ohio St. 9. 357.] SAVINGS BANKS. 635 tion of the stockholders' liability and a general settlement of the bank's affairs. 5 But a petition by stockholders charg- ing that the bank is insolvent and that assessments will be made upon the stock by officers for their own gain, but charging no fraud or breach of trust, is bad for want of equity. 6 357. Powers of the savings bank. The usual purpose for which a savings bank is incorporated or formed is to loan money. It may loan upon real estate : and take security by way of mortgage upon land in another state. If it have power to discount notes, it may purchase them. 2 But fre- quently these banks are denied the power to discount. 3 It may purchase and hold city warrants, if such paper is within the kinds of securities in which the savings bank is per- mitted to invest. 4 But if it loan money on securities, it is- doubtless investing its deposits in them. 5 It may not pur- chase real estate unless it is given the power. 6 Its subscrip- tion to stock in another corporation, where it has no funds to invest, is ultra vires} If it owns stock it may contract with a broker to sell it. 8 But it has no power to indulge in purchases of cotton futures. 9 By a power to give security for public moneys invested with it, it is not given power to 5 Herron v. Vance, 17 Ind. 595; 5 Duncan v. Maryland Sav. Inst,, Raye v. Savings Inst., 14 Rich. Eq. 10 Gill & J. 299. As to loans, see 54 Paine v. Barnuin, 59 How. Pr. 303 ; 6 Gorman v. Guardian Sav. Inst, Rome Sav. Bank v. Kramer, 32 Hun, 4 Mo. App. 180. 270; Erie Co. Sav. Bank v. Coit, 104 i Lebanon Sav. Bank v. Hollen- N. Y. 532. beck, 29 Minn. 322. See also Tishi- 6 See 122, ante. mingo Sav. Inst. v. Buchanan, 60 7 Franklin Co. v. Lewiston Inst, Miss. 496; Williams v. McKay, 46 68 Me. 43. N. J. Eq. 25. sgistare v. Best. 88 N. Y. 527. 2 Pape v. Capitol Bank, 20 Kan. 9 Jennison v. Citizens' Sav. Bank, 440. See also Auburn Sav. Bank v. 122 N. Y. 135. The contract is im- Brinkerhoff, 44 Hun, 142. moral. The court should have put 3 United Germ. Bank v. Katz, 57 its decision on the ground that Md. 128. the contract was wholly illegal. 4 Aull Sav. Bank v. City of Lex- See 33, ante. ington, 74 Mo. 104 36 BANKS AND BANKING. [ 358. become surety on the bond of a school treasurer. 10 It has the implied power to borrow money and make negotiable paper for the loan. 11 The contract, while it is insolvent, to resume business by receiving new deposits to be used only in paying checks upon new accounts is beyond its power. 12 But it may agree with a depositor to pay interest upon in- terest left in the bank as nevv" principal. 13 358. Ultra vires acts. If a savings bank makes a loan contrary to a statute, 1 or if it discounts a note without au- thority of law, 2 or if it receives a bond to enable it to con- tinue its business, 3 the various instruments can be enforced by the bank. The presumption will be indulged that an act is not unlawful until it is shown to be so. 4 But one case holds that a bank carrying on an unlawful business by mak- ing a loan upon a discount does an unlawful act, and can- not recover in gwas^-contract, 8 but this ruling is not to be commended. 6 Conversely, the bank cannot defend against a depositor's suit because the deposit was in excess of the limit allowed by law, 7 nor can it defend against an unlaw- ful loan where it has received the benefit. 8 Such is the rule as to a special deposit, 9 or upon a purchase by a broker where it receives the stock and the broker sues for his com- mission. 10 But if the contract was forbidden by law because 10 In re Miners' Bank, 13 Wkly. be enforced as for a loan. Pratt v. Notes Cas. 370. Eaton, 79 N. Y. 449. See also Pratt 11 Fifth Ward Sav. Bank v. First v. Short, 79 N. Y. 437, and 33, ante, Nat. Bank, 48 N. J. Law, 513. Williams v. Imp. & Trad. Nat. 12 In re Mutual Soc., 2 Hughes, 374. Bank, 44 III App. 295. 13 Heironimus v. Sweeney, 83 Md. 6 In re Jaycox, 13 Blatch. 70. 146. See 33, ante. 'Farmington Sav. Bank v. Fall, 7 Taylor v. Empire State Sav. 71 Me. 49. Bank, 66 Hun, 538. 2 United Germ. Bank v. Katz, 57 8 Heironimus v. Sweeney, 83 Md. Md. 12& 146. sHurd v. Green, 17 Hun, 327; 9 Cogswell v. Rockingham Sav. Hurd v. Kelley, 78 N. Y. 588. The Bank, 59 N. H. 43. same rule applies as to other banks. 1 Sistare v. Best, 88 N. Y. 527. If the note is void, the security may 359.] SAVINGS BANKS. 637 it was immoral, the bank having received nothing of value, 11 and in any case where it has received no property or thing of value under a contract, it may defend on the ground of ultra vires. 12 The rules of law applicable to savings bartks do not differ from the ordinary rules applicable to these transactions stated in sections 27, 32 and 33, ante, which should be consulted. The liability of officers upon ultra vires acts is noticed in section 355, ante. 359. Powers of officers. The power of an officer as agent to represent and act for his bank has been fully exam- ined in section 73, ante, and the following sections. Some peculiar instances as to savings banks will be stated here. The acts of the officers within the scope of their authority bind the bank, but the rule is held with strictness as to the authority. Thus, while a treasurer with authority assigns a note and mortgage, the bank is liable though he convert the proceeds; * he has no authority to execute a release, 2 or to transfer a promissory note, 3 or to discount the notes of his bank. 4 But he is presumed to have authority to take possession of land on which the bank holds a mortgage, where the possession is taken for the purpose of gathering a crop. 5 But the authority of the treasurer to indorse a note may be inferred from the conduct of the trustees ; 6 but such inference is not warranted by the fact that he has indorsed before, 7 or that the bank has voted to sell notes held by it, 8 or that the by-laws impose upon the treasurer the duty of drawing all necessary papers. 9 His act in forging and trans- ferring books of deposit in order to repay sums of money Jennison v. Citizens' Sav. Bank, 4 Fifth Ward Bank v. National 122 N. Y. 135. Bank, 48 N. J. Law, 5ia 12 Greeley v. Nashua Sav. Bank, 63 Bangor Sav. Bank v. Wallace, N. H. 145. 87 Ma 28; and see g 101, ante, notes 1 Whiting v. Wellington, 10 Fed. 1, 2. R. 810. 6 Chase v. Hathorn, 61 Me. 505. 2 Dedham Inst. v. Slack, 6 Gush. 7 Holden v. Phelps, 135 Mass. 61. 408. SBradlee v. Warren Sav. Bank, Holden v. Upton, 134 Mass. 177. 127 Mass. 107. See last case cited. 38 BANKS AND BANKING. [ 359. borrowed or embezzled by him does not bind the bank. 10 But where he is given power to release a mortgage, and he forged, by an alteration, the bank's record of the resolution so a's to give him power to assign, the bank is bound to a lonafide assignee relying upon the record.- 11 But the treas- urer has the power to execute a power of sale in a deed by conveying to purchasers under order of the board of invest- ment. 12 If authorized to extend a note, he may do so though it release a surety. 13 He has no power to borrow mo"ney, 14 nor pledge collaterals for the bank. 15 The rule as to the powers of a cashier of a savings bank differs somewhat from the rule as to the cashier of a commercial bank, 16 except where the savings bank is also a commercial bank. The president of a savings bank has no power to borrow money without authority; n but where he is authorized to sell stock he may employ a broker. 18 But where the governing au- thorities of the bank permit the president to represent him- self as in charge of the savings department, deposits with him bind the bank. 19 And the bank may ratify an unauthor- ized act, as by accepting a purchaser's deed of release, where the treasurer has executed the power of sale in a mortgage. 20 There is no ratification, however, where the treasurer under- took to release a party upon a joint and several note by becoming a party to a deed of assignment and the bank re- ceived dividends on the assignment, and the books contain- ing the payment were certified as correct. 21 A clerk in a bank cannot bind the bank by his agreement that a deposit shall not be withdrawn unless two certain persons are pres- 10 Commonwealth v. Reading Sav. 15 See last case cited. Bank, 133 Mass. 16. The holders 16 Zimmerman v. Miller, 2 Penny, here could not claim to be bonafide. 226. 11 Commonwealth v. Reading Sav. 17 See case cited in note 14, supra. Bank, 137 Mass. 431. Sistare v. Best, 88 N. Y. 527. 12 North Brookfield Sav. Bank v. 19 Beckley v. Commercial Bank, Flanders, 161 Mass. 335. 43 a C. 528. 13 New Hampshire Sav. Bank v. 2 See case cited in note 12. Ela, 11 N. H. 335. 21 Dedham Sav. Inst v. Slack, 6 14 Fifth Ward Bank v. First Nat Cush. 408. The alleged ratification Bank, 48 N. J. Law, 513. lacked the element of knowledge. 360.] SAVINGS BANKS. 639 ent with the depositor. 22 But where a bank receives a bond, and the entry thereof in the pass-book of the depositor states the fact, the bank cannot deny that it received the bond as the depositor's. 23 360. The contract of deposit. A savings bank does not pay money upon check, but upon production of the pass- book accompanied by an order of the depositor. Such banks have generally a by-law to the effect that the deposit will be paid only upon production of the pass-book, and that the possession of the pass-book will be considered proof of owner- ship of the deposit. Depositors are generally required to sign an agreement to this effect, and the by-law or agreement is always printed in the depositor's book. This by-law is a part of the contract of deposit. 1 The assent of the depositor to it may be express by signing a book kept for that pur- pose, 2 or it may be inferred from the retention without ob- jection of the pass-book containing the printed rules. 3 This rule was held even as against a depositor who could neither read nor write. 4 This contract is also binding upon the bank. It cannot change its by-laws without notice where the by- laws require notice, and any change does not affect a depos- 22 Riley v. Albany Sav. Bank, 36 3 Last case cited. But where the Hun, 513. by-law requires the book to be 23 Zeugner v. Best, 44 N. Y. Super, signed, the last case holds that the Ct. 393. assent may be expressed in some 1 Heath v. Portsmouth Sav. Bank, other way; but Kress v. East Side 46 N. H. 78; Gifford v. Rutland Sav. Bank, 21 N. Y. Supp. 652 ? holds that Bank, 63 Vt. 108; Appleby v. Erie even a signature to the by-laws is Co. Sav. Bank, 62 N. Y. 12; Levy v. not sufficient where the bank has Franklin Sav. Bank, 117 Mass. 448; not affirmatively complied with a Burrill v. Dollar Sav. Bank, 92 Pa. statute requiring the by-law to be 134; Kummel v. Germania Sav. posted up. Bank, 127 N. Y. 488. Contra, Eaves 4 Geitelsohn v. Citizens' Sav. Bank, v. Savings Bank, 27 Conn. 229. But 40 N. Y. Supp. 662; Warhus v. under this last case, if the rule had Bowery Sav. Bank, 5 Duer, 67; Bur- been conspicuously posted up it rill v. Dollar Sav. Bank, 92 Pa. 134. seems that the ruling would have The statute seems to make the rules been different. constructive notice. 2 Gifford v. Rutland Sav. Bank, 63 Vt. 108. 64:0 BANKS AND BANKING. [ 3GO. itor until he is notified ; 5 and on principle, if the by-law is a part of the contract, it cannot change it at all as to a previous depositor without the assent of the depositor. 6 If the by-law or rules require an order from the depositor, the bank is bound by the rule. 7 If the by-law requires the order to be witnessed the rule is binding on the bank, 8 and it is liable for money paid contrary thereto. But the by-law of the bank cannot discharge the bank from its own negligence. Whatever the by-law may be, though it says that all pay- ments upon production of the book shall be valid, and though the depositor has assented thereto, nevertheless the bank must exercise reasonable care and caution in making the payment. 9 This duty is fully discharged only by an active vigilance in the protection of the depositor's rights. 10 This question of due care is for the jury to decide as a question of fact, 11 except that one case held, erroneously, that where the question was upon due care of the bank, and the bank had before it the genuine signature of the depositor, which differed from the signature upon the order presented, it was not necessary to submit to the jury the question whether the latter ought to have noticed the difference. 12 But the ruling is no longer authority, and is not given any credence in the lower courts of the same state. 18 Another ruling in a Ver- 5 Kimins v. Boston Sav. Bank, 141 pie's Sav. Bank, 110 Mick 175; Allen Mass. 33. The same contract con- v. Williamsburg Sav. Bank, 69 N. Y. tinues for succeeding deposits until 314; Goldrick v. Bristol Sav. Bank, notice is given. The same rule ap- 123 Mass. 320. plies in favor of the corporation 10 Allen v. Williamsburgh Sav. in its internal affairs. French v. Bank, 69 N. Y. 314; Kuminel v. O'Brien, 53 How. Pr. 394. Germania Sav. Bank, 127 N. Y. 488. 6 Kimins v. Boston Sav. Bank, 141 u Smith v. Brooklyn Sav. Bank, Mass. 33. 101 N. Y. 58. 7 Kummelv. Germania Sav. Bank, l2 Appleby v. Erie Co. Sav. Bank, 127 N. Y. 488. 62 N. Y. 12. Two able judges dis- 8 People's Sav. Bank v. Cupps, 91 sented. Pa. 315. u Fricke v. German Sav. Bank, 4 Kimball v. Norton, 59 N. H. 1; N. Y. Supp. 627; Baling v. German Kummel v. Germania Sav. Bank, Sav. Bank, 7 N. Y. Supp. 643. 127 N. Y. 488; Aukenhausen v. Peo- 361.] SAVINGS BANKS. 641 mont case did not leave a question of fact to the jury where the circumstances were suspicious. 14 361. Ownership of the deposit. Deposits in savings banks are peculiarly prolific in questions as to the real owner of the deposit. Husband and wife often make deposits in the bank in their joint names, and the rule as to ownership when one dies is difficult to find. One case held such a de- posit meant that the deposit belonged to the survivor. 1 But a deposit to the credit of " J., or wife B.," was held to prove 'simply that each should have power to draw the money. 2 Another case says that such a deposit is payable to either or to the survivor, but not to the personal representative of one and the other equally. 3 It is plain that the rule of survivor- ship ought to govern in such a case, and the deposit should belong to the administrator of the one last deceased. But where a deposit is in the joint names of two persons, not husband and wife, without any provision as to survivorship, no presumption as to survivorship ought to be indulged, and the case should be left to proof as to the respective portions of each depositor where one of them is deceased. In the absence of proof the deposit ought to be divided equally. Deposits are often made by one person in the name of an- other. In such a case evidence is always admissible to show the intention of the depositor in making the deposit. 4 Thus, where a father made a deposit in his daughter's name, evidence was admitted to show that he intended to make her trustee for him, because he already had in his own name as much money deposited as the law permitted. 5 The question as i* Gifford v. Rutland Sav. Inst, 63 2 Burke v. Slattery, 31 N. Y. Supp. Vt. 108. The man who drew the 825. deposit could not sign his own 3 Mulcahey v. Emigrant Sav. name properly, yet the court says Bank, 62 How. Pr. 463. Compare this was not a suspicious circum- In re Smith, 17 Abb. N. C. 78. stance. It may not be so in Ver- organization certificate, which shall specifically state: First The name assumed by such association ; which name shall be subject to the approval of the Comptroller of the Currency. Second. The place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the par- ticular county and city, town, or villaga Third. The amount of capital stock and the number of shares into which the same is to be divided. Fourth. The names and places of residence of the shareholders and the number of shares held by each of them. Fifth. The fact that the certificate is made to enable such persons to avail themselves of the advantages of this title. Act of May 1, 1886, 24 Stat. 18, provides, section two: That any national banking association may change its name or the place where its operations of discount and deposit are to be carried on, to any other place within the same State, not more than thirty miles distant, with the approval of the Comptroller of the Currency, by the vote of shareholders owning two-thirds of the stock of such association, and duly authenticated notice of the vote, and the new name of location selected snail be sent to the office of the Comptroller of the Currency; but no change of name or location shall be valid until the Comptroller shall have issued his certificate of approval of the same. 3. That all debts, liabilities, rights, provisions and powers of the asso- ciation under its old name shall devolve upon and inure to the associa- tion under its new name. 4. That nothing in this act contained shall be so construed as in any manner to release any national banking association under its old name or at its old location from any liability, or affect any action or proceed- ing at law in which said association may be or become a party or inter- ested. SEC. 5135. ACKNOWLEDGMENT AND FILING. The organization certifi- cate shall be acknowledged before a judge of some court of record, or notary public; and shall be, together with the acknowledgment thereof, authenticated by the seal of such court, or notary, transmitted to the Comptroller of the Currency, who shall record and carefully preserve the same in his offica SEC. 5136. COEPORATE POWERS. Upon duly making and filing arti- cles of association and an organization certificate, the association shall become, as from the date of the execution of its organization certificate, a body corporate, and as such, and in the name designated in the organ- ization certificate, it shall have power First. To adopt and use a corporate seal Second. To have succession for the period of twenty years from its organization, unless it is sooner dissolved according to the provisions of APPENDIX. 66T its articles of association, or by the act of its shareholders owning two- thirds of its stock, or unless its franchise becomes forfeited by some violation of law. Third. To make contracts. Fourth. To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons. Fifth. To elect or appoint directors, and by its board of directors ta appoint a president, vice-president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, Dismiss such officers or any of them at pleasure, and appoint others to fill their places. Sixth. To prescribe by its board of directors, by-laws not inconsistent with law, regulating the manner in which its stock shall be transferred, its directors elected or appointed, its officers appointed, its property transferred, its general business conducted, and the privileges granted to it by law exercised and enjoyed. Seventh. To exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and ne- gotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion ; by loaning money on personal security ; and by obtaining, issuing and circulating notes according to the provisions of this title. But no association shall transact any business except such as is inci- dental and necessarily preliminary to its organization, until it has been authorized by the Comptroller of the Currency to commence the busi- ness of banking. Act of July 12, 1882, 22 Stat. 162, provides: That any national banking association may, at any time within the two years next pre- vious to the date of the expiration of its corporate existence under pres- ent law, and with the approval of the Comptroller of the Currency, to be granted as hereinafter provided, extend its period of succession by amending its articles of association for a term of not more than twenty years from the expiration of the period of succession named in said ar- ticles of association, and shall have succession for such extended period,, unless sooner dissolved by the act of shareholders owning two-thirds of its capital stock, or unless its franchise becomes forfeited by some vio- lation of law, or unless hereafter modified and repealed. 2. That such amendment of said articles of association shall be au- thorized by the consent in writing of the shareholders owning not less than two-thirds of the capital stock of the association; and the board of directors shall cause such consent to be certified under the seal of the association, by its president, or cashier, to the Comptroller of the Cur- rency, accompanied by an application made by the president or cashier for the approval of the amended articles of association by the Comp- troller: and such amended articles of association shall not be valid until 668 BANKS AND BANKING. the Comptroller shall give to such association a certificate under his hand and seal that the association has complied with all the provisions required to be complied with, and is authorized to have succession for the extended period named in the amended articles of association. 3. That upon the receipt of the application of a certificate of the as- sociation, provided for in the preceding section, the Comptroller of the Currency shall cause a special examination to be made, at the expense of the association, to determine its condition; and if after such exam- ination or otherwise it appears to him that said association is in a satis- factory condition, he shall grant his certificate of approval provided for in the preceding section, or if it appears that the condition of said associa- tion is not satisfactory, he shall withhold such certificate of approval 4. That any association so extending the period of its succession, shall continue to enjoy all the rights and privileges and immunities granted, and shall continue to be subject to all the duties, liabilities and restrictions imposed by the Revised Statutes of the United States and other acts having reference to national banking associations, and it shall continue to be in all respects the identical association it was before the extension of its period of succession: Provided, however, that the juris- diction for suits hereafter brought by or against any association estab- lished under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associa- tions may be doing business when such suits may be begun ; and all laws and parts of laws of the United States inconsistent with this pro- viso be, and the same are hereby repealed. 5. That when any national banking association has amended its ar- ticled of association as provided in this act, and the Comptroller has granted his certificate of approval, any shareholder not assenting to such amendment, may give notice in writing to the directors within thirty days from the date of the certificate of approval, of his desire to withdraw from said association, in which case he shall be entitled to receive from said banking association the value of the shares so held by him, to be ascertained by an appraisal made by a committee of three persons, one to be selected by such shareholder, one by the directors, and the third by the first two; and in case the value so fixed shall not be satisfactory to any such shareholder, he may appeal to the Comp- troller of the Currency, who shall cause a re-appraisal to be made, which shall be final and binding; and if said re-appraisal shall exceed the value fixed by said committee, the bank shall pay said expenses, and the value so ascertained and determined shall be deemed to be a debt due, and be forthwith paid to said shareholder from said bank; and the shares so surrendered and appraised shall, after due notice, be sold at public sale, within thirty days after the final appraisal provided in this section: APPENDIX. G60 Provided, that in the organization of any banking association intended to replace any existing banking association, and retaining the name thereof, the holders of stock in the expiring association shall be entitled to preference in the allotment of the shares in the new association in proportion to the number of shares held by them respectively in the ex piring association. 6 provides for the redemption of the circulating notes of the bank securing an extension. 7. That national banking associations whose corporate existence ha expired or shall hereafter expire, and which do not avail themselves of the provisions of this act, shall be required to comply with the provis- ions of Revised Statutes, 5221 and 5222, in the same manner as if the shareholders had voted to go into liquidation, as provided in the Revised Statutes, 5220; and the provisions of the Revised Statutes, g 5224 and 5225, shall also be applicable to such associations, except as modified by this act; and the franchise of such association is hereby extended for the sole purpose of liquidating their affairs until such affairs are finally closed. 8. That national banks now organized or hereafter organized, hav- ing a capital of one hundred and fifty thousand dollars or less, shall not be required to keep on deposit or deposited with the Treasurer of the United States, bonds in excess of one quarter of their capital stock as security for their circulating notes; but such banks shall keep on de- posit or deposited with the Treasurer of the United States the amount of bonds as herein required. And such of those banks having on deposit boads in excess of that amount, are authorized to reduce their circula- tion by the deposit of lawful money as provided by law: Provided that the amount of such circulation shall not in any case exceed ninety per centum of the par value of the bonds deposited as herein provided: Provided further, that the national banks which shall hereafter make deposits of lawful money for the retirement in full of circulating note* shall at the time of their deposit be assessed for the cost of transporting and redeeming their notes then outstanding, a sum equal to the average cost of redemption of national bank notes during the preceding year, and shall thereupon pay such assessment. And all national banks which have heretofore made or shall hereafter make deposits of lawful money for the redemption of their circulation shall be assessed and pay such assessment in the manner specified in section three of the act ap- proved June 20, 1874, for the cost of transporting and redeeming their notes redeemed from such deposits subsequently to June 30, 1881. 8 9. That any national banking association now organized or here- after organized, desiring to withdraw its circulating notes, upon a de- posit of lawful money with the Treasurer of the United States, as provided in section four of the act of June 20, 1874, or as provided in this act, is authorized to deposit lawful money and withdraw a propor- tionate amount of the bonds held as security for the circulating notes> 70 BANKS AND BANKING. in the order of such deposits; and no national bank which makes any deposit of lawful money in order to withdraw its circulating notes, shall be entitled to receive any increase of its circulation for the period of six months from the time it m^,de such deposit of lawful money for the purpose aforesaid : Provided, that not more than three millions of dol- lars of lawful money shall be deposited during any calendar month for this purpose; and provided further, that the provisions of this section shall not apply to bonds called for redemption by the Secretary of t-he Treasury, nor to the withdrawal of circulating notes in consequence thereof. 10. That upon a deposit of bonds as described by 5159, 5160, except as modified by section four, of the act of June 20, 1874. and as modified by section eight of this act. the association making the same shall be entitled to receive from the Comptroller of the Currency circulating notes of different denominations, in blank, registered and countersigned as provided by law, equal in amount to ninety per centum of the cur- rent market value, not exceeding par, of the United States bonds so transferred and delivered, and at no time shall the total amount of such notes issued to any such association exceed ninety per centum of the amounts at such time paid in of its capital stock; and the provisions of Revised Statutes, 5171 and 5176, are hereby repealed. [Act of March 14, 1900, allows national banking associations to issue circulating notes up to the par value of the bonds deposited and up to the full amount of the capital stock.] 11 provides for the exchange of three and one-half per centum bonds for registered bonds of the United States. 12 provides for the reception by the Secretary of the Treasury of gold coin and the issuance of certificates therefor in denominations of not less than twenty dollars and provides for the retaining of the coin deposits in the Treasury. Said certificates shall be receivable for cus- toms, taxes, and all public dues, and when so received may be re-issued; and such certificates and also silver certificates when held by any na- tional banking association, shall be counted as part of its lawful reserve; and no national banking association shall be a member of any clearing- house in which such certificates shall not be receivable in the settlement of clearing-house balances: Provided, that the Secretary of the Treasury shall suspend the issue of such gold certificates whenever the amount of gold coin and gold bullion in the treasury reserve for the redemption of United States notes falls below one hundred million dollars; and the provisions of Revised Statutes, 5207, shall be applicable to the certifi- cates herein authorized and directed to be issued. [Act of March 14, 1900, makes the gold reserve in the Treasury one hundred and fifty million dollars.] 13. That any officer, clerk or agent of any national banking associa- tion who shall wilfully violate the provisions of 5208, Revised Statutes, or who shall resort to any device, or receive a fictitious obligation, directly APPENDIX. 671 or as collateral, in order to avoid the provisions thereof, or who shall certify checks before the amount thereof shall have been regularly en- tered to the credit of the dealer upon the books of the banking associa- tion, shall be guilty of a misdemeanor, and shall on conviction thereof in any circuit or district court of the United States, be fined not more than five thousand dollars, or shall be imprisoned not more than five years, or both, in the discretion of the court. SEC. 5137. POWER TO HOLD REAL PROPERTY. A national banking association may purchase, hold, and convey real estate" for the following purposes, and for no others: First. Such as shall be necessary for its immediate accommodation in the transaction of its business. Second. Such as shall be mortgaged to it in good faith by way of se- curity for debts previously contracted. Third. Such as shall be conveyed to it in satisfaction of debts previ- ously contracted in the course of its dealings. Fourth. Such as it shall purchase at sales under judgments, decrees, or mortgages held by the association, or shall purchase to secure debts due to it. But no such association shall hold the possession of any real estate under mortgage, or the title and possession of any real estate purchased to secure any debts due to it, for a longer period than five years. SEC. 5138. REQUISITE AMOUNT OF CAPITAL. No association shall be organized under this title with a less capital than one hundred thou- sand dollars; except that banks with a capital of not less than fifty thousand dollars may, with the approval of the Secretary of the Treas- ury, be organized in any place the population of which does not exceed flix thousand inhabitants. No association shall be organized in a city the population of which exceeds fifty thousand persons with a less cap- ital than two hundred thousand dollars. [Act of March 14, 1900, allows formation of national banking asso- ciations with capital of $25,000 in cities with less than 8,000 inhabitants.] SEC. 5139. SHARES OF STOCK AND TRANSFERS. The capital stock of such association shall be divided into shares of one hundred dollars each, and be deemed personal property, and transferable on the books of the association in such manner as may be prescribed in the by-laws or arti- cles of association. Every person becoming a shareholder by such trans- fer shall, in proportion to his shares, succeed to all the rights and liabili- ties of the prior holder of such shares; and no change shall be made in the articles of association, by which the rights, remedies, or security of the existing creditors of the association shall be impaired. SEC. 5140. PAYMENT OF CAPITAL STOCK. At least fifty per centum of the capital stock of every association shall be paid in before it shall be authorized to commence business; and the remainder of the capital stock of such association shall be paid in instalments of at least ten per centum each, on the whole amount of the capital, as frequently as one 672 BANKS AND BANKING. instalment at the end of each succeeding month from the time it shall be authorized by the Comptroller of the Currency to commence busi- ness; and the payment of each instalment shall be certified to the Comptroller, under oath, by the president or cashier of the associa- tion. SEC. 5141. FAILURE TO PAY INSTALMENTS. Whenever any shareholder, or his assignee, fails to pay any instalment on the stock when the same is required by the preceding section to be paid, the directors of such association may sell the stock of such delinquent shareholder at public auction, having given three weeks' previous notice thereof in a news- paper published and of general circulation in the city or county where the association is located, or if no newspaper is published in said city or county, then in a newspaper published nearest thereto, to any person who will pay the highest price therefor, to be not less than the amount then due thereon, with the expenses of advertisement and sale; and the excess, if any, shall bs paid to the delinquent shareholder. If no bidder can be found who will pay for such stock the amount due thereon to the association, and the cost of advertisement and sale, the amount pre- viously paid shall be forfeited to the association, and such stock shall bo sold as the directors may order, within six months from the time of sucli forfeiture, and if not sold it shall be canceled and deducted from the capital stock of the association. If any such cancellation and reduction shall reduce the capital of the association below the minimum of capital required by law, the capital stock shall, within thirty days from the date of such cancellation, be increased to the required amount; in de- fault of which a receiver may be appointed, according to the provisions of section fifty-two hundred and thirty-four, to close up the business of the association. SEC. 5143. INCREASE OF STOCK. Any association formed under tins- title may, by its articles of association, provide for an increase of its capital from time to time, as may be deemed expedient, subject to the limitations of this title. But the maximum of such increase to be pro- vided in the articles of association shall be determined by the Comp- troller of the Currency; and no increase of capital shall be valid until the whole amount of such increase is paid in, and notice thereof has been transmitted to the Comptroller of the Currency, and his certificate obtained specifying the amount of such increase of capital stock, with hi* approval thereof, and that it has been duly paid in as part of the capital of such association. Act May 1, 1886, 24 Stat. 18. That any national banking asso- ciation may, with the approval of the Comptroller of the Currency, by the vote of shareholders owning two-thirds of the stock of such associa- tion, increase its capital stock, in accordance with the existing laws, to any sum approved by the said Comptroller, notwithstanding the limit fixed in its orignal articles of association as determined by said Comp- troller; and no increase of the capital stock of any national banking APPENDIX. G73 association, either within or beyond the limit fixed in its original articles of association, shall be made except in the manner herein provided. SEC. 5143. REDUCTION OF CAPITAL STOCK. Any association formed under this title may. by the vote of shareholders owning two-thirds of its capital stock, reduce its capital to any sum not below the amount required for its outstanding circulation, nor shall any such reduction be made until the amount of the proposed reduction has been reported to the Comptroller of the Currency and his approval thereof obtained. SEC." 5144 RIGHT OF SHAREHOLDERS TO VOTE. In all elections of directors, and in deciding all questions at meetings of shareholders, each shareholder shall be entitled to one vote on each share of stock held by him. Shareholders may vote by proxies duly authorized in writing; but no officer, clerk, teller, or bookkeeper of such association shall act as proxy; and no shareholder whose liability is past due and unpaid shall be allowed to vote. SEC. 5145. ELECTION OF DIRECTORS. The affairs of each association shall be managed by not less than five directors, who shall be elected by the shareholders at a meeting to be held at any time before the asso- ciation is authorized by the Comptroller of the Currency to commence the business of banking; and afterward at meetings to be held on such day in January of each year as is specified therefor in the articles of association. The directors shall hold office for one year, and until their successors are elected and have qualified. SEC. 5146. REQUISITE QUALIFICATIONS OF DIRECTORS. Every director must, during his whole term of service, be a citizen of the United States, and at least three-fourths of the directors must have resided in the State, Territory, or district in which the association is located, for at least one year immediately preceding their election, and must be resi- dents therein during their continuance in office. Every director must own, in his own right, at least ten shares of the capital stock of the as- sociation of which he is a director. Any director who ceases to be the owner of ten shares of the stock, or who becomes in any other manner disqualified, shall thereby vacate his place. SEC. 5147. OATH OF DIRECTORS AND FILING THEREOF. Each director, when appointed or elected, shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such association, av 1 will not knowingly violate, or willingly permit to be violated, any of the provisions of this title, and that he is the owner in good faith, and in his own right, of the number of shares of stock re- quired by his title, subscribed by him, or standing in his name on the books of the association, and that the same is not hypothecated, or in any way pledged, as security for any loan or debt Such oath, sub- scribed by the director making it, and certified by the officer before whom it is taken, shall be immediately transmitted to the Comptroller of the Currency, and shall be filed and preserved in his office. 43 674 BANKS AND BANKING. SEC. 5148. FILLING VACANCIES. Any vacancy in the board shall be filled by appointment by the remaining directors, and any director so appointed shall hold his place until the next election. SEC. 5149. PROCEEDINGS WHERE NO ELECTION. If, from any cause, an election of directors is not made at the time appointed, the association shall not for that cause be dissolved, but an election may be held on any subsequent day, thirty days' notice thereof in all cases having been given in a newspaper published in the city, town, or county in which the as- sociation is located: and if no newspaper is published in such city, town, or county, such notice shall be published in a newspaper published near- est thereto. If the articles of association do not fix the day on which the election shall be held, or if no election is held on the day fixed, the day for the election shall be designated by the board of directors in their by-laws, or otherwise; or if the directors fail to fix the date, shareholders representing two-thirds of the shares may do so. SEC. 5150. PRESIDENT. One of the directors, to be chosen by the board, shall be the president of the board. SEC. 5151. INDIVIDUAL LIABILITY OP SHAREHOLDERS. The sharehold- ers of every national banking association shall be held individually re- sponsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association to the extent of the amount of their stock therein, at the par value theroof, in addition to the amount invested in such shares; except-that shareholders of any banking asso- ciation now existing under State laws, having not less than five millions of dollars of capital actually paid in, and a surplus of twenty per centum on hand, both to be determined by the Comptroller of the Currency, shall be liable only to the amount invested in such shares; and such sur- plus of twenty per centum shall be kept undiminished, and be in addi- tion to the surplus provided for in this title; and if at any time there is a deficiency in such surplus of twenty per centum, such association shall not pay any dividends to its shareholders until the deficiency is made good; and in case of such deficiency, the Comptroller of the Currency may compel the association to close its business and wind up its affairs under the provisions of Chapter four of this title. SEC. 5152. EXECUTORS, TRUSTEES, &c. Persons holding stock as exec- utors, administrators, guardians, or trustees, shall not be personally sub- ject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the tes- tator, intestate, ward, or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name. SEC. 5153. PUBLIC DEPOSITARIES. All national banking associations, designated for that purpose by the Secretary of the Treasury, shall be depositaries of public money, except receipts from customs, under such regulations as may be prescribed by the Secretary; and they may also be employed as financial agents of the Government; and they shall per- APPENDIX. 675 form all such reasonable duties, as depositaries of public moneys and financial agents of the Government, as may be required of them. The Secretary of the Treasury shall require the associations thus designated to give satisfactory security, by the deposit of United States bonds and otherwise, for the safe keeping and prompt payment of the public money deposited with them, and for the faithful performance of their duties as financial agents of the Government. And every association so designated as receiver or depositary of the public money, shall take and receive at par all of the national currency bills, by whatever asso- ciation issued, which have been paid into the Government, for internal revenue, or for loans or stocks. SEC. 5154 CHANGE OF STATE BANKS TO NATIONAL BANKS. Any bank incorporated by special law, or any banking institution organized under a general law of any State, may become a national association under this title by the name prescribed in its organization certificate; and in such case the articles of association and the organization certificate may be executed by a majority of the directors of the bank or banking institution; and the certificate shall declare that the owners of two- thirds of the capital stock have authorized the directors to make such certificate, and to change and convert the bank or banking institution into a national association. A majority of the directors, after execut- ing the articles of association and organization certificate, shall have power to execute all other papers, and to do whatever may be required to make its organization perfect and complete as a national association. The shares of any such bank may continue to be for the same amount each as they were before the conversion, and the directors may con- tinue to be the directors of the association until others are elected or appointed in accordance with the provisions of this chapter; and any State bank which is a stockholder in any other bank, by authority of State laws, may continue to hold its stock, although either bank, or both, may be organized under and have accepted the provisions of this title. When the Comptroller of the Currency has given to such asso- ciation a certificate, under his hand and official seal, that the provisions of this title have been complied with, and that it is authorized to com- mence the business of banking, the association shall have the same powers and privileges, and shall be subject to the same duties, respon- sibilities, and rules, in all respects, as are prescribed for other associa- tions originally organized as national banking associations, and shall be held and regarded as such an association. But no such association shall have a less capital than the amount prescribed for associations organ- ized under this titla Act of February 14, 1880, 21 Stat. 66, provides: That any na- tional gold bank organized under the provisions of the laws of the United States, may, in the manner and subject to the provisions prescribed by Revised Statutes, 5154, for the conversion of banks incorporated under the laws of any State, cease to be a gold bank, and become such an 676 BANKS AND BANKING. association as is authorized by 5133, for carrying on the business of banking, and shall have the same powers and privileges, and shall be subject to the same duties, responsibilities, and rules, in all respects, as are by law prescribed for such associations: Provided, that all certificates of organization which shall be included under this act, shall bear the date of the original organization of each bank respectively as a gold bank. SEC. 5155. STATE BANKS WITH BRANCHES. It shall be lawful for any bank or banking association organized under State laws, and having branches, the capital being joint and assigned to and used by the mother bank and brandies in definite proportions, to become a national banking association in conformity with existing laws, and to retain and keep in operation its branches, or such one or more of them as it may elect to retain; the amount of the circulation redeemable at the mother bank, and each branch, to be regulated by the amount of capital assigned to and used by each. SEC. 5156. Reserves the rights of associations organized under the Act of 1863. SEC. 5158. REGISTERED BONDS. The term "United States bonds," as used throughout this chapter, shall be construed to mean registered bonds of the United States. SEC. 5159. DEPOSITED BONDS. Every association, after having com- plied with the provisions of this title, preliminary to the commencement of the banking business, and before it shall be authorized to commence banking business under this title, shall transfer and deliver to the Treas- urer of the United States any United States registered bonds, bearing interest, to an amount not less than thirty thousand dollars and not less than one-third of the capital stock pa id in. Such bonds shall be received by the Treasurer upon deposit, and shall be by him safely kept in his office, until they shall be otherwise disposed of, in pursuance of the provisions of this title. SEC. 5160. INCREASE OR REDUCTION OF DEPOSIT. The deposit of bonds made by each association shall be increased as its capital may be paid up or increased, so that every association shall at all times have on de- posit with the Treasurer registered United States bonds to the amount of at least one-third of its capital stock actually paid in. And any asso- ciation that may desire to reduce its capital or to close up its business and dissolve its organization, may take up" its bonds upon returning to the Comptroller its circulating notes in the proportion hereinafter re- quired, or may take up any excess of bonds beyond cfne-third of its cap- ital stock, and upon which no circulating notes have been delivered. SEC. 5161. EXCHANGE OP COUPON FOR REGISTERED BONDS. To facili- tate a compliance with the two preceding sections, the Secretary of the Treasury is authorized to receive from any association, and cancel, any United States coupon bonds, and to issue in lieu thereof registered bonds of like amounts, bearing a like rate of interest, and having the same time to run. APPENDIX. 677 SEC. 5162. MANNER OF MAKING TRANSFERS OF BONDS. All transfers in United States bonds, made by any association under the provisions of this title, shall be made to the Treasurer of the United States in trust for the association, with a memorandum written or printed on each bond, and signed by the cashier, or some other officer of the association making the deposit. A receipt shall be given to the association, by the Comptroller of the Currency, or by a clerk appointed by him for that purpose, stating that the bond is held in trust for the association on whose behalf the transfer is made, and as security for the redemption and payment of any circulating notes that have been or may be deliv- ered to such association. No assignment or transfer of any such bond by the Treasurer shall be deemed valid unless countersigned by the Comptroller of the Currency. SEC. 5163. REGISTRY OF TRANSFERS. The Comptroller of the Cur- rency shall keep in his office a book in which he shall cause to be en- tered, immediately upon countersigning it, every transfer or assignment by the Treasurer, of any bonds belonging to a national banking associa- tion, presented for his signature. He shall state in such entry the name of the association from whose accounts the transfer is made, the name of the party to whom it is made, and the par value of the bonds trans- ferred. SEC. 5164 NOTICE OF TRANSFER. The Comptroller of the Currency shall, upon countersigning and entering any transfer or assignment by the Treasurer, of any bonds belonging to a national banking association, advise by mail the association from whose accounts the transfer is made, of the kind and numerical designation of the bonds, and the amount thereof so transferred. SEC. 5165. EXAMINATION OF REGISTRY. The Comptroller of the Cur- rency shall have at all times, during office hours, access to the books of the Treasurer of the United States for *the purpose of ascertaining the correctness of any transfer or assignment of the bonds deposited by an association, presented to the Comptroller to countersign ; and the Treas- urer shall have the like access to the book mentioned in section fifty-one hundred and sixty-three, during office hours, to ascertain the correctness of the entries in the same; and the Comptroller shall also at all times have access to the bonds on deposit with the Treasurer, to ascertain their amount and condition. SEC. 5166. ANNUAL EXAMINATION OF BONDS. Every association hav- ing bonds deposited in the office of the Treasurer of the United States shall, once or oftener in each fiscal year, examine and compare the bonds pledged by the association with the books of the Comptroller of the Currency and with the accounts of the association, and, if they are found correct, shall execute to the Treasurer, a certificate setting forth the dif- ferent kinds and the amounts thereof, and that the same are in the pos- session and custody of the Treasurer at the date of the certificate. Such examination shall be made at such time or times, during the ordinary 678 BANKS A1TD BANKING. business hours, as the Treasurer and Comptroller, respectively, may se- lect, and may be made by the officer or agent of such association, duly appointed in writing for that purpose; and his certificate before-men- tioned shall be of like force and validity as if executed by the president or cashier. A duplicate of such certificate signed by the Treasurer, shall be retained by the association. SEC. 5167. CUSTODY OP BONDS AND COLLECTION OF INTEREST. The bonds transferred to and deposited with the Treasurer of the United States, by any association, for the security of its circulating notes, shall be held exclusively for that purpose, until such notes are redeemed, as provided in this title. The Comptroller of the Currency shall give to any such association powers of attorney to receive and appropriate to its own use the interest on the bonds which it has so transferred to the Treasurer; but such powers shall become inoperative whenever such association fails to redeem its circulating notes. Whenever the market or cash value of any bonds thus deposited with the Treasurer is reduced below the amount of the circulation issued for the same, the Comptroller may demand and receive the amount of such depreciation in other Dnited States bonds at cash value, or in money, from the association, to be deposited with the Treasurer as long as such association continues. And the Comptroller, upon the terms prescribed by the Secretary of the Treasury, may permit an exchange to be made of any of the bonds de- posited with the Treasurer by any association for other bonds of the United States authorized to be received as security for circulating notes' if he is of opinion that such an exchange can be made without prejudice to the United States; and he may direct the return of any bonds to the association which transferred the same, in sums of not less than one thousand dollars upon the surrender to him and the cancellation of a proportionate amount of such circulating notes: Provided, that the re- maining bonds which shall have been transferred by the association offering to surrender circulating notes, are equal to the amount required for the circulating notes not surrendered by such association, and that the amount of bonds in the hands of the Treasurer is not diminished below the amount required to be kept on deposit with him, and that there has been no failure by the association to redeem its circulating notes, nor any other violation by it of the provisions of this title, and that the market or cash value of the remaining bonds is not below the amount required for the circulation issued for the same. SEC. 5168. COMPTROLLER'S EXAMINATION. Whenever a certificate is- transmitted to the Comptroller of the Currency as provided in this title, and the association transmitting the same notifies the Comptroller that at least fifty per centum of its capital stock has been duly paid in, and that such association has complied with all the provisions of this title required to be complied with before an association shall be authorized to commence the business of banking, the Comptroller shall examine into the condition of such association, ascertain especially the amount APPENDIX. 679 of money paid in on account of its capital, the name and place of resi- dence of each of its directors, and the amount of capital stock of which each is the owner in good faith, and generally whether such association has complied with all the provisions of this title required to entitle it to engage in the business of banking; and shall cause to be made and attested by the oath of a majority of the directors, and by the president or cashier of the association, a statement of all the facts necessary to enable the Comptroller to determine whether the association is lawfully entitled to commence the business of banking. SEC. 5169. CERTIFICATE OF AUTHORITY. If, upon a careful examina- tion of the facts so reported and of any other facts which may come to the knowledge of the Comptroller, whether by means of a special com- mission appointed by him for the purpose of inquiry into the condition of such association, or otherwise, it appears that such association is law- fully entitled to commence the business of banking, the Comptroller shall give to such association a certificate, under his hand and official seal, that such association has complied with all the provisions required to be complied with before commencing the business of banking, and that such association is authorized to commence such business. But the Comptroller may withhold from an association v his certificate au- thorizing the commencement of business, whenever he has reason to suppose that the shareholders have formed the same for any other than the legitimate objects contemplated by this title. SEC. 5170. PUBLICATION OF CERTIFICATE. The association shall cause the certificate issued under the preceding section to be published in some newspaper printed in the city or county where the association is located, for at least sixty days next after the issuing thereof; or, if no newspaper is published in such city or county, then in the newspaper published nearest thereto. SEC. 5171. Repealed. See section 10, Act of July 12, 1882. SEC. 5172. Prescribes directions for the printing, denominations and form of the circulating notes. SEC. 5173. Provides for the custody of the plates and special dies for the printing of notes. SEC. 5174 Provides for an annual examination of the plates and dies. SEC. 5175. DENOMINATIONS OF NOTES. Not more than one-sixth part of the notes furnished to any association shall be of a less denomination than five dollars. After specie payments are resumed, no association shall be furnished with notes of a less denomination than five dollars. SEC. 5176. Repealed. SEC. 5177. Repealed. SEC. 5178. Apportions aggregate amount of circulating notes among the various States and Territories. SEC. 5179. Provides for equalizing the distribution. SEC. 5180. Provides for the withdrawal of notes of associations in pur suance of such equalization. 680 BANKS AND BANKING. SEC. 5181. Provides for the removal of any association located in a State having more than its proportion of circulation to a State having less than its proportion. Act of January 19, 1875, 18 Stat. 296, provides: That each ex- isting banking association may increase its circulating notes in accord- ance with existing law without respect to said aggregate limit; and new- banking associations may be organized in accordance with existing law without respect to said aggregate limit; and the provisions of law for the withdrawal and redistribution of national bank currency among the several States and Territories are hereby repealed. SEC. 5182. NATIONAL BANK NOTES AND MONEY. After any associa- tion receiving circulating notes under this title has caused its promise to pay such notes on demand to be signed by the president or vice-presi- dent and cashier thereof, in such manner as to make them obligatory promissory notes, payable on demand, at its place of business, such as- sociation may issue and circulate the same as money. And the same shall be received at par in all parts of the United States in payment of taxes, excises, public lands, and all other dues to the United States, ex- cept duties on imports: and also for all salaries and other debts and demands owing by the United States to individuals, corporations and associations within the United States, except interest on the public debt, and in redemption of the national currency. Act of July 28, 1892, 27 Stat. 322, provides that the provisions of the Revised Statutes of the United States providing for the redemp- tion of national bank notes, shall apply to all national bank notes that have been or may be issued to, or received by. any national bank, not- withstanding such notes may have been lost by or stolen from a bank and put in circulation without the signature or upon the forged signa- ture of the president or vice-president and cashier. SEC. 5183. PROHIBITION OF OTHER NOTES. No national banking asso- ciation shall issue post notes or any other notes to circulate as money than such as are authorized by the provisions of this titla SEC. 5184 WORN-OUT AND MUTILATED NOTES. It shall be the duty of the Comptroller of the Currency to receive worn-out or mutilated circu- lating notes issued by any banking association, and also, on due proof of the destruction of any such circulating notes, to deliver in place thereof to the association other blank circulating notes to an equal amount. Such worn-out or mutilated notes, after a memorandum has been en- tered in the proper books, in accordance with such regulations as may be established by the Comptroller, as well as all circulating notes which shall have been paid or surrendered to be canceled, shall be burned to ashes in presence of four persons, one to be appointed by the Secretary of the Treasury, one by the Comptroller of the Currency, one by the Treasurer of the United States, and one by the association, under such regulations as the Secretary of the Treasury may prescribe. A certificate of such burning, signed by the parties so appointed, shall be made in APPENDIX. 681 the books of the Comptroller, and a duplicate thereof forwarded to the association whose notes are thus canceled. SEC. 5185. ORGANIZATION OP ASSOCIATIONS TO ISSUE GOLD NOTES. Associations may be organized in the manner prescribed by this title for the purpose of issuing notes payable in gold; and upon the deposit of any Unitsd States bonds bearing interest payable in gold with the Treas- urer of the United States, in the manner prescribed for other associa- tions, it shall be lawful for the Comptroller of the Currency to issue to the association making the deposit circulating notes of different de- nominations, but none of them of less than five dollars and not exceed- ing in amount eighty per centum of the par value of the bonds deposited, which shall express the promise of the association to pay them, upon presentation at the office at which they are issued, in gold coin of the United States, and shall be so redeemable. But no such association shall have a circulation of more than one million of dollars. Act of January 19, 1875, 18 Stat. 302, provides that each of such existing banking associations may increase its circulating notes, and new banking associations may be organized, in accordance with ex- isting law, without respect to such limitation. SEC. 5186. LAWFUL MONEY RESERVES. Every association organized under the preceding section shall at all times keep on hand not less than twenty-five per centum of its outstanding circulation, in gold or silver coin of the United States; and shall receive at par in the payment of debts the gold notes of every other such association which at the time of such payment is redeeming its circulating notes in gold coin of the United States, and shall be subject to all the provisions of this title: Provided, that, in applying the same to associations organized for issuing gold notes, the terms " lawful money " and " lawful money of the United States " shall be construed to mean gold or silver coin of the United States; and the circulation of such associations shall not be within the limitation of circulation mentioned in the title. SEC. 5187. PENALTY FOR ISSUING CIRCULATING NOTES TO UNAUTHOR- IZED ASSOCIATIONS. No officer acting under the provisions of this title shall countersign or deliver to any association, or to any other Company or person, any circulating notes contemplated by this title, except in ac- cordance with the true intent and meaning of its provisions. Every officer who violates this section shall be deemed guilty of a high misde- meanor, and shall be fined not more than double the amount so counter- signed and delivered, and imprisoned not less than one year and not more than fifteen years. SEC. 5188. IMITATION OF NOTES FOR ADVERTISING. It shall not be lawful to design, print, or in any manner make or execute, or to utter, issue, distribute, circulate, or use, any business or professional card, no- tice, placard, circular, hand-bill, or advertisement, in the likeness or similitude, of any circulating note or other obligation or security of any banking association organized or acting under the laws of the United 682 BANKS AND BANKING. States which has been or may be issued under this title, or any act of Congress, or to write, print, or otherwise impress upon any such note, obligation, or security any business or professional card, notice or adver- tisement, or any notice or advertisement of any matter or thing what- ever. Every person who violates this section shall be liable to a penalty of one hundred dollars, recoverable one half to the use of the informer. SEC. 5189. MUTILATION OF BANK NOTES. Every person who mutilates, cuts, defaces, disfigures, or perforates with holes, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt, issued by any national banking association, or who causes or procures the same to be done, with intent to render such bank bill, draft, note or other evidence of debt unfit to be re-issued by said association, shall be liable to a penalty of fifty dollars, recoverable by the association. SEC. 5190. PLACE OF BUSINESS. The usual business of each national banking association shall be transacted at an office or banking house located in the place specified in its organization certificate. SEC. 5191. LAWFUL MONEY RESERVE. Every national banking asso- ciation in either of the following cities: Albany, Baltimore, Boston, Cin- cinnati, Chicago, Cleveland, Detroit, Louisville, Milwaukee, New Orleans, New York, Philadelphia, Pittsburgh, Saint Louis, San Francisco, and Washington, shall at all times have on hand, in lawful money of the United States, an equal amount to at least twenty-five per centum of the aggregate amount of its notes in circulation and its deposits; and every other association shall at all times have on hand, in lawful money of the United States, an equal amount to at least fifteen per centum of the aggregate amounts of its notes in circulation, and of its deposits. When- ever the lawful money of any association in any of the cities named shall be below the amount of twenty-five per centum of its circulation and deposits, and whenever the lawful money of any other association shall be below fifteen per centum of its circulation and deposits, such association shall not increase its liabilities by making any new loans or discounts otherwise than by discounting or purchasing bills of exchange payable at sight, nor make any dividend of its profits until the required proportion, between the aggregate amount of its outstanding notes of circulation and deposits and its lawful money of the United States, has been restored. And the Comptroller of the Currency may notify any association, whose lawful money reserve shall be below the amount above required to be kept on hand, to make good such reserve; and if such association shall fail for thirty days thereafter so as to make good its reserve of lawful money, the Comptroller may, with the concurrence of the Secretary of the Treasury, appoint a receiver to wind up the busi- ness of the association, as provided in section fifty two hundred and thirty-four. Stat. of March 3, 1887, 25 Stat. 559, provides that whenever three-fourths in number of the national banks located in any city in APPENDIX. 683 the United States having a population of fifty thousand people shall make application to the Comptroller of the Currency, in writing, asking that the name of the city in which such banks are located shall be added to the cities named in the Revised Statutes, sections fifty-one hundred and ninety-one and fifty-one hundred and ninety-two, the Comp- troller shall have authority to grant such request, and every bank located in such city shall at all times thereafter have on hand, in lawful money of the United States, an amount equal to at least twenty-five per centum of its deposits, as provided in Revised Statutes, sections fifty-one hun- dred and ninety-one and fifty-one hundred and ninety-five. 2. That whenever three-fourths in number of the national banks located in any city of the United States having a population of two- hundred thousand people shall make application to the Comptroller of the Currency, in writing, asking that such city may be a central reserve city, like the City of New York, in which one-half of the lawful money reserve of the national banks located in other reserve cities, may be de- posited, as provided in Revised Statutes, section fifty-one hundred and ninety-five, the Comptroller shall have authority, with the approval of the Secretary of the Treasury, to grant such request, and every bank located in such city shall at all times thereafter have on hand, in law- ful money of the United States, twenty-five per centum of its deposits, aa provided in the Revised Statutes, section fifty-one hundred and ninety- ona SEC. 5192. WHAT MAY BE COUNTED TOWARD LAWFUL MONEY RE- SERVE. Three-fifths of the reserve of fifteen per centum required by the preceding section to be kept, may consist of balances due to an as- sociation, available for the redemption of its circulating notes, from associations approved by the Comptroller of the Currency, organized under the act of June three, eighteen hundred and sixty-four, or under this title, and doing business in the cities of Albany, Baltimore, Boston, Charleston, Chicago, Cleveland, Detroit, Louisville, Milwaukee, New Or- leans, New York, Philadelphia, Pittsburgh, Richmond, Saint Louis, San Francisco, and Washington. Clearing-house certificates, representing specie or lawful money specially deposited for the purpose, of any clear- ing-house association, shall also be deemed to be lawful money in the pos- session of any association belonging to such clearing-house, holding and owning such certificate, within the preceding section. Act of June 20, 1874, 18 Stat. 123, provides, section two, that section thirty-one of the National Bank Act (section fifty-one hundred and ninety-one, fifty-one hundred and ninety-two, Revised Statutes) be so- amended that the central associations therein provided for shall not hereafter be required to keep on hand any amount of money whatever, by reason of the amount of their respective circulations; but the moneys required by said section to be kept at all times on hand shall be deter- mined by the amount of deposits in all respects, as provided for in said section. BANKS AND BANKING. 3. That every association organized, or to be organized under the provisions of said act, and of the several acts amendatory thereof, shall at all times keep and have on deposit in the Treasury of the United States in lawful money of the United States, a sum equal to five per centum of its circulation, to be held and used for the redemption of such circulation; which sum shall be counted as a part of its general reserve, as provided in section two of this act; and when the circul it- ing notes of any such associations, assorted or unassorted shall be pre- sented for redemption, in sums of one thousand dollars, or any multiple thereof, to the Treasurer of the United States, the same shall be re- deemed in United States notes. All notes so redeemed shall be charged by the Treasurer of the United States to the respective associations issuing the same, and he shall notify them separately on the first day of each month, or oftener, at his discretion, of the amount of such re- demptions; and whenever such redemptions for any association shall amount to the sum of five hundred dollars, such association so notified shall forthwith deposit with the Treasurer of the United States a sum in UnitoJ. States notes equal to the amount of its circulating notes so redeemed. And all notes of national banks, worn, defaced, mutilated, or otherwise unfit for circulation shall, when received by any assistant treasurer, or at any designated depositary of 'the United States, be for- warded to the Treasurer of the United States for redemption as pro- vided herein. And when such redemptions have been so reimbursed, the circulating notes so redeemed shall be forwarded to the respective associations by which they were issued; but if any such notes are worn, mutilated, defaced, or rendered otherwise unfit for use, they shall be forwarded to the Comptroller of the Currency and destroyed and re- placed as now provided by law: Provided, that each of said associa- tions shall reimburse to the treasury the charges for transportation and the cost for assorting such notes; and the associations hereafter organized shall also severally reimburse to the treasury the cost of en- graving such plates as shall be ordered by each association respectively; and the amount assessed by each association shall be in proportion to the circulation redeemed, and be charged to the fund on deposit with the Treasurer; and provided further, that so much of section thirty -two of said National Bank Act requiring or permitting the redemption of its circulating notes elsewhere than at its own counter, except as pro- vided for in this section, is hereby repealed. (Act of March 3, 1875, 18 Stat. 399, provides for the reimburse- ment of the Treasurer by the Secretary of the Treasury of the expenses incurred under this act.) 4. That any association organized under this act or any of the acts of which this is an amendment, desiring to withdraw its circulating notes, in whole or in part, may, upon the deposit of lawful money with the Treasurer of the United States in sums of not. less than nine thou- sand dollars, take up the bonds which said association has on deposit APPENDIX. 685 with the Treasurer for the security of such circulating notes; which bonds shall be assigned to the bank in the manner specified in section nineteen of the National Bank Act; and the outstanding notes of the association to an amount equal to the legal tender notes deposited, shall be redeemed at the Treasury of the United States, and destroyed as now provided by law: Provided, that the amount of the bonds on deposit for circulation shall not be reduced below fifty thousand dollars. 5. Requires the Comptroller of the Currency to cause the charter numbers of the association to be printed upon all national bank note* hereafter issued. 6. That the amount of United States notes outstanding and to be used as a part of the circulating medium, shall not exceed the sum of three hundred and eighty-two millions of dollars, which said sum shall appear in each monthly statement of the public debt, and no part thereof shall be held or used as the reserve. SEC. 5193. CERTIFICATES OF DEPOSIT. The Secretary of the Treasury may receive United States notes on deposit, without interest, from any national banking associations, in sums of not less than ten thousand dol- lars, and issue certificates therefor' in such form as he may prescribe, in denominations of not less than five thousand dollars, and payable on de- mand in United States notes at the place where the deposits were made. The notes so deposited shall not be counted as part of the lawful money reserve of the association ; but the certificates issued therefor may be counted as part of its lawful money reserve, and may be accepted in the settlement of clearing-house balances at the places where the deposits therefor were made. SEC. 5194. LIMITATION ON CERTIFICATES. The power conferred on the Secretary of the Treasury, by the preceding section, shall not be exer- cised so as to create any expansion or contraction of the currency. And United States notes for which certificates are issued under that section, or other United States notes of like amount, shall be held as special de- posits in the Treasury, and used only for the redemption of such certifi- cates. SEC. 5195. PLACE OP REDEMPTION. Each association organized in any of the cities named in section fifty-one hundred and ninety-one shall select, subject to the approval of the Comptroller of the Currency, an association in the city of New York, at which it will redeem its circu- lating notes at par; and may keep one-half of its lawful money reserve in cash deposits in the city of New York. But the foregoing provision shall not apply to associations organized and located in the city of San Francisco for the purpose of issuing notes payable in gold. Each asso- ciation not organized within the cities named, shall select, subject to the approval of the Comptroller, an association in either of the cities named, at which it will redeem its circulating notes at par. The Comp- troller shall give public notice of the names of the associations selected, at which redemptions are to be made by the respective associations, and 686 BANKS AND BANKING. of any change that may be made of the association at which the notes of any association are redeemed. Whenever any association fails either to make the selection or to redeem its notes as aforesaid, the Comptrol- ler of the Currency may, upon receiving satisfactory evidence thereof, appoint a receiver in the manner provided for in section fifty-two hun- dred and thirty-four, to wind up its affairs. But this section shall not relieve any association from its liability to redeem its circulating notes at its own counter, at par. in lawful money on demand. (See section three of act of June 20, 1874, ante,) SEC. 5196. NATIONAL BANK NOTES. Every national banking associa- tion formed or existing under this title, shall take and receive at par, for any debt or liability to it, any and all notes or bills, issued by any lawfully organized national banking association. But this provision shall not apply to any association organized for the purpose of issuing notes payable in gold. SEC. 5197. RATE OF INTEREST. Any association may take, receive, re- serve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at the rate allowed by the State. Territory, or district where the bank is located, and no more, except that where by the laws of any State, a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State, under this Titla Where no rate is fixed by the laws of the State, or Territory, or district, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill, or other evi- dence of debt has to run. And the purchase, discount, or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount, or sale, at not more than the current rate of ex- change for sight drafts in addition to the interest, shall not be consid- ered as taking or receiving a greater rate of interest. SEC. 5198. EFFECT OF USURIOUS INTEREST. The taking, receiving, reserving or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt car- ries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such ac- tion is commenced within two years from the time the usurious trans- action occurred. Act of February 18, 1875, 18 Stat. 32O, provides that suits, actions, and proceedings against any association under this title may be had in any Circuit, District, or territorial court of the United States held within the district in which such association may be established, APPENDIX. 687 or in any state, county, or municipal court in the County or City in which said association is located having jurisdiction in similar cases. SEC. 5199. DIVIDENDS. The directors of any association may, semi- annually, declare a dividend of so much of the net profits of the asso- ciation as they shall judge expedient; but each association shall, before the declaration of a dividend, carry one-tenth part of its net profits of the preceding half year. to its surplus fund until the same shall amount to twenty per centum of its Capital stock. SEC. 5200. LIMITATION OF LIABILITY OP ANY BORROWER. The total liabilities to any association, of any pei-son, or of any company, corpora- tion, or firm for money borrowed including, in the liabilities of a com- pany or firm, the liabilities of the several members thereof, shall at no time exceed one-tenth part of the amount of the Capital stock of such association actually paid in. But the discount of bills of exchange drawn in good faith against actually existing values, and the discount of commercial or business paper actually owned by the person nego- tiating the same, shall not be considered as money borrowed. SEC. 5201. PURCHASE OF ITS OWN STOCK. No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or dis- posed of at public or private sale; or in default thereof, a receiver may be appointed to close up the business of the association, according to section fifty-two hundred and thirty-four. SEC. 5202. LIMIT UPON INDEBTEDNESS. No association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: First. Notes of circulation. Second. Moneys deposited with or collected by the association. Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association or due thereto. Fourth. Liabilities to the stockholders of the association for dividends and reserved profits. SEC. 5203. RESTRICTION UPON USE OF CIRCULATING NOTES. No as- sociation shall, either directly or indirectly, pledge or hypothecate any of its notes or circulation, for the purpose of procuring money to be paid in on its capital stock or to be used in its banking operations or otherwise; nor shall any association use its circulating notes, or any part thereof, in any manner or form, to create or increase its capital stock. SEC. 5204. PROHIBITION FROM WITHDRAWAL OF CAPITAL. No asso- ciation, or any member thereof, shall, during the time it shall continue its banking operations, withdraw, or permit to be withdrawn, either in 688 BANKS AND BANKING. the form of dividends or otherwise, any portion of its capital. If losses have at any time been sustained by any such association, equal to or ex- ceeding its undivided profits then on hand, no dividend shall be made; and no dividend shall ever be made by any association, while it contin- ues its banking operations, to an amount greater than its net profits then on hand, deducting therefrom its losses and bad debts. All debts due to any association, on which interest 's past due and unpaid for a period of six months, unless the same are well secured, and in process of collection, shall be considered bad debts within the meaning of this sec- tion. But nothing in this section shall prevent the reduction of the capital stock of the association under section fifty-one hundred and forty-three. SEC. 5205. PAYMENT OF DEFICIENCY. Every association which shall have failed to pay up its capital stock, as required by law, and every association whose capital stock shall have become impaired by losses or otherwise, shall, within three months after receiving notice thereof from the Comptroller of the Currency, pay the deficiency of the capital stock, by assessment upon the shareholders pro rata for the amount of capital stock held by each; and the Treasurer of the United States shall with- hold the interest upon all bonds held by him in trust for any such asso- ciation, upon notification from the Comptroller of the Currency, until otherwise notified by him. If any such association shall fail to pay up its capital stock, and shall refuse to go into liquidation, as provided by law, for three months after receiving notice from the Comptroller, a receiver may be appointed to close up the business of the association, according to the provisions of section fifty-two hundred and thirty-four. [And provided, that if any shareholder or shareholders of such bank shall neglect or refuse, after three months' notice, to pay the assessment, as provided in this section, it shall be the duty of the board of directors to cause a sufficient amount of the capital stock of such shareholder or shareholders to be sold at public auction (after thirty days' notice shall be given by posting such notice of sale in the office of the bank, and by publishing such notice in a newspaper of the city or town in which the bank is located, or in a newspaper published nearest thereto), to make good the deficiency, and the balance, if any, shall be returned to such delinquent shareholder or shareholders.] SEC. 5206. RESTRICTION UPON USE OF NOTES OF OTHER BANKS. No association shall at any time pay out on loans or discounts, or in pur- chasing drafts or bills of exchange, or in payment of deposits, or in any other mode pay or put in circulation, the notes of any bank or banking association which are not, at any such time, receivable, at par, on de- posit, and in payment of debts by the association so paying out or circu- lating such notes; nor shall any association knowingly pay out or put n circulation any notes issued by any bank or banking association which at the time of such paying out or putting in circulation, is not redeeming its circulating notes, in lawful money of the United States. APPENDIX. ' CS9 SEC. 5207. UNITED STATES NOTES OR BANK NOTES AS COLLATERAL. No association shall hereafter offer or receive United States notes or national bank notes as security or as collateral security for any loan of money, or for a consideration agree to withhold the same from use, or offer or receive the custody or promise of custody of sucli notes as secu- rity, or as collateral security, or consideration for any loan of money. Any association offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be fined not more than one thousand dollars and a further sum equal to one-third of the money so loaned. The officer or officers of any association who shall make any such loan shall be liable for a further sum equal to one-quarter of the money loaned; and any fine or penalty incurred by a violation of this section shall be recoverable for the benefit of the party bringing such suit. SEC. 5208. FALSELY CERTIFYING CHECKS. It shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon the association unless the person or company drawing the check has on deposit with the association, at the time such check is certified, an amount of money equal to the amount specified in such check. Any check so certified by duly authorized officers shall be a good and valid obligation against the association; but the act of any officer, clerk, or agent of any association, in violation of this section, shall subject such bank to the liabilities and proceedings on the part of the Comptroller as provided for in section fifty-two hundred and thirty- four. SEC. 5209. EMBEZZLEMENT. Every President, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association ; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other com- pany, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanoi-, and shall be imprisoned not less than five years nor more than ten. SEC. 5210. LIST OF SHAREHOLDERS. The president and cashier of every national banking association shall cause to be kept at all times a full and correct list of names and residences of all the shareholders in the association, and the number of shares held by each, in the office where its business is transacted. Such list shall be subject to the ia- 44 690 BANKS AND BANKING. speetion of all the shareholders and creditors of the association, and the officers authorized to assess taxes under State authority, during busi- ness hours of each day in which business may be legally transacted. A copy of such list, on the first Monday of July of each year, verified by the oath of such President or cashier, shall be transmitted to the Comp- troller of the Currency. SEC. 5211. REPORTS TO COMPTROLLER. Every association shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors. Each such report shall exhibit, in detail and under appropriate heads, the re- sources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after a request or requisition therefor from him, and in the same form in which it is made to the Comptroller shall be published in a newspaper published in the place where such association is estab- lished, or if there is no newspaper in the place, then in one published nearest thereto in the same county at the expense of the association : and such proof of publication shall be furnished as may be required by the Comptroller. The Comptroller shall also have power to call for spe- cial reports from any particular association whenever in his judgment the same are necessary in order to.a full and complete knowledge of its condition. Act of February 26, 1881, 21 Stat. 352, provides that the oath or affirmation required by section fifty-two hundred and eleven of the Revised Statutes, verifying the returns made by national banks to the Comptroller of the Currency, when taken before a notary public prop- erly authorized and commissioned by the State in which such notary resides and the bank is located, or any other officer having an official seal, authorized in such State to administer oaths, shall be sufficient verification as contemplated by said section fifty-two hundred and eleven: Provided, that the officer administering the oath is not an offi- cer of the bank. SEC. 5212. REPORT AS TO DIVIDENDS. In addition to the reports re- quired by the preceding section, each association shall report to the Comptroller of the Currency, within ten days after declaring any divi- dend, the amount of such dividend, and the amount of net earnings in excess of such dividend. Such reports shall be attested by the oath of the president or cashier of the association. SEO. 5213. PENALTY FOR FAILURE TO MAKE REPORT. Every associa- tion which fails to make and transmit any report required under either of the two preceding sections shall be subject to a penalty of one hun- dred dollars for each day after the periods, respectively, therein men- tioned, that it delays to make and transmit its report. Whenever any association delays or refuses to pay the penalty herein imposed, after APPENDIX. 691 it has been assessed by the Comptroller of the Currency, the amount thereof may be retained by the Treasurer of the United States, upon the order of the Comptroller of the Currency, out of the interest, as it may become due to the association, on the bonds deposited with him to secure circulation. All sums of money collected for penalties under this section shall be paid into the Treasury of the United States. SEC. 5214. TAXES PAYABLE TO THE UNITED STATES. In lieu of all existing taxes, every association shall pay to the Treasurer of the United States, in the months of January and July, a duty of one-half of one per centum each half year upon the average amount of its notes in cir- culation, and a duty of one quarter of one per centum each half year on the average amount of its capital stock, beyond the amount invested in United States bonds. SEC. 5315. RETURN OF CIRCULATION, DEPOSITS AND CAPITAL STOCK. In order to enable the Treasurer to assess the duties imposed by the preceding section, each association shall, with ten days from the first days of January and July of each year, make a return, under the oath of its president or cashier, to the Treasurer of the United States, in such form as the Treasurer may prescribe, of the average amount of its notes in circulation, and of the average amount of its deposits, and of tiie average amount of its capital stock, beyond the amount invested in United States bonds, for the six months next preceding the most recent first day of January or July. Every association which fails so to make such return shall be liable to a penalty of two hundred dollars, to be collected either out of the interest as it may become due such asso- ciation on the bonds deposited with the Treasurer, or, at his option, in the manner in which penalties are to be collected of other corporations under the laws of the United States. SEC. 5216. PENALTY FOR FAILURE TO MAKE RETURN. Whenever an association fails to make the half yearly return required by the preced- ing section, the duties to be paid by such association shall be assessed upon the amount of notes delivered to such association by the Comp- troller of the Currency, and upon the highest amount of its deposits and capital stock, to be ascertained in such manner as the Treasurer may deem best. SEC. 5217. PENALTY FOR FAILURE TO PAY DUTIES. Whenever an association fails to pay the duties imposed by the three preceding sec- tions, the sums due may be collected in the manner provided for the collection of United States taxes from other corporations; or the Treas- urer may reserve the amount out of the interest, as it may become due, on the bonds deposited with him by such defaulting association. SEC. 5218. REFUNDING EXCESSIVE DUTIES. In all cases where an asso- ciation has paid or may pay in excess of what may be or has been found due from it, on account of the duty required to be paid to the Treasurer of the United States, the association may state an account therefor, which, on being certified by the Treasurer of the United States, and G92 BANKS AND BANKING. found correct by the fisrt Comptroller of the Treasury, shall be refunded in the ordinary manner by warrant on the Treasury. SEC. 5219. TAXATION BY STATE. Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the association is located; but the legislature of each State may determine and direct the manner and place of taxing all the shares of national banking associa- tions located within the State, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by non-res- idents of any State shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to ex- empt the real property of associations from either State, county, or mu- nicipal taxes, to the same extent, according to its value, as other real property is taxed. SEC. 53.20. VOLUNTARY DISSOLUTION. Any association may go into liquidation and be closed by the vote of its shareholders owning two- thirds of its stock. SEC. 5221. NOTICE OF INTENT TO DISSOLVE. Whenever a vote is taken to go into liquidation it shall be the duty of the board of directors to cause notice of this fact to be certified, under the seal of the association, by its president or cashier, to the Comptroller of the Currency, and pub- lication thereof to be made for a period of two months in a newspaper published in the city of New York, and also in a newspaper published in the city or town in which the association is located, or if no news- paper is there published, then in the newspaper published nearest thereto, that the association is closing up its affairs, and notifying the holders of its notes and of her creditors to present the notes and other claims against the association for payment. SEC. 5222. DEPOSIT OF LAWFUL MONEY TO REDEEM NOTES. Within six months from the date of the vote to go into liquidation, the associa- tion shall deposit with the Treasurer of the United States, lawful money of the United States sufficient to redeem all its outstanding circulation. The Treasurer shall execute duplicate receipts for money thus deposited, and deliver one to the association and the other to the Comptroller of the Currency, stating the amount received by him, and the purpose for which it has been received; and the money shall be paid into the Treas- ury of the United States, and placed to the oredit of such association upon redemption account. SEC. 5223. ASSOCIATIONS CONSOLIDATING. An association which is in good faith winding up its business for the purpose of consolidating with another association shall not be required to deposit lawful money for its outstanding circulation; but its assets and liabilities shall be reported by the association with which it is in process of consolidation. APPENDIX. C93 SEC. 5224 RE-ASSIGNMENT OP BONDS. Whenever a sufficient deposit of lawful money to redeem the outstanding circulation of an association proposing to close its business has been made, the bonds deposited by the association to secure the payment of its notes shall be re-assigned to it, iu the manner prescribed by section fifty-one hundred and sixty- two. And thereafter the association and its shareholders shall stand discharged from all liabilities upon the circulating notes, and those notes shall be redeemed at the Treasury of the United States. [And if any such bank shall fail to make the deposit and take up its bonds for thirty days after the expiration of the time specified, the Comptroller of the Currency shall have power to sell the bonds pledged for the circula- tion of said bank, at public auclion in New York City, and, after providing for the redemption and cancellation of said circulation and the neces- sary expenses of the sale, to pay over any balance remaining to the bank or its legal representative.] SEC. 5225. DESTRUCTION OF REDEEMED NOTES. Whenever the Treas- urer has redeemed any of the notes of an association which has com- menced to close its affairs under the (six) (five) preceding sections, he shall cause the notes to be mutilated and charged to the redemption ac- count of the association; and all notes so redeemed by the Treasurer shall, every three months, be certified to and burned in the manner pre- scribed in section fifty-one hundred and eighty-four. SEC. 5226. MODE OP PROTESTING NOTES. Whenever any national banking association fails to redeem in the lawful money of the United States any of its circulating notes, upon demand of payment duly made during the usual hours of business, at the office of such association, or at its designated place of redemption, the holder may cause the same to be protested, in one package, by a Notary Public, unless the President or Cashier of the association whose notes are presented for payment, or the President or Cashier of the association at the place at which they are redeemable offers to waive demand and notice of the protest, and, in pursuance of such offer, makes, signs, and delivers to the party making such demand an admission in writing, stating the time of the demand, the amount demanded, and the fact of the non-payment thereof. The Notary Public, on making such protest, or upon receiving such admis- sion, shall forthwith forward such admission or notice of protest to the Comptroller of the Currency, retaining a copy thereof. If, however, satisfactory proof is produced to the Notary Public that the payment of the notes demanded is restrained by an order of any court of competent jurisdiction, he shall not protest the sama When the holder of any notes causes more than one note or package to be protested on the same day, he shall not receive pay for more than one protest. SEC. 5227. EXAMINATION BY SPECIAL AGENT. On receiving notice that any banking association has failed to redeem any of its circulating notes, as specified in the preceding section, the Comptroller of the Cur- rency, with the concurrence of the Secretary of the Treasury, may ap- 694: BANKS AND BANKING. point a special agent, of whose appointment immediate notice shall be given to such association, who shall immediately proceed to ascertain whether it has refused to pay its circulating notes in the lawful money of the United States, when demanded, and shall report to the Comp- troller the fact so ascertained. If, from such protest, and the report so made, the Comptroller is satisfied, that such association has refused to pay its circulating notes and is in default, he shall, within thirty days after he has received notice of such failure, declare the bonds deposited by such association forfeited to the United States, and they shall there- upon be so forfeited. SEC. 5228. BUSINESS AFTER DEFAULT. After a default on the part of an association to pay any f its circulating notes has been ascertained by the Comptroller, and notice (of forfeiture of bonds) (thereof) has been given by him to the association, it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep money belonging to it, and to deliver special deposits. SEC. 5229. NOTICE TO NOTE HOLDERS. Immediately upon declaring the bonds of an association forfeited for non-payment of its notes, the Comptroller shall give notice, in such manner as the Secretary of the Treasury shall, by general rules or otherwise, direct, to the holders of the circulating notes of such association, to present them for payment at the Treasury of the United States; and the same shall be paid as pre- sented in lawful money of the United States; whereupon the Comp- troller may in his discretion, cancel an amount of bonds pledged for such association equal at current market rates, not exceeding par, to the notes paid. SEC. 5230. SALE OF BONDS AT AUCTION. Whenever the Comptroller has become satisfied, by the protest or the waiver and admission speci- fied in section fifty-two hundred and twenty-six, or by the report pro- vided for in section fifty-two hundred and twenty-seven, that any associa- tion has refused to pay its circulating notes, he may, instead of canceling its bonds, cause so much of them as may be necessary to redeem its out- standing notes to be sold at public auction in the city of New York, after giving thirty days' notice of such sale to the association. For any de- ficiency in the proceeds of all the bonds of an association, when thus sold, to reimburse, to the United States, the amount expended in pay- ing the circulating notes of the association, the United States shall have a paramount lien upon all its assets; and such deficiency shall be made good out of such assets in preference to any and all other claims what- soever, except the necessary costs and expenses of administering the same. SEC. 5231. SALE OF BONDS AT PRIVATE SALE, The Comptroller may, if he deems it for the interest of the United States, sell at private sale any of the bonds of an association shown to have made default in pay- ing its notes, and receive therefor either money or the circulating notes APPENDIX. 695 of the association. But no such bonds shall he sold by private sale for less than par, nor for less than the market value thereof at the time of sale; and no sales of any such bonds, either public or private, shall be complete until the transfer of the bonds shall have been made with the formalities prescribed by section fifty-one hundred and sixty-two, fifty- one hundred and sixty-three, and fifty-one hundred and sixty-four. SEC. 5232. DISPOSAL OF PROTESTED NOTES. The Secretary of the Treasury may, from time to time, make such regulations respecting the disposition to be made of circulating notes after presentation at the Treasury of the United States for payment, and respecting the perpetu- ation of the evidence of the payment thereof, as may seem to him proper. SEC. 5233. CANCELLATION OP BANK NOTES. All notes of national banking associations presented at the Treasury of the United States for payment shall, on being paid, be canceled. SEC. 5234. APPOINTMENT OF RECEIVERS. On becoming satisfied, as specified in section fifty-two hundred and twenty-six and fifty-two hun- dred and twenty-seven that any association has refused to pay its circu- lating notes as therein mentioned, and is in default, the Comptroller of the Currency may forthwith appoint a receiver, and require of him such bond and security as he deems proper. Such receiver, under the direction of the Comptroller, shall take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct, and may, if neces- sary to pay the debts of such association, enforce the individual liability of the stockholders. Such receiver shall pay over all money so made to the Treasurer of the United States, subject to the order of the Comp- troller, and also make report to the Comptroller of all his acts and pro- ceedings. Act of June 30, 1876, 19 Stat. 63, provides that whenever any national banking association shall be dissolved, and its rights, privileges and franchises declared forfeited, as prescribed in Revised Statutes, sec- tion fifty-two hundred and thirty-nine, or whenever any creditor of any national banking association shall have obtained a judgment against it in any court of record, and made application, accompanied by a certifi- cate from the clerk of the court stating that such judgment has been rendered and has remained unpaid for the space of thirty days, or when- ever the Comptroller shall become satisfied of the insolvency of the national banking association, he may, after due examination of its fran- chise, in either case, appoint a receiver, who shall proceed to close up such association, and enforce the personal liability of the shareholders, as provided in section fifty-two hundred and thirty-four of said statutes. 2. That when any national banking association shall have gone into liquidation under the provisions of section fifty-two hundred and twenty 696 BANKS AND BANKING. of said statutes, the individual liability of the shareholders provided for by section fifty-one hundred and fifty-one of said statutes, may be en- forced by any creditor of such association, by a bill in equity, in the nat- ure of a creditor's bill, brought by such creditor on behalf of himself and of all other creditors of the association, against the shareholders thereof, in any court of the United States having original jurisdiction in equity for the district in which such association may have been lo- cated or established. 8. That whenever any association shall have been or shall be placed in the hands of a receiver, as provided in section fifty-two hundred and thirty-four and other sections of said statutes, and when, as provided in section fifty-two hundred and thirty-six thereof, the Comptroller shall have paid to each and every creditor of such association, not including shareholders who are creditors of such association, whose claim or claims as such creditors shall have been approved or allowed as therein pre- scribed, the full amount of such claims and all expenses of such receiver- ship and the redemption of the circulating notes of such association shall have been provided for by depositing lawful money of the United States with the Treasurer of the United States, the Comptroller of the Currency shall call a meeting of the shareholders of such association by giving notice thereof for thirty days in a newspaper published in the town, city, or county where the business of such association was carried on, or if no newspaper is there published, in the newspaper published nearest thereto, at which meeting the stockholders shall elect an agent, voting by ballot, in person or by proxy, each share of stock entitling the holder to one vote; and when such agent shall have received votes representing at least a majority of the stock in value and number of shares, and when any of the shareholders of the association shall have executed and filed a bond to the satisfaction of the Comptroller of the Currency, conditioned for the payment and discharge in full of any aud every claim that may thereafter be approved and allowed against sucli association by and before a competent court, and for the faithful per- formance aud discharge of all and singular the duties of such agent, the Comptroller and the receiver shall thereupon transfer and deliver to such agent all the undivided or uncollected or other assets and property of such association then remaining in the hands or subject to the order or control of said Comptroller and said receiver, or either of them; and for this purpose said Comptroller and said receiver are hereby severally em- powered to execute any deed, assignment, transfer, or other instrument in writing that may be necessary and proper; whereupon the said Comptroller and the said receiver shall, by virtue of this act, be dis- charged and released from any and all liabilities of such association, as to each and all the creditors and shareholders thereof; and such agent is hereby authorized to sell, compromise or compound the debts due to such association upon the order of a competent court of record or of the United States Circuit Court for the district where the business of the APPENDIX. C97 association was carried on. Such agent shall hold, control, and dispose of the assets and property of any association which he may receive as hereinbefore provided for the benefit of the shareholders of such asso- ciation as they, or the majority of them in value or number of shares, may direct, distributing such assets and property among such share- holders in proportion to the shares by each held; and he may, in his own name or in the name of such association, sue and be sued, and do all other lawful acts and things necessary to finally settle and distribute the assets and property in his hands. In selecting an agent as hereinbe- fore provided, administrators or executors of deceased stockholders may act the same as the decedent might have done if living, and guardians may so act and sign for their ward or wards. 4. This will be found incorporated in section fifty-two hundred and five, ante. 5. That all United States officers charged with the receipt or the dis- bursement of public moneys, and all officers of national banks, shall stamp or write in plain letters the words ' counterfeit," " altered," or " worthless " upon all fraudulent notes issued in the form of, and intended to circulate as money, which shall be presented at their places of busi- ness; and if such officers shall wrongfully stamp a genuine note of the United States or of the national banks, they shall upon presentation, re- deem such notes at the face value thereof. 6. That all savings banks or savings and trust companies organized under authority of any act of Congress, shall be, and are hereby, re- quired to make, to the Comptroller of the Currency, and publish, all the reports which national banking associations are required to make and to publish under the provisions of section fifty-two hundred and eleven, fifty-two hundred and twelve and fifty-two hundred and thirteen, and shall be subject to the same penalties for failure to make or publish such reports as are herein provided; which penalties may be collected by suit before any court of the United States in the district in which said sav- ings banks or savings and trust companies may be located. And all savings or other banks now organized, or which shall hereafter be or- ganized, in the District of Columbia, under any act of Congress, which shall have capital stock paid up in whole or in part, shall be subject to all the provisions of the Revised Statutes, and of all acts of Congress ap- plicable to national banking associations, so far as the same may be applicable to such savings or other banks: Provided, that such savings banks now established shall not be required to have a paid iu capital exceeding one hundred thousand dollars. Section three of the preceding act was amended by act of August 3, 1892, to read as follows: 3. That whenever any association shall have been or shall be placed in the hands of a receiver, as provided in section fifty-two hundred and fifty-four and other sections of the Revised Statutes of the United States, and when, as provided in section fifty-two hundred and thirty-six, the 698 BANKS AND BANKING. Comptroller of the Currency shall have paid to each and every creditor of such association, not including shareholders, who are creditors of such association, whose claim or claims as such creditors shall have been ap- proved or allowed as therein prescribed, the full amount of such claims, and all expenses of the receivership and the redemption of the circulat- ing notes of such association shall have been provided for by depositing lawful money of the United States with the Treasurer of the United States, the Comptroller of the Currency shall call a meeting of the share- holders of such association by giving notice thereof-thirty days in a newspaper published in a town, city or county where the business of such association was carried on. or if no newspaper is so published, in a news- paper published nearest thereto; at such meeting the shareholders shall determine whether the receiver shall be continued and shall wind up the affairs of such association, or whether an agent shall be elected for that purpose, and in so determining the said shareholders shall vote by ballot in person or by proxy, each share of stock entitling the holder to one vote, and a majority of the stock in value and number of shares shall be necessary to determine whether the said receiver shall be con- tinued or whether an agent shall be elected. In case such majority shall determine that the said receiver shall be continued, the said receiver shall thereupon proceed with the execution of his trust, and shall sell, dispose of or otherwise collect the assets of said association, and shall possess all the powers and authority, and be subject to all the duties and liabilities originally conferred or imposed upon him by his appointment as such re- ceiver, so far as the same remain applicable. In case the said meeting shall by the vote of the majority of the stock in value and number of shares determine that an agent shall be elected, the said meeting shall thereupon proceed to elect an agent, voting by ballot in person or by proxy, each share of stock entitling the holder to one vote, and the per- son who shall receive votes representing at least a majority in value and number, shall be declared the agent for the purposes hereinafter pro- vided, and whenever any of the shareholders of the association shall, after the election of such agent, have executed and filed a bond to the satisfaction of the Comptroller of the Currency, conditioned for the pay- ment and discharge in full of any and every claim that may thereafter be approved and allowed by and before a competent court, and for the faithful performance of all and singular the duties of such agent, the Comptroller and the receiver shall thereupon transfer and deliver to such agent all the undivided or uncollected or other assets of such asso- ciation then remaining in the hands or subject to the order and control of said Comptroller and said receiver, or either of them; and for this purpose said Comptroller and said receiver are hereby severally empow- ered and directed to execute any deed, assignment, transfer, or other instrument in writing that may be necessary and proper, and upon the execution and delivery of such instrument to the said agent, the said Comptroller and the said receiver shall, by virtue of this act, be dis- APPENDIX. charged from any and all liabilities of such association, as to each and all the creditors and shareholders thereof. Upon receiving such deed, assignment, transfer, or other instrument, the person elected such agent shall hold, control, and dispose of the assets and property of such asso- ciation which he may receive under the terms hereof, for the benefit of the shareholders of such association, and he may in his own name or in the name of such association sue and be sued, and do all other lawful acts and things necessary to finally settle and distribute the assets and property in his hands, and may sell, compromise, or compound the debts due to such association, with the consent and approval of the circuit or district court of the United States for the district where the business of such association was carried on, and shall, at the conclusion of his trust, render such district or circuit court a full account of all his pro- ceedings, receipts, and expenditures as such agent, which court shall upon due notice, settle and adjust such accounts and discharge said agent and the sureties upon said bond. At such meeting, held as here- inbefore provided, administrators or executors of deceased shareholder* may act and do as the decedent might have done if living, and guard- ians of minors, and trustees of other persons may so act and sign for their ward or cestui que trust. The proceeds of the assets or property of any such association which may be undistributed at the time of such meeting or may be subsequently received, shall be distributed as follows: First. To pay the expenses of the trust to the date of such payment. Second. To repay any amount or amounts which have been paid in by any shareholder or shareholders to such association upon and by rea- son of any and all assessments made upon the stock of such association by the order of the Comptroller of the Currency, in accordance with the provisions of the statutes of the United States; and Third. The balance ratably among such' stockholders in proportion to the number of shares held and owned by each. Such distribution shall be made from time to time, as the proceeds shall be received and as shall be deemed advisable by the said Comptroller or said agent. Section three of the Act of June 80, 1876, and of the Act of August 3, 1892, was, by Act of March 2, 1897, amended as follows: 3. After the words " discharge said agent and the sureties upon said bond," the following was inserted : And in case any such agent so elected shall refuse to serve, or die, resign, or be removed, any shareholder may call a meeting of the shareholders of such association in the town, city, or village where the business of said association was carried on. by giv- ing notice thereof for thirty days in a newspaper published in said town, city or village, or if no newspaper is there published, in the newspaper published nearest thereto, at which meeting the shareholders shall elect an agent, voting by ballot, in person or by proxy, each share of stock entitling the holder to one vote, and when such agent shall have received votes representing at least a majority of the stock in value and number of shares, and shall have executed a bond to the shareholders conditioned 700 BANKS AND BANKING. for the faithful performance of his duties, in the penalty fixed by the shareholders at said meeting, with two sureties, to be approved by the judge of a court of record, and file said bond in the office of the clerk of the court of record in the county where the business of said associa- tion was carried on, he shall have all the rights, powers and duties of the agent first elected as hereinbefore provided. SEC. 5235. NOTICE TO PRESENT CLAIMS. The Comptroller shall, upon appointing a receiver, cause notice to be given, by advertisement in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same, and to make legal proof thereof. SEC. 5236. DIVIDENDS. From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudi- cated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further divi- dends on all claims previously proved or adjudicated; and the remain- der of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held. SEC. 5237. INJUNCTION AGAINST COMPTROLLER. Whenever an asso- ciation against which proceedings have been instituted, on account of any alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section fifty-two hundred and twenty-seven, apply to the nearest circuit, or dis- trict, or territorial court of the United States to enjoin further proceed- ings in the premises; and such court, after citing the Comptroller of the Currency to show cause why further proceedings should not be en- joined, and after the decision of the court or finding of a jury that such association has not'refused to redeem its circulating notes, when legally presented, in the lawful money of the United States, shall make an order enjoining the Comptroller, and any receiver acting under his di- rection, from all further proceedings on account of such alleged refusal. Act of March 29, 1886, 24 Stat. 8, provides that whenever the receiver of any national bank duly appointed by the Comptroller of the Currency, and who shall have duly qualified and entered upon the dis- charge of his trust, shall find it. in his opinion necessary, in order to fully complete and execute his said trust, to the extent of any and all equities that such trust may have in any property, real or personal, by reason of any bond, mortgage, assignment, or other legal claim attached thereto, and which said property is to be sold under an execution, de- cree of foreclosure, or proper order of any court of jurisdiction, he may certify the facts in the case, together with his opinion as to the value APPENDIX. 701 of the property to be sold, and the value of the equity his said trust may have in the same, to the Comptroller of the Currency, together with a request for the right and authority to use and employ so much of the money of said trust as may be necessary to purchase such property at such sale. 2. That such request, if approved by the Comptroller of the Cur- rency, shall be, together with the certificate of facts in the case, and his recommendation as to the amount of money which, in his judgment, shall be so used and employed, submitted to the Secretary of the Treas- ury, and if the same shall likewise be approved by him, the request shall be by the Comptroller of the Currency allowed, and notice thereof, with copies of the request, certificate of facts, and endorsement of ap- provals, shall be filed with the Treasurer of the United States. 3. That whenever any such request shall be allowed as hereinbefore provided, the said Comptroller of the Currency shall be, and is, empow- ered to draw upon and from such amount of any such trust as may be deposited with the Treasurer of the United States for the benefit of the bank in interest, to the amount as may be recommended and allowed and for the purpose for which such allowance was made; provided, how- ever, that all payments to be made for or on account of the purchase of any such property or under any such allowance shall be made by the Comptroller of the Currency direct, with the approval of the Secretary of the Treasury, for such purpose only and in such manner as he may determine and order. Act of March 3, 1887, 24 Stat. 554, corrected by 25 Stat., provides that whenever in any cause, pending in any court of the United States, there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such prop- erty according to the requirements of the valid laws of the State in which such property shall be situated in the same manner as the owner or pos- sessor thereof would be bound to do if in possession thereof. Any re- ceiver or manager who shall wilfully violate the provisions of this section, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine not exceeding three thousand dollars, or by im- prisonment not exceeding one year, or by both said punishments, in the discretion of the court. 3. That every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or trans- action of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or man- ager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was ap- pointed, so far as the same shall be necessary to the ends of justice. SEC. 5238. FEES AND EXPENSES. All fees for protesting the notas issued by any national banking association shall be paid by the person procur- ing the protest to be made, and such association shall be liable therefor; 702 BANKS AND BANKING. but no part of the bonds deposited by such association shall be applied to the payment of such fees. All expenses of any preliminary or other examinations into the condition of any association shall be paid by such association. All expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof. SEC. 5239. PENALTY FOR VIOLATION. If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this title, all the rights, privileges and franchises of the as- sociation shall be thereby forfeited. Such violation shall, however, be determined and adjudged by a proper circuit, district, or territorial court of the United States, in a suit brought for that purpose by the Comptroller of the Currency, in his own name, before the association shall be declared dissolved. And in cases of such violation, every di- rector who participated in or assented to the same shall be held liable in his personal and individual capacity, for all damages which the asso- ciation, its shareholders, or any other person, shall have sustained in consequence of such violation. SEC. 5240. APPOINTMENT OF EXAMINERS. The Comptroller of the Cur- rency, with the approval of the Secretary of the Treasury, shall, as often as shall be deemed necessary or proper, appoint a suitable person or per- sons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the af- fairs of the association, and, in doing so, to examine any of the officers and agents thereof on oath ; and shall make a full and detailed report of the condition of the association to the Comptroller. That all persons appointed to be examiners of national banks not located in the redemp- tion cities specified in section fifty-one hundred and ninety-two, of the Revised Statutes of the United States, or in any one of the States of Oregon, California and Nevada, or in the Territories, shall receive com- pensation for such examination as follows: For examining national banks having a capital less than one hundred thousand dollars, twenty dollars; those having a capital of one hundred thousand dollars, and less than three hundred thousand dollars, twenty-five dollars; those having a capital of three hundred thousand dollars and less than four hundred thousand dollars, thirty-five dollars; those having a capital of four hundred thousand dollars and less than five hundred thousand dol- lars, forty dollars; those having a capital of five hundred thousand dol- lars and less than six hundred thousand dollars, fifty dollars; those iiaving a capital of six hundred thousand dollars and over, seventy-five dollars, which amounts shall be assessed by the Comptroller of the Cur- rency upon, and paid by, the respective associations so examined; and shall be in lieu of the compensation and mileage heretofore allowed for making said examinations, and persons appointed to make examination of national banks in the cities named in section fifty-one hundred and ninety-two of the Revised Statutes of the United States, or in any one of APPENDIX. 703 the States of Oregon, California, and Nevada, or in the Territories, shall receive such compensation as may be fixed by the Secretary of the Treas- ury upon the recommendation of the Comptroller of the Currency; and the same shall be assessed and paid in the manner hereinbefore pro- vided. SEC. 5241. VISITOPJAL POWERS. No association shall be subject to any visitorial powers other than such as are authorized by this title, or are vested in the courts of justice. SEC. 5242. FRAUDULENT TRANSFERS AND PREFERENCES. All transfers of notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assign- ments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution, shall be issued against such asso- ciation or its property before final judgment in any suit, action, or pro- ceeding, in any State, county, or municipal court. SEC. 5243. THE TERM "NATIONAL." All banks not organized and transacting business under the national currency laws, or under this title, and all persons or corporations doing the business of bankers, brokers, or savings institutions, except savings banks authorized by Congress to use the word " national " as a portion of the name or title of such bank, corporation, firm or partnership, are prohibited frc\m using the word " national " as a portion of the name or title of such bank, cor- poration, firm or partnership; and any violation of this prohibition com- mitted after the third day of September, eighteen hundred and seventy- three, shall subject the party chargeable therewith to a penalty of fifty dollars for each day during which it is committed or repeated. Act of March 3, 1883, repealed the taxes levied by the United States on the capital and deposits of banks, bankers and national bank- ing associations, and the stamp tax on bank checks and drafts. Act of June 13, 1898, imposed special tax annually as follows: Bankers using or employing a capital not exceeding the sum of twenty- five thousand dollars shall pay fifty dollars; when using or employing a capital exceeding twenty-five thousand dollars, for every additional thousand dollars in excess of twenty-five thousand dollars, two dollars, and in estimating capital surplus shall be included. The amount of such annual tax shall, in all cases, be computed on the basis of the cap- ital and surplus for the preceding fiscal year. Every person, firm, or company, and every incorporated or other bank, having a place of busi- ness where credits are obtained by the deposit or collection of money 704: BANKS AND BANKING. or currency, subject to be paid or remitted upon draft, check or order, or where money is advanced or loaned, on stocks, bonds, bullion, bills of exchange, or promissory notes, or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or sale, shall be a banker under this act: Provided, that any savings bank having no- capital stock and whose business is confined to receiving deposits and loaning or investing the same for the benefit of its depositors, and which does not do other business of banking, shall not be subject to this tax. By the same act the following stamp duties were imposed: Bank check, draft, or certificate of deposit not drawing interest, or order for the payment of any sum of money, drawn upon or issued by any bank, trust company, or any person or persons, companies or corporations, at sight or on demand, two cents. Bills of exchange (inland), draft, cer- tificate of deposit drawing interest, or order for the payment of any sum of money, otherwise than at sight or on demand, or any promissory note except bank notes issued for circulation, and for each renewal of the same, for a sum not exceeding one hundred dollars, two cents; and for each additional one hundred dollars or fractional part thereof, in excess of one hundred dollars, two cents. And from and after the first day of July, 1898, the provisions of this paragraph shall apply as well to orig- inal domestic notes ordinarily issued by the Government of the United States, and the price of such money orders shall be increased by a sum equal to the value of the stamps herein provided for. Bills of exchange (foreign), or letters of credit (including orders by telegraph or other- wise, for the payment of money issued by express or other companies, or any person or persons), drawn in but payable out of the United States, if drawn singly or otherwise than in a set of three or more, according to the custom of merchants and bankers, shall pay for a sum not ex- ceeding one hundred dollars, four cents, and for each one hundred dol- lars or fractional part thereof in excess of one hundred dollars, fom cents. If drawn in sets of two or more: For every bill of each set, where the sum made payable shall not exceed one hundred dollars, 01 the equivalent thereof, in any foreign currency in which such bill may be expressed, according to the standard of the value fixed by the United States, two cents; and for each one hundred dollars or fractional part thereof in excess of one hundred dollars, two cents. Bills of lading or receipt (other than charter party) for any goods, merchandise, or effects to be exported from a port or place in the United States to any foreign port or place, ten cents. ADDENDUM. Bills of Lading. The statement made on page 299 in regard to the duty of a bank in collecting a draft attached to or accompanied by a bill of lading, while technically correct, may seem to be misleading, and therefore needs amplifying. The question may present itself in differ- ent ways. Thus the draft may be an ordinary sight draft, a draft pay- able at sight without grace, a draft payable so many days after date or at a fixed date, or upon demand or so many days after demand. The rule is reasonably well settled that, if the accompanying draft is a time draft, and by this term the courts mean sight drafts with grace, 1 drafts payable so many days after sight 2 or after demand, and drafts payable at a fixed day. 3 the bank may deliver the bill of lading upon acceptance of the draft. The reason for the rule is said to be that such a draft im- ports a sale upon credit. This reason is wholly inadequate as to drafts payable at a fixed day, i. e., so many days after date or upon a day named, for the reason that those drafts need no presentation for acceptance, 4 and the drawer may very well consider that the bank collecting will not present such a draft for acceptance, and the transmitting bank which has discounted the draft, with the bill of lading as collateral security, may reasonably assume the same thing. It is true that such a draft may be presented for acceptance, 5 and if acceptance be refused notice must be given, 6 and the draft, if dishonored, needs no presentation for payment, according to the authorities. 7 But the collecting bank upon receiving such a draft for collection may hold it until maturity and then 1 National Bank v. Merchants' 2 National Bank v. Merchants' Bank, 91 U. S. 92 (here one of the Bank, 91 U. S. 92; Commercial Bank drafts was a sight draft); Marine v. Railway Co., 160 111. 401; Moore Bank v. Wright, 48 N. Y. 1 (here the v. Louisiana Nat. Bank, 44 La. Ann. draft was a sight draft). Second 90 (draft at one day's sight). Nat. Bank v. Cummings, 89 Tenn. 3 Woolen v. New York Bank, 12 609 is contra as to a sight draft. Blatchf. 359. The court in this last case cited 4 See p. 349, ante. National Bank v. Merchants' Bank, See pp. 389, 390, ante, supra, but had not read it far 6 See pp. 389, 390, ante. enough to see that sight drafts with 7 See pp. 374, 389, 466, ante. grace are treated as time drafts. 45 706 ADDENDUM. present for payment; and necessarily the bill of lading would be held until payment. Yet the rule is held that such a time draft imports a sale upon credit. The drawer of the draft or the transmitting bank, if it desires the bill of lading to be held until payment, and wishes the draft to be a time draft, should draw tfie draft payable at a day certain, and give instructions to the collecting bank to present the draft for pay- ment but not for acceptance, or the drawer should draw a demand draft, upon which the bill of lading cannot be delivered except upon payment. 8 If a draft is a sight draft without grace, it is a demand draft, and the bill of lading cannot be delivered except upon payment. But, as it will appear a little further along, instructions to the collecting bank are not necessarily a full protection. How far a bank is safe in taking a bill of la'ding as collateral security depends upon various consideration's. It is reasonably well agreed that the bill of lading is a symbol of property, and when delivered trans- fers the property as against every subsequent purchaser or claimant under the transferror of the bill of lading. 9 But the bill of lading is only guem'-negotiable, and delivered as a bill of sale transfers merely the transferror's title. 10 If he had no title, the transferee of the bill of lad- ing gets none. A bank should not assume that a bill of lading is neces- sarily a good security, unless it knows that the apparent owner of the goods is the real owner. The liability of the bank upon the bill of lad- ing to the consignee, or the person to whom the bill of lading is de- livered, is nothing. For although the bill of lading indorsed or delivered unindorsed 11 transfers the legal title to the bank, yet it is the legal title only for the purposes of the lien ; and when the bill of lading is deliv- ered, it is delivered as and for the consignor of the goods or drawer of the draft. The bank may make, it seems, representations as to the goods, and yet not be held, because such representations would not be bind- ing. 12 The propriety of such a rule seems open to grave objections. 8 All the cases hereinbefore cited converted his cash sale into a sale admit that a draft payable instantly upon credit. The statute, too, may does not import a credit, but a cash have seemed to have some effect sale. The bank's lien was held superior to 9 Shaw v. Railroad Co., 101 U. S. the title of the original vendor. 557. Morse v. Chicago, etc. R R Co., 10 Sbawv.RailroadCo.,SMpro. But 73 Iowa, 220. one case seems contra, Morse v. Chi- w Littleton v. People's Bank, 63 cago, etc. R R Co., 73 Iowa, 226; N. W. R. 666. The representation but this case may be justified upon was: "Mr. R has drawn on you the ground that the deli very of pos- to-day $2,230. Will ship you next session by the vendor to the vendee Monday night or Tuesday morning of goods, who shipped them and one car of hogs and one of cattle. took out bills of lading which he Cattle are good." Signed by the delivered unindorsed to the bank, name of the cashier as cashier. The ADDENDUM. 707 A further question presents itself and maybe stated in this way: What is the effect of an acceptance of the draft upon the title to the property which is covered by the bill of lading ? It will not be disputed that if the draft be a demand draft or a sight draft without grace, the acceptance of the draft will not in itself convey title to the goods, be- cause the transaction imported is a sale for cash. Even though the bill of lading be delivered upon an acceptance of such a draft, the transferee knows that the bank had no authority to deliver the bill of lading ex- cept upon payment, unless he had a contract with the assignor for a sale upon credit, which would no affect the bank's lien. Instructions to the collecting bank not to deliver are not necessary. By such a de- livery the collecting bank itself would become liable for the loss result- ing. But third parties, the railroad company or the carrier, and those claiming under the transferee of the bill of lading, having no notice of the wrongful delivery of the bill of lading, may treat with the transferee as owner. Suppose, however, the drawer of the draft or the transmit- ting bank notifies the railroad company before its delivery of the goods to the transferee, or makes a common-law sale of the goods to some one else, who notifies the railroad company before its delivery, what would be the result ? If the transferee and acceptor should pay the draft, his title would be perfect, of course. If he should not pay the draft, the consignor or his vendee would have title, and the carrier would be held accordingly. Taking the case, now, of a time draft, i. e., a draft payable at sight with grace, a draft payable so many days after sight or after demand, or payable at a day certain, two cases would present them- selves: (1) Where instructions had been given the collecting bank not to deliver the bills of lading except upon payment; (2) where no instruc- tions had been given. If the bank, in violation of its instructions, should deliver the bills of lading, the condition would not be different than if it had wrongly delivered upon a demand draft or sight draft without grace, except that the transferee would have no notice of the lack of power in the collecting bank to deliver, unless his contract with the con- signor was for a cash sale. But this very fact of delivery would deter- mine that title passed to the transferee without notice, because if with- out notice he would assume, and would have the right to assume, that he would obtain title by the delivery, and the other party, having in- vested his collecting agent with the apparent right to deliver, would be court decides that this representa- pear that the representation as to tion was ultra vires. It should have the cattle was false. The court, held that there was nothing to with a plain ground of correct de- show any representation. The state- cision, put its ruling upon a most uu- ment was not one of fact, but a satisfactory ground. It could also promise if any thing. There was no have said that no sensible person representation as to the quantity would rely on the telegram as any of cattle or hogs. It did not ap- statement of the number shipped. 708 " ADDENDUM. estopped to dispute the authority. But if the transferee of the bill of lading had notice of the instructions or knew that his contract was not for a sale upon credit, he would get no more title than if the draft had been a demand draft or one at sight without grace. Where no instruc- tions have been given to the collecting bank, that bank on delivery of the bill of lading incurs no liability, and the transferee of the bill of lading gets a good title, if he had no notice that the sale was for cash, and had no notice of the instructions to the bank. Third parties, even if the transferee had notice, may treat the holder of the bill of lading as owner, until notice of a contrary state of facts. But the question goes further than thia Does the acceptance, of itself, without a delivery of the bHll of lading, give title to the goods when the draft is a time draft, as above explained ? The transferee, where the bill of lading is not de- livered, must know that the bill of lading is being held until payment, and as a security for payment. Third parties are presumed to know this fact because the transferee has not the bill of lading, the symbol of ownership. Therefore it would seem upon reason that the title in the goods did not pass merely by reason of acceptance; yet plain as this con- clusion seems, it has been held in a case that is erroneous, both in what it affirms and in what it denies, that if the bill of lading is not delivered title passes upon acceptance of a time draft, and the carrier may safely deliver to the acceptor of the bill of lading, provided no instructions have been given not to deliver the bill of lading. 18 This case is wrong because it confuses the matter of the liability of the collecting bank with the matter of title to the goods covered by the bill of lading. It may very well be that the collecting bank would not be liable for deliv- ering the draft upon acceptance, and might assume that the sale was upon credit; but it does not follow that where it does not deliver, and does not assume the sale to be upon credit, the sale is necessarily one upon 13 Commercial Bank T. Railway what it argues) may be correct, be- Co., 160 111. 401. This decision is cause the facts showed that the one of those per curiam offspring sale was upon credit and was so which each judge refuses to father, understood between the parties. It holds that title in the goods cov- The court's statement about in- ered by the bill of lading passes structions given preventing the upon acceptance, if no instructions title passing is mere dictum and is were given not to deliver, even wrong, because the instructions though the bill of lading was not would be material as to the trans- delivered. But it ought to have feree's title, if he had notice, but been plain that the non-delivery of not otherwise. His title depended the bill of lading was notice that upon the contract as made, or if the sale was not upon credit. The there was no contract express or proof that seems to have been implied, as a fact, what was done offered was not satisfactory, but at the time would govern, the decision as a judgment (not in ADDENDUM. 709 credit. That must depend upon the contract between the parties, to be gathered from all the means of information, including the course of dealing between the parties and customs of the business. Clearing-house Indorsements. The rule has been made in one clearing house and extensively adopted, that no draft or check will be passed through the clearing-house unless it be a check or draft whose indorsements show full ownership in the bank transmitting the paper for collection. This rule has been drawn forth by a decision to the effect l that where the collecting bank acts as agent in collecting and has wrongly received payment upon a check or draft, but has trans- mitted the proceeds to its principal, it is not liable to the party from whom it wrongly collected where that party had notice of the agency, as it would have by indorsements for collection, for collection and credit, for account, and perhaps for credit. 2 This rule is made by the banks for their own protection. It will obviate many troublesome questions as to the ownership of the proceeds of a collection and as to mutual credits between banks upon insolvency. 3 1 See p. 300, ante, note 1, for the 2 See pp. 208, 297, 816, ante. decisions upon the point. 'See pp. 297, 298. TABLE OF CASES. References ore to pages. Abbott v. Agricultural Bank (11 Smedes & M. 405), 343. Aberdeen Bank v. Chehalis Co. (166 U. S. 440). 52. Aborn v. Bosworth (1 R. L 401), 407, 426. Abramowitz v. Citizens' Sav. Bank (40 N. Y. Supp. 385), 646, 649. Ackenhausen v. People's Sav. Bank (110 Mich, 175), 640, 645. Ackerman v. Halsey (37 N. J. Eq. 356), 124, 133. Adams v. Boyd (33 Ark. 33), 350, 392, 404. v. Darby (28 Mo. 162), 377. v. Gordon (22 La. Ann. 41), 403. v. Leland (30 N. Y. 309), 447, 450. v. National Bank (113 N. C. 332), 231. v. Orange Co. Bank (17 Wend. 514), 291. v. Otterback (15 How. 539), 222, 438, 454, 516, 520. v. Spokane Drug Co. (57 Fed. R. 888), 587. v. Torbert (6 Ala. 865), 458. v. Wright (14 Wis. 408], 477, 481, 549, 552, 553. Adkins v. Thornton (19 Ga. 325), 108. Adoue v. Fox (30 Mo. App. 98), 364. JEtna. Bank v. Fourth Nat. Bank (46 N. Y. 82), 204, 235, 248. JE&na, Ins. Co. v. Alton City Bank (25 111. 243), 305, 307. Agan v. McManus (11 Johns. 180), 521. Agawam Bank v. Steever (18 N. Y. 502), 328. Agnel v. Ellis (1 McGloin, 57), 849. Agnew v. Bank of Gettysburg (3 Har. & G. 478), 50, 412. v. United States (165 U. S. 36), 144. Agricultural Bank v. Commercial Bank (15 Miss. 592), 30a v. Wilson (24 Me. 273), 85. Aherns v. State Bank (3 S. C. 401), 565, 572. Ahl v. Rhodes (84 Pa. 319), 126, 195. Aiken v. Cathcart (2 Spears, 642), 546. v. Marine Bank (16 Wis. 679), 479. Aken v. Jones (93 Tenn. 353), 317. Akers v. Ray Co. Bank (63 Mo. App. 316), 167^ Albers v. Commercial Bank (85 Ma 173), 261, 291. Albert v. Bank (2 Md. 159), 56. v. State (65 Md. 413), 49, 93. Aides v. Johnson (1 Vt. 136), 398. Aldine Mfg. Co. v. Warner (96 Ga, 370). 490. Aldrich, In re (16 Fed. R. 369). 557. Alexander v. Brumnett (42 S. W. R. 63), 194 v. Dennis (9 Port 174), 457. v. Parsons (3 Lans. 333), 427. Alexandria Sav. Inst v. McVeigh (84 Va. 41), 497. Allain v. Lazarus (14 La. 327), 388. v. Whittaker (5 Mart., N. S., 511), 546. Allegheny City v. McClurken (14 Pa. 81), 555. Allen v. Avery (47 Me. 287), 421, 442, 514. v. Brown (39 Iowa, 330), 233, 533. v. Brown (124 Mass. 77), 402. v. Carter (119 Pa. 192), 75. v. Erie City Bank (57 Pa. 129), 319. v. Fourth Nat Bank (59 N. Y. 12). 271. v. Freedmen's Bank (14 Fla. 418), 66. v. King (4 McLean. 128). 525. v. Kramer (2 Bradw. 205), 389, 432, 433. v. Merchants' Bank (22 Wend. 215), 184, 411. v. Pegrarn (16 Iowa, 163), 69. 712 TABLE OF CASES. References are to pages. Allen v. St. Louis Nat Bank (120 U. S. 20), 184. v. Smith (4 Har. 234), 459. v. State Bank (21 N. C. 1, 1 Dev. & B. Eq. 3), 558, 559. v. Walsh (25 Minn. 543), 100, 106. v. WilliamsburghSav.Bank(69 N. Y. 314), 640, 045, 646. Allen Co. Bank v. Carter (88 Tenn. 287), 258. Allentown Bank v. Kirmes (4 Wkly. Notes Cas. 401), 365. v. Williams (100 Pa. 123), 207. Allis v. United States (155 U. S. 117), 142. Almy v. Winslow (126 Mass. 342), 352. Alpena Nat. Bank v. Green baum (80 Mich. 1), 153. Alshausen v. Lewis (1 Biss. 419), 511. Alton v. Robinson (2 Humph. 341), 441, 518. Alvord v. Baker (9 Wend. 323), 377. Amer v. Armstrong (3 Pa. Co. Ct. R 392), 98, 99, 114. American Exchange Nat. Bank v. Chicago Nat. Bank (27 111. App. 538), 252. v. First Nat. Bank (82 Fed. R 961), 118. 149. v. Gregg (138 III 596), 209, 243, 275. v. Gregg (37 111. App. 425), 243. v. Loretta Mfg. Co. (163 111. 103), 282. American Bank v. Cooper (54 Me. 438), 565, 573. v. Wall (56 Me. 167), 591. American Express Co. v. Parsons (44 111. 312). 311, 313. v. Pinckney (29 111. 392), 302, 310. American Life Ins. Co. v. Emerson (4 Smedes & M. 177), 514. American Nat. Bank v. Junk Bros. Co. (94 Tenn. 624), 415, 479, 485. v. Nat. Wall Paper Co. (77 Fed. R 85), 67. American Savings Ass'n v. Bank (05 Minn. 139), 582. American Surety Co. v. Pauly (72 Fed. R 470), 178. American Trust Bank v. Gueder Mfg. Co. (150 111. 336), 614. American Trust & Sav. Bank v. Austin (55 N. Y. Supp. 561), 328. American Trust & Sav. Bank v. Manufacturing Co. (150 III 336), 128, 211. American Trust Co. v. Boone (29 S. E. R 182), 602. Ames v. York Nat. Bank (103 Mass. 326), 244 Amoskeag Bank v. Moore (37 N. EL 5o9), 537. Anderson v. Alexander (7 Am. Law Reg. 17G). 37. v. Anderson (4 Dana, 352), 376, 385. v. First Nat. Bank (67 N. W. R 821), 63. v. Gill (79 Md. 312), 434, 435. v. Kissam (35 Fed. R. 699), 120, 165, 166. v. Leverich (70 Iowa, 741), 291. v. Line (14 Fed. R 405), 77. v. Market Nat. Bank (1 N. Y. Supp. 136), 213, 220, 230. v. Pacific Bank (11 CaL 598), 283, 603. 609. v. Phila. Warehouse Co. (Ill U. S. 479). 81. v. Rogers (53 Kan. 542), 434. v. Seymour (73 N. W. R 171), 103, 108. v. Walker (49 S. W. R 937), 217. Andressen v. First Nat. Bank (2 Fed. R 122), 358, 370. Andrew v. Blachley (11 Ohio St. 89), 349. Andrews v. Artisans' Bank (26 N. Y. 298), 232. v. Boyd (3 Met. 434), 538. v. Branch Bank (10 Ala. 375), 619. v. Simms (33 Ark. 771), 531, 532. v. Suffolk Bank (12 Gray, 461), 300. Angaletos v. Meridian Nat. Bank (4 Ind. App. 573), 424, 425. Angle v. N. W. Mut. Life Ins. Co. (92 U. S. 330), 407. Anheuser-Busch Ass'n v. Clayton (56 Fed. R 759), 301, 319, 322, 323, 610. v. Morris (36 Neb. 31), 209, 210, 603, 610. Anjaville Nat. Bank v. Kettering (106 Pa. 531), 532. Apperson v. Bynum (5 Cold. 341), 430, 443, 445, 448, 449. 524 v. Union Bank (4 Cold. 445), 524 TABLE OF CASES. 713 References are to pages. Appleby v. Erie Co. Sav. Bank (62 N. Y. 12), 639, 640, 645. Applegarth v. Aybott (64 CaL 459), 553, 553. Argus Co.. In re (138 N. Y. 557), 92. Armat v. Union Bank (2 Cranch, C. C. 180), 558. Armor v. Lewis (16 La. 331), 417. Armstrong, In re (41 Fed. R. 381), 316. 322, 324, 364, 581. Armstrong v. American Ex. Nat. Bank (133 U. S. 433). 279. v. Brolaski (46 Fed. R. 903), 460. v. Cache Valley Co. (48 Pac. R. 690), 160. v. Chadwick (127 Mass. 156), 538. v. Chemical Nat. Bank (41 Fed. R 234), 329, 581. v. Ettelsohn (36 Fed. R. 209), 624. v. National Bank (90 Ky. 431), 212, 297. 316. 323. v. Pomeroy Nat. Bank (46 Ohio St. 512), 260, 267. v. Scott (36 Fed. R. 63), 240. v. Thruston(ll Md. 148), 415, 468. v. Warner (49 Ohio St. 376), 234, 235, 586. Arnold v. Dresser (90 Mass. 435), 413, 417, 418. 447, 541. v. Kinloch (50 Barb. 44), 468. v. Macungie Sav. Bank (71 Pa. 287), 291. v. Nies (36 Leg. Int. 437), 586. v. Seifert (76 111. A pp. 666), 649. v. Sprague (34 Vt. 402), 358, 383. v. Weimer (40 Neb. 216), 584. Arpin v. Owens (140 Mass. 144), 379. Arthur v. Commercial Bank (9 Smedes & M. 394), 577. Artisans' Bank v. Backus (36 N. Y. 100). 469. Asher v. National Bank (7 Alb. L. J. 43), 208. v. Sutton (31 Kan. 286), 150, 153. Ashland Banking Co. v. Centralia Mut. Ass'n (1 Kulp, 38), 351. Ashley v. Frame (45 Pac. R. 927), 126, 129. v. Gunton (15 Ark. 415), 480. Ashton v. Dull (31 Leg. Int. 61), 420, 422, 447. v. Reeves (3 Phila. 339), 376, 384. Aspinwall v. Butler (133 U. S. 595), 78. Atchafalaya Bank v. Dawson (13 La. 497), 569, 570, 572. Atkinson v. Davidson (2 Pin. 48), 584. v. Rochester Printing Co. (114 N. Y. 168), 147. 577, 584, 614 Atlanta Nat. Bank v. Burke (81 Ga. 597), 267, 274. v. Davis (96 Ga. 334), 242. T. Fertilizing Co. (83 Ga. 356), 364. Atlantic Bank v. Merchants' Bank (10 Gray, 532), 120, 169. Atlantic Cotton Mills v. Indian Or- chard Mills (147 Mass. 268), 177, 179, 180. Atlantic Nat. Bank v. Harris (118 Mass. 147), 48, 566. Atlantic State Bank v. Savery (82 N. Y. 291), 172, 176, 182, 197, 332, 334. Atlas Bank v. Nahant Bank (3 Met 581), 556, 582. Atlas Nat. Bank v. Savery (127 Mass. 75), 66. Atterbury v. Knox (4 B. Mon. 90). 46, 51. Attle borough Nat. Bank v. Rogers (125 Mass. 339), 68. Attorney-General v. Bank of Che- nango (Hopk. Ch. 596), 571. v. Bank of Niagara (1 Hopk. Ch. 403), 36. v. Bank of Niagara (1 Hopk. Ch. 354), 571, 572. v. Columbian Bank (1 Paige, 511), 582. v. Insurance Co. (2 Johns. Ch. 371), 36. v. Life Ins. Co. (9 Paige, 470), 60. v. Oakland Co. Bank ( Walk. Ch. 90), 570. v. Railway Co. (5 App. Gas. 473), 66. v. Utica Ins. Co. (15 Johns. 358), 34, 572. Attwater v. Stromberg (77 N. W. R. 963), 189. Attwood v. Bank of Chillicothe (10 Ohio, 526), 560, 562, 597. Attwood v. Haseldon (2 Bailey, 457), 431, 527. Atwater v. Streets (1 Doug. 455), 467. Atwood v. Caldwell (12 111. 96), 572. Auburn Sav. Bank v. Brinkerhoof (44 Hun, 142), 635. v. Hayes (61 Fail. R. 911), 623. August v. Fourth Nat. Bank (1 N. Y. Supp. 139), 288, 291. TABLE OF CASES. References are to pages. Aull Sav. Bank v. City of Lexing- ton (74 Mo. 104), 635. Aurianne v. Eschbacker (28 La. Ann. 48), 4?a Austin v. Daniels (4 Denio, 299), 115, 119. v. Latham (19 La, 88), 478, 502, 549. v. Miller (5 McLean, 153), 546. v. Rodman (8 N. C. 194), 349, 472. AT. Wilson (24 Vt. 630), 548. Averell v. Second Nat. Bank (6 Mackey, 358). 168. Aymer v. Biers (7 Cow. 705). 356. v. Sheldon (12 Wend. 439), 386. Ayrault v. Pacific Bank (47 N. Y. 570), 308, 545. Ayres v. Dorsey Co. (70 N. W. R 111-), 63. v. Farmers' Bank (79 Mo. 431), 322. B. Babcock, In re (3 Story, 393), 376, 384. Bachellor v. Priest (12 Pick. 399), 355. Backus v. Shepherd (11 Wend. 629), 530. Backwill v. Bridgeport Wood Co. (62 111. App. 663), 433. Bacon v. Bates (53 Vt 30), 376. v. Hanna (137- N. Y. 379), 503, 507. v. Robertson (18 How. 480), 598. v. United States (97 Fed. R 35), 139, 140, 141, 142, 276. . Bailey v. Dozier (6 How. 23), 546. v. Mosher (63 Fed. R 488), 593. v. Southwestern R Bank (11 Fla. 266), 352. Baird v. Bank of Washington (11 S. & R 411), 116, 119, 148, 194, 195. Baker v. Ashe (80 Tex. 356), 129. v. Atlas Bank (9 Met 182), 98, 101, 114 v. Beach (85 Fed; R 836). 84. v. Clark (20 Me. 156), 500, 501. v. Kelly (41 Miss. 696), 400. v. Montgomery (4 Mart, O. S., 90), 351. v. Morris (25 Barb. 138), 481. v. National Bank (86 Fed. R 1006), 81, 8a Baker v. Northwestern Loan Co. (36 Minn. 185), 68. v. Old Nat. Bank (86 Fed. R 1006), 81, 83. v. Scott (29 Kan. 136), 530. Balbach v. Frelinghuysen (15 Fed. R 675), 211. Balch y. Wilson (25 Minn. 299), 594 Baldwin v. Farnsworth (10 Me. 414), 446. v. State Bank (1 La Ann. 13). 309. Ball v. Allen (15 Mass. 433), 35& Ballard v. Burton (64 Vt. 387). 415. v. Fuller (32 Barb. 68), 369. v. Greenbush (24 Ma 336), 563. Ballston Spa Bank v. Marine Bank (16 Wis. 125). 76. 152. v. Marine Bank (18 Wis. 490), 621. Baltimore, etc. Ry. Co. v. Wheeler (18 Md. 372), 329. Bamberger v. Bank of Tupelo (15 Ky. Law R 361). 312. Bands v. Poiteaux (3 Rand. 136), 194. Bangor Sav. Bank v. Wallace (87 Me. 28), 155, 637. Bank v. Blake (60 Fed. R 78), 164 v. Boisseux (4 Hughes, 387), 122. v. Bur,khardt (100 U. S. 686), 209. v. Burns (12 Colo. 539), 307. v. Collector (3 Wall. 495), 28. v. Downer (28 Vt 635), 72, 252. v. Fairbanks (52 CaL 196). 30. v. Goddard (5 Mason, 366), 51. v. Haug (47 N. W. R 33), 588. v. Kendrick (92 Tenn. 437), 589. v. Laird (2 Wheat. 390), 87. v. Lane (10 N. C. 453), 493. v. Lanier (11 Wall. 369), 89. 190. v. Latimer (67 Fed. R 27), 605, 609, 612, 616. v. Lea (7 Rob., La.. 75), 459. v. Matthews (98 U. S. 621). 62. v. Merrill (2 Hill, 29.1), 279. v. Nolting (94 Va. 263), 267. v. Norwood (1 Har. & J. 423), 467. v. Ralston (3 Phila. 328), 340. v. Reynolds (2 Grat 171), 492. v. Richards (74 Mo. 77), 87. v. Robinson (24 Me. 274), 66. v. Smith (33 Mo. 364), 51. v. Waddell (100 N. C. 338), 213. v. Warren (7 Hill. 91), 153. v. Woods (28 N. Y. 561), 468. Bank of Alabama v. Gibson's Adm'rs (6 Ala, 814), 622. TABLE OF CASES. 715 References are to pages. Bank of Albion v. Smith (27 Barb. 489), 401, 533. Bank of Alexandria v. Deneale (2 Cranch, C. C. 488), 184, 186, 187, 455. v. Mandeville (1 Cranch, C. C. 552), 380, 333. v. Swann (9 Pet. 33), 470, 513. v. Wilson (2 Cranch, C. C. 5), 410, 551. v. Young (1 Cranch, C. C. 458), 619. Bank of America v. McNeil (10 Bush, 54), 91, 172. 175. v. Shaw (142 Mass. 290), 485. Bank of Antigo v. Union Trust Co. (145 [11. 343), 225, 226, 303. v. Union Trust Co. (50 111 App. 434), 339. Bank of Attica, In re (12 N. Y. Supp. 648), 46. Bank of Attica v. Manuf. Bank (20 N. Y. 501), 85, 91. Bank of Auburn v. Putnam (1 Abb. Dec. 80), 483. Bank of Augusta v. Earle (13 Pet 519), 33. 35, 51. Bank of Bennington v. Booth (16 Vt 360), 343. Bank of British North America v. Alaska Imp. Co. (97 CaL 28), 73, 620. v. Bowling (46 Fed. R. 357), 352. v. Madison (99 Cal. 125). 73. v. Merchants' Bank (91 N. Y. 106), 259, 267, 287. Bank of Carlisle v. Fleming (44 S. W. R. 961), 160. Bank of Chambersburg v. Common- wealth (2 Grant Gas. 384), 557. Bank of Charleston v. State Bank (13 Rich. Law, 291), 120, 169. Bank of Chenango v. Curtis (19 Johns. 326). 332. Bank of Circleville v. Iglehart (6 McLean, 568), 569. Bank of Clarke Co. v. Oilman (81 Hun, 486, 152 N. Y. 634), 297, 322. Bank of Columbiav.King(2 Cranch, C. C. 570), 517, 518. v. Lawrence (1 Pet 578), 208, 474, 475, 477, 491, 508. v. Mackall (2 Cranch, C. C. 631), 520. v. Magruder (6 Har. & J. 172), 493. v. Sweeney (2 Pet 671), 619. Bank of Commerce v. Goos (39 Neb. 437), 242. v. Grocers' Bank (2 Daly, 289), 271. v. Hart (37 Neb. 197), 153, 190. v. Union Bank (3 N. Y. 230', 378. Bank of Commonwealth v. Clark (4 Mo. 59), 555, 556. v. Mudgett (45 Barb. 463), 47a Bank of Cooperstown v. Woods (28 N. Y. 561), 470. Bank of East Tennessee v. Hook (1 Cold. 156), 166. Bank of Genessee v. Patchen Bank (19 N. Y. 312), 152. Bank of Greensboro v. Clapp (76 N. Y. 482), 218. Bank of Guntersville v. Webb (108 Ala. 132), 208. Bank of Hanover v. Kenan (76 N. C. 340). 304. Bank of Holly Springs v. Pinson (58 Miss. 421), 91. Bank of Illinois v. Taylor (7 T. R Mon. 576; see Taylor v. Bank of Illinois), 491, 506. Bank of Kentucky v. Bonnie (43 & W. R. 407), 90. v. Duncan (4 Bush, 294), 480. v. Floyd (4 Met., Ky., 159), 384, v. Gary (6 B. Mon. 626), 410. v. Hie key (4 Litt 225), 563. v. Pursley (3 T. R Mon. 238), 409. 546. v. Schuylkill Bank (1 Pars. Eq. Cas. 180), 77. v. Thornberry (3 B. Mon. 519), 557 v. Wister (2 Pet 324), 201, 204, 342. Bank of Leroy v. Harding (1 Kan. App. 389), 282. Bank of Lindsborg v. Ober (31 Kan. 599), 304, 307. Bank of Louisiana v. Corl (3 La. Ann. 273). 493. v. Fowler (10 Rob., La., 196), 560, 597. v. Green (20 La. Ann. 214), 572. v. Lawless (3 La. Ann. 129), 410. v. Satterfield (14 La. Ann. 80), 549. v. Smith (4 Rob., La., 276), 518. v. Stansbury (8 La. 257), 330. Bank of Louisville v. Bank (8 B;ixt 101), 307, 308, 309. v. Ellery (34 Barb. 630), 344, 716 TABLE OF CASES. References are to pages. Bank of Louisville v. Summers (14 B. Mon. 247), 558. Bank of Lyons v. Dinsmore (Hill & D. Supp. 398), 584. Bank of Madison, In re (5 Biss. 515), 301. Bank of Manchester v. Allen (11 Vt. 302), 50. v. Slason (13 Vt. 334), 491. Bank of Marietta v. Pindall (2 Rand. 463), 75. Bank of Martinez v. Hemme Co. (105 Cal. 376), 326. Bank of Maryland v. Ruff (7 Gill & J. 448), 119. Bank of Memphis v. White (2 Sneed, 482), 563. Bank of Metropolis v. Brent (2 Cranch. C. C. 530), 443. v. Jones (8 Pet 12), 158. v. New England Bank (1 How. 234, 6 How. 212), 297, 298, 315, 329. Bank of Michigan v. Niles (1 Doug. 401), 194. v. Williams (5 Wend. 480), 45. Bank of Middlebury v. Bingham (33 Vt. 621), 66. Bank of Minneapolis v. Griffin (168 I1L 314), 150. Bank of Minnesota, In re (73 N. W. R. 1096), 588. Bank of Mississippi v. Duncan (56 Miss. 166), 573. Bank of Missouri v. Benoist (10 Mo. 519), 288. v. Bredow (31 Mo. 523), 570. Bank of Mobile v. Huggins (3 Ala. 206), 304, 311. v. Meagher. See Mobile Bank v. Meagher. v. Williams (13 Ala. 544), 558. Bank of Montgomery v. Walker (9 S. & R. 220), 399. Bank of Montreal v. Fidelity Nat. Bank (1 N. Y. Supp. 352. 11 N. Y. 667), 573, 574, 595, 596, 629 v. White (154 U. S. 600), 329. Bank of Newberry v. Stegall (41 Miss. 142), 76. Bank of New London v. Ketcham (64 Wis. 7), 167. Bank of Niagara v. Johnson (8 Wend. 645), 125. Bank of North America v. Tamblyn (7 Mo. App. 570), 192. Bank of North Liberties v. Cresson (12 S. & R 306), 117. Bank of Old Dominion v. McVeigh (29 Grat. 546), 523. Bank of Orange Co. v. Colby (12 N. H. 520). 386. Bank of Orleans v. Curtis (11 Met. 359), 332. v. Smith (3 Hill, 560), 321. v. Whittemore (12 Gray, 469), 511. Bank of Pennsylvania v. Reed (1 Watts & S. 101), 167. v. Spangler (32 Pa. 474), 230, 343. Bank of Peru v. Farnsworth (18 III 565), 279. Bank of Pittsburg v. Whitehead(10 Watts, 397), 176. Bank of Port Jervis v. Darling (91 Hun, 326), 59. Bank of Portland v. Brown (22 Me. 295), 419. Bank of Red Oak v. Orvis (40 Iowa, 332). 413, 448, 449. Bank of Republic v. Baxter (31 Vt 101). 257. Bank of St. Al bans v. Farmers' Bank (10 Vt. 141), 264. Bank of St. Mary's v. Calder (3 Strobh. 403). 121. v. St. Johns (25 Ala. 566), 95, 559, 579. Bank of South Carolina v. Myers (1 Bailey, 412), 538. Bank of State v. Bank of Cape Fear (13 Ired. 75), 443. Bank of Syracuse v. Wisconsin Ins. Co. (12 N. Y. Supp. 952), 316. Bank of United States v. Bank of Georgia (10 Wheat. 333), 264, 274, 559. v. Barry (2 Cranch, C. C. 307), 470. v. Brent (2 Cranch, C. C. 696), 117. v. Carneale (2 Pet. 543), 443, 494, v. Corcoran (2 Pet. 121), 503. v. Dandridge (12 Wheat, 64), 117. v. Davis (2 Hill, 452), 173. v. Davis (4 Cranch, C. C. 533), 621. v. Dunn (6 Pet. 51), 158. v. Goddard (5 Mason, 366), 487. v. Hatch (6 Pet. 250), 480, 496. v. Leathers (8 B. Mon. 127). 574 v. McDonald (4 Cranch, C. C. 624), 478. v. McLaughlin (2 Cranch, C. C. 20), 566. 573. v. Magill (12 Wheat 511), 116. TABLE OF CASES. TIT References are to pages. Bank of United States v. Merle (2 Rob., La., 1117), 478, 480. v. Norwood (1 Har. & J. 423), 187. v. O'Neale (2 Cranch, C. C. 466), 443. v. Osborn (2 Pet. 527), 59. v. Owens (2 Pet 528), 330, 331, 835 v. Waggoner (9 Pet. 378), 331. v. Watterson (4 Cranch, C. C. 445), 469. v. Wilson (3 Cranch, C. C. 213), 277 Bank of Ut'ica v. Bender (21 Wend. 643), 495. v. Davidson (5 Wend. 587), 495. v. Johnson (18 Johns. 230), 412. v. McKinster (11 Wend. 473), 309. v. Magher (18 Johns. 341), 563. v. Phillips (3 Wend. 408), 451, 453, 502. v. Smith (18 Johns. 230), 421. Bank of Vergennes v. Cameron (7 Barb. 143), 418. Bank of Virginia v. Craig (6 Leigh. 399), 85. v. Robinson (5 Grat. 174), 116. v. Ward (6 Munf. 166), 558. Bank of Washington v. Pierson (2 Cranch, C. C. 685), 519. v. Reynolds (2 Cranch, C. C. 289), 440. v. Triplett (1 Pet. 25), 184. 302, 310, 349, 355, 453. v. Way (2 Cranch, C. C. 149), 393, 399. Bank of Wilmington v. Cooper (1 Har. 10), 548. Banking Co., In re (12 Phila. 214, 469), 575. Banking Co., Ex parte (34 Leg. Int. 204, 230), 575. Bank Commissioners v. Bank of Brest (1 Har. 106), 575. v. Buffalo Bank (6 Paige, 497), 569. 571. 572. v. Central Bank (5 R. L 12), 570, 572 v. Franklin Sav. Inst. (11 R I. 557), 583. Banks v. Bessler (56 Ga. 199), 456. v. Darden (18 Ga. 318), 125. Banning v. Loving (82 Ky. 370). 131. Barbaroux v. Waters (3 Met., Ky., 304), 393, 421, 549. Barber v. Ketchum (7 Hill, 444), 550. Barbons v. Nat. Ex. Bank (45 Ohio St 133), 338. Barclay v. Weaver (19 Pa. 396), 531, 532. Barden v. Johnson (107 U. S. 251), 80. Barings v. Dabney (19 Wall. 1), 590. Barkalow v. Johnson (16 N. J. Law, 397), 545. Barker v. Clark (20 Me. 156), 502. v. Fullerton (11 La. Ann. 25), 443. v. Hall (8 Tenn. 183), 507. v. Parker (6 Pick. 80), 430, 438. v. Weston (10 Iowa, 593). 509. v. Whitney (18 La. 575), 515. Barling v. Bank of British North America (50 Fed.R. 260), 73, 620. Barlow v. Coggan (1 Wash. Ter. 257), 414. v. Planters' Bank (7 How., Miss., 129). 516. Barnard v. Galin (23 Minn. 192), 401, 533. Barnes v. Arnold (51 N. Y. Supp. 1109), 48, 101, 114. v. Ontario Bank (19 N. Y. 152), 152, 185, 187, 198, 279. v. Pogue (29 Wkly. Law Bui. 382), 130, 593. v. Reynolds (4 How., Miss., 114), 518. v. Vaughan (6 R. I. 259), 419, 443. 447, 449, 454. Barnet v. National Bank (98 U. S. 555), 337. v. Smith (30 N. H. 256), 243, 258, 358. Barnett v. Boone Lumber Co. (43 W. Va. 441), 365, 367. v. National Bank (Fed. Gas. No. 1026), 338. v. State (54 Ala. 579), 556. Barnewell v. Mitchell (3 Conn. 101), 501. Barney v. Newcomb (9 Cush. 46), 355, 365, 620. v. Worthington (32 N. Y. 12), 368. Barnstable Sav. Bank v. Snow (128 Mass. 512), 652. Barr v. Marsh (9 Yerg. 253), 504. Barrett v. Charleston Bank (2 Mc- Mul. 191), 538. v. Evans (28 Mo. 331), 474. v. Henrietta Nat. Bank (78 Tex. 222), 595. Barrow v. Bank of Louisiana (2 La*. Ann. 453), 63. 718 TABLE OF CASES. References are to pages. Barrows v. Downs C9 R- I- 446), 57. Barry v. Friend (87 Ark. 437). 893. v. Merch. Ex. Co. (1 Sandf. Ch. 280), 32. v. Morse (3 N. H. 132), 401, 533. Barstow v. Hiriat (6 La. Ann. 98), 546. Bartholomew v. Bentley (1 Ohio St. 37), 59, 116. Bartlett v. Isbell (31 Conn. 296), 451, 488. 505. v. Leathers (84 Me. 241), 438. v. Remington (59 N. H. 364), 642. v. Robinson (9 Bosw. 305, 39 N. Y. 387), 492. v. Woodbine Bank (57 III App. 425), 172. Bartley v. Hayden (74 Fed. R. 913), 624. ' v. State (73 N. W. R. 744), 209. Barton v. Baker (1 S. & R. 334), 458, 538, 559. Baskerville v. Harris (41 Miss. 535), 535. Bassenhorst v. Wilby (45 Ohio St. 333), 427, 431. Batchelor v. Planters' Nat. Bank (78 Ky. 435), 122. v. United States (156 U. S. 426), 144. Bates, In Matter of (118 III 524), 588, 589. Bates v. First Nat. Bank (89 N. Y. 286), 216, 219. v. First Nat. Bank (23 Hun, 420), 219. v. Lewis (3 Ohio St. 459), 95, 105, 107. v. State Bank (2 Ala. 451), 95, 105, 107. Bateson v. Clark (37 Mo. 31), 447. Bath Sav. Inst. v. Sagadahoc Nat. Bank (36 Atl. R. 996), 89. Batty v. Scuddy (10 La. Ann. 404), 240. Baumgardner v. Reeves (35 Pa. 250), 417, 447, 448, 551. Baxter v. Couglan (72 N. W. R 797), 129. Bayerque v. City of San Francisco (Fed. Cas. No. 1137), 350. Bayley v. Chubb (16 Grat. 284), 498. v. Hazard (3 Yerg. 487), 400. Bayor v. American Trust & Sav. Bank (157 III 62), 600, 609. v. Shatfner (51 III App. 180), 282, 600. Beal v. City of Somerville (50 Fed R 647), 211, 212, 293, 315, 322, 610, 611, 613. 614 v. Nat. Ex. Bank (55 Fed. R. 81)4), 315, 322. Beale v. Parrish (20 N. Y. 407), 486. v. Parrish (24 Barb. 243), 506. v. Peck (12 Barb. 245), 470, 517. Bean v. Briggs (1 Iowa, 148), 405. Beard v. School Dist. (88 Fed. R. 375i. 603, 616. v. Westermann (32 Ohio St. 29), 538. Beardsley v. Webber (104 Mich. 88), 279, 406. Beatty v. McLeod (11 La. Ann. 76), 218. Beckha.n v. Shackelford (8 Tex. Civ. App. 660), 587. Beckley v. Commercial Bank (39 S. C. 281), 207. v. Commercial Bank (43 S. C. 528), 638. Beckwith v. Angell (6 Conn. 315), 401. v. Smith (22 Me. 125], 492, 513. v. Union Bank (9 N. Y. 211), 215, 232. Bedford Bank v. Acoam (125 Ind. 584), 235. Beebe v. Brooks (12 Cal. 308), 431. Beeding v. Thornton (3 Cranch, C. C. 698). 445. Beeler v. Frost (70 Mo. 185), 401, 533. Beers v. Hussey (1 Bailey, Eq. 168), 586. Beier v. Strauss (54 Md. 278), 503. Belcher v. Wilcox (40 Ga. 391), 562, 590, 591. Belford v. Bangs (15 Bradw. 76), 386. Belknap v. National Bank (100 Mass. 376), 272. Bell v. First Nat. Bank (115 U. S. 373), 427. v. Hagerstown Bank (7 Gill, 216), 184, 510. v. Hall (2 Duv. 288), 523. v. Lunt (24 Wend. 230), 552. v. Moss (5 Whart. 189), 362. v. State Bank (7 Blackf. 456), 474. Bellows v. Hallowell Bank (3 Mason, 31), 568. v. Norton (12 Heisk. 319), 296. Bellows Falls Bank v. Rutland Co. Bank (40 Vt. 377 1, 28a Bellmire v. United States Bank (4 Whart. 109), 306, 309. TABLE OF CASES. 719 References are to pages. Bendey v. Townsend (109 U. S. 665), 395. Benedict v. Gaffe (5 Duer, 226), 448. v. Rose (16 S. C. 629), 476. v. Sckwerg (13 Wash. 476), 413. Bennett v. Knapp (9 N. Y. Supp. 766). 284. Benoist v. Creditors (18 La. 522), 540. Benton v. German Am. Bank (122 Mo. 332), 164, 182. v. Gibson (1 Hill, S. C., 56), 468. v. Martin (31 N. Y. 332), 407, 426. v. Martin (40 N. Y. 345), 525. Berckhead v. Brown (5 Hill, 634), 363, 365. Berg v. Abbott (83 Pa. 177), 417. Berkshire v. Evans (4 Leigh, 223), 50. Berkshire Bank v. Jones (6 Mass. 524), 530. Bernard v. Barry (1 G. Greene, 388), 548. Berney Nat. Bank v. Pinckard (87 Ala. 577), 87. Berry v. Southern Bank (2 Duv. 379), 465. Best v. Thiel (79 N. Y. 15), 633. Bettis v. Schruber (31 Minn. 329), 551. Bibb v. McQueen (42 Ala. 408), 475. v. Peyton (11 Smedes & M. 275), 542. Bickford v. First Nat. Bank (42 111. 238), 226, 252. Bidwell v. Madison (10 Minn. 13), 115, 121. Biebinger v. Continental Bank (99 U. S. 143), 329. Big Sandy Bank v. Chilton (40 W. Va. 491), 487. Bigelow v. Keller (6 La. Ann. 59), 450. Billgerry v. Branch (19 Grat. 393), 523 Billingsley v. Pollock (69 Miss. 659), 317. v. State Bank (3 Md. 375), 330. Birch v. Fisher (51 Mich. 36), 279. Bird v. Cockrem (2 Woods. 32), 624. v. Doyal (20 La. Ann. 541), 517, 519. v. Louisiana State Bank (93 U. S. 96), 304 v. McCalop (2 La. Ann. 351), 474 v. McElvine (10 Ind. 40). 358. Birmingham Nat. Bank v. Bradley (103 Ala. 109), 300. v. Mayer (104 Ala. 634), 620. Biscoe v. Tucker (11 Ark 145), 326. Bishop v. Dexter (2 Conn. 419), 456. Bisseli v. First Nat. Bank (69 Pa. 415), 152, 158. v. Heath (98 Mich. 472), 93, 588. Black Hills Nat. Bank v. Kellogg (4 S. Dak. 312), 179. Blackmore v. Woodward (71 Fed. R. 321), 84. Blaffer v. Herman (7 La. Ann. 659), 536. Blaffner v. Louisiana Nat. Bank (35 La. Ann. 251), 656. Elaine v. Bourne (11 R. I. 119), 315. Blair v. Allen (3 Dill. 101), 231. v. Bank of Tennessee (11 Humph. 84), 375, 388. v. First Nat. Bank (2 Flip. Ill), 166. v. Perpetual ins. Co. (10 Mo. 5j9), 68. Blake v. McMillen (22 Iowa, 358), 413, 440. v. State Bank (12 Wash. 619), 588, 615. Blaketey v. Grant (6 Mass. 386), 503. Blaker v. Hood (53 Kan. 499), 71. Blakeslee v. Hewitt (76 Wis. 341), 295, 412, 487. Blanc v. Mut. Nat. Bank (28 La. Ann. 921), 537. Blanchard v. Boom Co. (40 Mich. 566), 392. v. Commercial Bank (75 Fed. R. 249), 168. v. Hilliard (11 Mass. 85), 453. v. Wood (26 Me. 358), 400. Blankenship v. Rogers (10 Ind. 333), 460. Blasdell v. Locke (52 N. H. 238), 642. Blenderman v. Price (50 N. J. Law, 296). 399. Bliss v. Burnes (McCahon, 91), 353. v. Cutler (19 Barb. 9), 300. v. Nichols (94 Mass. 443;, 484, 485, 503. Block v. Wilkerson (42 Ark. 253), 357. Blodgett v. Durgin (32 Vt. 361), 508. Blood v. Northrup (1 Kan. 28), 405. Bloom v. Warder (13 Neb. 476), 403. Blue v. Cap. Nat Bank (145 Ind. 518), 117. 118. Ely v. Second Nat Bank (79 Pa. 453), 338. Boardman v. Hayne (29 Iowa, 839), 350. v. Steele (13 Conn. 547), 392. 525. 720 TABLE OF CASES. References are to pages. Boatmen's Sav. Inst. v. State Bank (33 Mo. 497), 560. Bobo v. People's Nat. Bank (92Tenn. 444), 335. Bodley v. Scarborough (5 How., Miss., 729), 548. Boettcher v. Colorado Nat. Bank (15 Colo. 16), 220, 231. Bogart v. McClung (11 Heisk. 105), 544. Bogg v. Keil (1 Mo. 743), 392, 399. Boisregard v. N. Y. Banking Co. (2 Sandf. Ch. 23), 73. Boit vi Carr (54 Ala. 112), 442. Boker, In re (7 Phila. 479), 119. Boiling v. Mackenzie (89 Ala. 470), 542. Bolton v. Harrod (9 Mart., O. S., 326), 424. Bond v. Appleton (8 Mass. 472), 104. v. Central Bank (2 Kelly, 92), 66, 327. Bondurant v. Everett (1 Met., Ky., 660), 474. Bonnell v. Prince (32 S. W. R. 855), 385. Booker v. Young (12 Grat. 303). 116. Boone v. Citizens' Sav. Bank (84 N. Y. 83), 642, 643. Booth v. Wills (42 Fed. R. 11), 600. Born v. First Nat. Bank (123 Ind. 78), 244, 256. Borup v. Nininger (5 Minn. 523), 311, 312. Bosler v. Exchange Bank (4 Pa. 32), 232. Boston Bank v. Hodges (9 Pick. 420), 520. Bostwick v. American Finance Co. (43 Fed. R. 897), 625. Boteler v. Dexter (20 D. C. 26), 486. Bowden v. Farmers' Bank (1 Hughes, 207), 81. v. Johnson (107 U. S. 251), 112, 114. v. Santos (1 Hughes, 158, Fed. Gas. No. 83), 83. v. Third Nat. Bank (12 Wkly. Law Bui. 184), 272. Bowen v. Needles Nat. Bank (87 Fed. R. 430), 258. v. Newell (8 N. Y. 190), 184, 454. v. Stoddard (10 Met. 375), 380. Bower v. Hoffman (23 Md. 263), 405. v. State (5 Ark. 234), 61. Bowers v. Evans (71 Wis. 133), 605, 612, 614, 615. Bowie v. Blacklock (2 Cranch, C. C. 265), 478. Bowker v. Hill (60 Me. 172), 319. Bowling v. Arthur (34 Miss. 41), 488. v. Harrison (6 How. 248;, 473, 487, 495. Bowman v. Cecil Bank (3 Grant Cas. 33), 51. v. First Nat. Bank (9 Wash. 614), 317, 601. Boyce v. Edwards (4 Pet. Ill), 362, 363. Boyd v. Bank of Toledo (32 Ohio St. 526), 457. v. City Sav. Bank (15 Grat. 501), 518, 519. v. Cleveland (4 Pick. 525), 528, 537. v. Orton (16 Wis. 495), 484. Boyden v. Bank of Cape Fear (65 N. C. 13), 205. Boyer Ind. Dist. v. King (80 Iowa, 497), 603. Boykin v. Bank of Fayetteville(118 N. C. 566), 324 Boylston Nat. Bank v. Richardson (101 Mass. 287). 274. Brabazon v. Seymour (42 Conn. 551), 381. Brabrook v. Five Cent Sav. Bank (92 Pa. 134), 641. Braden, In re (165 Pa. 184), 52. Bradford v. Cooper (1 La. Ann. 325), 546. v. Fox (39 Barb. 203), 413. v. Hubbard (8 Pick. 155), 376, 379, 384. v. Jenks (2 McLean, 130). 584. Bradlee v. Warren Sav. Bank (127 Mass. 107), 637. Bradley v. Davis (26 Me. 45), 480, 491. v. Mason (6 Bush, 302), 352. v. McClellan (3 Yerg. 301), 377. v. Northern Bank (60 Ala. 252), 437, 547. v. Phelps (2 Root, 325), 403. Bradstreet v. Bank of Royalton (42 Vt 128),115. v. Everson (72 Pa. 124), 306. Brady v. Evans (78 Fed. R 558), 129. v. Little Miami R. Co. (34 Barb. 249), 425. Brahm v. Adkins (77 111. 263), 287. Brailsford v. Williams (15 Md. 150), i*9. Braley v. Buchanan (21 Kan. 274) r 392, 399. TABLE OF CASES. 721 References are to pages. Branch v. Baker (53 Ga. 502), 562. v. Dawson (36 Minn. 193), 208, 214, 290. v. U. S. Nat. Bank (17 N. W. R. 34), 322. Branch Bank v. Knox (1 Ala. 148), 309. v. Pierce (3 Ala. 321), 506. v. Poe (1 Ala. 396), 154. v. Rhew (37 Miss. 110), 51. v. Steele (10 Ala. 915), 172. v. Strothers (15 Ala. 51), 322. Branch of State Bank v. Harrison (2 Port. 240), 619. Brander v. Phillips (16 Pet. 121), 379. Brandon v. Loftus (4 How. 127), 551. Brandt v. Mickle (28 Md. 436), 539. Brannin v. Henderson (12 B. Mon. 61), 357. Braun v. Kimberlin (9 Am. Law Rec. 405). 434. Brazelton v. McMurray (44 Ala. 323), 352. Breed v. Hillhouse (7 Conn. 523), 541. Breen v. Buttorf (3 Tenn. Ch. 285), 541. Bremer Co. Bank v. Mores (73 Iowa, 289), 261. Brennan v. Manuf. Nat. Bank (62 Mich. 343), 224, 262. v. Vogt (97 Ala. 647), 437, 474 Brent v. Bank of Washington (2 Cranch, C. C. 517), 90, 92, 114, 519. v. Bank of Washington (10 Pet. 596), 90. Breyfogle v. Walsh (71 Fed. R 898), "166. Brickett v. Spaulding (33 Vt. 107), 442. Bridgeford v. Simon (18 La. Ann. 121), 425. Bridgeport Bank v. Dyer (19 Conn. 136). 187, 453, 455. v. New York, etc. R Co. (30 Conn. 270), 190. Bridgewater Sav. Bank v. Soule (129 Mass. 528), 652. Briggs v. Central Bank (89 N. Y. 182), 301, 305. v. Parsons (39 Mich. 400), 404 v. Sizer (30 N. Y. 647), 359. v. Spaulding (141 U. S. 132), 119, 122 Bright v. Carpenter (9 Ohio, 139), 402, 533. 46 Bright v. Judson (47 Barb. 29), 354 Brighton v. White (128 Ind. 320), 577. Brighton Market Bank v. Philbrick (40 N. H. 506), 503. 506. Brill v. Tuttle (81 N. Y. 457), 371. Brinckerhoff v. Bostwick (99 N. Y. 185), 124 Brinckerhoof v. Bostwick (88 N. Y. 52). 593. 624 Brinkerhoof-Farris Co. v. Home Lumber Co. (118 Mo. 447), 92. Brinkman v. Hunter (73 Mo. 172), 367. Briscoe v. Bank of Commonwealth (11 Pet, 257), 42, 43. Bristol v. Parker (Anth. N. P. 235), 32 v. Parker (14 Johns. 204), 32. Bristol Knife Co. v. Bank (41 Conn. 421), 216, 272. Bristol Sav. Bank v. Keavy (128 Mass. 298), 155. British Mortgage Co. v. Tibballs (63 Iowa, 468), 298, 303. Britt v. Lawson (15 Hun, 123), 414 Britton v. Doylestown Bank (5 Watts & S. 87), 443. v. Nichols (104 U. S. 757), 308. Brixen v. Deseret Nat. Bank (5 Utah, 504), 266, 267. Broadway Bank v. McElrath (13 N. J. Eq. 24), 87. Brobstpn v. Penniman (97 Ga. 527), 164 Brockmeyer v. Washington Nat. Bank (40 Kan. 744). 220. Broddie v. Searcy (7 Tenn. 183), 437. Brodeneck v. Waltham Sav. Inst. (109 Mass. 149), 214 Bronson's Ex'r v. Chappell (12 Wall. 681), 159. Brooke v. Tradesmen's Bank (69 Hun, 202), 242. Brooks, In re (5 Dem. Sur. 326), 64L Brooks v. Day (11 Iowa, 76), 551. v. Higby (11 Hun, 235), 388,549. Brothers v. Bank (84 Wis. 381), 335. Brower v. Haight (18 Wis. 103), 335. v. Jones (3 Johns. 230), 425. Brown, In the Matter of (2 Story, 502, 519), 255, 348, 389, 392, 432. Brown v. Abingdon Sav. Inst (119 Mass. 69), 649. v. Bank of Abtugdon (85 Va. 95)>. 473. v. Barry (3 DalL 365), 411. 722 TABLE OF OASES. References are to pages. Brown v. Bradford (103 Iowa, 378), 149, 194. v. Brown (23 Barb. 565), 219, 643. v. Cronise (21 Cal. 387). 392. v. Farmers' Bank (88 Tex. 265), 120. v. Ferguson (4 Leigh, 37), 490, 528. v. Folsom (62 N. H. 527), 634. v. Hitchcock (36 Ohio St. 667), 104. v. Hogg (14 111. 219\ 194. v. Jackson (1 Wash. C. 0. 512), 373 v. Jones (125 Ind. 375), 385, 469. v. Jones (113 Ind. 46), 253. v. Johnston (12 N. C. 293). 429. v. Killian (11 Ind. 449), 56, 61. v. Kinsley Ex. Bank (51 Kan. 359), 213. v. Leckie (43 III 497), 226, 252, 256, 259. v. Lusk (4 Yerg. 210), 349. v. McElroy (52 Ind. 404), 288. v. Penobscot Bank (8 Mass. 445), 557. v. Pike (34 La. Ann. 576), 290. v. State (11 Ohio, 276), 70. v. Teague (52 N. C. 573), 404, 540. v.Turner (11 Ala. 752), 511. v. Turner (15 Ala. 832), 416. v. Williams (4 Wend. 360), 385. Browning v. Merritt (61 Ind. 425), 402. Brownlee v. Madison Co. Comm'rs (81 Ind. 186), 350. Bruce v. Hawley (31 Vt. 643), 341. v. Lord (1 Hilt. 247), 383. v. Lytle (13 Barb. 163). 457. Brudenbecker v. Lowell (32 Barb. 9), 152. Bruramagen v. Tallent (29 Cal. 503), 279, 290, 405. Bruner v. First Nat. Bank (97 Tenn, 540). 615. v. Nisbet (31 III App. 517), 359. Brunson v. Napier (1 Yerg. 199), P"' *Q L<>O. Bryant v. Damariscotta Bank (18 Me. 240), 557, 563. v. Lord (19 Minn. 396), 411, 529. v. Merchants' Bank (8 Bush, 43), 529. v. Wilcox (49 Cal. 47), 536. Buchanan v. Drovers' Bank (55 Fed. R 223), 330. v. Marshall (22 Vt. 561), 530. Buchanan v. Meisser (105 111. 638), 105, 107, 108. Buchanan Farm Oil Co. v. Wood- man (1 Hun, 639), 204. Buck v. Cotton (2 Conn. 126), 392, 399. Buckley v. Bentley (42 Barb. 646), 529, 530, 532, 543. v. Seymour (30 La. Ann. 1341), 552. Buckner v. Finley (2 Pet. 586), 408. v. Liebig (38 Mo. 188), 403. Budweiser Brewing Co. v. Cappa- relli (38 N. Y. Supp. 972), 398. Buehler v. Gait (35 111. App. 225), 259. Buell v. Warner (33 Vt 570), 121, 124. Buffalo Bank v. Codd (25 N. Y. 163), 56. 61, 556. Bull v. First Nat. Bank (14 Fed. R. 612), 425, 433. v. Hoge (2 Hilt. 81>, 468. v. Kasson Bank (123 U. S. 105), 348, 433, 436. v. Simms (23 N. Y. 570), 350. Bullard v. Bank (18 Wall. 589), 49, 85, 89. v. Bell (1 Mason, 243). 126, 563. v. Randall (1 Gray, 605), 255. Bundy v. Jackson (24 Fed. R 628), 83, 189. v. Monticello (84 Ind. 119), 216. Bung v. Armstrong (34 Fed. R. 94), 240. Bunnell v. Collinsville Sav. Soc. (38 Conn. 203). 650. Bunting v. Mick (5 Ind. App. 289), 352. Burbank v. Beach (15 Barb. 326), 489. Burcli v. Newberry (10 N. Y. 374), 413. Burckmeyer v. Whiteford (6 Gill, 9), 516. Burgess v. Vreeland (24 N. J. Law, 711,470,512. Burk v. Shreve (39 N. J. Law, 214), 551. Burke v. McKay (2 How. 66), 411, 456. 489. v. Slattery (31 N. Y. Supp. 825), 641. T. Utah Nat. Bank (47 Neb. 247), 362, 363. v. Ward (32 S. W. R 1047), 530. Burkham v. Trow bridge (9 Mich. 209), 467, 471. TABLE OF CASES. 723 Eeferences are to pages. Burkhardt v. Fourth Nat. Bank (6 Wkly. Law Bui. 138), 496. Burkett v. Lanata (15 La. Ann. 377), 70. Burnheisel v. Field (17 Ind. 609), 351. Burlingame v. Foster (128 Mass. 125), 491. Burnap v. Harkins Engine Co. (127 Mass. 586), 105, 107, 108. Burnes v. Kowland (40 Barb. 368), 365. Burnet Sav. Co. v. German Nat. Bank (4 Ohio Dee. 290), 260, 267. Burnham v. Webster (19 Me. 232). 487. Burrill v. Dollar Sav. Bank (92 Pa. 134), 639. v. Smith (7 Pick. 291), 440. Burroughs v. Tradesmen's Bank (87 Hun, 6), 242. Burrows v. Hannegan (1 McLean, 309), 447. 452, 538. v. Niblack (84 Fed. R. Ill), 68, 160. Burt v. Bailey (73 Fed. R. 693), 83. v. Parish (9 Ala. 311), 400. Burthe v. Donaldson (15 La. 382), 384. Burtnett v. First Nat. Bank (38 Mich. 630), 220. 231. Bury v. Woods (17 Mo. App. 245), 324. Bush v. Foote (58 Miss. 5), 245, 371, 372. Bushnell v. Chatauqua Co. Nat. Bank (74 N. Y. 290), 193, 205. v. Leland (164 U. S. 684). 591. Bussard v. Levering (6 Wheat. 102), 509, 516. Bussey v. Branch Bank (15 Ala. 216), 621. Butchers' Bank v. Hubbell (117 N. Y. 384), 208, 209, 210. Butler v. Duvall (4 Yerg. 265), 487. Buttervvorth v. O'Brien (39 Barb. 192), 125. v. Peck (5 Bosw. 341), 238. Bynum v. Apperson (9 Heisk. 632), 523. Byrd v. Bertrand (7 Ark. 321), 377. Byrne v. Schwing (6 B. Mou. 199), 377. v. Union Bank (9 Robt. 433), 77, 85. Byron v. Carter (22 La, Ann. 98), 91. 0. Cabot Bank v. Morton (4 Gray, 156), 340. v. Russell (4 Gray, 167), 505. y. Warner (92 Mass. 522), 473. Cadillon v. Rodriguez (25 La. Ann. 79). 502, 508. Cadiz Bank v. Slemmons (34 Ohio St. 142), 337, 338. Cadle v. Baker (20 Wall. 650), 592, 593. v. Tracy (11 Blatchf. 101), 596, 624. 628. Cady v. Bradshaw (116 N. Y. 188), 537. v. Shepherd (12 Wis. 639), 402, 533. v. South Omaha Bank (49 Neb. 125). 218, 231. Cake v. Lebanon Nat. Bank (86 Pa. 303), 335, 338. Caldwell v. Evans (5 Bush, 380), 295. v. Nat. Mohawk Val. Bank (64 Barb. 333), 161. v. Porter (17 N. H. 27), 542. Calhoun v. Manuf. Bank (36 Ga. 410), 373. California Bank v. Ginty (108 Cal. 148), 334. v. Kennedy (167 U. S. 362), 69, 160, 190. v. Western Union Tel. Co. (58 Cal. 280). 214. Callahan v. Bank of Kentucky (82 Ky. 231), 485. Calton v. Savings Bank (7 Conn. 487), 206. Camden Bank v. Rogers (4 How. Pr. 63), 620. Cameron v. First Nat. Bank (34 S. W. R. 178). 63. Camp v. Scott (14 Vt. 387), 428. Campbell v. First Nat. Bank (23 Colo. 177), 176. v. Mississippi Bank (6 How., Miss., 625), 554. v. Pettingi 11 (7 Me. 126), 382. v. Varney (12 Iowa, 43), 541. Canadian Bank v. Caumbe (47 Mich. 358), 155, 376. Canfield v. State Nat. Bank (Fed. Cas. No. 2382), 191. Canonge v. Cauchoix (1 1 Mart., 0. S., 452), 516. v. Louisiana State Bank (7 Mart., N. S., 583), 50a 724: TABLE OF CASES. References are to pages. Canterbury v. Bank of Sparta (91 Wis. 53), 321. Capital City Ins. Co. v. Quinn (73 Ala. 558), 375. Capital State Bank v. Lane (52 Miss. 677), 301, 303. Cardwell v. Allen (33 Gratt 160), 535. Carey v. Giles (10 Ga. 9), 584 v. Greene (7 Ga. 79), 563. Carley v. Potters' Bank (46 S. W. R '628), 274. Carlisle v. Hill (16 Ala. 398), 539. v. Hooks (58 Tex. 420), 382. Carlisle Bank v. Graham (100 U. S. 699), 285. 287. Carman v. Franklin Bank (61 Md. 467), 216. Carmena v. Bank of Louisiana (1 La. Ann. 369), 495. v. Doherty (1 La. Ann. 369), 488. v. Mix (15 La. 165). 530. Carrnichael v. Pennsylvania Bank (4 How., Miss., 567), 355, 374, 419. 472. Carnegie v. Morrison (2 Met. 381), 363. Carolina Bank v. Parrot (30 S. C. 61), 332. Carolina Na,t. Bank v. Wallace (13 S. C. 347). 474, 517, 520. Carpenter v. McLaughlin (12 R. L 270), 403. v. National Bank (50 N. J. Law, 6), 337. v. Reynolds (42 Miss. 807), 530. Carpey v. Dowcll (115 CaL 677), 160. Carr v. State (104 Ala. 4), 136, 139, 283. Carroll v. Cone (40 Barb. 220), 288. v. Exchange Bank (30 W. Va. 518), 316. v. Green (92 U. S. 509), 106, 114. v. Sweet (30 N. Y. Supp. 204), 392, 434. v. Upton (3 N. Y. 272), 502. Carrolton Bank v. Tayleur (16 La. 490), 362, 364, 370. Carruth v. Walker (8 Wis. 252), 54& Carson v. State Bank (4 Ala. 148), 474. Carter v. Bradley (19 Ma 62), 468. v. Burley (9 N. H. 558), 514, 544, 545, 548. v. Smith (9 Cush. 321), 397, 444 v. Union Bank (7 Humph. 548), 410, 553. Caruthers v. Harbert (5 Cold. 362), 553. Casco Bank v. Mussey (19 Ma 20), Casco Nat. Bank v. Shaw (79 Me. 376), 476, 485. Case v. Berwin (23 La. Ann. 321), 593. v. Burt (15 Mich. 82),_389. v. Citizens' Bank (100 U. S. 446), 152. v. Citizens' Bank (2 Woods, 23), 577, 580. v. Getchell (21 Pa. 503). 551. v. Hawkins (53 Miss. 702), 151. v. Henderson (23 La. Ann. 49), 246. v. Morris (31 Pa. 100), 435, 460. v. Small (10 Fed. R. 722), 82. Casey v. Adams (102 U. S. 66), 628. v. Carver (42 111. 225), 278. v. Cavaroc (96 U. S. 467), 584. v. Credit Mobilier (2 Woods, 77), 581. 584. v. Galli (94 U. S. 673), 47, 49, 112. v. McDonald (7 Ga. 84), 148. Cassel v. Dows (1 Blatchf. 335), 362. Cassidy v. First Nat. Bank (30 Minn. 86), 280. v. Kreamer (13 Atl. R 744), 514 v. Uhlman (50 N. Y. Supp. 318), 129. Castle v. Corn Exchange Bank (148 N. Y. 122), 306, 322. Cate v. Patterson (25 Mich. 191), 280, 405. Catlin v. Eagle Bank (6 Conn. 233), 574, 577. v. Jones (1 Pin. 130), 401, 531. Catskill Bank v. Stall (15 Wend. 364), 481. Catts v. Phalen (2 Hpw. 376), 55. Cawein v. Browinski (6 Bush, 457), 433. Cayuga Co. Bank v. Bennett (5 Hill, 236), 517. v. Hunt (2 Hill, 635), 420, 422, 549. v. Warden (1 Comst. 413), 469. v. Warden (6 N. Y. 19), 483. Cecil Bank v. Farmers' Bank (22 Md. 148). 315. Cecil Nat Bank v. Holt (7 Pa. Co. Ct R. 485), 442. Cedar Falls Co. v. Wallace (83 N. a 225). 45a Central Bank v. Allen (16 Me. 41), 444,450. TABLE OF CASES. 725 References are to pages. Central Bank v. Connecticut Mut- ual Life Ins. Co. (104 U. S. 54^, 565, 572, 603. v. Davis (19 Pick. 373), 520, 529. v. Empire Stone Co. (26 Barb. 23). 560. v. St. John (17 Wis. 157), 833, 472. v. Whitefield (1 Ga 593), 456. Central Georgia Bank v. Cleveland Nat. Bank (59 Ga. 677), 294, 302. Central Nat. Bank v. Insurance Co. 0104 U. S. 54), 219, 230. v. Levin (6 Mo. App. 543), 175, 488. v. Pratt (115 Mass, 539), 336. v. Richland Nat. Bank (52 How. Pr. 136), 596. Central Sav. Bank v. Richards (109 Mass. 413), 369. Central Transportation Co. v. Pull- man's Car Co. (139 U. S. 24), 61, 62, 69. Central Trust Co. v. Cook Co. Nat. Bank (15 Fed. R 885), 166. Chadbourne v. Stockton Sav. Soc. (30 Pac. R. 127), 151. Chaddock v. Vanness (35 N. J. Law, 517), 402, 533. Chadwick v. Jeffers (1 Rich. Law, 397), 468. Chafin v. Lincoln Sav. Bank (7 Heisk. 499), 335. Chambers v. Hill (26 Tex. 472), 423. v. Northern Bank (5 Ky. Law R. 123), 229, 254. Chambliss v. Robertson (23 Miss. 302), 333. Chandler v. Mason (2 Vt. 193), 407. v. Monmouth Bank (13 N. J. Law, 255), 117. Chanoine v. Fowler (3 Wend. 173), 374, 547. Chanute Nat. Bank v. Crowell (6 Kan. App. 533), 244. Chapin v. Merchants' Nat. Bank (14 N. Y. St. R 272). 68. Chapman v. McCrea (63 Ind. 360), 304. v. New Orleans Gas Co. (4 La. Ann. 153), 88. v. Union Bank (32 How. Pr. 95), 303. Charles River Nat. Bank v. Davis (100 Mass. 413), 262. Charleston v. People's Nat Bank (5 S. C. 103), 78. Charleston Banking Ass'n v. Zorn (14 S. C. 444), 39& Chase v. Evoy (49 CaL 467), 419. v. Hathorn (61 Me. 505), 637. v. Petroleum Bank (66 Pa. 169), 586. Chatam Bank v. Allison (15 Iowa, 357), 386, 546. v. Brobston (99 Ga. 801), 80, 81. Chatauqua Co. Bank v. Risley (19 N. Y. 369), 195. Chattahoochie Nat. Bank v. Schley (58 Ga. 369), 286, 287. Chemical Nat. Bank v. Armstrong (56 Fed. R. 392), 153. v. Armstrong (59 Fed. R. 372, 50 Fed. R 798), 588, 595. v. Armstrong (76 Fed. R 339), 178. v. Bailey (12 Blatchf. 480), 587, 597. v. Hartford Deposit Co. (161 U. S. 1), 573. 595. v. Kohner (85 N. Y. 189), 151. v. World's Columbian Exp. (170 111. 82), 594. Chenowith v. Chamberlin (6 B. Mon. 60), 410. Chesapeake Bank v. Swain (29 Md. 483), 238, 282. Cheshire v. Taylor (29 Iowa, 492), 540. Chesin v. First Nat. Bank (96 Tenn. 641), 345. Chester v. Halliard (34 N. J. Eq. 341), 124, 132, 633. Chetwood, Ex parte (165 U. S. 443), 110, 133, 134, 593, 597. Chew v. Bank of Baltimore (14 Md. 299), 85. v. Ellingwood (86 Mo. 260), 574 v. Read (11 Smedes & M. 182), 410, 545. Chicago v. Hall (103111. 342), 105, 107. Chicago Co. v. Park Nat. Bank (44 111. App. 150), 582, 592. Chicago Ins. Co. v. Stanford (28 111. 168), 251. Chicago Marine Co. v. Carpenter (27 111. 525), 238. Chick v. Pillsbury (24 Me, 458), 513. Chicopee Bank v.' Eager (9 Met 583), 474, 476, 520. v. Philadelphia Bank (8 Wall 641), 311, 444. Child v. Eureka Powder Works (44 N. H. 354), 376. v. Moore (6 N. H. 33), 461. 726 TABLE OF CASES. References are to pages. Chipman v. McClennan (159 Mass. 863), 75. Chosen Freeholders v. Jersey City Bank (48 N. J. Eq. 51), 288. Choteau v. Webster (6 Met 1), 499. Christensen v. Eno (106 N. Y. 97), 100, 104. Christie v. Foster (61 Fed. R. 551), 165. Christmas v. Flisker (7 Rob., La., 13), 519. Church v. Barlow (9 Pick. 547), 412, 487. v. Clark (21 Pick 310), 420. Citizens' Bank v. Alexander (120 Pa. 476), 213, 231, 237, 238. v. Bank of Greenville (71 Miss. 271), 600. v. Berry (53 Kan. 696), 150. v. Brown (45 Ohio St. 39), 275, 279, 405. v. Brown (11 Wkly. Law BuL 220), 272. v. Gay (47 La. Ann. 551), 73. v. Graffin (31 Md. 507), 185, 187, 455. v. Grand (33 La. Ann. 976), 273. v. Harrison (127 ind. 128), 216, 219, 237. v. Houston (98 Ky. 139), 299, 303. v. Howell (8 Md. 530), 307. v. Keim (1 Wkly. Notes Cas. 263), 150. v. Kendrick (92 Tenn. 437), 232. v. Nicolas (3 La. Ann. 112), 326. v. Pugh (19 La. Ann. 43), 465, 523. v. Weigand, 5 Wkly. Notes Cas. 12). 121. Citizens' Nat Bank v. Cade (73 Mich. 449), 520. v. Carson (32 Mo. 191), 234. v. Importers' & Traders' Nat Bank (119 N. Y. 195), 243, 267, 345. v. Third Nat Bank (49 N. R R. 171), 312. Citizens' Sav. Bank v. Blakeley (43 Ohio St. 645), 279. v. Ingham (98 Mich. 173), 589. City Bank v. Barnard (1 Hall, 80), 182. v. Beach (1 Blatchf. 425), 75. v. Blackmore (75 Fed. R. 771), 604, 616. v. Crossland (65 Ga, 734), 589. City Bank v. Cutler (3 Pick. 414), 187, 438, 453. v. Farmers' Bank (Fed. Cas. No. 2738), 557. v. First Nat Bank (43 Tex. 203), 264. v. Girard Bank (10 La. 562), 380, 388. v. Kent (57 Ga. 283), 216. v. Perkins (4 Bosw. 420), 55. v. Phillips (86 N. Y. 484), 567. v. Weiss (67 Tex. 331), 315. City Ins. Co. v. Commercial Bank (68 111. 348), 572. City Nat. Bank v. Burns (68 Ala. 267). 209. v. Clinton Co. Nat Bank (49 Ohio St. 351), 515. v. Mastin (70 Tex. 643), 156, 157. v. Nat Park Bank (32 Hun, 105), 160. v. Stout (61 Tex. 567). 346. v. Thomas (46 Neb. 861), 150. City of Nashville v. First Nat Bank (1 Baxt. 402), 397. City of New Orleans v. New Or- leans Banking Co. (32 La. Ann. 104), 71. v. New Orleans Sav. Inst (32 La. Ann. 527), 71. City of New York v. Tenth Nat Bank (111 N. Y. 446), 17a City of St. Louis v. Johnson (5 Dill. 241), 204. Claasen v. United States (142 U. S. 140), 144. v. Farmers' Bank (25 N. Y. 293), 181. 258. v. Farmers' Bank (54 Barb. 228), 566. v. Griffin (8 Bosw. 689), 375. v. Reese (54 Iowa, 544), 403. Claghorn v. Cullen (13 Pa. 133), 48. Clark v. City of Des Moines (19 Iowa, 199), 350. v. Clark (108 Mass. 522), 642. v. Eldridge (13 Met 96), 468, 470. v. German Security Bank (61 Miss. 611), 87. v. Lake Ave. Ass'n (20 N. Y. Supp. 363), 351. v. Metropolitan Bank (3 Duer, 241). 148, 156. v. Nat Metropolitan Bank (2 Mac A. 249), 511. v. Northampton Bank (160 Mass. 26), 232. TABLE OF CASES. 727 References are to pages. Clark v. Saugerties Bank (62 Hun, 346), 645. v. State (1 Cold. 306), 73. v. Tryon (23 N. Y. Supp. 780), 542. Clarke v. Brooklyn Bank (1 Edw. Ch. 361), 80. v. Hawkins (5 R. L 219), 590, 591. v. Russell (3 Dall. 415), 411. v. Ward (4 Duer, 206), 488. Clarke Nat. Bank v. Albion Bank (52 Barb. 592), 157, 165, 166. Clay v. Edgerton (19 Ohio St. 549), 403. v. Oakley (5 Mart, N. S., 137), 474. Clement v. Erie (130 Mass. 585), 359. Clements v. Yates (69 Mo. 623), 360. Clemmer v. Drovers' Nat. Bank (157 111. 206), 217, 230. Clerks' Sav. Bank v. Thomas (2 Mo. App. 367), 173. Cleveland v. Burnhain (55 Wis. 598), 103. Clews v. Bardon (36 Fed. R. 617), 122. v. New York Bkg. Ass'n (89 N. Y. 418), 156, 259. v. New York Bkg. Ass'n (105 N. Y. 398), 156. v. New York Bkg. Ass'n (114 N. Y. 70), 156. Clinton Co. v. Kernan (10 Rob., La., 176), 151. Clots v. Bentley (5 Alb. L. J. 286), 587. v. Dickson (5 Alb. L. J. 286), 282. Clough v. Holden (115 Mo. 336), 420. Clute v. Warner (8 App. Div. 40), 240. Coates v. Doran (83 Mo. 337), 246. v. First Nat. Bank (91 N. Y. 26), 245, 576, 617. v. Preston (105 III 470), 227, 235, 245, 255. Coats v. Donnell (94 N. Y. 168), 380. Cocheco Nat. Bank v. Harkel (51 N. H. 116), 154 Cochituate Bank v. Colt (1 Gray, 382), 590. Cochran v. United States (157 U. S. 286), 140. Cockburn v. Union Bank (13 La. Ann. 289), 93. Cocke v. Jennor (Hob. 66, pL 69), 135. Cockrill v. Abeles (86 Fed. R. 505), 135. v. Cooper (86 Fed. R. 7), 135. v. Joyce (62 Ark. 216), 297, 329. v. Lowenstine (9 Heisk. 206), 551, 552. Coddington v. Davis (3 Denio, 16, 1 N. Y. 186), 538, 539. Codman v. Vermont R. Co. (17 Blatchf. 1), 418. Cody v. City Nat. Bank (55 Mich. 379), 209, 316. Coffin v. Anderson (4 Blackf. 395), 286. v. Henshaw (16 Ind. 277), 215. Coffman v. Bank of Kentucky (41 Miss. 212), 479. v. Campbell (87 111. 98), 380. v. Clarinda Bank (33 111. App. 641), 367. Coggswell v. Rockingham Sav. Bank (59 N. H. 43), 636, 651, 652. Coghlan v. Densmore (9 Bosw. 453), 311, 538. v. South Carolina R. Co. (142 U. S. 101), 355. Cohea v. Hunt (2 Smedes & M. 227), 421. Cohn v. St. Louis Ins. Co. (11 Mo. 374), 274 Cole v. Butler (43 Me. 401), 105. 107. Coleman v. Dunlap (18 S. C. 592), 430. v. First Nat. Bank (53 N. Y. 388), 207. v. Smith (26 Pa. 255), 552. v. Spencer (5 Blackf. 195), 92. v. White (14 Wis. 762), 101, 102, 108. Colgin v. State Bank (11 Ala. 222), 621. Collier v. Budd (17 Mo. 485), 406. Collins v. Bank (4 Baxt. 422), 546. v. Briarfleld Coal Co. (150 U. S. 371), 132. v. Central Bank (1 Kelly, 435), 560. Colms v. Bank of Tennessee (4 Baxt. 422), 516. Colorado Nat. Bank v. Boettcher (5 Colo. 185), 243, 371. Colt v. Bernard (18 Pick. 260), 391, 431, 458. v. Brown (12 Gray, 233), 586. v. Noble (5 Mass. 167), 487. Columbian Bank, In re (147 Pa. 422), 589. 728 TABLE OF CASES. References are to pages. Commercial Bank, In re (2 Ohio Dec. 304). 282, 609. Commercial Bank, In re (4 Ohio Dec. 108), 241. Commercial Bank v. Armstrong (148 U.S. 50), 600, 601, 611. v. Atherton (1 Smedes & M. 641), 343. v. Barksdale (36 Mo. 563), 386, 409, 410, 546. v. Benedict (18 B. Mon. 307), 559. v. Burgwyn (110 N. C. 267). 182. v. Cartwright (22 Wend. 348), 85. v. Chambers (14 Ma 152), 573, 574. v. Chambers (8 Smedes & M. 9), 499. v. Chicago, etc. Ry. Co. (160 III 401), 299. v. Clark (28 Vt. 325), 545. v. Cunningham (24 Pick. 270), 183. v. Gove (15 La. 113), 478. v. Hamer (7 How., Miss., 448), 421. v. Hughes (17 Wend. 94), 231. v. Jones (18 Tex. 811), 218, 275. v. King (3 Rob., La., 243), 513. v. Marine Bank (3 Keyes, 337), 316. v.Nolan (7 How., Miss., 508), 191, 328. v. Perry (10 Rob.. La., 61). 349. v. Pfeiffer(108 N. Y. 252), 328. v. Rodney (5 Smedes & M. 439), 571. v. State (6 Smedes & M. 599), 568, 569. v. Strong (28 Vt. 316), 480. v. Ten Eyck (48 N. Y. 305), 121. v. Thompson (7 Smedes & M. 443), 341, 590. v. Varnum (49 N. Y. 269), 408. v. Villavoso (6 La. Ann. 542), 565. v. Union Bank (11 N. Y. 203), 298. v. Union Bank (19 Barb. 391), 512. Commercial Exchange Bank v. Nassau Bank (91 N. Y. 74), 186. Commercial Exchange Nat. Bank v. Solicitors' Trust Co. (188 Pa. 3: 0). 614, 615. Commercial Nat. Bank v. Arm- strong (148 U. S. 50), 208, 209, 210, 212, 298, 319, 322. Commercial Nat. Bank v. Farmers' Bank (82 Iowa, 192), 87. v. First Nat. Bank (118 N. C. 783), 244. v. First Nat Bank (30 Md. 11), 270, 571. v. Henninger (105 Pa, 496), 233, 234. v. Lincoln Fuel Co. (67 III App. 106), 249. v. Pirie (82 Fed. R. 799), 199. v. Simmons (1 Flip. 449), 622. Commissioners v. Walker (6 How. 143), 72. Commonwealth v. Bank of Mutual Redemption (86 Mass. 1), 198, 555, 571. v. Bassford (6 Hill, 526), 58. v. Commercial Bank (28 Pa. 391), 197, 570. v. Dunham (Thacher Grim. Gas. 519), 137. 141. v. Farmers' Bank (21 Pick. 542), 74. v. Jenkins (170 Pa. 194), 137. v. Phoenix Bank (11 Met 129), 586. v. Reading Sav. Bank (129 Mass. 73), 631. v. Reading Sav. Bank (133 Mass. 16 >, 638. v. Reading Sav. Bank (137 Mass. 431), 638. v. Soholl (12 Pa. Co. Ct R. 209), 137. v. Schwartz (18 S. W. R. 359), 136. v. Schwartz (19 S. W. R. 189), 136. v. Scituate Sav. Bank (139 Mass. 301), 644. v. Scott (4 Rand. 143), 70. v. Seeberg (94 Pa. 85), 75. v. Sponsler (16 Pa. Co. Ct R. 116), 29, 70, 137. v. Sponsler (170 Pa. 194), 136, 137. Comptroller v. Carlisle Bank (49 Pa. 409), 158. Conant v. Bank (1 Ohio St 298), 131. v. Reed (1 Ohio St. 298), 90. Connecticut Mut Life Ins. Go. v. Albert (39 Mo. 181), 76. Connerly v. Planters' Ins. Co. (66 Ala, 432), 399. Consolidated Bank v. State (5 La. Ann. 44), 80. TABLE OF CASES. 729 References are to pages. Constant v. University (111 N. Y. 604), 176, 178. Continental Life Ins. Co. v. Barber (50 Conn. 567), 530. Continental Nat. Bank v. Eliot Nat. Bank (17 Fed. R, 369), 87. v. McGeoch (92 Wis. 286), 176. v. Weems (69 Tex. 489), 209, 319, 821, 324, 325, 610. Conway, Ex parte (4 Ark. 302), 575. Conway v. Halsey (44 N. J. Law, 462), 123. v. Schall (42 Wkly. Notes Cas. 328), 596. Con well v. Patteson (28 Ind. 509), 574. Conyngham, Appeal of (55 Pa. 474), 329 Cook v. Baldwin (120 Mass. 317). 357. v. Litchfield (9 N. Y. 279), 470. v. Miltenberger (23 La. Ann. 377), 366. v. Renick (19 111. 598), 478. v. Satterlee (6 Cow. 108), 350. Cook Co. Nat. Bank v. United States (107 U. S. 445), 73. Cooke v. Pomeroy (65 Conn. 466), 530. v. State Nat Bank (52 N. Y. 96), 627. v. United States (91 U. S. 389), 267. Cookenderfer v. Preston (6 How. 317), 188. Cooley v. Shannon (20 La. Ann. 548), 507. Coolidge v. Payson (2 Wheat 66), 362. Cooper v. Curtis (30 Me. 488), 116, 565. v. Hill (94 Fed. R. 582), 134. v. Jones (79 Ga. 379), 378. v. Townsend (13 N. Y. Supp. 760). 275. Coote v. United States Bank (3 Cranch, C. C. 50), 217, 218, 230. Copp v. McDougall (9 Mass. 1), 457. Corbet v. Bank of Smyrna (2 Har., Del., 235), 205. Corbett v. Clark (45 Wis. 403), 350. Corbin v. Planters' Bank (87 Va. 661), 548. Corcoran v. Bachelder (127 Mass. 541), 67. v. Snow Cattle Co. (151 Mass. 74), 163, 179, 182. Cordell v. First Nat Bank (64 Mo. 600), 274, 281. Corn Exchange Bank v. Farmers' Nat Bank (118 N. Y. 443), 301. v. Nassau Bank (91 N. Y. 74), 266, 271. v. Nat. Bank of Republic (78 Pa. 22', 271. Corp v. McComh (1 Johns. Cas. 328), 509. Corwin v. Insurance Co. (14 Ohio, 6), 29, 33. Corwith v. Morrison (1 Pin. 489), 431. Coster v. Thomason (19 Ala. 717), 479, 484, 550. Cothran v. City of Rome (77 Ga. 582), 555. v. Cunningham (28 Ga. 177), 456. Cotton Mills Co. v. Cooper (93 Iowa. 654), 222. Coulon v. Champlin (15 La. 544), 480. Coulter v. Richmond (59 N. Y. 478), 402, 533. v. Robertson (24 Miss. 278), 573. Coursen v. Leadlie (31 Pa. 506), 350, 378. Courtelyou v. Maben (22 Neb. 697), 356. Cowan v. Hallock (9 Colo. 572), 375, 380, 382. Cowles v. Cromwell (25 Barb. 413), 96. v. Harts (3 Conn. 517), 468. Cowlon v. Wickersham (54 Pa. 302), 375. Cowperthwaite v.Sheffield(l Sandf. 416), 360, 372, 467, 515. v. Sheffield (3 N. Y. 243), 369. Cox v. Boone (8 W. Va. 500). 434. v. Jones (2 Cranch, C. C. 370), 392, 431. v. Mechanics' Bank (28 Ga. 528), 394. v. Montague (78 Fed. R. 845), 81. v. National Bank (100 U. S. 712), 375. v. Robinson (70 Fed. R. 760), 150. v. Robinson (82 Fed. R. 277), 160. Craig, Appeal of (92 Pa. 396), 589, 598. Craig v. Gregg (83 Pa. 19), 122. . v. Libbett (15 Pa. 238), 365, 368. v. Marx (65 Tex. 649), 365. v. Missouri (4 Pet 410), 43, 55. v. Price (23 Ark. 633), 349. Craig Medicine Co. v. Merchants' Bank (59 Hun, 561), 320. 730 TABLE OF CASES. References are to pages. Craigie v. Hadley (99 N. Y. 131), 128, 174, 210, 212, 601, 615. Grain v. First Nat. Bank (114 III 515), 188. v. Horton (5 Wash. 479), 267. Crane v. Clearing-House (2 Pa. Dist. R 50J), 659. v. Fourth Street Bank (173 Pa. 556), 611,654, 659. v. Pacific Bank (106 Cal. 64), 584. v. Trudeau (19 La. Ann. 307), 486. Crawford, In re (Fed. Gas. No. 3364), 429. Crawford v. Bank of Wilmington (62 N. C. 136), 560, 597. v. Branch Bank (7 Ala. 205), 469. v. Milligan (2 Cranch, G. C. 226), 516. v. Planters' Bank (4 Ala. 313), 619. v. Read (9 Rob., La., 243), 494. v. West Side Bank (100 N. Y. 50), 260, 261, 265, 266, 269, 270. Crawley v. Barry (4 Gill, 194), 548. Creamer v. Perry (17 Pick. 332), 539. Crease v. Babcock (10 Met. 524), 102, 561, 562. Credit Co. v. Howe Machine Co. (54 Conn. 357), 379. Creighton v. Hyde Park (6 Bradw. 272), 227, 228. Crews v. Farmers' Bank (31 Grat. 348), 479, 582. Cribbs v. Adams (13 Gray, 597), 408, 410. Crim v. Starkweather (88 N. Y. 339), 429. Crippen v. American Nat. Bank (51 Mo. App. 508), 345. Crocker v. First Nat. Bank (4 Dill. 358), 334, 335. v. First Nat. Bank (Fed. Cas. No. 3397), 339. v. Gitchell (23 Me, 392), 486. v. Marine Nat. Bank (101 Mass. 240), 628. v. Whitney (71 N. Y. 161), 196. Crocket v. Young (1 Smedes & M. 241), 198. Cromer v. Platt (37 Mich. 132), 471. Cronise v. Kellogg (20 111. 11), 376. Cross v. Rowe (22 N. H. 77), 148. v. State (132 U. S. 131), 75. 145. Crow v. Mechanics' Bank (12 La. Ann. 692), 299. Crowell v. Van Bibber (18 La. Ann. 637), 361. Crowley v. Barry (4 Gill, 194 >, 414, 495. Crown Point Nat. Bk. v. Richmond Nat. Bk. (76 Ind. 561), 208. Cruger v. Luedheim (16 S. W. R. 420), 538. Crumb v. Phettiplace (53 III App. 337), 363. Crystal Plate Glass Co. v. First Nat. Bank (6 Mont. 303), 154. Culver v. Bank (64 HI. 528), 102. v. Marks (122 Ind. 554), 436, 460, 531. Cummings v. Hummer (61 111. App. 393), 381. v. Spannhorst (5 Mo. App. 21), 71, 128. v. Winn (89 Mo. 51), 128. Cunningham v. Clark (24 Ind. 7), 573. v. Pell (5 Paige, 607), 131. v. Wardwell (12 Me. 466), 352. Curran v. Bank of Arkansas (15 How. 317), 44, 95. v. Witter (68 Wis. 16), 279, 405. Curry v. Bank of Mobile (8 Port 360), 509, 550. Curtis v. Leavitt (17 Barb. 309), 190, 279 332 v. Leavitt (15 N. Y. 9), 29, 33, 40. v. Sprague (51 Cal. 239), 540. v. State Bank (6 Blackf. 312), 479, 492. 496. Curtiss v. Harlow (12 Met. 3), 104 v. Martin (20 111. 557), 542. Cushman v. Carver (51 111. 509), 45. v. Harrison (90 CaL 297), 372. v. Illinois Starch Co. (79 111. 281). 220, 292. Custer v. Tompkins Co. Bank (9 Barr, 27), 176. Cutler v. Am. Ex. Nat. Bank (113 N. Y. 543), 204, 236. v. Everett (33 Me. 201), 328. v. Reynolds (64 111. 321), 349. Cutting v. Martor (78 N. Y. 454), 167. Cuykendall v. Miles (10 Fed. R 342), 106. Cuyler v. Stevens (4 Wend. 566), 467. D. Dabney v. Campbell (9 Humph. 680). 438. 453. v. State Bank (3 S. C. 124), 80, 198, 199, 204, 238, 560, 59a TABLE OF CASES. 731 References are to pages. Dabney v. Stidger (4 Smedes & M. 749), 479, 484. Dakin v. Graves (48 N. H. 45), 547, 549. Dale v. Gear (38 Conn. 15), 402, 533. Dalleraand v. Odd Fellows' Sav. Bank (74 Cal. 598), 567. Dallfus v. Frosch (1 Denio, 367), 461. Dalon v. Davidson (39 N. Y. Supp. 394), 434. Dalton R Uo. v. McDaniel (56 Ga. 191), 97. Daly v. Butchers' Bank (56 Mo. 94), 306. v. New York Chemical Co. (2 Hall, 550), 213. Dana v. Bank of St. Paul (4 Minn. 385), 148. v. Bank of United States (5 Watts & S. 223), 149, 575. v. Brown (1 J. J. Marsh. 304), 89. v. City of San Francisco (19 Cal. 486), 350. v. Nat. Bank of Republic (132 Mass. 156). 265, 267. v. Sawyer (22 Me. 244), 422. v. Third Nat. Bank (95 Mass. 445 \ 237, 255. Danahy v. National Bank (64 Fed. R 148), 623, 624. Danby Bank v. State Treasurer (39 Vt. 92), 73. Dane v. Young (61 Mo. 160), 561, 571. Danforth v. Nat. State Bank (48 Fed. R. 271), 334, 337, 338. Daniel v. Downing (26 Ohio St. 578), 547. Daniels v. Empire City Bank (92 Hun, 450), 152. v. Kyle (5 Ga. 245), 395. Darby v. Boatmen's Sav. Inst. (1 Dill. 141), 335. Darden v. Banks (21 Ga, 297), 279, 555 Darling v. March (22 Me. 184), 527. Darrington v. Bank of Alabama (13 How. 12), 44. Davenport v. Gilbert (4 Bosw. 532, 6 Bosw. 179), 470, 481. v. Savings Bank (36 Hun, 303), 642. v. Stone (104 Mich. 521), 160. v. Underwood (13 Am. Law Reg., N. S., 211). 630. Davey v. Jones (42 N. J. Law, 28), 306, 308, 411. Davidson v. Lanier (4 Wall. 447), 60. Davies v. Mann (10 M. & W. 545), 647. Davis v. Bank of Tennessee (4 Sneed, 390), 474, 481. v. Beckham (4 Humph. 53), 476. v. Elmira Sav. Bank (161 U. S. 275, 142 N. Y. 590), 618. v. First Baptist Soc. (Fed. Cas. No. 3633), 83. v. Francisco (11 Mo. 572). 440. v. Go wen (19 Me. 447), 537. v. Hawley (12 Ark. 645), 514. v. Herrick (6 Ohio, 55), 427. v. Industrial Mfg. Co. (114 N. C. 321), 240. v. Knipp (92 Hun, 297), 586, 587. v. Lebanon Co. Sav. Bank (5$ Mich. 163), 289. v. Naper (91 111. 44), 292. v. Panhandle Nat. Bank (29 S. W. R 926), 213, 231. v. Smith (29 Minn. 201), 273. v. Stevens (17 Blatchf. 259). 82. v. Weed (Fed. Cas. No. 3658), 84. Dawson v. Real Estate Bank (5 Ark. 283), 231, 234, 826. Dayton v. Borst (7 Bosw. 115), 95, 583. v. Trull (23 Wend. 345), 392, 525. Deacon v. Oliver (14 How. 610), 319. Dearborn v. Bank (42 Ohio St. 617), 30. v. Union Nat. Bank (58 Me. 273), 286. v. Washington Sav. Bank (13 Wash. 345), 283. Debesse v. Napier (1 McCord, 106), 373. Deblieux v. Bullard (1 Rob., La., 66), 516. Decatur Branch Bank v. Hodges (17 Ala. 42), 417. Dedham Bank v. Chickering (3 Pick. 335), 116. Dedham Inst. v. Slack (6 Gush. 408), 637, 638. Dedrick v. Bank of Commerce (45 S. W. R 786), 121, 131. Deeringv. Creighton(19 Oreg. 118), 402, 533. De Feriet v. Bank of America (23 La. Ann. 310), 267. De Havin v. Kensington Nat Bank (81 Pa. 95), 285. De La Hunt v. Higgins (9 Abb. Pr. 422), 469. 732 TABLE OF CASES. References are to pages. De Land v. Dixon Nat. Bank (11 III 323), 291. Delano v. Butler (118 U. S. 634), 78, 113. v. Case (121 IlL 241), 122, 128, 129. De Liquero v. Munson (11 Heisk. 15), 357. De Lizardi v. Pouverin (4 Rob., La., 392), 483. De Mayer v. State Nat. Bank (8 Neb. 104). 320. Deminds v. Kirkman (1 Srnedes & M. 644), 513. Deming v. Bull (10 Conn. 409), 101. Demmon v. Boylston Bank (5 Gush. 194), 232. ' Demond v. Burnhain (133 Mass. 339), 447, 448. Denegre v. Hiriart (6 La. Ann. 100), 468. Dennis v. Jackson (108 Mich. 295), 533. Denniston v. Imbrie (3 Wash. C. C. 396), 525. Denny v. Palmer (27 N. C. 610, 5 Ired. 610), 459, 539. Denton v. Baker (79 Fed. R. 189), 592. Depau v. Brown (Harp. 251), 356. De Pauw v. Bank of Salem (126 Ind. 553), 395, 402. Deposit Bank v. Fayette Bank (10 Ky. Law R 350), 264. 270. Deposit Sav. Ass'n v. Mayer (Fed. Gas. No. 3813), 557. Descombes v. Wood (91 Mo. 196), 148. Deseret Nat. Bank v. Dinwoodey (53 Pac. R. 215), 328. De Tastett v. Crousillat (2 Wash. C. C. 132), 369. Detheridge v. Crumbaugh (8 Ky. Law R 592), 246. Detroit Motor Go. v. Third Nat. Bank (69 N. W. R 726), 164. Detroit Sav. Bank v. Burrows (34 Mich. 153). 289. De Vaugh v. Haughabook (73 Ga. 809), 352. Devely v. Cedar Falls (27 Iowa, 227), 555. Dewey v. Bowers (4 Ired. 528), 340. v. St. Albans Trust Co. (60 Vt 1), 652. Dewing v. Perdicaries (96 U. S. 193), 124, 133. De Wolf v. Murray (2 Sandf. 166), 468, 549. De Wolf v. Sprague Mfg. Co. (11 R L 380 , 582, 592. Dexter v. McGlynn (99 CaL 143), 487, 518. Dick v. Foraker (155 U. S. 404), 626. v. Leverich (11 La. 573), 377. v. Martin (7 Humph. 263), 532. Dickens v. Beal (10 Pet. 572), 459, 460, 502. 547. Dickenson v. Goates (79 Mo. 250), 246. v. Marsh (57 Mo. App. 566), 359. Dickerson v. Cass Co. Bank (64 N. W. R 395), 583. v. Derrington (39 111. 574), 40a v. Turner (12 Ind. 223), 542, 553. Dickey v. Harmon (1 Cranch, C. C. 201), 371. Dickinson v. Leominster Sav. Bank (152 Mass. 49), 290, 648. Diener v. Brown (1 MacA. 350), 396. Dillaway v. Northwestern Nat. Bank (82 111. App. 71), 257. Dime Savings Inst. v. Allentown Bank (65 Pa. 116), 166. Dimpfell v. Railroad Co. (110 U. S. 211), 93. Distilled Spirits, The (11 Wall 356), 176. District Township v. Farmers' Bank (88 Iowa, 194), 600. Ditch v. Western Nat. Bank (79 Md. 192), 210, 212. Diversey v. Moor (22 III 331), 375, 376, 384. Dobbins v. Walton (37 Ga. 614), 590. Dobson v. Simonton (78 N. C. 63). 583, 589. Dockray v. Dunn (37 Me. 442), 397, 443. Dodd v. Una (40 N. J. Eq. 672), 630. v. Wilkinson (41 N. J. Eq. 566), 634. Dodge v. Bank (30 Ohio St. 1), 267. v. Bank of Kentucky (2 A. K. Marsh. 610), 484, 512. v. Mastin (17 Fed. R 660), 574. v. National Ex. Bank (20 Ohio St. 234), 244, 267. v. Woolsey (18 How. 331), 93. Dodson v. Taylor (56 N. J. Law, 11), 518. Doherty v. Watson (29 Wkly. Notes Gas. 32), 433. Donald v. Central Bank (3 Kelly, 185), 619. Donally v. Hearndon (41 W. Va. 519), sea TABLE OF CASES. References are to pages. Donegan v. Wood (49 Ala. 242), 410. Donlan v. Provident Inst. (127 Mass. 183), 645. Donley v. Camp (22 Ala. 659), 403. Donnell v. Lewis Co. Sav. Bank (80 Mo. 165), 152, 198, 485. Donnelly v. Hodgson (14 Mo. App. 548), 113. Doppelt v. National Bank (175 111. 432), 211, 600. Dorchester Bank v. New England Bank (1 Cush. 177), 299, 304, 305. Doremus v. Benton (5 Biss. 57), 437. Dorsey v. Abratns (85 Pa, 299), 258. v. Merritt (6 How., Miss., 390), 546. Doty v. Knox Co. Bank (16 Ohio St. 133), 556. Dougal v. Cowles (5 Day, 511), 351. Dougherty v. Central Bank (93 Pa. 227), 340. v. Vanderpool (35 Miss. 165), 283. v. Western Bank (13 Ga. 287), 563. Douglas v. Bank of Commerce (97 Tenn. 133), 547. v. First Nat, Bank (17 Minn. 35), 214, 230. Dowd v. Aaron (2 Hill, S. C., 531), 529. v. City Bank (57 N. H. 391), 589. v. Stephenson (105 N. G 467), 165. Dowie v. Humphrey (91 Wis. 98), 605. Downer v. Remer (21 Wend. 10, 23 Wend. 620), 491. v. Zanesville Bank (Wright, 477), 90. Downing v. Lillyet (36 S. W. R 890), 609. Downs v. Planters' Bank (1 Smedes & M. 261), 513. Dows v. United States (82 Fed. R. 904), 145. Draper v. Clemens (4 Mo. 52), 412, 417, 418, 509. Drawn v. Pawtucket Bank (15 Pick. 88). 283, 294. Dreschied v. Exchange Bank (28 W. Va. 340), 289. Dresser v. Traders' Nat. Bank (165 Mass. 120), 192. Drexler v. McGlynn, see Dexter v. McGlynn (99 Cal. 143), 518. Driesbach v. Wilkesbarre Bank (104 U. S. 52), 337. Driggs v. Driggs (11 N. Y. St. R. 25fi), 527. Drinkwater v. Tibbetts (17 Mo. 16), 530. Drovers' Nat Bank v. Anglo-Amer- ican Co. (117 111. 100). 305. v. O'Hare (119 111. 646), 204. v. Packing Co. (117 111. 100), 256, 305. Drown v. Pawtucket Bank (15 Pick. 88), 283, 294 Duckert v. Von Lilienthal (11 Wis. 56), 548. Duckett v. Nat. Mechanics' Bank (86 Mo. 400), 217. Duerson v. Alsop (27 Grat 229), 524. Duffy v. O'Connor (7 Baxt. 498), 529. Dufaur v. Morse (9 La. 333), 478, 481. Duggan v. King (1 Rice, 239), 439. Dull v. Bricker (76 Pa. 255), 358. Dumont v. Pope (7 Blackf. 367), 423, 552. Dunavan v/Flynn (118 Mass. 537), 359. Dunbar v. Tyler (44 Miss. 1), 464, 598 Duncan v. Berlin (60 N. Y. 151), 243, 356. v. Biscoe (7 Ark. 175), 89, 106. v. Brennan (83 N. Y. 487), 329. v. First Nat. Bank (Fed. Cas. No. 4135). 337. v. Maryland Sav. Inst. (10 Gill & J. 299), 635. v. McCullough (4 S. & R. 480), 4C3. v. State Bank (2 111. 262), 622. v. Young (1 Mart., O. S., 32). 475. Dunkle v. Renick (6 Ohio St.' 527), 334. Dunlap v. Smith (12 111. 399), 343, 591. Dunn v. Adams (1 Ala. 527), 54a v. Kyle (14 Bush, 134), 122. Dunnegan v. Stevens (122 I1L 396), 529. Dupee v. Swigert (127 111. 494), 30, 102. Dupre v. Richard (11 Rob., La., 495), 552. Durham v. Price (5 Yerg. 300), 538, Durkie v. City Bank (13 Wis. 216), 330. Durnford v. Johnson (2 Mart, O. S., 183), 430. Durr v. State (59 Ala 24), 556. Duryee v. Denison (5 Johns. 248), 542. Dustin v. Hodgen (33 III 352), 206. 734 TABLE OF CASES. References are to pages. Dutch v. Boyd (81 Ind. 146), 620. Dutcher v. Importers' and Traders' Nat. Bank (59 N. Y. 5), 578. Dutchess Co. Bank v. Ibbotson (5 Denio, 110), 547. Button v. Bratt (11 S. W. R. 821), 537. v. Connecticut Bank (13 Conn. 493), 87. v. Merchants' Nat Bank (16 Phila. 94), 655. Duvall v. Farmers' Bank (9 Gill & J. 31), 184, 400, 529, 538. v. Farmers' Bank (7 Gill & J. 44), 529. Dwight v. Richardson (12 Smedes & M. 325), 545. v. Scovil (2 Conn. 654). 521. Dye v. Scott (35 Ohio St. 194), 530, 534. Dykers v. Leather Manuf. Bank (11 Paige, 612), 254, 261. Dykman v. Northridge (153 N. Y. 662), 409. v. Northridge (1 App. Div. 26), 409. E. Eager v. Brown (11 La. Ann. 625), 505. Eagle Bank v. Chapin (3 Pick. 180), 510, 512. v. Hathaway (5 Met. 212), 487. Eagle Manuf. Co. v. Belcher (89 Ga. 218), 213, 647. Early v. Foster (7 Blackf. 35), 402. v. McCart (2 Dana, 414). 350. Barnes v. Dorius (102 111. 350), 106. Earnest v. Taylor (25 Tex. Sup. 37), 505. Eason v. Isbell (42 Ala. 456), 409, 443. East Haddam Bank v. Scovil (13 Conn. 303), 307. East River Bank v. Gedney (4 E. D. Smith. 582), 511. v. Hoyt (41 Barb. 440), 148, 170. East River Nat. Bank v. Gove (57 N. Y. 597). 206, 207. Eastern Bank v. Brown (17 Me. 356), 481. v. Capron (22 Conn. 639), 590. Eastern Township Bank v. Vernon Nat. Bank (22 Fed. R 186), 152. Eastman v. Coos Bank (1 N. H. 23), 146. Eaves v. Exchange Bank (79 Ma 182), 567. v. Savings Bank (27 Conn. 229), 639. Ecker v. First Nat. Bank (59 Md. 291). 153. Edgar v. Greer (8 Iowa, 394), 427, 428. Edgerly v. Emerson (23 N. H. 555), 118. Edson v. Angell (58 Mich. 336), 282. v. Fuller (22 N. H. 183), 359, 374. v. Jacobs (14 La. 494). 478. Edwards v. Moses (2 Nott & McC. 433), 435. v. Shields (7 Bradw. 70), 401. v. Tandy (36 N. H. 540), 532. v. Thomas (66 Mo. 468), 482. Egbert v. Payne (99 Pa. 239). 213. Ehrichsen v. De Mill (75 N. Y. 370), 350. Eichelberger v. Finley (7 Har. & J. 381), 255. Eichnor v. Bowery Bank (45 N. Y. Soipp. 68), 241. Eisenford v. Dillenback (15 Hun, 23), 431. Elder v. First Nat. Bank (12 Kan. 238), 68. 327. v. National Bank (55 N. Y. Supp. 576), 261. Elgin City Bkg. Co. v. Self (35 S. W. R. 953), 385. Ellicott v. Barnes (31 Kan. 170), 282, 610. v. White (51 N.^C. 98), 552. Elliot v. Abbott (12 N. H. 549), 152. v. Branch Bank (4 Ark. 424), 51. v. Himrod (108 Pa, 569), 40, 56. Ellis v. Commercial Bank (7 How., Miss., 294), 410, 451, 488. v. First Nat. Bank (11 III App. 275), 339. v. Little (27 Kan. 707), 595. v. Ohio Life Ins. Co. (4 Ohio St. 628), 264. 270, 378. Ellison v. Tuttle (26 Tex. 283), 319. Ellwood v. First Nat Bank (41 Kan. 475), 592. Elmer v. Bank (12 Kan. 238), 67. El Paso Nat. Bank v. Fuchs (34 S. W. R. 203), 285. Elwood v. State Treasurer (23 Vt 701), 73. Ely v. Sprague (Clarke Ch. 359), 114. Emory v. Joice (70 Mo. 537), 193. Empire City Bank, In re (18 N. Y. 199, 6 Abb. Pr. 385), 80, 95, 105, 107, 108, 574. TABLE OF CASES. 735 References are to pages. Empire Mills v. Allston Grocery Co. (15 S. W. R, 505), 60. Emporia Nat. Bank v. Shotwell (35 Kan. 360), 345. English v. Trustees (6 Ind. 437), 422. v. Wall (12 Rob., La., 132), 526. Eno, In re (54 Fed. R. 669), 142. Eppright v. Nickerson (78 Mo. 482), 576. Erickson v. Inman-Paulson Co. (54 Pac. R. 949), 357. Erie Bank v. Smith (3 Brewst. 9), 329 Erie Co. Sav. Bank v. Coit (104 N. Y. 532), 635. Erisman v. Delaware Co. Bank (37 Wkly. Notes Cas. 578), 216. 218. Eschelberger v. Pike (22 La. Ann. 142), 312. Espy v. Bank (11 Wall. 605), 243, 266. Essex Co. Nat. Bank v. Montreal Bank (7 Biss. 193). 298, 363. Estes v. Tower (102 Mass. 65), 420, 429. Etheridge v. Ladd (44 Barb. 69), 421. Etting v. Commercial Bank (7 Rob., La., 459), 147. v. Schuylkill Bank (2 Pa. 355), 509,' 515, 548. Evans v. Evans (82 Iowa, 492), 217, 219. v. Norris (1 Ala. 511), 393. v. Stuhrberg (78 Mich. 145), 401. v. United States (153 U. S. 584), 144. Evansville Bank v. German Am. Bank (155 U. S. 556), 211, 212, 293, 297, 301, 315, 316, 317, 322, 324, 610, 611, 613, 614. Evansville Nat. Bank v. Met. Nat. Bank (2 Biss. 527), 89. Ewing v. Robeson ( 15 Ind. 26), 72. v. Toledo Sav. Bank (43 Ohio St. 31), 331. Exchange Bank v. Gulick (24 Kan. 359), 222. v. Hubbard (62 Fed. R. 112), 355, 361. v. Knox (19 Grat. 739), 575, 577, 591, 598. v. Rice (107 Mass. 37), 359, 372. v. Sutton Bank (78 Md. 577), 304, 348. 432. Exchange Banking Co. v. Mudge (6 Rob., La., 387), 574, 591. Exchange Nat. Bank v. Bank of Little Rock (58 Fed. R. 140), 346. . v. Third Nat. Bank (112 U. S. 276), 200, 212, 294, 305, 306. Exchange & Banking Co. v. Boyce (3 Rob., La., 307). 330. Exeter Bank v. Gordon (8 N. H. 66), 389. Exeter Nat. Bank v. Orchard (39 Neb. 485). 336. Eyerman v. Second Nat. Bank (84 Mo. 408). 214, 216. Eyrich v. Capital State Bank (67 Miss. 60), 219, 232. F. Faberss v. Mercantile Bank (23 Pick. 330), 302, 304, 306. Fagan v. Stillwell (19 Ark. 282), 342. Fahnestock v. Smith (14 Iowa, 561), 475. Fairchild v. Ogdensburgh Co. (15 N. Y. 337), 351. Fairfield Sav. Bank v. Chase (72 Me. 226), 173, 176. v. Small (90 Me. 546), 643. Faivre v. Union Sav. Inst. (13 N. Y. Supp. 423), 649. Falconer v. Campbell (2 McLean, 195), 58. Fales v. Wadsworth (33 Me. 553), 553. Falk v. Rothschild (61 Ga. 595), 456. Falkland v. National Bank (84 N. Y. 145). 231. Fall River Bank v. Sturtevant (12 Gush. 372), 172. v. Willard (5 Met. 220), 388. Faneuil Hall Bank v. Bank of Brighton (16 Gray, 534), 165, 166. Farley v. Hewson (10 La. Ann. 783), 450, 456. Farmer v. Manhattan Sav. Inst. (60 Hun, 462), 646. 647. v. Rand (14 Me. 225), 401, 531. v. Sewell (16 Me. 456), 530. Farmers' Bank, Appeal of (48 Pa. 57). 231, 232. Farmers' Bank, In re (2 Bland, 394), 90. Farmers' Bank v. Baldwin (23 Minn. 198), 197. v. Battle (4 Humph. 86), 481, 494. v. Burchard(33Vt.346),331,332. 736 TABLE OF CASES. References are to pages. Farmers' Bank v. Butchers' Bank (16 N. Y. 125), 152, 157, 166, 244. 258, 259, 433. v. Butler (3 Litt. 498), 511. v. Calk (14 Ky. Law R 617), 51. v. Campbell (2 McLean, 158), 95. v. Catlin (13 Vt. 39), 537. v. Champlain Transp. Co. (18 Vt. 131), 188. v. Bearing (91 U. S. 29), 41, 51, 336. v. Detroit R Co. (17 Wis. 372, 383), 191, 194, 197. v. Dunbar (32 Neb. 487), 243, 258. v. Duvall (7 Gill & J. 78), 419, 449. 459, 513, 520. v. Empire Stone Co. (5 Bosw. ^7), 379. v. Ewing (78 Ky. 264), 529. v. Garten (34 Mo. 119), 333, 572. v. Gunnell (26 Grat. 131), 523, 524. v. Hoagland (7 Fed. R. 159), 334. v. Inglehart (6 Gill, 50), 90. v. Jenks (7 Met* 592), 50, 95. v. Kercheval (2 Mich. 504), 403. v. Kimball Milling Co. (1 S. Dak. 388), 119. v. King (57 Pa. 202), 213, 217. v. McFerran (11 Ky. Law R 183), 231 v. Newiand (97 Ky. 464), 311. v. Parker (37 N. Y. 148), 333, 335. v. Payne (25 Cona 444), 172. v. Planters' Bank (10 Gill & J. 422), 288, 290. v. Reynolds (4 Rand. 186), 558, 560. v. Slayden (8 Tex. Civ. App. 63), 209. v. Small (2 T. B. Mon. 88), 39& v. Third Nat. Bank (165 Pa. 500), 657. v. Turner (2 Litt 13), 490. v. Troy Bank (1 Doug. 459), 147, 154. v. Van Meter (4 Rand. 553), 393, 459. v. Williamson (61 Mo. 259), 50. v. Willis (7 W. Va. 31), 343, 574, 590. Farmers' Deposit Bank v. Penn Bank (123 Pa. 283), 586. Farmers' Gold Bank v. Wilson (58 Cal. 600), 86. Farmers' Loan Co. v. Fidelity Trust Co. (86 Fed. R. 541), 219. Farmers' Nat. Bank v. Backus (77 N. W. R. 142), 566. v. Mcllhenny (42 Fed. R 801), 625. v. Rogers (1 N. Y. Supp. 757), 625. v. Smith (77 Fed. R 129), 191. v. Stover (60 Cal. 387), 337. v. Templeton (40 S. W. R 412), 151. Farmers' Trust Co. v. Funk (49 Neb. 353), 103. Farmington Savings Bank v. Fall (71 Me. 49), 636. Farnsworth v. Alien (4 Gray. 453), 422. v. Mullen (164 Mass. 112), 446. Farnum v. Fowle (12 Mass. 89), 458. Farwell v. Curtiss (7 Biss. 160), 392, 419. v. St. Paul Trust Co. (45 Minn. 495), 462, 463, 531, 533. Faulkner v. Cumberland Valley Bank (14 Ky. Law R 923), 234. v. Faulkner (73 Mo. 327), 402, 445. 546. v. Union Banking Co. (6 Wkly. Notes Cas. 109), 600. Featherstone v. Hendrick (59 111. App. 499), 402. 533. Fell v. Dial (14 S. C. 247), 544 Fells Point Sav. Inst. v. Werdon (18 Md. 320), 280, 290, 405. Fennell v. Nesbit (18 B. Mon. 351), 586. Ferguson v. Bank (25 Kan. 333), 288. Fernald v. Bush (131 Mass. 591), 434, 542. Fernandez v. Lewis (1 McCord, 322), 425. Fessenden v. Summers (62 Cal 484), 395. Fidelity Co. v. Merchants' Bank (9* L. R A. 108), 232, 233. Fidelity Ins. Co. v. Wright (16 Wkly. Notes Cas. 177). 64a Field v. New Orleans Newsp. Co. (21 La. Ann. 24), 521. v. Nickerson (13 Mass. 131), 428. Fields v. Mallett (10 N. C. 465', 447. Finch v. Karste (97 Mich. 20), 300, 303, 304, 311. Fifth Nat. Bank v. Armstrong (40 Fed, R 46), 322. v. Ashworth (123 Pn. 212). 312. Fifth Ward Sav. Bank v. First Nat. Bank (48 N. J. Law, 513), 840 f 636, 637, 638. TABLE OF CASES. 737 Finn v. Brown (142 U. S. 56), 82. Finnell v. Sandford (17 T. B. Mon. 748), 95. First Commercial Bank v. Talbert (103 Mich. 625), 567. First Nat. Bank v. Accain Nat. Bank (60 N. Y. 278), 287. v. Alexander (84 N. C. 30), 433. v. Allen (100 Ala. 476), 175, 266. v. Anderson (172 U. S. 573), 64, 190. v. Andrews (7 Wash. 261), 197. v. Armstrong (36 Fed. R. 59), 301. v. Ayers (150 U. S. 660), 52. v. Babbidge (160 Mass. 563), 179. v. Babcock, (94 Cal. 96), 403. v. Bache (71 Pa. 213), 213, 320, 321. v. Bank of Monroe (33 Fed. R. 408), 301, 316. v. Behan (91 Ky. 560), 320. 321. v. Belt (29 111. App. 134), 214. v. Bennett (33 Mich. 520), 199. v. Bennington (16 Blatchf/ 53), 198. v. Bensley (2 Fed. R, 609), 365, 368, 425. v. Blake (60 Fed. R. 78), 164, 179. v. Bremer (7 Ind. App. 685), 272. v. Brooks (22 III App. 238), 206. v. Buckhannon Bank (80 Md. 475). 433, 435. v. Christopher (40 N. J. Law, 435), 162, 173. v. Citizens' Bank (Fed. Cas. No. 4802), 287. v. City Nat. Bank (34 S. W. R 458), 305. v. Clark (134 N. Y. 368), 215, 245, 281, 617. v. Clark (61 Md. 400), 362, 364, 366, 369. v. Clark (42 Hun, 16), 279. v. Coates (8 Fed. R. 540', 348. v. Commonwealth (33 S. W. R. 1105), 75. v. Connoway (4 Houst. 206), 536. v. Davis (114 N. C. 343), 324. v. Devenish (15 Colo. 229). 320. v. Dickson (6 Dak. 301), 210. v. Drake (29 Kan. 311), 119. v. Dubuque R. Co. (52 Iowa, 378), 245, 246, 617. v. Duncan (Fed. Cas. No. 4804), 75, 334. v. Elevator Co. (10 S. Dak. 167), 67. 47 First Nat. Bank v. El more (52 Iowa, 541), 67, 196. v. Falkhannan (94 Cal. 141), 530. v. Farmers' Bank (76 N. W. R. 430), 260, 266. v. Farneman (93 Iowa, 161), 488, 515. v. First Nat. Bank (Fed. Cas. No. 4810), 811. v. First Nat. Bank (58 Ohio St. 207), 270. v. First Nat. Bank (151 Mass. 280), 270, 271. v. First Nat. Bank (76 Ind. 561), 297. v. First Nat. Bank (75 N. W. R. 843), 323. v. Fiske (133 Pa. 241), 364, 367. v. Foote (12 Utah, 157), 180. v. Fourth Nat. Bank (56 Fed. R. 967), 172, 305. v. Fourth Nat. Bank (89 N. Y. 412), 656. v. Fourth Nat. Bank (77 N. Y. 320), 312, 434, 435. v. Garlinghouse (22 Ohio St. 492), 75, 336. v. Gifford (47 Iowa, 575), 177. v. Gillilan (72 Mo. 77), 67. v. Graham (79 Pa. 106), 149, 161, 285. 287. v. Greenville Nat. Bank (84 Tex. 40), 281. v. Gruber (91 Pa. 377), 337, 339. v. Haire (36 Iowa, 443', 197. v. Hanover Nat. Bank (66 Fed. R. 34), 169. v. Harris (103 Mass. 514). 198. v. Hartman (110 Pa. 196), 530. v. Hatch (78 Mo. 13), 355, 418, 467. v. Hawkins (79 Fed. R 61), 64, 99. v. Hawkins (174 U. S. 364), 64, 99 v. Hooh (89 Pa. 24), 192. v. Hughes (46 Pac. R. 272), 212. v. Johnston (97 Ala. 655), 579. v. Kidd (20 Minn. 234), 195. v. Kimberlands (16 W. Va. 555), 146, 149. v. La Due (39 Minn. 415), 596. v. Lamb (57 Barb. 429), 336. v. Lamb (50 N. Y. 95), 75. v. Leach (52 N. Y. 350), 244. v. Lippell (9 Colo. 594), 320. v. Loylied (28 Minn. 396), 163,. 182. 738 TABLE OF CASES. references are to pages. First Nat. Bank v. Mansfield Sav. Bank (3 Ohio Dec. 141). 308. v. Manuf. Nat. Bank (10 Ohio Cir. Ct R 233), 154. v. Marshall (26 111. App. 440), 567. v. Maxfield (83 Me. 576), 532. v. McCallister (33 Neb. 646), 438. v. McMichael (106 Pa. 460), 243. v. Merchants' Bank (9 L. R A. 108), 232, 233. v. Miller (37 Neb. 500), 432. v. Miltonberger (33 Neb. 847), 334. v. Morgan (132 U. S. 147), 622, 627, 628. v. Morse (26 S. W. R 417), 114. v. Moss (41 La. Ann. 227;, 377. v. Myers (83 111. 507), 292. v. Nat. Exchange Bank (92 U. S. 122), 190, 191. v. Nelson (105 Ala. 180), 184, 356. v. New Milford (36 Conn. 93), 161, 168. V. Northw. Nat. Bank (152 I1L 296), 259, 270. v. Northw. Nat. Bank (40 IM. App. 640), 270. v. Ottawa (43 Kan. 294), 192. v. Owen (23 Iowa, 185), 417, 476. v. Pahquioque Bank (14 Wall. 383), 573, 592, 593, 594, v. Payne (42 S. W. R 736), 212. v. Pegram (118 N. C. 671), 159. v. Peisert (2 Penny. 277), 174, 175. v. Peltz (176 Pa. 513), 234. v. Pierson (24 Minn. 140), 197. v. Price (52 Iowa, 570), 309. v. Randall (1 White & W. Civ. Cas. 975), 245. v. Reed (36 Mich. 263), 120, 122. v. Reno (73 Iowa, 145), 193. v. Rex (89 Pa. 308), 285, 286. v. Ricker (71 III 439), 264, 274, 377. v. Rush School Disk (32 P. F. Smith, 307), 350. v. Ryerson (23 Iowa, 508), 399, 536. v. Sanford (62 Mo. App. 394), 610. v. Schuyler (39 N. Y. Super. Ct 440), 379. v. Security Nat Bank (34 Neb. 71), 280. v. Sherbourne (14 Bradw. 566), 198. First Nat. Bank v. Shoemaker (117 Pa. 94;, 201, 241. v. Shreiner (100 Pa. 188), 231, 234. v. Smith (6 Fed. R 215), 625. v. Smith (132 U. S. 227), 487. v. Smith (05 N. W. R 437), 63. v. Smith (8 S. D. 7), 67. v. Smith (36 Neb. 199), 337. v. Sprague (34 Neb. 318), 307. v. State Bank (22 Neb. 679), 270. v. Stauffer (1 Fed. R 187), 336. v. Stewart (107 U. S. 678),"63, 68. v. Stone (106 Mich. 367), 161. v. Strang (138 111. 347), 287. v. Strang (28 111. App. 325), 288, 567 v. Taliaferro (72 Md. 164), 184. v. Tappan (6 Kan. 456), 345. v. Whitman (94 U. S. 343), 244 v. Williamson (35 S. W. R 573), 588. v. Wood (51 Vt 471). 503, 508. v. Zahm (1 Atl. R. 190), 520. v. Zent (39 Ohio St. 105), 284, 286, 287. First Presbyterian Church v. Nat. State Bank (57 N. J. Law, 27), 193. v. Nat. State Bank (58 N. J. Law, 406), 193. Fish v. Jackman (19 Me. 467), 474, 488. Fisher v. Beckwith (19 Vt 31), 355, 359, 375, 418. v. Continental Nat Bank (64 Fed. R 707), 328. v. Essex Bank (5 Gray, 373), 87. v. State Bank (7 Blackf. 610), 437, 474 Fishkill Sav. Inst. v. Bostwick (80 N. Y. 162), 161. 168. Fisk v. Germam'a Nat Bank (40 La. Ann. 820), 286. v. Morse (16 N. H. 271), 468. Fitch v. Citizens' Nat. Bank (97 Ind. 211), 530. Fitchburg Bank v. Perley (84 Mas-. 433), 487. Fitler v. Morris (6 Whart. 406), 492. Fitzhugh v. Bank (3 T. B. Mon. 126), 91. Flack v. Green (3 Gill & J. 474), 515. Flagg v. Munger(9 N. Y. 483), 72. Flanagan v. Mitchell (16 Daly, 223), 382. v. Nash (185 Pa. 41), 642. Flash v. Conn (109 U. S. 371), 100. TABLE OF OASES. 739 References are to pages. Flato v. Mulhall (72 Mo. 522), 356. Fleckner v. Bank of United States (8 Wheat. 338), 152. Fleischer v. Rentschler (17 Bradw. 402;, 98, 114. Fleming v. Fulton (6 How., Miss., 473), 549. v. McClure (1 Brev. 428), 512. v. Northampton Bank (Fed. Gas. No. 4862a), 329. Fletcher v. Pierson (69 Ind. 281), 436, 460. v. Sharpe (108 Ind. 276), 600. Flint v. Rogers (15 Me. 67), 421. Flint Road Cart Co. v. Stephens (32 Mo. App. 341), 594. Florence Mining Co. v. Brown (124 U. S. 385), 245. Flour Co. v. Merchants' Bank (90 Ky. 225), 232. Flournoy v. National Bank (79 Ga. 810), 234, 375. Floyd Co. Conam'rs v. Day (19 Ind. 450), 350. Foard y. Womack (2 Ala. 368), 461. Fogarties v. State Bank (12 Rich. Law, 518), 245. Foland v. Boyd (23 Pa. 476), 521. Folger v. Chase (18 Pick. 63), 444, 573. Follain v. Dupre (11 Rob., La., 454), 413. 494, 495. Fonner v. Smith (31 Neb. 107), 245. Foote v. Brown (2 McLean, 369), 392, 525. Forbes v. Omaha Nat. Bank (10 Neb. 338), 474, 493, 494. Ford v. Angebrodt (37 Mo. 50), 381. v. McClung (5 W. Va. 156), 464 v. Mitchell (15 Wis. 304), 404. v. Thornton (3 Leigh, 753), 232. Fordred v. Seamen's Sav. Bank (10 Abb. Pr., N. S., 425), 224. Foreman v. Walker (4 La. Ann. 409), 365, 368. Forrest v. Rawlings C35 Tex. 626), 349. v. Stewart (14 Ohio St. 246). 403. Fort v. Bank of Cape Fear (61 N. C. 417), 238, 342. v. McCulley (59 Barb. 87), 240. Fort Dearborn Nat. Bank v. Blum- ens weig (46 III App. 297), 253. v. Carter. Rice & Co. (152 Mass. 34), 370, 379. v. Seymour (73 N. W. R. 724), 162. Fort Madison Co. v. Batavian Bank (71 Iowa, 270), 87. Fortier v. New Orleans Nat. Bank (112 U. S. 439), 196. Fortin v. Field (17 La. 587), 552. Foss v. First Nat. Bank (3 Fed. R. 185), 289. v. Lowell Sav. Ass'n (111 Mass. 285), 215, 223, 644. Foster v. Bank of Abingdon (88 Fed. R. 604\ 108, 131, 132. v. Bank of New Orleans (21 La. Ann, 338), 238. v. Chase (75 Fed. R. 797), 82. v. Essex Bank (17 Mass. 479), 63, 284. v. Julian (24 N. Y. 28), 450. v. Lincoln (79 Fed. R. 170), 80. v. Lincoln (74 Fed. R. 382), 80, 81. v. McDonald (5 Ala. 376), 474, 475. v. Paulk (41 Me. 425), 525. v. Rincker (4 Wyo. 484), 324. v. Sineath (2 Rich. Law, 338), 473, 474. r. Swasey (3 Woodb. & M. 364), 222. Fourth Nat. Bank v. Altheimer (91 Mo. 190). 477, 479. v. City Nat. Bank (68 111. 298), 229, 233, 247, 251, 252, 253. v. Hueschen (52 Mo. 207), 414. v. Mayer (89 Ga. 108), 191, 314, .318. Fourth Street Bank v. Yardley (165 U. S. 634), 245, 617. Fowl v. Todd (1 Bay, 176), 456. Fowler v. Bowery Sav. Bank (47 Hun, 399), 643. v. Equitable Trust Co. (141 U. S. 384), 331, 333. v. Fleming (1 McMul. 282), 531. v. Gate City Nat. Bank (88 Ga, 29), 356, 379, 384. v. Scully (72 Pa. 456), 196. Fox, Appeal of (93 Pa. 406), 651. Fox v. Horah (1 Ired. Eq. 358), 573. v. Newall (8 W. L. J. 421), 421. v. Onondaga Sav. Bank (7 N. Y. Supp. 17). 646. Frances v. People's Bank (1 Ohio, N. P. 281), 235. Francis v. Evans (69 Wis. 115), 605, 614, 615. Frank v. Chemical Bank (84 N. Y. 209), 265. v. Wessels (64 N. Y. 155), 405. 740 TABLE OF CASES. References are to pages. Franklin Bank v. Byram (39 JHe. 489), 277. v. Commercial Bank (3 Ohio Dec. 339), 90. v. Commercial Bank (36 Ohio St. 350). 190. v. Lynch (52 Md. 270), 361. v. Steward (39 Me. 519;, 170. Franklin Co. v. Lewiston Inst. (68 Me. 43), 635. Frayzer v. Dameron (6 Mo. App. 153), 440. Frazier v. Erie Bank (8 Watts & S. 18), 213. v. Warfield (9 Smedes & M. 220), 354. v. Wilcox (4 Rob., La., 517), 330. Frear v. Dunlap ( 1 Greene, 331). 402. Freeland v. MeCullough (1 Denio, 414), 104. Freeman v. Bank (3 Wills. Civ. Gas. 339), 191. v. Boynton (7 Mass. 483), 412, 429. v. Citizens' Nat. Bank (78 Iowa, . 150), 299, 304. v. Curran (1 Minn. 169), 38ft. v. O'Brien (38 Iowa, 406), 537. v. Wikoff (16 La. 20), 506, 508, 512. Freeman's Bank v. Perkins (18 Me. 292), 408, 412. French v. Bank of Columbia (4 Cranch, 141), 457. v. Citizens' Nat. Bank (97 Ind. 211), 403. v. Irwin (4 Baxt. 401), 244, 259. v. Jarvis (29 Conn. 847), 392. 399, 431. v. O'Brien (52 How. Pr. 394), 640. v. Redman (13 Hun, 502), 634. Fresno Nat. Bank v. Superior Court (83 Cal. 491), 627. Freund v. Importers' & Traders' Bank (76 N. Y. 352), 261. Friberg v. Cox (97 Tenn. 550), 615. Fricke v. German Sav. Bank (4 N. Y. Supp. 627', 640, 646. Frosh v. Holmes (8 Tex. 29), 398. . Frost v. Harrison (8 La. Ann. 123), 542. v. Stokes (55 N. Y. Super. Ct 76). 442, 449. Fryer v. Rankin (11 Sim. 55). 247. Fugett v. Nixon (44 Ma 295), 355. Fuller v. Dingman (41 Iowa; 506), 55L Fuller v. Hooper (3 Gray, 334), 521. v. Jewett (37 Vt. 473), 319. v. Ledden (87 111. 310), 101. v. McDonald (8 Ma 213), 532. v. Scott (8 Kan. 25), 403. Fulton v. McCracken (18 Md. 528), 546. Fulton Bank v. New York Canal Co. (4 Paige, 127), 172, 175, 213. Fultz v. Walters (2 Mont. 165), 288. Funz v. Spanhorst (67 Mo. 256), 132. Furber v. Caverly (42 N. H. 74), 400, 529 v. Stephens (35 Fed. R 17), 614. G. Gaar v. Centralia Bank (20 Bradw. 611), 192. Gage v. Dubuque R Co. (11 Iowa, 310). 552. v. Mechanics' Nat Bank (79 111. 62), 403. v. Sanborn (106 Mich. 269), 195. Gage Hotel Co. v. Union Nat. Bank (171 111. 531), 228. Gager v. Bank of Edgerton (77 N. W. R 920), 107. v. Marsden (77 N. W. R 922), 109. Gaither v. Farmers' Bank (1 Pet 44). 331. Gale v. Corey (112 Ind. 39), 397. v. Kern per 10 La, 205), 546. v. Tappan (12 N. H. 145), 412. Gallagher v. Black (44 Me. 99), 357. v. Roberts (11 Ma 484), 187. Gallatin v. Bradford (1 Bibb, 209), 186. Gallegher v. Roberts (2 Wash. C. C. 191), 392, 417. 425. Galpin v. Hard (3 McCord, 394), 452, 501. Gammel v. Parramore (58 Ga. 54), 404. Gammond v. Bowery Sav. Bank (15 Daly, 483), 223, 644. Garden City Banking Co. v. Ceil- fuss (86 Wis. 616), 575. Gardner v. Bank of Tennessee (1 Swan, 420), 548, 550. v. First Nat. Bank (10 Mont 149), 224. T. Nat. City Bank (39 Ohio St 600), 326, 246. v. Post (43 Pa. 19), 564. Garland v. West (9 Baxt 815), 509. TABLE OF CASES. 741 References are to pages. Garner v. National Bank (66 Fed. R 369), 596. Garnett Bank v. Bowen (21 Kan. 354), 231. Garrettson v. North Atchison Bank (47 Fed. R 867), 354, 356, 414, 470. Garthwaite v. Seipe (23 La. Ann. 218), 553. Garver v. Downie (33 Cal. 176), 505. Gas Bank v. Desha (19 La. 459), 550. Gasoh v. World's Fair Co. (59 111. App. 391), 97. Gassaway v. Jones (2 Cranch, C. C. 334), 542. Gaston v. American Ex. Bank (29 N. J. Eq. 98), 172. Gatch y. Fitch (34 Fed. R 566), 578. Gate City Ass'n v. National Bank (126 Mo. 82), 219, 220. Gates v. Beecher (60 N. Y. 518), 414, 470. v. Parker (43 Me. 544), 364. Gauch v. Harrison (12 Bradw. 457), 105. Gauly v. Troy City Bank (98 N. Y. 487), 286. Gaunt v. Jones (1 Cranch, C. C. 210), 483. Gawtry v. Doane (51 N. Y. 84), 410, 505. Gay v. Haseltine (18 N. H. 530). 382. Gavarre v. Sabatier (24 La. Ann. 358), 465. Gazzam v. Armstrong (3 Dana, 554), 388. Gee v. Bacon (9 Ala. 699), 590. v. Williamson (1 Port. 313). 457. Geitelsohn v. Citizens' Sav. Bank (40N.Y. Supp. 6621, 639. Gelpecke v. Lovell (18 Iowa, 17), 444. Geneva Bank v. Howlett (4 Wend. 328), 491. Georgia Bkg. Ass'n v. Love & Good Will Soc. (85 Ga. 293), 265. Georgia Nat. Bank v. Henderson (46 Ga. 487), 349. Georgia Seed Co. v. Talmage (96 Ga. 254), 232. Gerard v. La Coste (1 Dall. 194), 376. Gerhardt v. Boatmen's Sav. Inst. (38 Mo. 60), 309. German Bank v. Himstedt (42 Ark. 62), 219, 237. German-American Bank v. Third Nat. Bank (5 Dili 104), 298, 299, 323, 613. German Nat. Bank v. Burns (12 Colo. 539), 305. v. Foreman (138 Pa. 474), 234. v. Medowcroft (4 Bradw. 630), 192. v. National State Bank (3 Colo. App. 17), 223. German Savings Bank v. Friend (20 N. Y. Supp. 434\ 650. Germania Bank v. Boutel (60 Minn. 189), 264 Germania Nat. Bank v. Tooke (101 N. Y. 442 1, 363. Germania Sav. Bank v. Wulfe- kuhler (19 Kan. 60), 120, 189. Gerner v. Mosher (78 N. W. R 384), 128, 129. v. Thompson (74 Fed. R 125), 135, 593. Gerrish v. New Bedford Inst. (128 Mass. 159), 641, 643. Gettysburg Nat. Bank v. Kuhns (62 Pa. 88), 206. Gibbons v. Hecox (105 Mich. 509), 297. Gibbs, In re (157 Pa. 59), 634. Gibbs v. Cannon (9 S. & R 198), 403. Gibson v. Bailey (24 Miss. 237), 380. v. Goldthwaite(7 Ala. 281), 150. v. Nat. Park Bank (98 N. Y. 87), 221, 258. Giddings v. Baker (80 Tex, 308), 128, 129 v. McCumber (51 III App. 373), 331 Gifford v. Hardell (88 Wis. 538), 432, 434. v. Rutland Sav. Bank (63 Vt. 108), 639, 641, 645, 646. Gilbert v. Dennis (3 Met. 495), 4ia Gilchrist v. Donnell (53 Mo. 591), 505. . Giles v. Perkins (9 East, 12, 14), 211. Gill v. Palmer (29 Conn. 54), 469. v. Weller (52 Md. 8), 381. Gillespie v. Campbell (39 Fed. R 724), 379. v. Hannehan (4 McCord, 503), 463. Gillett v. Averill (5 Denio, 85), 459. v. Campbell (1 Denio, 520), 148, 193. v. Moody (3 Comst 479), 189, 577. Gilliam v. Merchants' Nat Bank (70 111. App. 592), 228. Gillig v. Lake Bigler Road Co. (2 Nev. 214), 383. 742 TABLE OF CASES. References are to pages. Gillilan v. Myers (31 Til 525), 849, 376. 'Oilman v. King (2 Cranch, C. C. 48), 886. Gilroy v. Brinkley (12 Heisk. 392), 497, 498. Gindrat v. Mechanics' Bank (7 Ala. 324), 187, 474, 475, 520. Girard Bank v. Bank of Penn Town- ship (39 Pa. 92), 237, 256, 290. v. Richards (4 Phila. 250), 329. Gist v. Lybrand (3 Ohio, 307), 450, 492, 496. Gladstone Ex. Bank v. Keating (94 Mich. 439), 255. Glaser v. Rounds (16 R L 235), 452. Glasgow v. Copeland (8 Mo. 268), 374. v. Prattle (8 Mo. 336), 489. Glaze v. Ferguson (48 Kan. 157), 536. Glendenning v. Canary (5 Daly, 489), 541. Glenn v. Farmers' Bank (84 N. C. 631), 588. v. Farmers' Bank (80 N. C. 97), 588. Glicksman v. Early (78 Wis. 223), 468, 471, 474. Glover v. Tuck (1 Hill, 66), 368. Godchaux v. Union Nat. Bank (28 La. Ann. 576), 269. Goddard, In re (66 Yt. 415), 358. Goddard v. Grand Trunk Ry. Co. (57 Ma 202), 148. v. Merchants' Bank (2 Sandf. 247, 4 N. Y. 147), 346, 378, 406. Godfrey v. Terry (97 U. S. 171), 98, 114, 574 Godwin v. Davenport (47 Me. 112), 431. Goetz v. Bank (119 U. S. 551, 560), 267. 340. Gold M ni ig Co. v. National Bank (90 U. S. 640), 67. Goldbecu v. Kensington Nat. Bank (147 Pa. 267)". 167. Goldneck v. Bristol Sav. Bank (123 Mass. 320), 640, 646. Goldsborough v. Jones (2 Cranch, C. C. 305), 447. Good v. Arrowsmith (Anth. N. P. 289) 428, 537. v. Martin (95 U. S. 90), 395, 400. Goodell v. Brandon Nat Bank (63 Vt 303), 288. Goodenow v. Duffield (Wright, 455), 562. Goodland v. Bank of Darlington (74 Mo. App. 365), 64, 190. Goodloe v. Godley (13 Smedes & M. 233), 173, 443, 504, 505. Goodman v. Norton (17 Me. 381), 513. Goodnow y. Warren (122 Mass. 79), 518. Goodwin v. Davenport (47 Ma 112), 431. v. McCoy (13 Ala. 271), 450, 496. Gordon v. Commonwealth Bank (6 Duer, 76), 260. v. Dreux (6 Rob., La., 399), 409. v. Montgomery (19 Ind. 110), 529, 530. v. Muchler (34 La. Ann. 604), 246. v. Parmalee (15 Gray, 413), 429. v. Pedrick (6 Phila. 254), 47a v. Price (10 Ind. 385), 552. Gorman v. Gorman (39 Atl. R 1038), 642. v. Guardian Sav. Inst. (4 Ma App. 180), 635, 650. Goshen Nat. Bank v. Bingham (118 N. Y. 349), 256, 258. v. State (141 N. Y. 379), 166. Gough v. Staats (13 Wend. 549), 396, 432. Gould v. Cayuga Co. Bank (86 N. Y. * 75), 286. Governor v. Bowman (44 III 499), 583. v. Lagow (43 III 134), 583. Gowan v. Jackson (20 Johns. 176), 425. 521. Gower v. Moore (25 Ma 16), 440. Grafton Bank v. Cox (13 Gray, 503), 450, 500. Graham v. National Bank (5 Stew. 804), 67, 197. v. Orange Co. Nat. Bank (35 Atl. R. 1053), 176. v. Sangston (1 Md. 59), 468, 498. Grammel v. Carmer (55 Mich. 201), 348. Grand Bank v. Blanchard (23 Pick. 306), 419, 509. Grand Gulf Bank v. Archer (8 Smedes & M. 151), 330, 335. Grand Gulf Co. v. Barnes (12 Rob., La., 127), 486, 494, 514 Granite Bank v. Ayres(16 Pick. 892), 447, 448. Granmer v. Carroll (4 Cranch, C. C. 400), 381. Grant, In re (Fed. Cas. No. 5691), 520, 521. TABLE OF CASES. 743 References are to pages. Grant v. Coal Co. (80 Pa. 208), 603. v. Cropsey (8 Neb. 205), 159. v. Long (12 La. 402), 430. v. McNutt (33 N. Y. Supp. 62), 658. v. Spencer (1 Mont. 136), 520, 534 v. Spokane Nat. Bank (47 Fed. B, 673), 592. v. Strutzel (53 Iowa, 712), 456, 522. v. Wood (12 Gray, 220), 376. Graves v. American Ex. Bank (17 N. Y. 205), 236. v. United States (165 U. S. 323), 137, 138, 139, 140, 141, 276. Gray v. Bell (3 Rich. Law, 71), 468. v. Coffin (9 Gush. 192), 100. v. Gibson (6 Mich. 300), 56. v. Kentucky Bank (29 Pa. 365), 369. 379. v. Merriam (46 111. App. 337), 285. v. Portland Bank (3 Mass. 364), 46. Graydon v. Patterson (13 Iowa, 256), 298. Greatrake v. Brown (2 Cranch, C. C. 541). 414, 417, 480. Greele v. Parker (5 Wend. 414). 363. Greeley v. Hunt (21 Me. 455), 458. v. Nashua Sav. Bank (63 N. H. 145), 637. Green v. Darling (15 Me. 141), 511. v. Goings (7 Barb. 652), 388. v. Odd Fellows Bank (65 CaL 71), 290. v. Raymond (9 Neb. 295), 383. v. Walkill Nat. Bank (7 Hun, 63), 592. Greenawalt v. Wilson (52 Kan. 109), 150. Greene v. Duncan (37 S. C. 239), 376. v. Farley (20 Ala. 322), 474. v. Jackson Bank (18 R. L 779), 316, 317. Greenleaf v. Mumford (50 Barb. 543), 215. Greenough v. Smead (3 Ohio St. 415), 413, 414. Greenwich Bank v. De Groodt (7 Hun, 210), 507. Greenwood v. Curtis (6 Mass. 358), 57. Gregg v. George (16 Kan. 546), 432. v. Union Co. Nat. Bank (87 Ind. 238), 280, 281. Gregory v. German Bank (3 Colo. 333), 126. Greves v. Tomlinson (19 La. Ann. 90), 506. Grew v. Breed (10 Met. 569), 562, 563, 564. Grief v. McDaniel (14 La. Ann. 155), 494 Griffin v. Central Bank (3 Ga. 371), 590. v. Chase (36 Neb. 328), 610. v. Goff (12 Johns. 423), 428. v. Kemp (46 Ind. 172), 411, 432. v. Rice (1 Hilt. 184), 215, 235. Griffith v. Assman (48 Mo. 66), 486, 487. v. Grogan (12 Cal. 37), 392. Grigsby v. Ford (3 How., Miss., 184), 543. Grinman v. Walker (9 Iowa, 426), 473. Grissom v. Commercial Nat. Bank (87 Tenn. 350), 185, 187, 235, 295. Grocer Co. v. Farmers' Bank (71 Mo. App. 132), 244 Grocers' Bank v. Kingman (16 Gray, 473), 116. Grosners v. Farmers' Bank (13 Conn. 104), 319. Grosvenor v. Stone (8 Pick. 79), 540. Groth v. Gyger (31 Pa. 271), 441. Groton v Dallheim (6 Me. 476), 458. Guelich v. National State Bank (56 Iowa, 434), 306. Guignon v. Trust Co. (156 III 135), 443, 509. Guild v. First Nat. Bank (4 S. Dak. 566), 334,338. Guinan, Appeal of (70 Conn. 342), 644 Gulden v. Linderman (34 Pa. 58), 402. Gumbel v. Abrams (20 La. Ann. 568), 238, 239, 342. Gunkle, Appeal of (48 Pa. 13), 101. Gurnee v. Hatton (63 Hun, 197), 372. Gurney v. Giegling (108 Mich. 295), 402. H. Haber v. Brown (101 Cal. 445), 404, 452, 500. Hackett v. Reynolds (114 Pa. 328), 315. Haddock v. Citizens' Bank (53 Iowa, 542), 185, 304 v. Murray (1 N. H. 140), 429. Hagar v. Buffalo Sav. Bank (31 N. Y. Supp. 448), 646. v. Union Nat Bank (63 Me. 509), 114. 744 TABLE OF CASES. References are to pages. Hager v. Boswell (4 J. J. Marsh. 61), 510. Hagerstown Bank v. Adams Exp. Co. (45 Pa. 419), 558. v. Loutlon Sav. Soc. (3 Grant Cas. 135), 160. Hagerty v. Engle (43 N. J. Law, 299), 438. Haight v. Kindhart (1 S. C. 189), 413. Haines v. McFerron (19 Bradw. 172), 304. v. Nance (52 111. App. 406), 356, 357, 375, 380. Hale v. Burr (12 Mass. 86), 413, 440. v. Danforth (46 Wis. 554), 536. v. Rawallie (8 Kan. 136), 285. v. Richards (80 Iowa, 164), 217, 277. v. Walker (31 Iowa, 344), 81. Hall v. Bank of Virginia (14 W. Va. 584), 563. v. Bracket (60 N. H. 215), 651. v. Bradbury (40 Conn. 82), 416. v. Conk (17 S. W. R 1022), 373. v. Cordell (147 U. S. 116), 355, 361. T. First Nat. Bank (133 III 234), 360, 369, 372. v. First Nat. Bank (35 III App. 116), 365. v. Flanders (83 Me. 242), 356. v. Jones (32 111. 38). 543. v. Monohan (6 Iowa, 216), 392, 399, 431. v. Otis (77 Me. 122), 291. v. Paris (59 N. H. 71), 652. v. Steel (68 111. 231), 359, 381. Hallbrook v. Allen (4 Fla, 87), 525. Hallett v. Harrower (33 Barb. 537), 620. Halliday v. Martinet (20 Johns. 160), 548. Hallowell v. Curry (41 Pa. 322), 443, 477, 478, 516. Hallowell Bank v. Hamlin (14 Mass. 180), 150, 573. Hallowell Nat. Bank v. Marston (85 Me. 488), 532. Halls v. Howells (Harp. 426), 419. Halsey v. Warden (25 Kan. 128), 373. Haly v. Brown (5 Pa. 178), 450. Hammell v. First Nat Bank (2 Colo. App. 571), 219. Hammett v. Frenworthy (50 Mo. App. 281), 530. Hammond v. Chamberlain (26 Vt. 406), 40a Hammond v. Hastings (134 U. S. 401), 90. Hamtramck v. Selden (12 Grat. 28), 55, 341, 556. Hanauer v. Anderson (16 Lea, 340), 464, 524. v. Doane (12 Wall. 342), 55. Hancock v. Branch Bank (5 Ala. 440), 619. v. Colyer (99 Mass. 187), 319. Hand v. Atlantic Bank (55 How. Pr. 231), 124, 132, 133. Hankin v. Squire (5 Biss. 186), 371. Hannon v. Williams (34 N. J. Eq. 255), 652. Hanover v. Williams (79 N. C. 129), 326. Hansborough v. Gray (3 Grat. 356), 399. Hanson v. Heard (38 AtL R 788), 153. Hardin v. Boyce (59 Barb. 425), 464, 523. Hardy v. Chesapeake Bank (51 Md. 262). 265, 267. v. Pilcher (57 Miss. 18), 351. Hargroves v. Chambers (30 Ga 580), 126, 128, 279, 554. Barker v. Anderson (21 Wend. 372), 395. H"arley v. Eleventh Ward Bank (76 N. Y. 618), 321. Harmanson v. Bain (1 Hughes, 188), 574. Harmon v. Moffett (6 D. C. 297), 540. v. Wilson (1 Duv. 222), 409. Harp v. Kenner (19 La. Ann. 63), 439, 524. Harper v. Calhoun (7 How., Miss., 203), 148, 186, 342. v. Carroll (62 Minn. 152, 69 N. W. R 610), 80, 81. Harriman v. Sanborne (43 N. H. 128), 349. Harris v. Clark (10 Ohio, 5), 413, 414. v. Dorchester (23 Pick. 112), 132. v. Memphis Bank (4 Humph. 519), 501. v. Robinson (4 How. 336), 475, 489. 505, 506. Harrisburg Bank v. Commonwealth (26 Pa. 451), 557. Harrison v. Bailey (99 Mass. 620), 540. v. Brown (16 La. 282), 548. v. Crowdei (6 Smedes & M. 464), 420. TABLE OF CASES. 745 References are to pages. Harrison v. Harrison (118 Ind. 179), 240. v. Nicollet Bank (41 Minn. 488), 840. v. Smith (83 Mo. 210), 282, 406, 603, 609. v. Sternan (4 Phila. 315), 364, v. Trader (29 Ark. 85), 460. v. Wright (100 Ind. 515), 348. Hart v. Eastman (7 Minn. 74), 404, 431, 535. v. Shorter (46 Ala. 453), 352. v. Smith (15 Ala. 807), 349. v. Wills (52 Iowa, 56), 452. Hartford Bank v. Barry (17 Mass. 94), 154. v. Green (11 Iowa, 476). 447. v. Stedman (3 Conn. 489), 475, 487. Harvey v. Allen (16 Blatch. 29), 596. v. Lord (11 Biss. 144), 103, 110, 111, 59?. v. Nelson (31 La. Ann. 434), 530. Harwood v. Ramsey (15 S. & R. 31), 192. Haseltine v. Dunbar (62 Wis. 162), 382. Hasey v. White Pigeon Co. (1 Doug. 193). 351, 352. Haskell v. Boardman (90 Mass. 38), 514, 515, 539. Haslett v. Kunhardt (1 Rice, 189), 440. Hastings v. Barnd (75 N. W. R. 49), 101. v. Hopkinson (28 Vt. 108), 39. Haswell v. Mechanics' Bank (26 Vt. 100), 274. Hatch v. Burrows (1 Woods, 439), 561 v. City Bank (1 Rob., La., 470), 93. v. Fourth Nat. Bank (147 N. Y. 184), 218, 231. Hatcher v. Stallworth (25 Miss. 376), 359. Hatley v. Jackson (48 Md. 254). 530. Hatton v. Holmes (97 Cal. 208), 265. Hauptmann v. First Nat. Bank (83 Hun, 78), 254. Hauser v. Tate (85 N. C. 81), 69. Havens v. Griffin (N. Chip. 23), 361. v. Talbot (11 Ind. 323), 534, Hawes v. Blackwell (107 N. C. 196), 245. v. Oakland (104 U. S. 450), 91. Hawkins v. Barney (27 Vt. 392), 404, 405. Hawkins v. Cleveland R. Co. (89 Fed. R. 266), 600. v. Fourth Nat, Bank (49 N. E. R. 957), 167. v. Olsen (48 111. 277). 458. Hawley v. Jette (10 Oreg. 31), 348, 458. v. Kountze (38 N. Y. Supp. 327), 335. Hawthorne v. Calef (2 Wall 10), 96, 99, 104. Haxton v. Bishop (3 Wend. 13), 563, 574, 582, 592. Hayden v. Bank of Syracuse (15 N. Y. Supp. 48), 566. v. Chemical Nat. Bank (84 Fed. R. 874), 578. v. Thompson (67 Fed. R. 273), 593. v.Thompson (71 Fed. R. 60;, 133. 134, 593. Haydon v. Alton Nat. Bank (29 111. App. 458), 231. Hayes v. Beardsley (136 N. Y. 299), 578, 579. v. Fitch (47 Ind. 21), 529. v. Shoemaker (39 Fed. R. 319), 80. v. Werner (45 Conn. 246), 541. Haynes v. Courtney (15 La. Ann. 630), 326. Hays v. Northwestern Nat. Bank (9 Grat. 127), 399. Hazard v. Cole (1 Idaho, 276), 351. v. Nat. Exchange Bank (26 Fed. R. 94), 87. v. White (26 Ark. 155), 541. Hazel ton Coal Co. v. Megargal (4 Pa. 324), 556. v. Ryerson (20 N. J. Law, 129), 475, 491, 493, 494. Hazen v. Union Bank (1 Sneed, 115), 330. Hazleton v. Colburn (1 Robt. 345), 434. v. Union Bank (32 Wis. 34), 150, 205. Hazlett v. Commercial Nat. Bank (132 Pa. 118), 298. 309. Healy v. Gil man (1 Bosw. 235), 377. Heath v. Portsmouth Sav. Bank (46 N. H. 78), 639, 648. v. Second Nat. Bank (70 Ind. 106), 194. v. Van Cott (9 Wis. 516), 402, 533. Heaven v. Fender (11 Q. B. D. 503), 250. Heavener v. Donnell (7 Smedes & M. 244), 375, 380. 746 TABLE OF CASES. References are to pages. Heenan v. Nash (8 Minn. 407), 382. Heidelback, Ex parte (2 Low. 526), 452, 453. Heidinger v. Spruance (101 III 278), 100. Heilschmidt v. McAlpine (59 III App. 231), 358. Heironirnus v. Sweeney (83 Md. 146), 636, 652. Hellings v. Hamilton (4 Watts & S. 462), 452. Helm v. Swiggett (12 Ind. 194), 85, 90. Helphenstine v. Vincennes Nat. Bank (65 Ind. 582). 438. Helwege v. Hiiiernia Nat. Bank (28 La, Ann. 320), 259, 269. Hemmelman v. Hotaling (40 Cal. Ill), 433. Hendershot v. Nebraska Nat. Bank (25 Neb. 127), 473. Henderson v. Griffin (3 Mart., N. S., 403), 404. v. Myers (11 Phila. 616), 595. v. (/Conor (106 Cal. 385), 610. v. Union Bank (6 Smedes & M. 314), 50. Henderson Loan Ass'n v. People (163 111. 196), 42. Henderson Nat. Bank v. Alves (91 Ky. 142). 337. Henelly v. Rittenhouse (7 D. C. 76). 289. Hennessy v. City of St Paul (54 Minn. 219), 68. Henrick v. Farmers' Bank (8 Port. 539), 380. Henrietta Nat. Bank v. State Nat. Bank (80 Tex. 648), 243. Henry v. Hazen (5 Ark. 401), 381. v. Martin (88 Wis. 367), 600. v. State Bank (3 Ind. 216), 486. Henshaw v. Root (60 Ind. 220), 348, 432. Hentig v. Staniforth (5 M. & S. 122), 55. Hepburn v. Citizens' Bank (2 La. Ann. 1007), 208. v. Griswold (8 Wall. 603), 560. v. Toledano (10 Mart., O. S., 643), 452 Herbert v. Servin (4 N. J. Law, 225), 505. Herkiiner Bank v. Cox (21 Wend. 119). 409. Herndon v. Louisville Banking Ass'n (1 Ky. Law R. 584), 245. Herrick v. Baldwin (17 Minn. 209), 450, 452. Herring v. Sanger (3 Johns. Cas. 71) r 443, 446. Herron v. Vance (17 Ind. 595), 634, 635, 650, 651. Hershfield v. Fort Worth Nat. Bank (83 Tex. 452), 438. Hert v. Vincent (29 N. Y. Supp. 61V 511. Herter v. Goss Co. (57 N. J. Law, 42), 381. Hess v. Werts (4 S. & R 356), 39, 561. Hestres v. Petrovic (1 Rob., La., 119), 413, 414, 483. Hevener v. Kerr (4 N. J. Law, 58), 342. Hewitt v. Adams (54 Me. 206), 101. Heywood v. Pickering (43 L, J. Q. B. 145), 305. Hibernia Nat. Bank v. Lacombe (84 N. Y. 367), 584. Higgins v. Hayden (73 N. W. R 280). 128. v. Morrison (4 Dana, 100), 467, 484. High v. Cox (55 Ga, 662), 384. Hightower v. Ivy (2 Port. 308), 458. Higley v. First Nat. Bank (26 Ohio St. 75), 336. Hilborn v. Artus (4 III 344), 467, 500. Hildeburn v. Turner (5 How. 69), 549. Hill v. Martin (12 Mart, O. S., 177), 401, 431, 531. v. National Bank (56 Vt 582), 337. v. National Trust Co. (108 Pa. 1), 244 v. Norvel (3 McLean, 583), 453, 498. v. Pine River Bank (45 N. H. 300), 90. v. Varrel (3 Me. 233), 501. v. Western K. Co. (86 Ga. 284V 577. Hillman v. McWilliams (70 CaL 449), 215. Hillstrom v. Anderson (46 Minn, 382), 350. Hinckley v. Belleville (43 III 183), 29, 71. Hindman v. First Nat Bank (86- Fed. R 1013), 200. Hines v. Marmolejo (60 CaL 229), 334. Hinsdale v. Miles (5 Conn. 331), 418. v. Orange Bank (6 Wend. 379), 553, TABLE OF CASES. 747 References are to pages. Hintermister v. First Nat. Bank (64 N. Y. 212), 336. Hinton v. Dibbin (2 Q. B. 646), 122. Hirschfelder v. Manuf. Co. (17 N. Y. Supp. 726), 458. Hirschfield v. Bopp (50 N. Y. Supp. 676), 48. Hiscock v. Lacey (30 N. Y. Supp. 860), 114. Hitchcock v. Hogan (99 Mich. 124), 438. v. United States Bank (7 Ala. 386), 330. Hitner v. Finney (1 Wkly. Notes Gas. 50), 503. Hoadley v. Bliss (9 Ga. 303), 455, 540. Hobart v. Bennett (77 Me. 401), 651. v. Gould (8 Fed. R. 57), 105, 108. v. Johnson (8 Fed. R 493), 77, 101. Hobbs v. Straine (149 Mass. 212), 478, 496. v. Western Nat. Bank (Fed. Cas. No. 6551a), 85. Hockaday v. Skeggs (2 Phila. 268), 483. Hodge v. First Nat. Bank (22 Grat. 51), 154. Hodges v. Iowa Barb Wire Co. (80 Iowa, 65), 365. v. Screw Co. (1 R L 312), 129. v. Shuler (22 N. Y. 114), 470. Hodgson v. Cheever (8 Mo. App. 318), 108. v. McKinstrey (3 Kan. App. 412), 566. Hoffman v. Bank of Milwaukee (12 Wall. 181), 340. Hogg, Appeal of i22 Pa. 479), 590. Hogg v. Orgill (34 Pa. 344), 56. Hogue v. Edwards (9 Bradw. 148), 236 251 Hoke v! People (122 111. 511), 75, 142. Holbrook v. Payne (151 Mass. 383), 359, 371. Holden v. Phelps (135 Mass. 61), 637. v. Upton (134 Mass. 177), 637, 651. Holland v. Citizens' Sav. Bank (17 R I. 87), 183. v. Lewiston Falls Bank (52 Me. 564), 118. v. Turner (10 Conn. 308), 458, 490. Hollister v. Central Nat Bank (119 N. Y. 634), 286. v. Hollister Bank (2 Keyes, 245), N& Holman v. Whiting (19 Ala. 703), 399, 538. Holmer v. Roe (62 Mich. 199), 435. Holmes v. Boyd (90 Ind. 332), 194. v. Preston (70 Miss. 152), 402. v. Wilmington Nat. Bank (18 S. C. 31), 627. Holt v. Bacon (25 Miss. 567), 153. v. Winfield Bank (25 Fed. R 812), 63, 194 Holtz v. Boppe (37 N. Y. 634), 447, 451. Holyoke Bank v. Burnham (11 'Gush. 183), 104. Home Ins. Co. v. Green (19 N. Y. 518), 470. Home Nat. Bank v. Newton (8 I1L App. 563), 231, 235. Homes v. Smith (20 Me. 264), 438. v. Smith (16 Me. 181), 548. Honig v. Pacific Bank (73 CaL 464), 216, 217, 218, 237. Hooks v. Anderson (58 Ala. 238), 395. Hoover v. Glasscock (16 La. 242), 535. v. McCormick (84 Wis. 215), 529. v. Wise (91 U. S. 308), 306. Hopkins v. Beebe (26 Pa. 85), 372. v. Nash Co. (77 N. W. R. 53). 372 Hopkirk v. Page (Fed. Cas. No. 6697, 2 Brock. 20), 461, 523. Hopps v. Savage (69 Md. 513), 383. Homer, In re (10 Leigh, 790), 554. Horton v. Mercer (71 Fed. R 153), 82, 83. Hotchkiss v. Artisans' Bank (2 Keyes, 564), 156. v. Artisans' Bank (42*Barb. 517), 187. v. Mosher (48 N. Y. 478), 292. Hough v. Gray (19 Wend. 202), 403. v. Young (1 Ohio, 230), 427, 428. Houghton v. First Nat. Bank (26 Wis. 663), 166. House v. Adams (48 Pa. 261), 374, 472, 523. v. Vinton Nat. Bank (43 Ohio St. 346), 398, 485. Houston v. Thompson (29 & R R 827), 128, 130. Howard v. Deposit Bank (80 Ky. 496), 219. v. Ives (1 Hill, 263), 513, 516. v. Mississippi Valley Bank (28 La. Ann. 727), 345. v. Savings Bank (40 Vt 597), 644 748 TABLE OF CASES. References are to pages. Howard v. Walker (92 Tenn. 452), 185, 301. Howard Nat Bank, Ex parte (2 Low. 487), 231, 232. Howard Nat. Bank v Loomis (51 Vt. 349), 197. Howe v. Barney (43 Fed. R 668), 593. v. Bradley (19 Me. 31), 469, 478. Ho well v. Adams (68 N. Y. 314), 288, 290. Hower v. Weiss Malting Co. (55 Fed. R 356). 628. Howland v. Adrian (30 N. J. Law, 41), 469, 511. v. Carson (15 Pa. 453). 361. v. Spencer (14 N. H. 580), 319. Hubbard v. Charleston Co. (11 Met. 124), 278. v. Hamilton Bank (7 Met. 340), 584. v. Matthews (54 N. Y. 43), 479. v. New York Ex. Co. (36 Barb. 286), 33. v. Troy (2 Ired. 134), 511. Hubbell v. Houghton (86 Fed. R. 547), 82. Huber v. German Congregation (16 Ohio St. 371), 68. Hudson v. Wolcott (39 Ohio St. 618), 534. Huertematte v. Morris (101 N. Y. 63), 379. Huff v. Ashcroft (1 Disn. 277), 440, 441. v. Hatch (2 Disn. 63), 303. Huffaker v. National Bank (75 Ky. 287, 12 Bush, 287), 469, 625. v. National Bank (13 Bush, 644), 459. Hughes v. Bank of Somerset (5 Litt. 45), 148, 572. r. First Nat. Bank (110 Pa, 428), 167, 286. v. Neal Banking Co. (97 Ga. 383), 309. v. Settle (0 S. W. R. 577), 176, Hulitt v. Bell (85 Fed. R. 98), 591. Hull v. Myers (90 Ga. 674), 393, 398, 521. v. State Bank (Dud. Law, 259), 274. Hum v. Union Bank (4 Rob., La., 109), 306. Humboldt Trust Co., In re (3 Pa. Co. Ct. R 621), 589. Hume v. Watt (5 Kan. 34), 484, 507. Hummel v. Bank of Monroe (75 Iowa, 689), 177. Hun v. Gary (82 N. Y. 65, 59 How Pr. 426), 122. 633. v. Van Dyck (26 Hun, 567, 93 N. Y. 660), 633. Hungerford v. O'Brien (27 Minn. 306), 403. Hunt v. Appellant (141 Mass. 515), 199. v. Divine (37 111. 137), 279, 280. v. Jackson (96 Ala. 130), 388. v. Maybee (7 N. Y. 266), 410, 417, 448. v. Nugent (10 Smedes & M. 541X 505. v. Standart (15 Ind. 33), 354. v. Townsend (26 S. W. R 310), 317, 319, 321, 325, 610. v. Wadleigh (26 Me. 271), 392, 431. 458. Hunter v. Hempstead (1 Ma 67), 414. v. Van Bomhorst (1 Md. 504), 468. Huntington v. Attrill (146 U. S. 657), 126. v. Crescent City Bank (18 La. Ann. 350), 571. v. Harvey (4 Conn. 124), 540. v. Savings Bank (96 U. a 388), 629, 630. Huntsville Bank v. McGeehee (1 Stew. & P. 306), 572. Hurd v. Green (17 Hun, 327). 636. v. Kelly (78 N. Y. 588), 636. Hurlbut v. Brittain (2 Doug. 191), 58. v. Kelley (62 Wis. 590), 582. Huse v. Hamblin (29 Iowa, 501), 404 Hussey v. Freeman (10 Mass. 84), 511. Hutchins v. Manhattan Co. (29 N. Y. Supp. 1103). 316. Hyslop v. Jones (3 McLean, 96), 477. Idaho Forwarding Co. v. Insurance Co. (8 Utah, 41), 170. Ide v. Bremer Co. Bank (73 Iowa, 58). 302. v. Pierce (134 Mass. 260), 630. Ihl v. St. Joseph Bank (26 Mo. App. 129), 171, 206, 237. Illinois State Bank v. Batty (5 III 200), 255. Illinois Trust & Savings Bank v. First Nat. Bank (15 Fed. R 858), 612. TABLE OF CASES. 740 References are to pages. Ilsley v. Jones (12 Gray, 260), 362, 369. Importers' Nat. Bank v. Shaw* (144 Mass. 421). 502. Importers' & Traders' Bank v. Lit- tell (46 N. J. Law, 506), 75, 336. v. Peters (123 N. Y. 272), 319, 324, 614, 615. India Rubber Mfg. Co. v. Bishop (3 E. D. Smith, 148), 420. Indiana Mfg. Co. v. Porter (75 Ind. 428), 372. Indiana R. Co. v. Davis (20 Ind. 6), 351. Indig v. Nat. City Bank (80 N. Y. 100), 235, 251, 296, 299, 303, 305. Industrial Bank v. Bowes (165 I1L 70), 348, 434 Industrial Co. v. Weakley (103 Ala. 458), 432, 436. Ingraham v. Speed (30 Miss. 410), 194. Innerarity v. Merchants' Nat. Bank (139 Mass. 332), 163, 182. Insurance Co. v. National Bank (93 Ky. 129), 274. International Bank v. Bradley (19 N. Y. 245), 333. v. Jones (119 111. 407), 231. International Trust Co. v. Loan Co. (153 Mass. 261), 46. Interstate Nat. Bank v. Ferguson (48 Kan. 732), 193. Iowa State Bank v. Black (91 Iowa, . 490), 161. Ireland v Kip (10 Johns. 490, 11 Johns. 231), 474, 494 v. Kip (Anth. N. P. 195), 495. Irons v. Manufacturers' Nat. Bank (27 Fed. R. 591), 80, 103. 106, 108, 110, 112, 150, 594, 598; (36 Fed. R. 343), 595; (21 Fed. R. 197), 84, 101, 103; (6 Biss. 301), 579, 592; (17 Fed. R. 308), 110, 622. Irvine v. Adams (48 Wis. 468), 385. v. Dean (93 Tenn. 346), 232. Irving Bank v. Alley (79 N. Y. 536), 250 v. Wetherald (36 N. Y. 335), 256, 257, 266. Irwin v. Brown (2 Cranch, C. C. 314), 516. v. Planters' Bank (1 Humph. 145), 564. Isbell v. Lewis (98 Ala. 550), 185, 474, 477, 480, 496. Iselin v. Chemical Nat. Bank (40 N. Y. Supp. 388), 379. Ish v. Mills (1 Cranch, C. C. 567), 404 Isham v. McClure (58 Iowa, 515), 534 v. Post (141 N. Y. 100), '344. Isom v. First Nat. Bank (52 Miss. 902). 213. Israel v. Bowery Sav. Bank (9 Daly, 507), 646. Ivory v. State Bank (36 Mo. 475), 303, 349. J. Jaccard v. Anderson (37 Mo. 91), 528, 530. Jacks v. Darrin (3 E. D. Smith, 557), 461. Jackson v. Bank of Paterson (1 Stockt. 205), 586. v. Brown (5 Wend. 590), 195. v. Commercial Bank (2 Rob., La., 128), 377. v. Packer (13 Conn. 342), 388. Jackson Ins. Co. v. Cross (9 Heisk. 283), 206, 239. Jacksonville R. Co. v. Hooper (160 U. S. 514, 524), 70. Jacobs v. Turner (2 La. Ann. 964), 482. Jacobson v. Allen (20 Blatch. 525), 103. Jaff ray v. Krauss (79 Hun, 449). 530. Jagger v. German- American Bank (53 Minn. 386), 202, 294, 310, 521. James v. Ocoee Bank (2 Cold. 59), 388. v. Rogers (23 Ind. 451), 198. v. Wade (21 La. Ann. 548), 523. Jameson v. Collins (11 Phila. 258), 214 v. Pothaus (26 La. Ann. 63), 474 Janin v. London Bank (92 Cal. 14), 265, 266. Jarnagin v. Stratton (95 Tenn. 619), 489. Jarvis v. St. Croix Mfg. Co. (23 Me. 287), 475, 491. v. Wilson (46 Conn. 90), 258, 358. Jaycox, In re (18 Blatchf. 70), 636. Jefferson v. Darling (91 Hun, 236), 517. Jefferson Co. Bank v. Chapman (19 Johns. 322), 342. v. Commercial Nat. Bank (39 S. W. R. 338), 299. 750 TABLE OF CASES. References are to pages. Jemison v. Planters' Bank (23 Ala. 168), 572. Jenkins v. Nat. Village Bank (58 Me. 275), 329. v. White (147 Pa 303), 536. Jenks v. Doylestown Bank (4 Watts & S. 505), 443. Jennery v. Olmstead (36 Hun, 536), 631. Jennings v. Bank of California (79 Cal. 323), 89. v. People (8 Mich. 81), 50. Jennison v. Citizens' Sav. Bank (122 N. Y. 135), 635, 637. v. Parker (7 Mich. 355), 392, 525. Jerome v. County Commissioners (18 Fed. R 873), 350. v. Stebbins (14 Cal. 457), 428. Jerrey v. Wilber (1 Bailey, 453), 528. Jewett v. Yardley (81 Fed. R. 920), 617. Jex v. Tureand (19 La. Ann. 64), 430, 439, 464. Jochumsen v. Suffolk Sav. Bank (85 Mass. 87). 647. John v. City Nat. Bank (57 Ala. 96), 477. v. Farmers' Bank (12 Blackf. 367), 198. Johnson, In re (103 Mich. 109), 283, 284, 301, 603, 609, 616. Johnson v. Bank of North America (5 Robt. 554), 435. v. Blakemore (28 La. Ann. 140), 362. v. Brant (38 Kan. 754), 222. v. Brown (154 Mass. 105). 476. v. Catlin >27 Vt. 87), 620. v. Cbarlottesville Nat. Bank (3 Hughes, 657), 66. v. Clark (39 N. Y. 216), 367. v. Clark (50 N. E. R 762), 360. v. Crane (16 N. EL 68), 542, 543. v. Farmers' Bank (1 Har. 117), 287. v. Harth (1 Bailey, 482), 440. v. Hurley (115 Mo. 513). 159. v. Laflin (103 U. S. 800), 80, 85. v. Laflin (5 Dill. 65), 80, 85. v. National Bank (74 N. Y. 329), 334, 335. v. Parsons (140 Mass. 173), 530. v. Payne Bank (56 Mo. App. 257), 220. v. Ward (2 Bradw. 261), 204. v. Wilmarth (13 Met 416), 403. Johnson v. Zeckendorf (12 Pac. R TC5), 527. Johnson Co. Sav. Bank v. Lowe (47 Mo. App. 151). 530. Johnston v. Humphrey (91 Wis. 76), 230. v. Southwestern Bank (3 Strobh. Eq. 263). 167, 564 Johnston-Fife Hat Co. v. National Bank (4 Okl. 17), 165, 167. Jones. Ex parte (77 Ala. 330), 236. Jones v. Albee (70 111. 34), 402, 529. v. Berryhill (25 Iowa, 289). 546. v. Brown (50 N. E. R 648), 92. v. Fales (4 Mass. 245), 427, 428, 455, 520. v. Goodwin (39 Cal. 493), 395. v. Iowa Bank (34 III 313), 361, 866. v. Johnson (86 Ky. 530), 122, 125. v. Kilbreth (49 Ohio St. 401), . 317, 613. v. Lewis (8 Watts & S. 14), 474 v. Mansker (15 La. 51), 478. v. Manufacturers' Bank (10 Wkly. Notes Gas. 102), 275. v. Middleton (29 Iowa, 188), 431. v. Pacific Co. (13 N. W. R 359;, 245. v. Pienning (85 Wis. 264), 240. v. Robinson (11 Ark. 504), 431, 522 v. Robinson (26 Barb. 310), 586. v. Wiltberger (42 Ga. 575), 105, 107. Jordan v. Ford (7 Ark. 416), 486. v. Hurst (12 Pa. 269), 522. v. Long (109 Ala. 414), 546. v. National Bank (74 N. Y. 467), 232 v. Sharlock (84 Pa. 366), 240. v. Wheeler (20 Tex. 698), 356. Josselyn v. Ames (3 Mass. 274). 401. Journey v. Price (4 Houst 176), 469. Juilliard v. Greenman (110 U. S. 421), 560. Jumper v. Commercial Bank (26 S. E. R 725), 208. Jung v. Second Ward Savings Bank (55 Wis. 364), 236. Jungk v. Reed (8 Utah, 49), 23& Juniata Bank v. Hale (16 S. & R 157), 440. Justt v. National Bank (36 N. Y. Super. Ct 273), 210. TABLE OF CASES. 751 References are to pages. Kahn v. Bank of St. Joseph (70 Mo. 262 ' 91 v. Walton (46 Ohio St. 195', 243. Kaiser v. Lawrence Sav. Bank (56 Iowa, 104), 69. v. Nial (9 Mo. App. 590), 532. Kansas Nat, Bank v. Rowell (2 Dill. 371), 196. Kaskaskia Bridge Co. v. Shannon (6 III. 15), 351, 352. Kaufman v. Barringer (20 La. Ann. 419), 356. Kavanagh v. Farmers' Bank (59 Mo. App. 540), 243. Keater v. Hock (11 Iowa, 536), 468. Keene v. Collier (1 Met., Ky., 415), 273 Keith v. Mackey (5 Rob., La., 277), 541. Kellogg v. Douglas Co. Bank (58 Kan. 43), 59. v. Pacific Box Factory (57 Cal. 327), 552. Kelly v. Bronson (26 Minn. 359), 349. v. Emigrant Sav. Bank (2 Daly. 227), 646. v. Garret (6 111. 649), 343. v. Greenough (9 Wash. 659), 358, 361, 366. v. Phelan (5 Dill. 228), 329. v. Smith (1 Met,, Ky., 313), 354. Kelsey v. National Bank (69 Pa. 426), 149, 167, 566. Kemble v. Lull (3 McLean, 272), 376. Kendrick v. Campbell (1 Bailey, 522 \ 414. Kennedy v. California Bank (101 Cal. 495), 64, 160. Kennedy ats. California Bank (167 U. S. 362), 64, 160. v. First Nat. Bank (Fed. Gas. No. 7701a). 168. v. Geddes (8 Port. 263), 361, 363, 368. v. Gibson (8 Wall. 498), 102, 103, 108, 110, 112. v. Knight (21 Wis. 345), 196. v. Otoe Co. Bank (7 Neb. 59), 165. Kenner v. Creditors (1 La. 120), 383, 427. Kent v. Dawson Bank (13 Blatchf. 237), 295, 306. v. Warner (94 Mass. 561), 534. Kentucky Commercial Bank v. Barksdale (36 Mo. 563), 386, 409, 410, 546, 563. Kenyon v. Stanton (44 Wis. 479), 435, 436. Kern v. Von Phul (7 Minn. 426), 474, 476, 547. Kerr v. People's Bank (158 Pa. 305), 216, 219. v. Roberts (5 Wkly. Notes Cas. 25), 480. v. Urie (37 Atl. R. 789), 82, 84 ' Keyes v. Bank of Hard in (52 Mo. App. 323), 200, 311. v. Fenstermaker (24 CaL 329), 428. v. Follett (41 Ohio St. 535), 381, 382. Keyser v. Hitz (2 Mackey, 473), 49, 77. v. Hitz (133 U. S. 138), 85. Keysor v. Railroad Co. (66 Mich. 390), 170. Kiddell v. Ford (2 Treadw. Const 678), 429, 457. Kiggins v. Munday (19 Wash. 233), 33. Kilgore v. Buckley (14 Conn. 363, 367), 185, 186, 187, 279, 405. Kellam v. McCoon (31 Hun, 519), 546. Kilpatrick v. Heaton (3 Brev. 92), 511. v. Home Building Ass'n (119 Pa. 0), 434. Kimball v. Bryan (56 Iowa, 632), 459. v. Donald 20 Mo. 597), 371. v. Ives (30 Hun, 568), 125. v. Norton (59 N. H. 1), 640. Kimbro v. Bank of Fulton (49 Ga. 419), 563. v. Lamb (4 Humph. 94), 401. 531. Kimins v. Boston Sav. Bank (141 Mass. 33), 640. Kimmel v. Dickson (5 S. D. 221). 282, 603. King v. Crowell (61 Me. 244), 413, 418, 446, 509. v. Dedham Bank (15 Mass. 447), 555. v. Elliot (5 Smedes & M. 428), 46,95. v. Foyles (2 Cranch, C. C. 303), 516. v. Holmes (11 Pa, 456), 446. v. Hurley (85 Mo. 525), 470. v. Sarria" (69 N. Y. 32), 57. v. Summit (73 Ind. 312), 401. Kingbury v. Wall (68 111. 311), 860. Kingman v. Hotaling (25 Wend. 423), 378. 752 TABLE OF CASES. References are to pages. Kingman v. Perkins (105 Mass. Ill), 644. Kingsland v. Koeppe (137 111. 344). 402, 533. Kingston v. First Nat. Bank (26 Wis. 663), 158. Kinnersley v. Knott (7 C. B. 980), 223. Kinney v. Paine (68 Miss. 258), 317. Kinsela v. Cataract City Bank (18 N. J. Eq. 158), 284. Kinser v. Farmers' Bank (58 Iowa, 728), 337. Kinsley v. Robinson (21 Pick. 327), 459, 461. Kirkwood v. First Nat. Bank (40 Neb. 484), 279. Klein v. Currier (14 111. 237), 403. Kleinmann v. Bormstein (32 Mo. 311), 479. Klepper v. Cox (97 Tenn. 534), 615. Klockenbaum v. Pearson (16 Cal. 375), 470. Klopp v. Lebanon Bank (46 Pa. 88), 90. Knapp v. Roche (62 N. Y. 614), 119, 632. - Knatchbull v. Hallett (L. R. 13 Ch. D. 696). 603, 614. Knecht v. Savings Inst. (2 Mo. App. 563), 232. . Knight v. Bank (3 Cliff. 429), 89. Knorr, Appeal of (89 Pa. 93), 647. Knox v. Bank of United States (26 Miss. 655), 330. v. Buhler (6 La. Ann. 104), 550. v. Lee (12 Wall. 457), 560. Kobbi v. Underbill (3 Sandf. Ch. 277), 435. Koch v. Branch (44 Mo. 542), 350. Koetting, In re (90 Wis. 166), 137. Kolloch v. Emmett (43 Ma App. 566), 276. Konig v. Bayard (1 Pet. 250), 388. Koons v. First Nat Bank (89 Ind. 178), 87. Kramer's Appeal (37 Pa. 71), 380. Kramer v. Sanford (4 Watts & S. 328), 538. Kress v. East Side Bank (21 N. Y. Supp. 652), 639. Kummel v. Germania Sav. Bank (127 N. Y. 488). 639, 640, 645. Kuntz v. Tempel (48 Mo. 71), 402, 437, 533. Kupfer v. Bank of Galena (34 111. 328), 282. Kyle v. Green (14 Ohio, 490), 536. Laclede Bank v. Schuler (120 U. S. 511), 224, 228, 229. Lacoste v. Harper (3 La. Ann. 385), Lafayette Bank v. McLaughlin (4 W. L. J. 70), 421, 488. Lafayette Nat. Bank v. Ringel (51 Ind. 393), 280. Laing v. Burley (101 111. 591), 81. Laird v. State (61 Md. 309), 348. Lake Erie R. Co. v. National Bank (65 Fed. R. 690), 614. Lake Shore R. Co. v. Prentice (147 U. S. 101), 148, 159. Lamb v. Cecil (25 W. Va. 288), 154, 577, 584. v. Pannell (28 W. Va. 663), 240. Lambert v. Ghiselin (9 How. 552), 508. v. Jones (2 Pat. & H. 144), 380. v. Sanford (2 Blackf. 137), 384. Lambeth v. Caldwell (1 Rob., La., 61), 546. Lamkin v. Edgerly (151 Mass. 348), 478. Lampton v. Commonwealth (11 Pet. 257), 555. Lanson v. Beard (94 Fed. R. 30), 120, 165, 166. Lancaster Bank v. Woodward (18 Pa. 357), 277. , Lancaster Co. Bank v. Huver (114 Pa. 216), 350. v. Smith (62 Pa. 47), 284, 286. Landrum v. Trowbridge (2 Met, Ky., 281), 374, 472, 540, 541. Lane's Appeal (105 Pa. 49), 97. Lane v. Bank of West Tennessee (9 Heisk. 419), 75, 445, 464, 465. 520, 521, 523. v. Harris (16 Ga. 217), 561, 562. v. Morris (8 Ga. 468), 113, 563. v. Steward (20 Me. 98), 402, 530, 536. Lanfear v. Blossom (1 La. Ann. 148), 349. Langdale v. Whitefield (27 L. J. Ch. 795), 577. Langenburger v. Kroeger (48 CaL 147), 419. Langley v. Palmer (30 Ma 467), 440, 548. Lanier v. Tripp (6 Smedes & M. 641), 340. Lanterman v. Travous (73 III App. 670), 211, 600, 609. TABLE OF CASES. 753 References are to pages. Lanterman v. Travous (174 111. 459), 211, 600. Lanuse v. Barker (3 Wheat. 101), 862, 367. Laporte v. Landry (5 Mart., N. S., 359), 544 Larsen v. Breene (12 Colo. 480), 256. Lary v. Young (13 Ark. 401), 534. 536. Lathrop v. Harlow (23 Mo. 209), 368. Latimer v. Bard (76 Fed. R 536), 79. v. State Bank (71 N. W. R. 225), 190. v. Wood (73 Fed. R. 1001), 588. Laubuch v. Leibert (87 Pa. 55), 213, 217. Laugh! in v. Marshall (19 111. 390), 428. Lawler v. Burt (7 Ohio St. 340), 100. v. Walker (18 Ohio, 151), 554. Lawrence v. Bank of Republic (35 N. Y. 320), 217, 230. v. Batchellor (131 Mass. 504), 56. v. Dobyns (30 Mo. 196), 443. v. Langley (14 N. H. 70), 509. v. Miller (16 N. Y. 235), 488, 491, 505. 507. v. Ralston (8 Bibb, 102), 496. v. Schmidt (35 111. 440), 436. v. Stonington Bank (6 Conn. 521), 187, 297. Lawson v. Farmers' Bank (1 Ohio St. 206). 486, 488, 512, 513. v. Pinckney (40 N. Y. Super. Ct. 187), 548. Lazear v. Nat. Union Bank (52 Md. 78), 197. Leach v. Hale (31 Iowa, 69), 192. v. Hill (76 N. W. R. 667), 258. Leake v. Brown (43 111. 372), 226. Leaphart v. Commercial Bank (45 S. C. 563). 204. Leather Manufacturers' Bank v. Cooper (120 U. S. 778), 563. v. Morgan (117 U. S. 96), 265, 267, 647. Leathers v. -Shipbuilders' Bank (40 Me. 386), 270. Leavitt v. Beers (Hill & D. Supp. 221), 118. v. Blatchford (3 N. Y. 19), 554. v. Palmer (3 N. Y. 19), 279. v. Simes (3 N. H. 14), 427, 428. v. Stanton (Hill& D. Supp. 413), 265. v. Tyler (1 Sandf. Ch. 207), 577. v. Yates (4 Edw. Ch. 136), 148, 198, 584 48 Leazure v. Hillegas (7 S. & R 313), 195. Lebanon Bank v. Mangan (28 Pa. 452), 279, 405. Lebanon Nat. Bank v. Karmany (98 Pa. 65), 337. Lebanon Sav. Bank v. Hollenbeck (29 Minn. 322), 635. Le Due v. Moore (111 N. C. 516), 164, 177, 179. Lee v. Buford (4 Met., Ky., 7), 410. v. Citizens' Bank (5 Ohio Dec. 21). 85. 91, 628. v. Smith (80 Mo. 304). 165, 166. Leeds v. Hamilton Paint Co. (35 S. W. R 77), 529. Leegrue v. Woodruff (29 Ga. 648), 361. Leffingwell v. White (1 Johns. Cas. 99), 536. Leffman v. Flannigan (5 PhiL 155), 633, 634 Legg v. Vinal (165 Mass. 555), 419, 467, 483, 550. Leggett v. Bank of Sing Sing (24 N. Y. 283), 90. v. New Jersey, etc. Co. (Saxt. 541), 150, 153, 197. Lehman v. Jones (1 Watts & S. 126), 463. Lemoine v. Bank of North America (3 Dill. 44), 340. Lennig v. Tobley (4 Clark, 275, 14 Pa. 483), 469. Lenox v. Cook (8 Mass. 460), 389. v. Leverett (10 Mass. 1), 411. v. Roberts (2 Wheat. 373), 513. Leonard v. Gary (10 Wend. 504), 544 v. Hastings (9 Cal. 236), 544 v. Lattimer (67 Mo. App. 138), 164, 603. v. Mason (1 Wend. 522), 358. v. New Bedford Bank (116 Mass. 210), 222. Leonardsville Bank v. Willard (25 N. Y. 574), 50, 620. Leslie v. Basset (50 N. Y. Super. Ct* 403 >, 379. Lester v. Given (8 Bush, 357), 225, 245, 390. Levert v. Planters' Bank (8 Port. 194), 619. Levi v. National Bank (5 Dill. 104), 301. Levisohn v. Wagner (76 Ala. 412), 319. Levy v. Drew (14 Ark. 334), 392, 431,. 450. 754 TABLE OF CASES. References are to pages. Levy v. First Nat. Bank (27 Neb. 557), 264. v. Franklin Sav. Bank (117 Mass. 448). 639. 646. v. Peters (9 S. & R 125), 542. v. Pike (25 La. Ann. 830), 285. Lewis v. Bakewell (6 La. Ann. 859), 519. v. Bank of Kentucky (12 Ohio, 132), 621. v. Brehrae (33 Md. 412), 542. v. Brewster (2 McLean, 21), 403, 458, 511. v. Burr (2 Games' Gas. 195), 516. v. Eastern Bank (32 Me. 90), 148. v. Harper (73 Ga. 564), 352. v. Jeffries (86 Pa. 340), 195. v. Kramer (3 Md. 265), 361, 368, 538. v. Lynn Inst. (148 Mass. 235), 650. y. Switz (74 Fed. R. 381), 83. Lewiston Falls Bank v. Leonard (43 Me. 144i. 492. L'Herbette v. Pittsfield Nat. Bank (162 Mass. 137). 284. Libby v. Adams (32 Barb. 542), 478, 505. v. Pierce (47 N. H. 309), 542. v. Union Nat. Bank (99 III 622), 195. Lienau v. Dinsmore (3 Daly, 365), 312. Lienow v. Pitcairn (Fed. Cas. No. 8341), 362, 367, 369. Life Ass'n v. Levy (33 La. Ann. 1203;, 81. Light v. Kingsbury (50 Mo. 331), 431. Lime Rock Bank v. Hewitt (52 Ma 531), 332, 474, 520. Lincoln v. Fitch (42 Me. 456), 584. Lincoln Bank v. Hammatt (9 Mass. 159), 476. v. Page (9 Mass. 155), 187. Lindauer v. Fourth Nat. Bank (55 Barb. 75), 315. Lindenberger v. Wilson (1 Cranch, C. C. 340), 374. Linderberg v. Crescent Mining Co. (9 Utah, 163), 170. Linderman v. Guldin (34 Pa. 54), 518. Lindley v. First Nat. Bank (76 Iowa, 629), 368. v. Ross (137 Pa. 629), 397. Lindsay v. Price (33 Tex. 280), 350. Lindsey v. Lambert Ass'n (4 Fed. R 48), 217, 218, 220. v. McClelland (18 Wis. 481), 405, 429. Linn v. Horton (17 Wis. 151), 486. v. State Bank (1 Scam. 87), 44, 555. Linn Co. Nat. Bank v. Crawford (69 Fed. R. 532), 594. Linville v. Welch (29 Mo. 203), 355, 356, 467. Lionberger v. Mayer (12 Mo. App. 575), 154, 546. Lititz Nat. Bank v. Siple (145 Pa. 49), 536. Little v. Blunt (9 Pick. 488), 542. v. Phoenix Bank (2 Hill, 425, 7 Hill, 359), 425, 434. v. Pratt (1 Mo. 201), 425. Littlehale v. Mayberry (43 Me. 264), 468. Littleton v. People's Bank (63 N. W. R. 666), 192. Liverpool Ins. Co. v. Massachusetts (10 Wall. 566), 40, 56. Livingston v. Bank of New York (26 Barb. 304), 574. Lloyd v. West Branch Bank (15 Pa. 172), 146, 154, 156, 287. Loan Ass'n v. Topeka (20,Wall. 655), 39. Loan Bank v. Miller (39 S. a 175), 278. Lock v. Huling (24 Tex. 311), 410. Locke v. Bank of Tennessee (6 Humph. 51), 484. v. First Nat. Bank (65 N. H. 270), 290. v. Merchants' Nat. Bank (66 Ind. 353), 308. Lockhart v. United States Bank (2 Ashm. 406), 569. Lock haven Nat. B;ink v. Mason (95 Pa. 113), 213, 2b7. Lock wood v. Bock (50 Minn. 142), 540. v. Crawford (18 Conn. 361), 427, 429, 509. v. Mechanics' Nat Bank (9 R I. 308), 47. Logan Co. Nat. Bank v. Townsend (139 U. 8. 67), 64. Logan Nat. Bank v. Williamson (2 Ohio Cir. Ct. R 118), 199, 279. Logwood v. Huntsville Bank (1 Minor, 23), 619. Lollerstedt v. Griffin (29 Ga. 708.', 383. TABLE OF CASES. T55 References are to pages. London v. Howard (2 Hay w., N. C., 332), 511. Long v. Bank of Yanceyville (90 N. C. 405), 98, 114." v. Bank of Yanceyville (81 N. C. 41). 563. v. Citizens' Bank (8 Utah, 104), 207. v. Emsley (57 Iowa, 11), 216, 218. v. Farmers' Bank (1 Clark, 284, 2 Pa. Law J. 230), 559, 571. v. Moore (2 Brev. 172), 537. Long Island Bank v. Townsend (Hill & D. Supp. 204), 231. Lonsdale v. Lafayette Bank (18 Ohio, 126), 354. 362. Loomis v. Fay (24 Vt. 240), 151, 158. Lord v. Appleton (15 Me. 270), 478. v. Midland R Co. (L. R. 2 C. P. 339), 122. Loring v. Brodie (134 Mass. 453), 161, 172, 218. Losee v. Dunkin (7 Johns. 70), 428. Loudon Savings Soc. v. Hagerstown Bank (36 Pa. 498), 279. Louisiana v. New Orleans (109 U. S. 285), 99, 203. v. Wood (102 U. S. 294), 63. Louisiana Ice Co. v. State Nat. Bank (1 McGloin, 181), 296, 319, 320, 322, 656. Louisiana Ins. Co. v. Louisiana State Bank (3 Mart., N. S., 610), 303. v. Shamburgh (2 Mart., N. S., 511), 450. Louisiana Nat. Bank v. Schuchardt (15 Hun, 405), 367. Louisiana State Bank v. Dumar- trait (4 La. Ann. 483), 550. v. Ellery (4 Mart., N. S., 87), 483. v. Hibernia Nat. Bank (26 La. Ann. 399), 257. v. Rowell (6 Mart, N. S., 506), 473. v. Senecal (13 La. 525), 148, 172, 182. Louisville Bank v. Ellery (34 Barb. 630), 379. Louisville Trust Co. v. Louisville R. Co. (75 Fed. R, 433), 175, 181. Loux v. Fox (171 Pa. 68), 439. Lovett v. Cromwell (6 Wend. 369). 456. Low v. Howard (10 Cush. 159), 541. v. Taylor (41 Mo. App. 517), 276. Lowenstine v. Bressler (109 Ala. 326), 255, 299, 435. Lowery v. Scott (24 Wend. 358), 500, 501. v. Steward (3 Bosw. 505, 25 N. Y. 239), 350, 361, 372. Lowry v. Iiiman (46 N. Y. 119), 48, 100. v. Parsons (52 Ga. 356), 563. v. Steele (27 Ind. 168). 529. Lucas v. Coe (86 Fed. R 972), 84. v. Government Nat. Bank (78 Pa. 228), 335. v. Ladew (28 Mo. 342), 389. Luff v. Pope (5 Hill, 413), 357, 358. Lum v. Robertson (6 Wall. 297), 598. Lumbermen's Bank v. Bearce (41 Me. 505), 330, 335. Lund v. Seamen's Bank (37 Barb. 129 J, 213. 630, 650. Luning v. Wise (64 CaL 410), 416, 483. Lunt v. Adams (17 Me. 230), 420. v. Bank of North America (49 Barb. 221), 244. Lyell v. Lapeer Co. (6 McLean, 416), 404, 405. Lynch v. First Nat. Bank (107 N. Y. 179), 244, 256. v. Goldsmith (64 Ga. 42), 279. v. Merchants' Nat. Bank (22 W. Va. 554), 337. Lyndenberger v. Beall (6 Wheat. 104), 509. Lyne v. Bank of Kentucky (5 J. J. Marsh. 545). 182. Lyon v. State Bank (1 Stew. 442), 619. M. Maccoun v. Atchafalaya Bank (13 La. 342), 552. Mackall v. Gozler (2 Cranch, C. C. 240). 459. Mackintosh v. Eliot Bank (123 Mass. 393), 267. Macon v. Macon Sav. Bank (60 Ga. 133), 71. Madderom v. Heath Mfg. Co. (35 111. App. 588), 463, 508. Madison Bank, In re (5 Biss. 515), 316. Madrazo v. Wells (3 Barn. & Aid. 353), 58. Magee v. Dunbar (10 La. 546), 484. Magoun v. Walker (49 Me. 419), 444. Magruder v. Bank of Washington (9 Wheat. 598), 428, 450. T56 TABLE OF CASES. References are to pages. Magruder v. Colston (44 Md. 349), 81. v. State Bank (18 Ark. 9), 196. v. Union Bank (3 Pet 87), 398, 441. v. Union Bank (2 Cranch, C. C. 687), 441. Mahaiwe Bank v. Peck (127 Mass. 298), 234. Mahan v. Waters (60 Mo. 167), 398. Mahone v. Central Bank (17 Ga. Ill), 619. 621. Mahoney v. State Bank (4 Ark. 620), 45. Mahro v. Greenwich Sav. Bank (38 N. Y. Supp. 126), 649. Maine v. Second Nat. Bank (6 Biss. 26), 626, 627. Maine Bank v. Butts (9 Mass. 49), 333 v. Smith (18 Me. 99), 417. Maisch v. Savings Fund (5 Phila. 30), 633, 634. Makin v. Inst for Savings (19 Me. 128), 630, 649. Maiden Bank v. Baldvria (13 Gray, 154), 442. Malecek v. Tower Grove R Co. (57 Mo. 17), 170. Mallon v. Hvde (76 Fed. R 388), 130. Maloney v. Bruce (94 Pa. 249), 40, 56. Man v. Cheeseman (Fed. Gas. No. 9002a), 80. Manchester Bank v. Fellows (28 N. H. 302), 489, 509, 514. v. White (30 N. H. 456), 470, 491, 513. Manderson v. Commercial Bank (28 Pa. 379), 93. Mandeville v. Bracey (31 Miss. 460), 591. v. Riggs (2 Pet. 482), 620. v. Rumney (3 Cranch, C. C. 424), 516. v. State Bank (19 La. Ann. 392), 239. Mandue v. Kitchin (3 Rob., La., 261), 550. Manhattan Brass Co. v. Allen (35 111. App. 336), 39. Manhattan Co. v. Lydig (4 Johns. 377), 157, 205, 208. Manhattan Life Ins. Co. v. Farm- ers' Bank (10 Blatchf. 344), 159, 167. Mann v. Blount (65 N. C. 99), 343, 591. Manney v. Coit (80 N. C. 300), 525, K97 Wet* Manning v. Kohn (56 Ala. 235), 380. v. Lyon (70 Hun, 345), 457. v. Maroney (87 Ala. 563), 461. Manuel v. Mississippi R Co. (2 Pa. 198), 281. Manufacturers' Bank v. Continental Bank (148 Mass. 553), 208. v. Hazzard (30 N. Y. 226), 468. Manufacturers' Nat. Bank, In re (5 Biss. 499), 592. Manufacturers' Nat. Bank v. Baack (8 Blackf. 137), 625, 626. v. Barnes (65 111. 69), 214. v. Jones (2 Penny. 377), 232. v. Swift (70 Md. 515), 273. v. Thompson (129 Mass. 438), 656. Mapes v. Scott (94 111. 379), 68, 195. v. Second Nat. Bank (80 Pa. 163>, 158. Maples v. Traders' Deposit Bank (15 Ky. Law R 879>, 532. Marbourg v. Brinkman (23 Mo. App. 511), 426, 433. Marine Bank v. Butler Colliery Co. (5 N. Y. Supp. 291, 125 N. Y. 695), 276. v. Chandler (27 111. 525), 184, 238. v. Fulton Bank (2 Wall. 252), 209, 321. v. Rushmore (28 III 463). 209. v. Smith (18 Ma 99), 187, 53a v. State Auditor (14 111. 185), 72. v. Terry (40 111. 255), 156. Marine Co. v. Stanford (28 III 168), 225. Marine Nat. Bank v. City Nat. Bank (59 N. Y. 67), 259. Marion Nat. Bank v. Phillips (35 & W. R 910), 399. Marion Sav. Bank v. Dunkin (54 Ala, 471), 72. Market Nat. Bank v. Pacific Nat Bank (93 N. Y. 648), 596. Markham v. First Nat Bank (Fed. Caa No. 9097), 335. v. Hazen (48 Ga. 270), 383. Markland v. McDaniel (51 Kan. 350), 536. Marks v. Bodie Bank (8 Pac. R 807), 303. v. Boone (24 Fla. 177), 5ia Marr v. Bank of W'est Tennessee (4 Lea, 578), 46, 48, 96, 104, 598. v. Johnson (9 Yerg. 1), 486, 498. Marrett v. Brackett (60 Me, 524), 186, 455. TABT.E OF CASES. 757 References are to pages. Mars v. Albany Sav. Bank (69 HUD, 398), 649. Marsaudet v. Jacobs (6 Eob., La., 276), 410. Marsh v. Badcock (2 D. Chip. 124), 534. v. Burrows (1 Woods, 463), 95, 107, 109. Marshall v. Clary (44 Ga. 511), 382. v. Farmers' Bank (85 Va. 676), 131. v. Mitchell (35 Me. 221), 528. v. Overbay (10 La. 166), 527. Martel v. Tureand (6 Mart., N. S., 118). 393, 399. Martin v. Bacon (3 Const. R 132), 359, 361. v. Bank of United States (4 Wash. C. G 253), 559. v. Belmont Bank (13 Ohio, 250), 572. v. Blydenburgh (1 Daly, 314), 559. v. Branch Bank (15 Ala. 587), 194. v. Brown (75 Ala. 442), 467. v. Funk (75 N. Y. 134), 214. Y. Ingersoll (8 Pick. 1), 517. v. Minnekahta Bank (7 S. Dak. 263), 213, 238. v. Perqua (65 Hun, 225), 529, 541. v. State Bank (7 S. D. 263), 213, 238. v. Webb (110 U. S. 7), 151, 161. v. Winslow (2 Mason, 241), 427, 428. Martinez v. Hemme Co. (105 Cal. 376), 30. Martyn v. Lamar (75 Iowa, 235), 403. Marvine v. Hymers (12 N. Y. 223), 333. Marysville Bank v. Brewing Co. (50 Ohio St. lot), 371. Marzetti v. Williams (1 Barn. & Ad. 415), 201, 241. -Mason v. Dousay (35 I1L 424), 354, 359, 408. v. Farmers' Bank (12 Leigh, 84), 51. v. Franklin Bank (3 Johns. 202), 389. v. Graff (35 Pa. 448), 375. v. Pritchard (9 Heisk. 793), 452, ' 501. Masonic Sav. Bank v. Bangs (84 Ky. 135), 329. Maspero v. Pedisclaux (22 La. Ann. 227), 517. Massachusetts Bank v. Oliver (10 Cush. 557), 518. Massey v. Fisher (62 Fed. R 958), 282, 603, 609. Matteson v. Moulton (11 Hun, 268, 79 N. Y. 627), 359. Matthews v. Abbott (Fed. Cas. No. 9275), 197. v. Albert (24 Md. 527). 102, 104. v. Allen (16 Gray, 594). 540, 541. v. Creditors (10 La. Ann. 342), 283. v. Manufacturing Co. (3 Robt. 711), 135. v. Massachusetts Nat. Bank (Fed. Cas. No. 9286), 154 v. Skinner (62 Mo. 329), 191, 196. Matthewson v. Sprague (1 R L 8), 403. v. Stafford Bank (45 N. H. 104), 503, 508, 518. Matthie v. Town of- Cameron (62 Mo. 504), 350. Maurin v. Perot (16 La. 276), 459. Maury v. Cole (34 Md. 235), 284. v. Ingraham (28 Miss. 171), 332. Mauser v. Pratt (101 Mass. 60), 84. Maux Ferry Co. v. Brannigan (40 Ind. 361), 351. Maxwell v. Agnew (21 Fla. 154), 405. Mayer v. Chattanooga Bank (51 Ga. 325), 220, 222. v. Heidelbach (123 N. Y. 332), 238. Mayhew v. Prince (1 1 Masa 55), 363. Maynard v. Mechanics' Nat. Bank * (1 Brewst. 483), 566. McAfee v. Bland (11 S. W. R. 439), 578, 600. McAllister v. Smith (17 111. 328), 57, 548. McBricle v. Farmers' Bank (26 N. Y. 450), 316. McCagg v. Woodman (28 III 84), 240 253 McCandlish v. Cruger (2 Bay, 377), OK9 McCann v. First Nat Bank (112 Ind. 354), 79. v. Rogers (15 Ky. Law R 127), 574. v. State (4 Neb. 324), 173. McCarthay v. Lavasche (89 111. 270), 106. McCarthy v. Provident Inst (159 Mass. 527), 645. 758 TABLE OF CASES. References are to pages. McCaskell v. Conn. Sav. Bank (60 Conn. 300), 643, 644 McCausland v. Wheeler Sav. Bank (43111. App. 381). 360. McClane v. Fitch (4 B. Hon. 599), 410, 444. McClelland v. Bishop (42 Ohio St. 113), 462, 463. McComb v. Thompson (2 Minn. 139), 533. McConville v. Gilmour (36 Fed. R. 277), 597, 624 v. Means (21 Wkly. Law BuL 193), 589. McCord v. California Nat Bank (96 Cal. 197), 255. v. Curtis (59 111. 221), 411. McCormick v. Hickey (24 Mo. App. 362), 352. v. Market Nat. Bank (165 U. S. 538), 50, 60, 61, 66, 70. v. Walthers (134 U. S. 41), 625. cCornick v. Western Union Tel. Co. (79 Fed. R. 449), 250. McCory v. Chambers (48 III App. 445), 192. McCraith v. National Mohawk Val- ley Bank (104 N. Y. 414), 194 McCrummen v. McCrummen (5 Mart.. N. S., 159), 496. McCulloch v. Maryland (4 Wheat 316), 41. McCutcheon v. Rice (56 Miss. 455), 359. McDermott v. Miners' Sav. Bank (100 Pa. 285), 649. McDonald v. First Nat Bank (41 III App. 368), 596. v. Mosher (23 111. App. 206), 426, 430, 432. v. Stokey (1 Mont. 388), 348. v. Williams (174 U. S. 397), 64, 578, 580. McDougal v. Holmes (1 Ohio, 176), 343. McDougald v. Ballamy (18 Ga. 411), 59, 559. v. Lane (18 Ga. 444). 552. McDowell v. Bank of Wilmington (2 Del Ch. 1), 217, 234 v. Wilmington Bank (1 Harr. 369), 234 McElhanny v. First Nat. Bank (Fed. Cas. No. 8779), 593, 595. McEwen v. Davis (39 Ind. 109), 213, 214 215, 233. v. Scott (49 Vt 376), 358. McFarland v. Pico (8 Cal. 626), 430, 549. McFarlin v. First Nat Bank (62 Fed. R. 868), 78. McGehee v. Powell (8 Ala. 827), 40, 56. McGough v. Jamison (107 Pa. 336), 290. McGowan v. McDonald (111 CaL 57). 275. McGrade v. German Sav. Inst (4 Mo. App. 330), 246. McGrew v. Produce Exchange (85 Tenn. 572), 55, 60. v. Toulmin (2 Stew. & P. 438), 495. McHenry v. Keller (6 La. Ann. 326), 448. Mcllhenny v. Jones (6 Har. & J. 256), 431. Mclntyre v. Ingraham (35 Miss. 25), 198. v. Parks (3 Met. 207), 58. McKavlin v. Breslin (8 Gray, 177), 292. McKee v. Boswell (33 Mo. 567), 462. McKeever v. Kirtland (33 Iowa, 348), 522. McKennon v. McRae (7 Port 175), 542. McKirdy v. Hare (7 Atl. R. 172), 375. McKnight v. Lewis (5 Barb. 681), 548. McLain v. Wallace (103 Ind. 562), 283, 284 McLaren v. Marine Bank (52 Ga. 131), 393. McLaughlin v. First Nat Bank (6 Dak. 406), 289. v. O'Neil (51 Pac. R. 251), 101. McLean v. Lafayette Bank (3 Mc- Lean, 587), 90. McLean Co. Bank v. Mitchell (88 111. 52), 275. McLennan v. Anspaugh (2 Kan. App. 269), 69. McLeod v. Evans (66 Wis. 401), 209, 210, 605. v. Fourth Nat. Bank (20 Fed. R. 225), 172. McLochlin v. Bank (139 N. Y. 514), 274 McMasters v. Reed (1 Grant's Cas. 36), 555. McMean v. Little (3 Baxt 330), 521 McMurtrie v. Jones (3 Wash. C. C. 206), 492, 496. McNabb v. Tally (27 La. Ann. 640), 391. McNamara v. McDonald (69 Conn. 484), 644 TABLE OF CASES. 759 References are to pages. McNatt v. Jones (52 Ga. 473), 474. McNulta v. Corn Belt Bank (164 III 427), 48, 78, 79. McPherson v. Walton (42 N. J. Eq. 282), 359. McVeigh v. Allen (29 Grat. 588, 26 Grat 785), 497, 498. Mead v. Engs (5 Cow. 303), 486. v. Small (2 Me. 207), 538. Meadowcroft v. People (163 III 56), 136. Meads v. Merchants' Bank (25 N. Y. 143), 263, 266. v. Walker (Hopk. Ch. 587), 79. Mechanics' Bank v. Bank of Colum- bia (5 Wheat, 326), 147. v. Banks (11 La. Ann. 261), 208. v. Compton (3 Rob., La., 4), 494. v. De Bolt (1 Ohio St. 591), 48. v. Earp (4 Rawle, 384), 90, 306, 320 321 v. Griswold' (7 Wend. 165), 538. v. Heard (37 Ga. 401), 565. v. Livingston (33 Barb. 458), 379. v. Mariposa Co. (3 Robt. 395), 267. v. Merchants' Bank (6 Met. 13), 184, 294. 454. v. Seitz (150 Pa. 632), 231, 234. v. Smith (19 Johns. 115), 146, 208. v. Yager (62 Miss. 529), 356. Mechanics' Banking Ass'n v. Place (4 Duer, 212), 479. Medill v. Collier (16 Ohio St. 599), 60, 70, 73. Meggett v. Baum (57 Miss. 22), 384. Meise v. Newman (76 Hun, 341), 410. Mel v. Hoi brook (4 Edw. Ch. 539), 591. Memphis Nat. Bank v. Sneed (97 Tenn. 120), 175. Memphis Ry. Co. v. Dow (22 Blatchf. 48), 63. Menard v. Winthrop (2 La. Ann. 333), 550. Menzies v. Farmers' Bank (3 Ky. Law R. 822), 494, 495, 502. Mercantile Bank v. McCarthy (7 Mo. App. 318). 161, 418. v. New York (121 U. S. 138), 32, 53. Mercer v. Cononge (8 La. Ann. 37), 173. v. Dyer (15 Mont. 317), 587. v. Lancaster (5 Pa. 160), 494. Merchants v. Shouse (14 Wkly. Notes Cas. 133), 89. Merchants' Bank v. Bank of Com- merce (24 Md. 12), 309. 310. v. Birch (17 Johns. 25), 517, 518. v. Central Bank (1 Ga. 418, 1 Kelly, 418). 147, 61'9. v. Elderkill (25 N. Y. 178), 443. v. Evans (9 W. Va. 373), 231. v. Exchange Bank (16 La, 457), 269. v. Griswold (9 Hun, 561), 368. v. Harrison (39 Mo. 433), 194, 195. v. Jeffries (21 W. Va, 504), 122. v. Marine Bank (3 Gill, 96). 170, 266. v. Masonic Hall (63 Ga. 549), 292. v. McClelland (9 Colo. 608), 620. v. Mclntyre (2 Sandf. 431). 264. v. Meyer (56 Ark. 499). 222, 296. v. Parker (12 N. Y. St. R 558), 434. v. Rudolf (5 Neb. 527), 157. v. Sassie (33 Mo. 350), 33a v. Seton (1 Pet. 299), 173. v. Spalding (9 N. Y. 53), 76. v. Spicer (6 Wend. 443), 419. v. Stafford Nat. Bank (44 Conn. 565), 308, 310. v. State Bank (10 Wall 604), 152, 256, 258, 348. v. Woodruff (6 Hill, 174), 184, 251, 253. Merchants' Exchange Bank v. Field- ner (92 Wis. 415), 240. Merchants' Exchange Nat. Bank v. Cardago (35 N. Y. Super. Ct 162), 364. Merchants' Nat. Bank v. Armstrong (65 Fed. R. 932), 128. v. Carhart (95 Ga. 394), 286. v. Clark (139 N. Y 314), 173. v. Eustis (8 Tex. Civ. App. 350), 150. v. First Nat. Bank (7 W. Va. 544\ 199. v. Fouche (103 Ga. 851). 591. v Gaslin (41 Minn. 522), 565, 573. v. Goodman (109 Pa. 422), 294, 305. v. Guilmartin (88 Ga. 797), 285. v. Guilmartin (93 Ga. 503), 284, 285. v. Hanson (33 Minn. 40), 66. v. Masonic Hall (65 Ga. 603), 565. v. McAnulty (31 S. W. R 1091), 167, 172, 385. v. Mears (8 Biss. 158), 196. 760 TABLE OF CASES. References are to pages. Merchants' Nat. Bank v. Nat. Bank of Commerce (139 Mass. 513), 273, 274, 275, 656. v. Nat. Eagle Bank (101 Mass. 281), 274, 656. v. Pennsylvania (165 U. S. 461), 52. v. Procter (1 City R. 1), 471. v. Ritzinger (20 Bradw. 27), 226, 232. v. Ritzinger (118 111. 484), 348. v. Robinson (47 Ky. 552), 253. v. Sevier (14 Fed. R. 662), 333. v. School District (94 Fed. R 705), 134, 605. 609, 616. v. Thomas (28 Wkly. Law Bui 164), 128. v. Tracy (77 Hun, 443), 178. - Merchants' State Bank v. State Bank (69 N. W. R. 170), 304 Merchants' Trust Co. v. Metropolis Bank (7 Daly, 137), 259. Meridian Nat. Bank v. First Nat. Bank (33 N. E. R 247), 259. v. Hauser (145 Ind. 496), 216, 239. Merrick v. Bank of Metropolis (8 Gill, 59), 149. v. Plank Road Co. (11 la. 74), 479. Merrill v. Call (15 Me. 428), 92. v. First Nat. Bank (75 Fed. R 148), 594. v. National Bank (173 U. S. 13t), 588, 595. v. Suffolk (31 Me. 57), 573. Merritt v. Todd (23 N. Y. 28). 429. Mersman v. Werges (112 U. S. 139), 406. Merz v. Kaiser (20 La. Ann. 377), 478. Metropolitan Bank v. Godfrey (23 III 579), 194 v. Lloyd (90 N. Y. 530), 210. v. Van Dyck (27 N. Y. 400 \ 560. Metropolitan Nat. Bank v. Clagget (141 U.S. 520, 125N.Y.729), 566. v. Jones (137 111. 634). 225, 227, 252 256 257 v. Race' (32 ill App. 126), 255. Meyer v. Hibsher (47 N. Y. 265), 443, 445. Meyers v. Bank of Tennessee (3 Head, 330 > 469. Michaud v. Legarde (4 Minn. 43), 467, 500, 535. Michigan Bank v. Ely (17 Wend. 508), 364 Michigan State Bank v. Gardner (15 Gray, 362), 373, 375. Michigan State Bank v. Leaven- worth (28 Vt 209), 368, 369. v. Pecks (28 Vt. 200), 366. Middle Dist. Bank, In re (1 Paige, 585), 586. Middlesex Co. v. State Bank (32 N. J. Eq. 467), 296. Middleton v. Boston Locomotive Works (26 Pa. 257), 444 Middleton Bank v. Magill (5 Conn. 28), 104 v. Morris (28 Barb. 616), 432. Miles v. Hall (12 Smedes & M. 332), 519. Milks v. Rich (80 N. Y. 269), 401. Millard v. National Bank (3 MacA. 54), 244 Millaudon v. Arnaud (4 La. 542), 380. Miller v. Andrews (3 Cold. 380), 590. v. Austin (13 How. 218), 279, 405. v. Bledsoe (2 111. 530), 227. v. Butler (1 Cranch, C. C. 470), 356. v. Excelsior Stone Co. (1 Bradw. 273), 350. v. Farmers' Bank (30 Md. 592), 329. v. Franklin Bank (1 Paige, 444), 240. v. Hackley (5 Johns. 375), 411, 541. v. Henner (3 Mart, N. S., 587), 450. v. Howard (95 Tenn. 407), 12a v. Moseley (26 La. Ann. 667), 434 v. National Bank (106 U. S. 542), 624 ' v. Neihaus (51 Ind. 401), 35a v. Race (1 Burr. 452), 558. v. Western Bank (172 Pa. 197), 206. Milliken v. Shapleigh (36 Ma 596), 316. v. Steiner (56 Ga. 251), 116. Mills v. Bank of U. S. (11 Wheat 431), 187, 453, 469, 471. v. Beard (19 CaL 158), 532. v. Kuykendall (2 Blackf. 47), 349. v. Rice '(6 Gray, 458), 327, 335. v. Scott (99 U. S. 25), 106. v. State (23 Tex. 295), 70. Miltenberger v. Attwood (18 How. Pr. 330), 360, 372. v. Cooke (18 Wall. 421), 370. v. Spaulding (33 Mo. 421), 410. TABLE OF OASES. 761 References are to pages. Miner v. Bank of Louisiana (1 Mart., O. S., 30), 559. v. Mechanics' Bank (1 Pet. 46), 146. Miners' Bank. In re (13 Wkly. Notes Cas. 370), 636, 650. Miners' Bank v. Thomas (4 G. Greene, 336), 572. Minier v. Second Nat. Bank (13 N. Y. St. R 222), 296. Minneapolis Co. v. Metropolitan Bank (44 L. R A. 594), 306. Minor v. Rogers (40 Conn. 512), 214. Minot v. Russ (156 Mass. 458), 256. Minton v. Stahlmann (96 Tenn. 98), 129. Minturn v. Fisher (4 Cal. 35), 349, 395. Miranda v. City Bank (6 La. 740), 537. Missouri Pac. R Co. v. Wright (38 Mo. App. 141), 360, 371. Missouri Tel. Co. v. First Nat. Bank (74 111. 217), 339, 627. 628. Mitchell v. Bank of St. Paul (7 Minn. 252), 571. v. Beckmann (64 111. 117), 101, 193, 629. v. Cross (2 R I. 437), 514. v. De Grand (1 Mason, 176), 374. v. Easton (64 N. Y. 155), 279, 290, 405. v. Home Sav. Bank (38 Hun, 255), 648. v. Logan (34 La. Ann. 998), 326. v. Young (21 La. Ann. 279), 505. Mitting v. Sloan (57 Ga. 392), 360, 372. Mobile Bank v. Meagher (133 Ala. 622), 558, 562, 563, 564. Mobile Branch Bank v. Collins (7 Ga. 95), 117. Mobley v Clark (28 Barb. 390), 351. Moeser v. Schneider (158 Pa. 412), 357. Moffatt v. Griswold (1 Neb. 415), 530. Mohawk Bank v. Broderick (10 Wend. 304), 422, 432, 433. Mohawk Nat. Bank v. Schenectady Bank (151 N. Y. 665), 90. Mohrenstecker v. W ester velt (87 Fed. R 157), 144. Moiese v. Knapp (30 Ga. 942), 356. Moise v. Chapman (24 Ga. 249), 342. Moniteau Nat. Bank v. Miller (73 Me. 187), 335, 336. Molson's Bank v. Howard (40 N. Y. Super. Ct. 15), 364. Monmouth First Nat. Bank v. Dun- bar (118 III 625), 285. Monmouth Nat. Bank v. Dunbar (19 Bradw. 558), 288. Monroe v. Pilkington (14 How. Pr. 250). 364. v. Woodruff (17 Md. 159), 410. Montague v. Pacific Bank (81 Fed. R 602), 282. 608. Montelius v. Charles (76 111. 303), 425. Montgomery v. Galbraith (11 Smedes & M. 555), 575. v. Merrill (18 Mich. 338), 572. v. Reif (15 Utah, 495), 248. v. Tutt (11 Cal. 307). 397. Montgomery Co. Bank v. Albany City Bank (7 N. Y. 459), 309. v. Marsh (11 Barb. 645, 7 N. Y. 481), 494 Montross v. Doak (7 Rob., La., 170), 442. Moody v. Mack (43 Mo. 210), 434. Moore v. Britton (29 La. Ann. 64), 421, 443. v. Brungard (6 Miss. 557), 392, 525. v. Burr (14 Ark. 230), 513. v. Coffield (12 N. C. 247, 1 Dev. 247;, 462, 539, 541. v. Gravelot (3 Bradw. 442), 227, 228. v. Goddard (17 N. E. R 535), 319. v. Jones (3 Woods, 53), 81. v. Louisiana Nat. Bank (44 La. Ann. 99), 299. v. Meyer (57 Ala. 20), 300. v. Penn (5 Ala. 135). 620. v. Pillow (3 Humph. 448), 319. v. Waitt (13 N. H. 415), 454, 455. v. Worthington (2 Duv. 307), 552. Moorman v. Bank of Alabama (3 Port. 353), 469, 470. Morehead Banking Co. v. Tate (30 S. E. R 341), 46. Morehouse v. National Bank (30 Hun, 628), 337. Moreland v. Brown (86 Fed. R 257), 281, 603, 608, 609. v. Citizens' Sav. Bank (97 Ky. 211), 409, 503, 508. Morgan v. Bank of Louisville (4 Bush, 82), 524 v. Davidson (1 Stark. 92). 420. v. First Nat. Bank (93 N. C. 352), 338. v. State Bank (1 Duer, 434), 291. v. Van Ingen (2 Johns. 204), 487. 762 TABLE OF CASES. Morris v. Dixon Nat. Bank (55 111. App. 298), 193. - v. Eufala Nat. Bank (106 Ala. 383), 300, 311. 435. v. Foreman (1 Dall. 193), 412, 546, 553. v. Gardner (1 Cranch, C. C. 213), 458, 511. v. Husson (4 Sandf. 93), 481. v. Thomas (17 III. 112), 572. v. Wibaux (159 III. 627), 331. Morris R. Co. v. Sussex R Co. (21 N. J. Eq. 542', 68. Morrison, In re (Fed. Gas. No. 9839), 90. Morrison v. Bailey (5 Ohio St. 13), 184. 349, 454. v. McCartney (30 Mo. 183), 436. Morse v. Chapman (24 Ga. 249), 591. v. Massachusetts Nat. Bank (1 Holmes. 209, Fed. Cas. No. 9857), 165, 243, 344, 258, 276. v. Railroad Co. (6 Gray, 450), 170. v. Rice (36 Neb. 212), 275. Morton v. Westcott (8 Cush. 425), 491. Moseley v. Williamson (5 Heisk. 278), 230. Moses v. Ela (43 N. H. 557), 538. v. Franklin Bank (34 Md. 574), 411. v. Ocoee Bank (1 Lea, 398), 46, 590. Moss v. Chicago, etc. R. Co. (73 Iowa, 226). 328. v. Oakley (2 Hill, 265), 103. Mottv. Havana Bank (22 Hun, 354), 312. Mound City Paint Co. v. Commer- cial Nat. Bank (4 Utah, 353), 200, 212, 303. Mount Pleasant Branch Bank v. McLeran (26 Iowa, 306), 412, 414. Mount Sterling Bank v. Green (99 Ky. 262), 201. Mount Vernon Bank v. Holden (2 R. L 467), 476. . v. Porter (52 Mo. App. 244), 63, 126, 344 Movius v. Lee (30 Fed. R 298), 119, 593. Mudd v. Harper (1 Md. 110), 427. Muench v. Valley Bank (11 Mo. App. 144), 233. Mulcaney v. Emigrant Sav. Bank (62 How. Pr. 463), 641. Mulherrin v. Hannum (2 Yerg. 81), 397. Mumford v. American Life Ins. Co. (4 N. Y. 463), 554. Munger v. Albany Nat. Bank (85 N. Y. 580), 240, 288. Muun v. Birch (25 111. 35), 226, 227, 245, 251,275. v. Illinois (94 U^S. 113), 48. Munnerlyn v. Augusta Sav. Bank (88 Ga. 333). 217, 237, 289, 290. Murdock v. Mills (11 Met. 5). 365. v. Union Bank (2 Rob., La., 112), 558. Murphy v. Branch Bank (5 Ala. 421), 619. v. Farmers' Bank (20 Pa. 415), 571. v. Pacific Bank (119 CaL 334), 629. v. Plielps (12 Mont. 531), 392, 525. Murray v. American Surety Co. (70 Fed. R. 341), 572, 583. v. Bull's Head Bank (3 Daly, 364), 344. v. Ormes (3 MacA. 60), 496, 501. v. Pauly (56 Fed. R 962), 163, 279. Musgrove v. Hudson (2 Stew. 464), 364. Mussey v. Eagle Bank (9 Met. 306), 152, 258. Musson v. Lake (4 How. 262), 385, 386, 417, 418, 549. Mutual Ass'n v. Jacobs (43 111. App. 340), 283. Mutual Building Ass'n, In re (2 Hughes, 374), 283, 636. Mutual Nat. Bank v. Rotge (28 La. Ann. 933), 411. Myers v. Board of Education (51 Kan. 87), 603. v. Irvine (2 S. & R 368), 33, 84 v. Manhattan Bank (26 Ohio, 283), 60. v. Standart (11 Ohio St. 29), 383. v. Union Nat. Bank (27 111. App. 254), 243, 252. v. Valley Nat. Bank (Fed. Cas. No. 9519), 189. Nagley v. Lyman (14 Cal. 450), 364. Nailor v. Bowie (3 Md. 251), 549, 550, 55L TABLE OF CASES. 763 References are to pages. Nance v. Hemphill (1 Ala. 551), 33, 35. Naser v. First Nat. Bank (36 Hun, 343), 319. Nash v. Brown (165 Mass. 384), 442. v. Whites Bank (6 N. Y. 396), 334. Nashville Bank v. Bennett (1 Yerg. 166), 473, 493. v. Henderson (5 Yerg. 104), 416. Nassau Bank v. Jones (95 N. Y. 115), 190. National Bank v. Bangs (106 Mass. 441), 264, 272, 656. v. Blnmensweig (46 111. App. 297), 225. v. Boles (12 Ky. Law R 422;, 242. v. Bruher (64 Tex. 571), 334 v. Case (99 U. S. 628), 80, 81. v. Colby (21 Wall. 609), 594, 596. v. Commonwealth (9 Wall. 353), 52. v. Cook (73 Pa. 483), 244. v. Crawford (69 Fed. R. 352), 624. v. Davis (8 Biss. 100), 337. v. Eliot Bank (5 Am. Law Reg. 711), 248. v. Eyre {52 Iowa, 114), 622. v. First Nat. Bank (79 Fed. R. 296), 198. v. First Nat. Bank (79 Fed. R. 961), 160. v. Fore (25 Fed. R. 209), 622. v. Gooding (87 Me. 337), 404. v. Gormley (2 Walk., Pa., 493), 231. v. Graham (100 U. S. 699), 67. v. Greene (45 N. J. Eq. 546). 232. v. Hill (76 Ind. 223), 231. v. Insurance Co. (104 U. S. 54), 216, 217. v. Johnson (104 U. S. 271), 216, 217, 219, 230, 334, 335. v. Johnson (91 Ky. 181), 335. v. Lattimer. See Bank v. Lat- imer. v. Lewis (75 N. Y. 516, 81 N. Y. 15), 338. v. Lewis (50 Vt. 622), 528. v. Lovett (21 S. W. R 825), 182. v. Matthews (98 U. S. 621), 196. v. Mechanics' Bank (94 U. S. 437), 594, 597. v. Mechanics' Nat. Bank (89 N. Y. 440), 596. v. National City Bank (68 111. 398), 226. v. Norton (1 Hill, 578), 172. National Bank v. Onondaga Co. Bank (7 Hun, 549), 566, 573. v. Orcutt (48 Barb. 256), 338. v. Procter (98 111. 538), 231, 232. v. Raymond (29 La. Ann. 355), 195. v. Shoemaker (11 Wkly. Notes Cas. 215), 232. v. Shumway (49 Kan. 224), 119. v. Smith (66 N. Y. 271), 234. v. Wade (84 Fed. R. 10), 134, 135. v. Ward (100 U. S. 195), 250. v. Watsontown Bank (105 U. & 217), 85, 87. 152. v. Whitney (103 U. S. 99), 196. v. Wood (142 Mass. 563), 385. National Bank of Commerce v. Atkinson (55 Fed. R. 465), 199. v. Manufacturers' Bank (122 N. Y. 367), 300, 345. v. Merchants' Nat. Bank (91 U. S. 92), 299. v. National Banking Ass'n (55 N. Y. 211), 261, 269. v. National Bank of Mo. (Fed. Cas. No. 18,310), 199. . v. Seattle (166 U. S. 463), 52. National Bank of North America v. Bangs (106 Mass. 441), 264, 272, 656. National Butchers' Bank v. Hub- bell (117 N. Y. 384), 208, 209, 210. National City Bank v. New York Gold Ex. Bank (101 N. Y. 595), 658. National Commercial Bank v. Mil- ler (77 Ala. 168), 224, 301. National Exchange Bank v. Beal (50 Fed. R. 355), 322. v. Moore (2 Bond, 170), 536. v. National Bank of North America (132 Mass. 147), 236, 274. 656. v. Peters (44 Fed. R 13), 593. National Lafayette Bank v. Cin- cinnati Oyster Co. (18 Wkly. Law Bui. 350), 256. National Gold Co. v. McDonald (51 Cal. 64), 200. National Hudson River Bank v. Reynolds (57 Hun, 307), 536. National Life Ins. Co. v. Beebe (7 N. Y. 364), 554 National Newark Building Co. v. Second Nat. Bank (63 Pa. 404) r 425, 426. 764: TABLE OF CASES. References are to pages. National Pahquioque Bank v. First Nat. Bank (36 Conn. 325), 573, 594 National Park Bank v. Harmon (79 Fed. R. 891), 81. v. Ninth Nat Bank (46 N. Y. 77), 346. v. Seaboard Bank (114 N. Y. 28), 300. National Pemberton Bank v. Porter (125 Mass. 333), 66. National Safe Co. v. People (50 111. App. 336), 254. National Security Bank v. Butler (129 U. S. 223), 581, 657. v. Cushman(121 Mass. 490), 119, 173, 181. v. Price (B9 U. S. 223), 577, 580. National State Bank v. Brainard (61 Hun. 339), 336. v. Weil (141 Pa. 457), 432, 434 Neal v. Wood (23 Ind. 523), 529, 540. Neale v. Janney (2 Cranch, C. C. 86), 89. v. Wall (70 Fed. R 806), 112. Nebraska Nat. Bank v. Logan (29 Neb. 278), 434, 435. Neederer v. Barber (Fed. Cas. No. 10,079), 353, 461, 545. Neeley v. Morris (2 Head, 595), 409. Neiifer v. Bank of Knoxville (1 Head, 162), 146, 149, 161. Nelson v. Burrows (9 Abb. N. C. 280), 124 133. v. First Nat Bank (48 III 36), 244, 253. 276, 362. v. First Nat Bank (69 Fed. R 798), 409. v. Fotteral (7 Leigh, 180), 417. Neponset Bank v. Leland (5 Met. 259), 329. Nesbit v. Macon Bank (12 Fed. R. 686), 175, 179. Nesmith v. Washington Bank (6 Peck, 324), 90. Nessmith v. Shelden (4 McLean, 375), 58. Nevens v. Bank of Lansingburgh (10 Mich. 547). 473, 494 Nevitt v. Bank of Port Gibson (6 Smedes & M. 513), 570, 574, 582. New Amsterdam Sav. Bank v. Tart- ters (4 Abb. N. C. 215), 652. New England Bank v. Bank of Metropolis (Fed. Cas. No. 10,152), 298. v. Newport Steam Factory (6 R. L 154), 100, 101. New Hampshire Sav. Bank v. Ela (11 N. H. 335), 638. New Hope Co. v. Phoenix Bank (3 Comst. 156), 172. New Orleans Bank v. Girard Bank (10 La. 562), 411. New Orleans Co. v. Bien (9 Rob., La., 110), 514 New Orleans R Co. v. Kerr (9 Rob., La., 122), 519. v. McKelvey (2 La. Ann. 359), 417. New Orleans Sav. Bank v. Harper (3 La. Ann. 385), 393. New York Bank v. Gibson (5 Duer, 574), 356, 371. New York Contracting Co. v. Selma Sav. Bank (51 Ala. 305), 483. Newark Sav. Inst, In re (28 N. J. Eq. 552), 630. Newberry v. Trowbridge (13 Mich. 263), 241, 542, 543. 544 Newbold v. Boralf (155 Pa. 227), 512. v. Patrick (25 Pittsb. L. J. 299), 231 Newell v. First Nat Bank (13 Ky. Law R 775), 336. Newhall v. Clark (3 Cush. 376), 381. Newman v. Wait (46 Vt 689), 52. Newport Nat. Bank v. Tweed (4 Houst. 225), 172. Newport Sav. Bank, In re (68 Me. 396), 650. News v. Shackamoxon Bank (16 Wkly. Notes Cas. 207). 576. Newton Wagon Co. v. Diers (10 Neb. 284), 403. Niagara Bank v. Manuf. Co. (31 Barb. 403), 382. v. Rosevelt (9 Cow. 409), 343, 591. Niagara Co. Bank v. Baker (15 Ohio St 68). 185. Niblack v. Coster (80 Fed. R. 596), 164 v. Park Nat. Bank (169 III 517), 228, 233, 252. Nicholls v. Diamond (9 Exch. 154), 383. Nichols v. Blackmore (27 Tex. 586), 423, 425. v. Goldsmith (7 Wend. 160), 459. v. Pool (47 N. C. 23), 397, 444 v. Schofleld (2 R L 123). 644. v. State (46 Neb. 715), 136, 137, 277. v.Webb (8 Wheat 326), 548, 551, 552. Nicholson v. Barnes (11 Neb. 452), 451, 452, 501. TABLE OF CASES. 765 Keferences are to pagea Nicholson v. National Bank (92 Ky. 251), 198, 336. v. State Bank (92 Ky. 251), 198, 336. Nicolet v. Gloyd (18 La. 417), 393. Nicollet Nat. Bank v. City Nat Bank (38 Minn. 85), 49, 87. Nielsville Bank v. Tuthill (4 Dak. 295), 67, 327. Nightingale v. Chaffee (11 R. L 609), 215. Nimic v. Iron Works (25 W. Va. 184), 100. Nimocks v. Woodey (97 N. C. 1), 367, 372. Noble v. Cornell (1 Hilt, 98). 66. Nolan v. Bank of New York (67 Barb. 24), 263. Nonotuck Silk Co. v. Flanders (87 Wis. 237), 209. 210, 605, 615. Norfolk Nat. Bank v. Schwenk (46 Neb. 381), 339. Norris v. Despard (38 Md. 487), 464, 523, 524. v. Johnson (34 Md. 485), 102. v. Merchants' Bank (30 111. App. 54), 596. North v. Campbell (72 111. 380), 372, 373. North American Coal Co. v. Dyett (7 Paige, 9), 375. North Atchison Bank v. Garretson (51 Fed. R 168), 364, 368. North Bank v. Abbott (13 Pick 465), 442, 443. 455, 520. North Brookfield Sav. Bank v. Flan- ders (161 Mass. 335), 638. North Missouri Co. v. Winkler (33 Mo. 354), 95, 572. North Star Co. v. Stebbins (2 S. D. 74), 154 Northampton Bank v. Allen (10 Mass. 284). 332. v. Balliet (8 Watts & S. 311), 342, 343. v. Pepoon (11 Mass. 288), 149. v. Winder (3 Clark. 284), 590. Northern Bank v. Farmers' Bank (18 B. Mon. 506), 559. v. Johnson (5 Cold. 88), 147. v. Leverich (8 Rob., La., 207), 381, 382. v. Zipp (28 111. 180). 55, 63. Northrup v. Hale (72 Me. 275), 641. Northumberland Bank v. McMich- ael (106 Pa, 460), 371. Northwestern Coal Co. v. Bowman (69 Iowa, 150), 433. 434 Northwestern Nat Bank v. Bank of Commerce (107 Mo. 402), 270, 346. v. Keen (14Phila.7), 116. Norton v. Derry Nat Bank (61 N. H. 249), 67. v. Knapp (64 Iowa, 112), 357, 358. v. Lewis (2 Conn. 478), 537. v. Piscataqua Co. (Ill Mass. 532). 644 Norvell v. State (50 Ala. 174), 556. Noteholders v. Funding Board (84 Tenn. 46), 559. Nott v. Downing (6 La. 680), 414, 479, 484. Nowak v. Excelsior Stone Co. (78 111. 307), 376. Nugent v. Mazange (2 Mart., O. S., 264), 446, 451. Nutt v. Citizens' Bank (22 La. Ann. 346), 326. Nutting v. Birkhead (48 Mich. 241), 425, 433. O. Oak Grove Cattle Co. v. Foster (41 Pac. R. 522), 164, 179. Gates v. Montgomery Nat. Bank (100 U. S. 239), 336. Oatnian v. Batavian Bank (77 Wis. 501), 232. Oberman v. Hoboken City Bank (30 N. J. Law, 61), 656. Ocean Nat Bank v. Tant (50 N. Y. 475), 418. v. Williams (102 Mass. 141), 553. Oddie v. Nat. City Bank (45 N. Y. 735), 209. Off utt v. Hall (1 Cranch, C. C. 534), 403. v. Rucker (2 Ind. App. 350). 432. Ogden v. Dobbin (2 N. Y. Super. Ct 112), 443. Oglesby v. Stacy (18 Ohio, 54), 544, 545. Ohio Life Ins. Co., In re (9 Ohio, 291), 554 Ohio Life Ins. Co. v. McCague (18 Ohio, 54), 490. Oldham v. First Nat Bank (85 N. C. 240), 67, 196. Olendorf v. Swarty (5 CaL 480), 542. Oliver v. Munday (3 N. J. Law, 982), 457. 766 TABLE OF CASES. References are to pages. Oliver Lee Bank, In re (21 N. Y. 9), 48, 100. Olmstead v. New England Mort. Co. (11 Neb. 487), 332. v. Winstead Bank (32 Conn. 278), 560. Olney v. Chadsey (7 R L 224), 148, 151. Olshausen v. Lewis (1 Biss. 419). 425. Oneida Bank v. Ontario Bank (21 N. Y. 490), 62, 338. 554 Onondaga Bank v. Bates (3 Hill, 53), 410. Ontario Bank v. Wortkington (12 Wend. 593). 361, 363. Orear v. McDonald (9 Gill. 350). 425. Oregon Investment Co. v. Rathburn (5 Sawy. 32), 31. Oriental Bank v. Blake (22 Pick. 206), 517. Orono Bank v. Wood (49 Me. 26), 551, 552. Orr v. Lacey (2 Doug. 230), 335. Osborn v. Bank of United States (9 Wheat. 738). 624. v. Byrne (43 Conn. 155), 652. v. First Nat Bank (175 Pa. 494), 338 339 Osgood v. McConnel (32 111. 74), 238. Oswego Bank v. Knawer (Hill & D. Supp. 122), 534. Otis v. Gross (96 III 612), 283, 500. Otsego Co. Bank v. Warren (18 Barb. 290), 447, 454, 549. Ouderkirk v. Central Nat. Bank (119 N. Y. 263), 286, 328. Oulton v. Savings Inst. (17 Wall. 118). 28, 29. Overman v. Bank (31 N. J. Law, 563), 243. Owen v. Lavine (1 4 Ark. 389), 349. v. Merchants' Bank (16 Kan. 341), 196. v. Purdy (12 Ohio St. 73), 48, 100. Owens v. Stapp (32 III App. 653), 167, 278. Owensboro v. Daviess Co. Court (12 S. W. R. 930), 164, 182. v. Daviess Co. Court (13 S. W. R 101), 164. Owensboro Bank v. Owensboro (173 U. S. 636), 53. Owiugs v. Baker (54 Md. 82), 402, 533. Oxford Bank v. Davis (4 Gush. 188), 349. Oxnard v. Varnum (111 Pa. 193), 452. O'Brien v. Bridge Co. (55 N. Y. Supn 206), 577. v. Fitzgerald (143 N. Y. 377), 123. 125, 133. v. Grant (146 N. Y. 163), 657, 660. v. Smith (1 Black, 99), 433. 620. O'Connel v. Walker (1 Port. 263), 552. O'Conor v. Mechanics' Bank (54 Hun, 272), 221. v. Mechanics' Bank (124 N. Y. 324), 221. v. Witherby (111 Cal. 523), 112. O'Donnel v. Smith (2 E. D. Smith, 124), 357, 363. O'Hare v. Second Nat. Bank (77 Pa. 46), 67. O'Neill v. Bradford (1 Pin. 390), 279. O'Niel v. Dickson (11 Ind. 253), 551. P. Pabst Brewing Co. v. Reeves (42 III App. 154), 227, 237, 245. Pacific Bank v". Mixter (124 U. S. 721), 595, 596. 628. Pacific Nat. Bank v. Eaton (141 U. S. 227), 79. Pacific Trust Co. v. Dorsey (72 Cal. 55), 47. Pack v. Thomas (13 Smedes & M. 1), 432. Packard v. Lyon (5 Duer, 82), 451. Packing Co. v. First Nat. Bank (69 Miss. 700), 233. Page v. Prentice (5 B. Mon. 7), 502. v. Webster (15 Me. 249), 442. Pahquioque Bank v. First Nat. Bank (36 Conn. 325), 159. 304 Paine v. Barnuni (50 How. Pr. 303), 121, 632, 634. 635. v. Edsell (19 Pa. 178), 478. v. Irwin (59 How. Pr. 316), 633. v. Stewart (33 Conn. 516), 105, 107, 108. Palmer v. Bank of Zumbrota (75 N. W. R. 380), 78, 114, 582. v. Lawrence (3 Sandf. 161), 95. v. Lee (7 Rob.. La., 537), 550. v. Providence Sav. Inst (14 R. L 68), 648. v. Rice (36 Neb. 844), 369. v. Whitney (21 Ind. 58), 504 Pape v. Capital Bank (20 Kan. 440), 30, 197, 635. TABLE OF CASES. 767 References are to pages. Pardee v. Fish (60 N. Y. 265), 403, 406. Parke v. Koser (67 Ind. 500), 259. Parker v. Caroline Sav. Bank (31 S. E. R. 673). 105, 108. v. Donelly (4 W. Va. 648), 167. v. Hartley (91 Pa. 465), 214. v. Kellogg (158 Mass. 90), 413, 446. v. Lewis (39 Tex. 394), 378, 379. v. Marchant (1 Pa. 356), 247. v. Reddick (65 Miss. 242), 432. v. Robinson (71 Fed. R. 256), 84. v. Rochester Nat. Ban k (59 N. H. 310), 75. v. Stroud (98 N. Y. 379), 419. Parkers burg Bank, Appeal of (6 Wkly. Notes Cas. 394). 817. Parkersburg Nat. Bank v. Als (5 W. Va. 50), 274. Parkman v. Brewster (15 Gray, 271), 403. Parks v. Nichols (20 Bradw. 143), 377. Parmalee v. Williams (72 Ga. 42), 375, 384. Parmley v. Tenth Ward Bank (3 Edw. Ch. 395), 556. Parshley v. Heath (69 Me. 90), 529. Parsons v. Armor (3 Pet. 413), 373. v. Dickinson (23 Mich. 56), 544, 545. v. Tread well (50 N. H. 356), 204, 274. Pascoag Bank v. Hunt (3 Edw. Ch. 583). 120. Pate v. State Bank (3 Ind. 176), 486, 489. Paterson Bank v. Butler (12 N. J. Law, 268), 480, 495. Patillo v. Alexander (96 Ga. 60), 511. v. Mayer (70 Ga. 715), 352. Paton v. Lent (4 Duer, 231), 451, 474. Patrick v. Beasley (6 How., Miss., 609), 473. Patriotic Bank v. Farmers' Bank (2 Cranch, C. C. 560 , 185, 187, 304, 454, 520, 560. Patterson, In re (18 Hun, 227, 78 N. Y. 608), 601. 618. Patterson v. Lynde(112 111. 196), 97, 105. v. Lynde (106 U. S. 519), 98. v. Marine Bank (130 Pa. 419), 237, 242. v. Union Nat. Bank (52 Pa. 206), 210. Pattison v. Syracuse Bank (1 Hun, 606), 156, 282, 285, 287. v. Syracuse Nat Bank (80 N. Y. 82), 160. Patton v. State Bank (2 Nott & McC. 464), 558. Paul v. Draper (73 Mo. App. 566), 604. Pauley v. State Loan & Trust Co. (165 U. S. 606), 81. Payne v. Clark (23 Mo. 259), 274, 281. v. Clark (19 Mo. 152), 292. v. Patrick (21 Tex. 680', 487, 489, 491. Peabody Ins. Co. v. Wilson (29 W. Va. 528), 417, 444, 512, 550. Peak v. Ellicott (30 Kan. 156), 282, 610. Pearce v. Bank of Mobile (33 Ala. 693), 330. Pearson v. Bank of Metropolis (1 Pet. 89), 443, 445, 520. 522. Pease v. Landauer (63 Wis. 29), 261. v. Warren (29 Mich. 9), 295. Peck v. Bank of America (16 R. L 710), 85. v. Cochrane (7 Pick. 34), 35S. v. First Nat. Bank (43 Fed. R. 357), 319, 322. v. People's Nat. Bank (88 Tenn. 380), 319, 322. Peebles, In re (2 Hughes. 394), 90. Peet v. Zanders (6 La. Ann. 364), 428, 451, 474. Peets v. Wilson (19 La. 478), 539. Pelham v. Adams (17 Barb. 384), 274, 279. Pendergast v. Bank of Stockton (2 Sawy. 116), 87. Pendleton v. Bank of Kentucky (1 T. B. Mon. 171). 117. 154, 158. v. Knickerbocker Life Ins. Co. (5 Fed. R. 238), 374, 472. Peninsular Bank v. Hanmer (14 Mich. 208), 167. Penn v. First Nat. Bank (130 Mass. 391), 118. Penn Bank, In re (152 Pa. 65), 290. Pennington v. Townsend (7 Wend. 276), 56, 59. Pennsylvania Bank, In re (39 Pa. 103), 590. People v. Bank of Pontiac (12 Mich. 527), 571, 572. v. Barton (6 Cow. 290), 28, 82. v. Brewster (4 Wend. 498), 28, 32. v. Campbell (14 111. 400), 73. 768 TABLE OF CASES. References are to pages. People v. Central City Bank (53 Barb. 412), 583. v. City Bank (96 N. Y. 32), 603. v. Clements (42 Hun, 286), 138. v. Conklin (7 Hun, 188), 70. v. Doty (80 N. Y. 225), 28, 32. v. Helmer (43 N. Y. Supp. 642), 136. v. Holmes (3 Mich. 544), 72, 560, 590. v. Insurance Co. (15 Johns. 358), 68. v. Kessler (13 Utah, 69), 170. v. Lowenthal (93 111. 191), 30. v. Manhattan Bank (9 Wend. 351). 48, 68. v. Marshall (6 III 672), 45. v. Mechanics' Sav. Inst (92 N. Y. 7), 630, 651. v. Merchants' Bank (78 N. Y. 269), 294, 301, 601. V. Metropolitan Bank (7 How. Pr. 144), 332. v. National Sav. Bank (129 III 618), 78, 568. v. New York C. P. (19 Wend. 113), 562. v. Niagara Bank (6 Cow. 196), 569, 570, 571. v. North River Bank (62 Hun, 484), 479. v. Oakland Co. Bank (1 Doug. 282), 46, 51. 344 v. Olmistead (45 Barb. 644), 565. v. Peabody (25 Wend. 472). 50. v. Perrin (56 Cal. 345), 59. v. Remington (121 N. Y. 336), 588. v. Ridgely (21 III 65), 574, v. River Raisin Co. (12 Mich. 389), 32, 554. v. Saint Nicholas Bank (77 Hun, 159), 600. v. Saint Nicholas Bank (76 Hun, 522), 584. v. Saint Nicholas Bank (28 N. Y. Supp. 407), 282, 283. v. State Bank (102 N. Y. 740), 219. v. State Bank (36 Hun, 607), 219. v. Superior Court (100 CaL 105), 572. v. Third Ave. Sav. Bank (98 N. Y. 661), 292. v. Ulster Co. Sav. Inst (133 N. Y. 689, 20 N. Y. Supp. 148), 650. v. Walker (17 N. Y. 502, 21 Barb. 630), 73. People v. Whittemore (4 Mich. S7), 72, 560. Peoples v. First Nat. Bank (15 Ky. Law R. 748), 334, People's Bank v. Franklin Bank (88 Tenn. 299), 271. v. Gridley (91 111. 475), 87. v. Keech (26 Md. 521), 443. 484. v. Legrand (103 Pa. 309), 234 v. National Bank (101 U. S. 181), 150, 151, 199. v. Mechanics' Nat. Bank (62 How. Pr. 422), 595. People's Nat. Bank v. Debell (91 Tenn. 301), 469. v. Lutterloh (95 N. C. 495), 447. People's Sav. Bank v. Cupps (91 Pa. 315), 640, 645, 647. v. Superior Court (103 CaL 27), 572, 583. Pepper v. Planters' Nat. Bank (5 Ky. Law R 85), 122. Percy v. Millaudon (3 La. 568), 148. Perkins v. Bank of Louisiana (5 La. Ann. 222), 168. v. Church (31 Barb. 84), 195. v. Franklin Bank (21 Pick. 483), 184 v. White (36 Ohio St. 530), 457. Perry v. Friend (57 Ark. 437), 399. v. Green (19 N. J. Law, 61), 392, 399, 427. v. Turner (55 Mo. 418), 107. Peterborough Nat. Bank v. Guilds (133 Mass. 248), 75, 336, 339. Peters v. Foster (56 Hun, 607), 103, 110, 624 v. Hobbs (25 Ark. 67), 465, 523. Petri v. Commercial Nat. Bank (142 U. S. 644), 623, 624, 625. Petillon v. Lorden (86 III 361), 352. Pettis v. Atkins (60 111. 454), 69. Phelps v. Blood (2 Root, 518), 510. v. Northrup (56 111. 156), 381, 382. Philadelphia Loan Co. v. Towner (13 Conn. 249), 66. Philadelphia Nat. Bank v. Dowd (38 Fed. R. 172), 612, 615. Philadelphia R Co. v. Pollock (19 Fed. R 401), 557. Philip v. Poindexter (18 Ala. 579V 416. "Philips v. Bank of Lewiston (18 Pa. 394), 343. Philler v. Jewett (166 Pa. 456), 580, 660. v. Patterson (168 Pa. 468), 580, 654, 661. TABLE OF CASES. 769 References are to pages. Philler v. Woodfall (32 Wkly. Notes Gas. 183), 240. Phillips v. Alderson (5 Humph. 403), 477. v. Blake (1 Met. 156), 342. v. Frost (29 Me. 77). 381. v. McCurdy (1 Har. & J. 187), 374, 411. v. Merchants' Nat. Bauk (140 N. Y. 556), 166. 260. Phinney v. Baldwin (16 111. 108), 58. Phipp v. Harding (70 Fed. R. 468), 395, 458, 520, 521. v. Milbury Bank (8 Met. 79), 304. Phoenix Ins. Co. v. Allen (11 Mich. 501), 425, 525. v. Gray (13 Mich. 191), 425. Piatt v. Eads (1 Blackf. 63), 427. Pickering v. Hastings (76 N. W. R. 587), 101, 107. Pickett v. Merchants' Nat. Bank (32 Ark. 346), 336. Picklar v. Harlan (75 Mo. 678). 441. Picquett v. Mayer (14 La. 74), 389. Pier v. Heinrichshoffen (67 Mo. 168, 6 Cent. L. J. 285), 426. 551. Pierce v. Boston Sav. Bank (129 Mass. 425). 644, 650. v. Butter (14 Mass. 303), 453. v. Gate (12 Gush. 190), 463, 509. v. Indseth (106 U. S. 546), 385, 547. v. Kennedy (5 Gal. 138), 403. v. Kittredge (1 15 Mass, 374). 258, 358. v. Langfit (101 Pa. 507), 476. v. Fender (5 Met. 352), 492, 507. v. Red Bluff Hotel Co. (31 CaL 160), 174. v. Schaden (55 Gal. 406), 467. v. Struthers (27 Pa. 249), 444, 446. Pierrat v. Young (49 S. W. R. 694), 129. Pierson v. Hooker (3 Johns. 68), 541. Pilkington v. Woods (10 Ind. 432), 378. Pillow v. Hardeman (3 Humph. 538), 517. Pindar v. Nathan (4 Mart., O. S., 346). 512. Pine River Bank v. Hodson (46 N. H. 114), 59. Finer v. Clary (17 B. Mon. 645), 405. Pinkham v. Macy (9 Met. 174), 468, 470. Piscataqua Ex. Bank v. Carter (20 N. H. 246), 184. 49 Pitman v. Brackenridge (3 Grat. 127), 404. Pittsburg v. First Nat. Bank (55 Pa. 45), 52. Pittsburgh Bank v. Neal (22 How. 97), 383. Pittsburgh R. Go. v. Keokuk Bridge (131 U. S. 379), 63. Plankinton Bank, In re (87 Wis. 378), 216, 218. Planters' Bank v. Bivingsville Cot- ton Co. (11 Rich. Law, 677), 333 v. Bradford (4 Humph. 39), 50a v. Colby (81 Ga, 264), 596. v. Evans (36 Tex. 592), 352. v. Farmers' Bank (8 Gill & J. 440), 287. v. First Nat. Bank (75 N. C. 534), 299. v. Goetter (108 Ala. 408), 331, 332. v. Markham (5 How., Miss., 397), 420. v. Sharp (6 How. 301), 48, 168, 198. v. Sharp (4 Smedes & M. 17), 340. v. State (7 Smedes & M. 163), 509. v. White (2 Humph. 112), 518. Plato v. Reynolds (27 N. Y. 586), 388, 389. Platt, In re (Fed. Gas. No. 11,211), 595. 624. v. Drake (1 Doug. 296), 467. Pococke v. Blount (6 Mo. 338), 456. Pollard v. Bailey (20 Wall. 520), 106. v. Bo wen (57 Ind. 232), 411, 433, 540. v. State (65 Ala. 628), 41. Polley v. Hicks (50 N. R R. 809), 644. Pollock v. Helm (54 Miss. 1), 364. v. National Bank (7 N. Y. 274), 85. Pomeroy v. State Bank (1 Wall 23), 573. Pope v. Bank of Albion (57 N. Y. 126, 131), 165, 166, 186, 187. v. Burlington Sav. Bank (56 Vt 284), 630, 642. v. Huth (14 Gal. 403), 357. v. Luff (7 Hill, 577), 357. Portas v. Painboeuf (1 Mart., O. S., 267), 548. Porter v. Bank of Rutland (19 Vt. 410), 172. 770 TABLE OF CASES. References are to pages. Porter v. Kimball (53 Barb. 467), 530. v. Shenvo- 1 Co. Br'g Co. (40 Neb. 274), 238. v. State (46 Wis. 375), 41. Portland Nat. Bank v. Scott (20 Oreg. 421), 67. Portsmouth Sav. Bank v. Wilson (5 App. D. C. 8), 529. Posey v. Denver Nat. Bank (7 Colo. App. 108), 367, 368. Post v. Toledo R Co. (144 Mass. 341), 100. Potter v. Couch (141 U. S. 296), 221. v. Merchants' Bank (28 N. Y. 641), 155. v. United States (155 U. S. 438), 142, 144. 145. Powell, In re (Johns., V. C., 49). 247. Powell v. State Bank (1 Disn. 260), 412, 444. Power v. First Nat. Bank (6 Mont. 251), 294, 305. 306. v. Mitchell (7 Wis. 161), 474. Poydras v. Delamere (13 La. 98). 351. Pratatongo v. Larco (47 Cal. 378), 380. Prather v. Kean (29 Fed. R 498), 149, 286. Pratt v. Adams (7 Paige, 615), 556. v. Eaton (79 N. Y. 449), 636. v. Foote (9 N. Y. 463), 210. v. Short (79 N. Y. 437), 63, 66, 636. v. Topeka Bank (12 Kan. 570), 621. Presbyterian Cong. v. Carlisle Bank (5 Barr, 345), 90. Prescott v. Haughey (65 Fed. R. 653), 128, 130, 134. Prescott Bank v. Courly (7 Gray, 217), 355. Prescott Nat. Bank v. Butler (157 Mass. 548), 66. Preston v. Canadian Bank (23 Fed. R 179), 271, 274, 278, 656. v. Cutter (64 N. H. 461), 166. v. Prather (137 U. S. 604), 285. Price v. Abbott (17 Fed. R 506), 74, 592, 594, 624. v. Coleman (22 Fed. R 694), 581. v. Whitney (28 Fed. R 297), 80. v. Yates (Fed. Cas. No. 11,418), 113, 595. v. Young (1 Nott & McC. 438), 440. Priestley v. Bisland (9 Rob., La., 425), 495. Pritchard v. First Nat. Bank (76 N. W. R 1106), 565. v. Hamilton (6 Mart., N. S., 457), 550. v. Scott (7 Mart, N. S., 491), 494 Procter v. Greene (14 R. I. 42), 222. Providence Ass'n v. Citizens' Sav. Bank (19 R L 142), 213. Pryor v. Wright (14 Ark. 189), 397. Pryse v. Farmers' Bank (33 S. W. R 532), 117, 121. Public Grain and Stock Exch. v. Kune (20 Bradw. 137), 261, 262. Purcell v. Allemong (22 Grat. 739), 445. Purchas v. New York Ex. Bank (3 Robt. 164), 85. Purchase v. Mattison (6 Duer, 587), 461. Pursefaal v. Pineville Bank (30 S. W. R 203), 234 Q. Queenan v. Palmer (117 III 169), 629, 634. . Quincy v. Steele (120 U. S. 245), 93. Quinn v. Hanley (5 Bradw. 51), 37a K. Raborg v. Peyton (2 Wheat 385), 375, 376. Radley v. London R Co. (1 App. Cas. 754), 647. Rahm v. Philadelphia Bank (1 Rawle, 335), 443. Raignet v. Ayliff (16 Ark. 594), 350. Railroad Co. v. Lockwood (17 Wall 382), 122. v. O'Brien (119 U. S. 99), 170. v. Peniston (18 Wall. 5), 52. Railway Co. v. Metropolitan Nat Bank (54 Ohio St. 60). 246. Ralston v. Bullitts(3 Bibb, 261), 540. Ramdulollday v. Davieux (4 Wash. C. C. 61), 459. Rand v. State Bank (77 N. C. 52), 289. Randall v. Smith (34 Barb. 452), 503. v. Way (111 Mass. 506), 222. Randolph v. Allen (73 Fed. R 23), 216, 218. v. Canby (Fed. Cas. No. 11,559;, 372. v. Parrish (9 Port 96), 352. TABLE OF CASES. 771 References are to pages. Randolph Nat. Bank v. Hornblower (160 Mass. 401), 256. Ranger v. Sargent (36 Tex. 26). 369. Ransom v. Mack (2 Hill, 587), 474. Rapp v. Nat. Security Bank (136 Pa. 426', 210. Ratcliff v. Planters' Bank (2 Sneed, 425), 463. Rawl v. Saulsbury (66 Ga. 394), 210. Ray v. Bank of Kentucky (10 Bush, 344), 568. v. Smith (17 Wall. 411), 538, 539. Raymond v. Holmes (11 Tex. 54), 386. v. Mann (45 Tex. 301), 352. v. Palmer (41 La. Ann. 425), 231. Rea v. Dorrance (18 Me. 137), 392, 399. Read v. City of Buffalo (67 Barb. 526 , 350. v. Cutts (7 Me. 186), 403. v. Marsh (5 B. Mon. 8), 361. v. Wilkinson (2 Wash. C. C. 514). 381. Reapers' Bank v. Millard (24 111. 433), 560. Reciprocity Bank, In re (22 N. Y. 9), 48, 77, 80, 96, 100. Redington v. Woods (45 Cal. 406), 269. Redman v. Adams (51 Me. 429), 350. Reed v. People (125 111. 592), 30, 630. v. Powell (11 Rob., La., 98), 146, 151. v. Wilson (41 N. J. Law, 29), 90, 91, 421. Reedy v. Seixas (2 Johns. Cas. 337), 470. Reese v. Bank of Commerce (14 Md. 271). 90. 91. v. Bank of Montgomery Co. (31 Pa. 78), 46, 93. Reeside v. Knox (2 Wheat. 253), 350. Reeves v. State Bank (8 Ohio St. 465), 209, 306. Reid v. Morrison (2 Watts & S. 400), 393, 459. v. Payne (16 Johns. 218), 493, 495. v. Reid (11 Tex. 585), 550. Reier v. Strauss (54 Md. 278), 551. Reiff v. McMiller (45 Leg. Int. 26), 536. Reilly v. Daly (159 Pa. 605), 371. Reinke v. Wright (93 Wis. 638), 450, 543. Relf v. Mobile Bank (20 Pa, 435), 360. Remington v. Harrington (8 Ohio, 507), 443, 509. Renfro v. Merchants' Bank (83 Ala. 425), 279, 280. Renner v. Bank of Columbia (9 Wheat, 581), 184, 187, 428. Renshaw v. Triplett (23 Mo. 213), 486, 490. Rey v. Simpson (22 How. 341), 400, 402, 533. Reynes v. Dumont (130 U. S. 354), 344 Reynolds v. Appleman (41 Md. 615), 471. v. Bank of Mt. Vernon (39 N. Y. Supp. 623), 114. v. Bank of State (18 Ind. 467), 238, 560, 569. v. Douglas (12 Pet. 497), 403. 458. v. Simpson (74 Ga. 454), 192. Rezner v. Hatch (2 Handy, 42), 57, 556. Rheim v. Carlisle Deposit Bank (76 Pa. 132), 516. Rhett v. Poe (2 How. 457), 403, 458, 459, 467. Rhodes v. Morgan (1 Baxt. 360), 404. v. Webb (24 Minn. 292), 153, 165. Rice v. Hogan (8 Dana, 133). 352. v. Porter ( 16 N. J. Law, 440), 381. v. Ragland (10 Humph. 545), 383. v. Third Nat. Bank (97 Mich. 414), 222. v. Wisson (11 Met. 400), 427, 429, 471, 472. Rich v. Niagara Co. Bank (5 Thomp. & C. 589), 206. v. Shaw (23 Me. 343), 123. v. State Nat. Bank (7 Neb. 201), 67. Richards v. Attleborough Nat. Bank (148 Mass. 187), 116, 565, 572. v. Kountze (4 Neb. 200), 66, 195, 197. v. Waring (1 Keyes, 576), 404. Richardson v. Carpenter (46 N. Y. 660\ 376. v. Wallace (39 S. C. 216), 598. Richdale, Ex parte (19 Ch. D. 40B), ' 210. Richie v. McCoy (13 Smedes & M. 541), 460. Richmond v. Blake (132 U. S. 592), 28. v. Irons (121 U. S. 27), 80, 84, 100, 103, 112, 595, 598, 599. 772 TABLE OF CASES. References are to pages. Richmond Bank v. Robinson (42 Ma 489), 66, 327. Richter v. Selin (8 S. & R 425), 543. Ricketts v. Pendleton (14 Md. 320), 462, 463. Riddle v. First Nat. Bank (27 Fed. R 503), 199, 290, 406. v. McBeth (4 W. L. M. 153), 484 v. Mott (2 Cranch, C. G 73), 458. Ridenour v. Mays (40 Ohio St. 9), 634. Rider Raft Co. v. Roach (97 N. Y. 378), 68. Ridgley v. Davidson (2 Mill Const. 33), 431. Ridgley Bank v. Patton (109 III 479), 226, 227. 235, 252, 255. Ridgvvay v. Day (13 Pa. 208). 430. Ridgway Co. v. McCarthay (96 U. S. 258), 63. Riggs v. Dyche (2 Smedes & M. 606), 343. v. Lindsay (7 Cranch. 500), 362. v. Swan (3 Cranch, C. C. 183), 39, 561. Riker v. Sprague Mfg. Co. (14 R. L 402), 528. Riley v. Albany Sav. Bank (36 Hun, 513), 639. v. Smith (64 N. Y. 576), 381. Rindge v. Kimball (124 Mass. 209), 540. Rindskoffv. Malone (9 Iowa, 1540), 546. Ringling v. Kohns (6 Mo. App. 333), 152, 169, 198. Ringo v. Biscoe (13 Ark. 563), 560, 590, 597. v. Real Estate Bank (13 Ark. 563), 560, 590. 597. v. Trustees (13 Ark. 563), 560, 590, 597. Rio Grande Exp. Co. v. Goby (7 Colo. 299), 351. Risley v. Phoenix Bank (83 N. Y. 318), 215, 223. Ritenour v. Harrison (57 Mo. 502), 330. Riverside Bank v. First Nat. Bank (74 Fed. R 276), 235, 236, 237, 262, 263, 274, 295. Rives v. Parmley (18 Ala. 256), 496. Roan v. Winn (93 Mo. 503). 577. Roane Iron Co. v. Wisconsin Trust Co. (74 N. W. R. 818), 42. Roanoke Nat. Bank v. Hamberck (82 Va. 135), 309. Robb v. Pennsylvania Co. (186 Pa. 456), 265, 267. v. Ross Co. Bank (41 Barb. 586), 198. Robbins v. Lambeth (2 Rob., La., 304), 358, 369, 370. v. Pinckard (5 Smedes & M. 51), 542. Robbins Electric Co. v. Weber (172 Pa. 033), 40. Roberts v. Austin Corbin & Co. (26 Iowa, 315), 246, 348. v. Bethell (12 C. B. 778), 383. v. Corbin (26 Iowa. 315), 246, 348. v. Hill (24 Fed. R 571, 23 Fed. R 311), 579. v. Mason (1 Ala. 373), 444, 445. v. State Bank (9 Port. 312). 551. v. Taf t ( 120 Mass. 169), 297. v. Tucker (16 Q. B. 560), 296. v. Wald (61 Minn. 291), 437, 438, 553. Robertson v. Agric. Bank (28 Miss. 237), 584. v. Noeninger (20 HL App. 227), 97. Robinson v. Ames (20 Johns. 146), 356, 424. v. Bank of Darien (18 Ga. 65), 96, 590. v. Barber (3 Am. Law J., N. S., 59), 492. v. Barrett (19 Fla. 670), 540. v. Beall (26 Ga. 17), 80, 81, 126, 559. v. Beall (20 Ga. 575), 160, 562. v. Carey (8 Ga. 527), 97. v. Chemical Nat. Bank (86 N. Y. 404), 218. v. Floyd (159 Pa. 165). 291. v. Gardner (18 Grat. 509), 204, 598. v. Hall (63 Fed. R 222), 122, 134 v. Hamilton (4 Stew. & P. 91), 501, 502. v. Hawes (20 N. Y. 84), 58a v. Lane (19 Ga. 337), 561. v. National Bank (81 N. Y. 885), 595, 627. v. Threadgill (13 Ired. 39), 284 Robson v. Benton Bkg. Co. (7 Smedes & M. 729), 590. Rochester Printing Co. v. Loomis (45 Hun, 93, 120 N. Y. 659), 128, 615. Rock River Bank v. Sherwood (10 Wis. 230), 330, 335. TABLE OF CASES. 773 References are to pages. Rockwell v. Elkhorn Bank (13 Wis. 731), 198. v. Farmers' Bank (4 Colo. App. 562), 334. Rodney v. Wilson (67 Mo. 123), 401,- 533. Roebling v. First Nat, Bank (30 Fed. R 744), 194, 195. Roehner v. Knickerbocker Life Ins. Co. (63 N. Y. 160), 438. Rogers v. Durant (140 U. S. 298), 348. v. Huntingdon Bank (12 S. & R 77), 90. v. Jackson (19 Wend. 383), 550. v. Union Stone Co. (130 Mass. 581), 359. Rolin v. Stewart (14 C. B. 595), 242. Rome Savings Bank v. Kramer (102 N. Y. 331), 66, 327, 635. Roosevelt v. Woodhull (Anth. N. P. 50), 464, 524, Root v. Goddard (3 McLean, 102), 556. v. Olcott (42 Hun, 536, 115 N. Y. 635), 153. v. Sinnock (120 111. 350), 104. Rosenbaum v. Little (8 Ky. Law R 607), 246, 248. Rosenberg v. Block (50 N. Y. Super. Ct. 357), 56. v. First Nat. Bank (27 S. W. R 897), 620. Rosenblatt v. Manufacturers' Bank (69 N. Y. 358), 601, 618. Rosenheim Co. v. Southern Nat. Bank (46 S. W. R 1026), 596. Rosenthal v. Erlicker (154 Pa. 396), 434. Ross v. Bank of Burlington (1 Aiken, 43), 558. v. Bedell (5 Duer, 462). 393, 549. v. Jones (22 Wall. 588). 384, 385. v. Planters' Bank (5 Humph. 335), 469. Rosson v. Carrol (90 Tenn. 90), 411, 487, 522. Rouhs v. Third Nat. Bank (94 Tenn. 57), 165. Rounds v. Smith (42 111. 245). 252. Roundtree v. Baker (52 I1L 241), 331. Rounsavell v. Crofott (4 Bradw. 671), 442, 443. Rouvant v. National Bank (63 Tex. 610), 264. Rowan v. Odenheimer (5 Smedes & M. 44), 469. Rowe v. Young (2 Bligh, 391), 374, 382, 383, 384. Rowland v. Howe (48 Conn. 432), 502, 507. Rowley v. National Bank (63 Hun, 550), 241, 242. Ruble v. Turner (2 Hen. & Munf. 38), 135. Ruddell v. Walker (7 Ark. 457), 398. Ruffin v. Orange Co. Comm'rs (69 N. C. 498), 238. Runnels v. Spencer (1 Miss. 362), 404. Runner v. Dwiggins (46 N. E. R 580), 103. Runyon v. Montfort (44 N. C. 371), 450, 496, 502. Rushworth v. Moore (26 N. H. 188), 547. Rusk v. Sackett (28 Wis. 400), 106. v. Van Nostrand (21 Wis. 161), 42. Russell v. Wiggan (2 Story, 213), 355, 361, 364, 380. Rutland Bank v. Woodruff (34 Vt. 89), 360. Ryan v. Dunlap (17 111. 40 \ 154. v. Farmers' Bank (5 Kan. 658), 621. v. Manufacturers' Nat. Bank (9 Daly, 308), 299. v. Phillips (3 Kan. App. 704), 282. S. Sackett's Harbor Bank v. Codd (18 N. Y. 240), 76. Sacramento Bank v. Pacific Bank (56 Pac. R 787), 562. Sacrider v. Brown (3 McLean, 481), 410. Safford v. First Nat. Bank (61 Vt 373), 596. v. Wyckoff (4 Hill, 472, 1 Hill, 11), 63, 198. Sagory v. Dubois (8 Sandf. Ch. 466), 95. Sahlien v. Bank of Lonoke (90 Tenn. 221), 185, 187, 303, 312. St. John v. Homans (8 Mo. 382), 436. v. Roberts (31 N. Y. 441), 430, 542. St. Joseph Ins. Co. v. Hauok (71 Mo. 465), 66, 327. St. Louis Brewing Ass'n v. Austin (100 Ala. 313), 612. TABLE OF CASES. References are to pages. St Louis Nat. Bank v. Flanagan (129 Mo. 178), 327. St. Louis Nat. Stock Yards v. O'Reilly (85 111. 546), 359. St. Louis School Dist. v. Broadway Bank (12 Mo. App. 104), 126. St. Louis & San Fran. R Co. v. Johnston (]33 U. S. 566), 128, 211, 319, 614, 615. St. Luke's Church v. Sowles (51 Fed. R 609), 624 St. Nicholas Bank v. State Nat. Bank (128 N. Y. 26), 295, 299, 305. St. Paul Trust Co. v. Jenks (57 Minn. 248), 67. Salem Bank v. Gloucester Bank (17- Mass. 21), 170, 559. Saling v. German Sav. Bank (7 N. Y. Supp. 642\ 640, 646. Salisbury v. First Nat. Bank (37 Neb. 872), 402, 534. v. Renick (44 Mo. 554), 335. Salladin v. Mitchell (42 Neb. 859), 586. Salmon v. Grosvenor (66 Barb. 160), 429. Salmon Falls Bank v. Leyser (116 Mo. 51), 197. Salt Lake City v. Hollister (118 U. S. 256), 62. Salt Springs Bank v. Syracuse Sav. Inst. (62 Barb. 101), 270. Salt Springs Nat. Bank v. Burton (58 N. Y. 430), 421. Salter v. Burt (20 Wend. 205), 438. Saltmark v. Planters' Bank (17 Ala. 761), 572, 573. v. Tuthill (13 Ala. 390), 470. Samples v. Bank(l Woods, 523), 563. San Antonio v. Mehaffy (96 U. S. 312), 63. San Diego Co. v. California Nat Bank (52 Fed. R 59). 603, 616. San Joaquin Valley Bank v. Bowers (65 Cal. 247). 117, 122. Sanborn v. Southard (25 Me. 409), 431. Sanbourne v. Smith (44 Iowa, 152), 280. Sanders v. Ochiltree (5 Port. 73), 438. Sanderson v. Oakley (14 La. 373), 445. v. Reinstadler (31 Mo. 483), 474, 475 v. Sanderson (20 Ala. 292), 539. Sands v. Matthews (27 Ala. 399), 360. Sandy River Bank v. Merchants' Bank (1 Biss. 146), 157. Sanford v. Norton (17 Vt. 285), 450. Sanger v. Simpson (8 Miss. 260). 471. Sargent v. Appleman (6 Mass. 85), 384. Sasscer v. Farmers' Bank (4 Md. 409), 438, 471, 476. Sather v. Rogers (10 Iowa, 231), 552. Saul v. Brand (16 La. Ann. 95), 551, 553. Saulsbury v. Blandy (53 Ga. 665), 362. v. Blandys (65 Ga, 45), 367. Savage v. Walshe (26 Ala. 619), 565, 572. Savannah Bank v. Hartridge (73 Ga, 223). 146, 177. Savings Ass'n v. Kellogg (65 Mo. 540), 105, 107. Savings Bank v. Benton (2 Met, Ky., 240), 150. v. Caperton (87 Ky. 306), 129, 131. v. Davis (8 Conn. 191), 115, 118. v. Holt (58 Vt 166), 172. v. Hubbard (58 N. H. 167), 277. v. New London (20 Conn. Ill), 630. Savings Institution v. Makin (23 Me. 360), 630. Sawyer v. Brownell (13 R I. 141), 392, 399. v. Fawners' Bank (88 Mass. 207), 118. Sayles v. Bates (15 R L-342), 84, 104 v. Brown (40 Fed. R 8), 100. v. Cox (95 Tenn. 579), 317. Saylor v. Bushong (100 Pa. 23), 244. Sayre v. Frick (7 Watts & S. 383), 484 v. Weil (94 Ala. 466), 217, 237. Scattergood v. Finley (20 Ga. 423), 374, 383. Schaffner v. Ehrmann (139 111. 109), 201, 202, 242. v. Ehrmann (37 111. App. 340), 242. Schalucky v. Field (124 III 617), 101, 290. Schierenberg v. Stephens (32 Mo. App. 814), 78. Schimmelspennich v. Bayard (1 Pet. 264). 362. Schley v. Merritt (37 Md. 352), 536. Schluter v. Bowery Sav. Bank (117 N. Y. 125), 224 Schmeid v. Frank (86 Ind. 250), 532. TABLE OF CASES. 775 References are to pages. Schmidt v. Archer (113 Ind. 365), 397. Schmittler v. Simon (101 N. Y. 554), 372. Schmitz v. Hawkeye Co. (8 S. D. 544), 401, 533. Schneider v. Irving Bank (1 Dalv, 500), 208, 262. v. Schiffman (20 Mo. 571), 402, 534. Schofield v. Bayard (3 Wend. 488), 387, 430. Schollenberger, Ex parte (96 U. S. 369). 51, 626. Schollmeier v. Schoendelen (78 Iowa, 426), 215, 223. Schoneman v. Fegley (7 Pa. 433), 548. School Dist. v. First Nat. Bank (102 Mass. 174), 216. v. First Nat Bank (61 Fed. R. 417), 624. Schoolfield v. Moon (9 Heisk. 171), 433. Schoyer v. Cresswell (3 MacA. 5), 634. Schram v. Cartwright (16 Pa. Co. Ct. R. 618), 221. Schuler v. Israel (120 U. S. 506), 231, 232, 240. Schultz v. Christman (6 Mo. App. 338), 125. Schumacher v. Quaritius (5 Red. Sur. 251), 441. Schuyler Nat, Bank v. Boiling (24 Neb. 821), 338, 339. v. Bollong (50 U. S. 85), 623. Scofield v. State Bank (9 Neb. 316), 196. Scott v. Armstrong (146 U. S. 499, 36 Fed. R 63), 581, 587. v. Gilkey (153 111. 168), 298. v. Grier (10 Pa. 103), 530, 534. v. Lattimer (89 Fed. R. 843), 78. v. National Bank (72 Pa. 471), 285. v. Ocean Bank (23 N. Y. 289), 211. v. Pequonnock Bank (15 Fed. R. 494), 85. v. Pilkington (15 Abb. Pr. 280), 355. v. Smith (2 Kan. 438), 221. Scovil v. Scovil (45 Barb. 515), 397. v. Thayer (105 U. S. 143), 83. Scranton v. Farmers' Bank (24 N. Y. 424), 219. Scudder v. Union Nat. Bank (91 U. S. 406), 354, 361, 366. Scull v. Mason (43 Pa. 99), 530. Scale v. Baker (70 Tex. 283), 128, 129. Searle v. First Nat. Bank (2 Walk, Pa., 395), 190. Seaver v. Lincoln (21 Pick. 267). 429. Second Nat. Bank v. Burt (93 N. Y. 233), 121. v. Chancellor (9 W. Va. 69), 546. v. Cummiugs (89 Tenn. 609), 299, 303. v. Diefendorf (90 111. 396), 361. v. (iaylord (34 Iowa, 246), 403. v. Hemingway (34 Ohio St. 381), 240. v. Howe (40 Minn. 390), 172. v. Maguire (33 Ohio St. 295), 539. v. Morgan (165 Pa. 199), 334. v. Western Nat. Bank (51 Md. 128), 86, 257. v. Williams (13 Mich. 282), 224. v. Wrightson (63 Md. 81), 281. Secord v. Miller (13 N. Y. 55), 538. Security Bank v. National Bank (67 N. Y. 458), 259. v. Northwestern Fuel Co. (58 Minn. 141), 210, 212. v. Suttgen (29 Minn. 363), 299. Seeber v. Commercial Nat. Bank (77 Fed. R 957), 63, 66. Seeberger v. McCormick (178 III 404), 60. v. McCormick (73 111. App. 57), 60, 70. Seebree Deposit Bank v. Moreland (96 Ky. 150), 489, 540. Seeley v. Nat. Exchange Bank (78 N. Y. 608). 79, 114. Selby v. Brinkley (17 S. W. R 479), 539. Selden v. Equitable Trust Co. (94 U. S. 419), 29, 71. v. Washington (17 Md. 379), 471. Seldner v. Mt. Jackson Nat. Bank (66 Md. 488). 527. Seligman v. Charlottesville Nat. Bank (Fed. Cas. No. 12,642), 200. Seltzer v. Fuller (6 Smedes & M. 187), 552. Seneca Nat. Bank v. Neass (3 N. Y. 442, 5 Denio, 329), 493, 495, 549, 551. Senter v. Continental Bank (7 Mo. App. 532). 246. Sessions v. First Nat. Bank (93 N. Y. 269), 196. Seventh Nat Bank v. Cook (73 Pa. 483), 244 776 TABLE OF CASES. References are to pages. Seventh Ward Bank v. Hanrick (2 Story, 416), 516. Sewell v. Lancaster Bank (17 S. & R 285), 91. v. Russell (3 Wend. 276), 488. Seymour v. Dunham (24 Hun, 93), 240. v. Lumber Co. (58 Fed. R 957), 380. v. Van Slyck (8 Wend. 403), 404, 431. Shackamoxon Bank, In re (4 Pa. Co. Ct. R 194), 582. Shafer v. First Nat. Bank (53 Kan. 614), 336. v. Moriarity (46 Ind. 9), 101. Shaffner v. Edgerton (13 Bradw. 132), 225, 251. Shamburgh v.Commagere(10 Mart., O. S., 18), 450. Shand v. Du Buisson (L. R 18 Eq. 283), 372. Shanklin v. Madison Co. Comm'rs (21 Ohio St. 575), 280. Sharpe v. Drew (9 Ind. 281), 512. Shaver v.' Western Union Tel. Co. (57 N. Y. 459), 372. Shaw v. Clark (49 Mich. 384\ 173. v. Jacobs (89 Iowa, 713), 184, 186. v. MoNeil (95 N. C. 535), 580, 542, 543. v. Neal (19 La. Ann. 156), 523, 524 v. Reed (12 Pick. 132), 443, 444, 462, 463. Shaylor v. Mix (86 Mass. 351), 494. Shedd v. Brett (1 Pick. 401), 412, 413, 414, 417, 447, 448, 469. Sheehan v. Davis (17 Ohio St. 571), 153. Shelburne Falls Bank v. Townsley (102 Mass. 177), 475, 494, 514, 515. Shelby v. Judd (24 Kan. 161), 392, 431. Sheldon v. Horton (43 N. Y. 93), 535, 537. Shenn v. Mendenhall (23 Minn. 92), 630. Shepley v. Bowery Nat. Bank (59 N. Y. 485), 311. Shepherd v. Chamberlin (8 Gray, 225), 421. v. Jonte (14 La. 246V 410. v. Hawley (1 Conn. 367). 483. Sherer v. Easton Bank (33 Pa. 134), 459, 542, 543. Sherley v. Fellowes (9 Port 300), 393. Sherman v. Comstock (2 McLean, 19), 395. v. Smith (1 Black, 587), 48, 100. Sherry v. Dunn (8 Blackf. 542), 194, Sherwin v. Brigham (39 Ohio St. 137), 367, 370. v. Brigham (1 Cleve. Law R 22), 370. Shields v. Niagara Co. Bank (3 Hun, 477), 206. Shipman v. Bank of State (12 N. Y. 318), 260, 265. v. Cook (16 N. J. Eq. 251), 392, 525. Shoemaker v. Mechanics' Bank (59 Pa. 79), 476, 510. v. Nat. Mechanics' Bank (Fed. Cas. No. 12,801, 1 Hughes, 101), 67, 191. Shoenberger v. Lancaster Sav. Inst. (28 Pa. 459), 518. Short v. Blount (99 N. C. 49), 359. Shove v. Wiley (18 Pick. 558), 187. Shrieve v. Duckham (1 Litt 194), 468. Shriner v. Kelly (25 Pa. 61), 392, 525. Shryock v. Brashore (11 Phila. 565), 575, 586. Shunk v. First Nat Bank (22 Ohio St. 508). 336. Shute v. Pacific Bank (136 Mass. 487), 279, 405. Sibley v. Van Horn (13 Iowa, 209), 403. Sice v. Cunningham (1 Cow. 397), 428, 429, 522: Sickels v. Herold (36 N. Y. Supp. 488), 240, 275, 584 v. Herold (149 N. Y. 332), 287. Sieger v. Second Nat Bank (132 Pa. 307), 536. Sigerson v. Mathews (20 How. 496), 536. Sigourney v. Witherell (6 Met 553), 542. Silver Lake Bank v. North (4 Johns. Ch. 370), 196. Simmons v. Almy (100 Mass. 239). 221. v. Belt (35 Mo. 461), 447. v. Cincinnati Sav. Soc. (31 Ohio St. 457), 224 v. Dent (16 Mo. App. 288), 77. Simmons Hardware Co. v. Bank of Greenwood (41 S. C. 177), 245. Simms v. Lasken (19 Wis. 390), 477. Simonds v. Black River Ins. Co. (Fed. Cas. No. 12,874), 430, 434 TABLE OF OASES. 7T7 References are to pages. Simonton v. Lanier (71 N. C. 498), 330. Simpson v. Pacific Ins. Co. (44 Cal. 139), 419, 433. v. Pemegewasset Bank (38 Atl. R. 1005), 205. v. Turner (5 Humph. 419), 515. v. Waldby (63 Mich. 439). 306. v. White (40 N. H. 540), 551. Sims v. Hundley (6 How. 1), 547, 551. Simson v. Brown (68 N. Y. 355), 248. Sinclair v. Johnson (85 Ind. 527), 404. Siner v. Stearne (155 Pa. 662), 306. Sioux Falls Bank v. First Nat. Bank (6 Dak. 113), 63, 592. Sistare v. Best (88 N. Y. 527), 635, 636, 638. Sixpenny Sav. Bank v. Stuyvesant Bank (Fed. Gas. No. 12,919 >, 618. Skelton v. Dustin (92 111 94), 422. Skiles v. Houston (110 Pa. 254), 240. Skilman v. Miller (7 Bush, 428), 222. Skinner v. Deming (2 Ind. 558), 554, 556. v. Merchants' Bank (4 Allen, 290), 120, 169. Skohegan Bank v. Cutter (49 Me. 315), 87. Slack v. Longshaw (8 Ky. Law R 166), 392, 427, 458, 488. Slaughter v. First Nat. Bank (109 Ala. 157), 75. Slaymaker v. Farmers' Bank (103 Pa. 616), 219. Sleppy v. Bank of Commerce (17 Fed. R. 712), 281. Slocomb v. De Lizardi (21 La. Ann. 355), 479, 484. Smalley v. Wright (40 N. J. Law, 471), 517. Smecles v. Utica Bank (20 Johns. 372), 304. Smiley v. Fry (100 N. Y. 262), 281. Smith, In re (17 Abb. N. C. 78), 641, 643. Smith v. Barnes (24 Ga. 442), 404, 405. v. Barstow (2 Doug. 155), 58. v. Board (48 N. J. Eq. 627), 216. v. Brooklyn Sav. Bank (101 N. Y. 58 >, 640, 643, 645. v. Bryan (34 111. 364), 41. v. Des Moines Nat. Bank (78 N. W. R 238), 218. v. Essex Co. Bank (22 Barb. 627), 300. v. Exchange Bank (26 Ohio St. 141), 19a Smith v. First Nat. Bank (99 Mass. 605), 285. v. First Nat, Bank (45 Neb. 444), 66, 327. v. Fisher (24 Pa. 222). 488. v. Frye (SCranch, C. C. 515),573. v. Gibbs (2 Smedes & M. 479), 418. v. Hurd (12 Met. 371), 123. v. Janes (20 Wend. 192), 348, 395, 433. v. Lawson (18 W. Va. 212), 147, 151, 155. v. Ledyard (49 Ala. 279), 364 v. Little (10 N. H. 526), 411, 462. v. Londoner (5 Cal. 365), 98. v. McLean (4 N. C. 509), 444, 445. v. Mechanics' Bank (6 La. Ann. 610). 260, 265. v. Miller (43 N. Y. 171), 433, 435. v. Milton (133 Mass. 369), 357, 383. v. Mosby (9 Heisk. 501). 586. v. Muncie Nat. Bank (29 Ind. 158), 375. v. Northampton Bank (4 Gush. 1), 88, 89. v. Philadelphia Bank (34 Leg. Int. 86), 63. v. Philadelphia Nat. Bank (1 Walk., Pa., 318), 213. v. Philbrick (10 Gray, 252), 452, 501. v. Poillon (87 N. Y. 590), 462, 512, 513, 514. v. Rathbun (22 Hun, 150), 124, 125. v. Roach (7 B. Mon. 17), 472. v. State (21 Ark. 294), 68. v. Whiting (12 Mass. 6), 469. Smyth v. Hawthorn (3 Rawle, 355), 475, 510. Snow v. Perkins (2 Mich. 238), 386, 467, 469. Snyder v. Gascoigne (11 Tex. 449), 456. v. Foster (73 Fed. R 136), 80. v. Mt. Sterling Bank (94 Ky. 231). 334. v. State Bank (1 111. 161), 58, 341. Sohn v. Morton (92 Ind. 170), 529. Solly v. Forbes (2 Brod. & Bing. 38), 135. Solomon v. Bates (118 N. C. 311). 128, 130, 132. v. Pfeister Leather Co. (31 AtL R 602), 467. T78 TABLE OF CASES. References are to pages. Solomons v. Bank of England (13 East, 135), 563. Southern Bank v. Brashears (1 Disn. 207), 333. South. Develop. Co. v. Houston R Co. (27 Fed. R. 344), 283. Southern Express Co. v. Western R Co. (99 U. S. 191), 68. Southern Loan Co. v. Morris (2 Pa. 175), 555. Sowles v. Witters (39 Fed. R 403), 105, 108, 113. Spafford v. First Nat. Bank (37 Iowa, 181), 192. Spahr v. Farmers' Bank (94 Pa. 434), 567. Spalding v. Andrews (48 Pa. 411), 359, 366. v. Krutz (1 Dill. 414), 468, 473. Spann v. Baltzell (1 Cranch, 301), 444. Sparks v. Farmers' Bank (3 Del. Ch. 274), 116. v. State Bank (7 Blackf. 469), 195. Spear v. Pratt (2 Hill, 582), 356. Spearman v. Ward (114 Pa. 634), 385. Spence v. Crockett (5 Baxt. 576). 552 Spencer v. Ballou (18 N. Y. 327). 486. v. Bank of Salina (3 Hill, 520), 451. v. Harvey (17 Wend. 489), 538. v. Sterling (10 Mart., O. S., 88), 510. Spies v. Gilmore (1 N. Y. 321), 462, ' 463. Springfield Fire Ins. Co. v. Tincher (30 111. 399), 396, 432. Springfield Marine Co. v. Peck (102 III 265), 221, 280. Spurgeon v. Swain (13 Ind. App. 188), 358. Spurgin v. McPheeters (42 Ind. 527), 350. Squire v. First Nat Bank (59 III App. 134), 151. Stack v. Beach (74 Ind. 571), 402, 533. Stacy v. Dane Co. Bank (12 Wis. 629), 307, 308, 309. Stafford v. Bratcher (4 Ky. Law R 996), 352. v. Yates (18 Johns. 327), 489, 490. Stahl v. Wolfe (6 Wkly. Notes Cas. 143), 536. Stainback v. Bank of Virginia (11 Grat. 260), 355, 417, 511. Stallcup v. Nat. Bank of Republic (15 N. Y. St. R. 89). 147. Stam v. Kerr (31 Miss. 199), 392, 525. Stamford Bank v. Benedict (15 Conn. 437), 149. Stanley v. Bank of Mobile (23 Ala. 652), 477. v. Farmers' Bank (17 Kan. 592), 471. Stanton v. Blossom (14 Mass. 116), 374. v. Wilkeson (Fed. Cas. No. 13,299), 113. v. Wilson (2 Hill, 153), 620. Staples v. Huron Nat. Bank (66 N. W. R 314), 182. Stapylton v. Cie de Phosphates (88 Fed. R 53), 211. v. Stockton (91 Fed. R 326), 195, 577, 579. Star Cutter Co. v. Smith (37 III App. 212), 282. Star Fire Ins. Co. v. State Nat. Bank (60 N. H. 442), 345. Starr v. Murchison (1 City Ct R 413), 370. v. Sandford (45 Pa. 193), 546. v. Stiles (19 Pac. R 225), 290. v. York Nat. Bank (55 Pa. 364), 213 State, Ex parte (15 Ark. 263j, 622. State v. Ashley (1 Ark. 513), 51. v. Bank of Charleston (2 McMuL 439), 570. v. Bank of Louisiana (5 Mart, N. S., 344). 149. v. Bank of Mansfield (48 La. Ann. 1029), 71. v. Bank of New England (55 Minn. 139, 73 N. W. R 153), 81, 575, 576. v. Bank of South Carolina (1 Spears, 433), 569. v. Bank of Tennessee (5 Baxt 101), 563. v. Banks (12 Rich. Law, 609), 557. v. Bard well (72 Miss. 535), 75, 137. v. Bartlev (39 Neb. 353), 204. v. Beach* (43 N. E. R 949), 136, 137. v. Brobston (94 Ga. 95), 240. v. Caldwell (79 Iowa, 432), 136, 137. v. Columbia (6 Rich. 495), 71. TABLE OF CASES. References are to pages. State v. Commercial Bank (6 Smedes & M. 599), 569. v. Commercial Bank (5 Smedes & M. 218), 146, 569. v. Commercial Bank (21 Miss. 569). 569. v. Commercial Bank (33 Miss. 474), 569. v. Commercial Bank (10 Ohio, 535), 569. 570. v. Commercial State Bank (28 Neb. 677), 598. v. Davis (50 How. Pr. 447), 154 v. Eifert (65 N. W. R. 309), 137. v. Field (49 Mo. 270), 29. v. Fields (98 Iowa, 748), 75. v. First Nat. Bank (2 S. D. 568), 336. v. Fitzsimmons (30 Mo. 236), 50. v. Foster (5 Wyo. 199). 605, 616. v. Fuller (34 Conn. 280), 75. v. Gates (67 Mo. 139), 434. v. Granville Alexandrian Soc. (11 Ohio, 1), 68. v. Hastings (12 Wis. 47), 39. v. How (1 Mich. 512), 58. v. Humphreys (2 Dev. & B. 555), 556. v. Kelsey (89 Mo. 623), 136. v. Lehre (7 Rich. Law, 234), 80. v. Lincoln Sav. Bank (82 Tenn. 42), 629. v. Louisiana Sav. Co. (12 La. Ann. 568), 569, 650. v. Matthews (48 N. C. 451), 555. v. Mclver (2 S. S. 25), 86. v. Mechanics' Bank (35 La. Ann. 562), 574. v. Menke (56 Kan. 77), 75. v. Midland Sav. Bank (71 N. W. R. 1011), 602, 616. v. Morton (27 Vt. 310), 243. v. Myers (54 Kan. 206), 136, 137. v. National Bank (33 Md. 75), 567. v. National Bank (2 S. D. 568), 75. v. New Orleans Gas Co. (2 Rob., La., 529), 569. v. Phoenix Bank (34 Conn. 205), 47. v. Presburg (13 Mo. 342), 70. v. Real Estate Bank (5 Ark. 595), 570. v. Reed (125 Mo. 43), 32. v. Rusk (21 Wis. 212), 73. v. Sattley (131 Mo. 464), 137. v. Scougal (3 S. D. 55), 35, 36, 70. State v. Seneca Co. Bank (5 Ohio Sk 171), 569, 570. v. Shore (70 N. W. R 312), 136. v. Southern Bank (31 La. Ann. 519), 71. v. State Bank (42 Neb. 896), 283, 301. v. State Bank (5 Baxt. 1), 612. v. Stebbins (1 Stew. 299), 34, 35, 68. v. Stimson (24 N. J. Law, 9), 138. v. Teak (3 Sneed, 695), 556. v. Thompson (27 Mo. 365), 116. v. Thum (55 Pac. R. 858), 600, 603, 616. v. Tombeckbee Bank (2 Stew. 30), 569. v. Union Bank (4 Robt. 499), 73, 74. v. Union Stock Yards Bank (70 N. W. R 752), 101, 108, 585. v. Vincent (91 Mo. 662), 251. v. White (101 N. C. 770), 75. v. Williams (8 Tex. 255), 55, 70. v. Woodmansie (1 N. D. 246), 34, 35. v. Yetzer (97 Iowa, 423), 136, 137. State Bank, In re (13 Pa. Co. Ct. R 433), 617; (56 Minn. 119). 210, 305. State Bank v. Aersten (4 111. 135), 558. v. Ayers (7 N. J. Law, 131), 514. v. Bank of Capitol (41 Barb. 343), 304. v. Brackenridge (7 Blackf. 395), 193. v. Brown (2 111. 106), 622. v. Clark (8 N. C. 36), 277. v. Criswell (15 Ark. 230), 197. v. Farmers' Bank (36 Barb. 332), 152. v. Fearing (16 Pick. 533), 340. v. Ford (5 Ired. 692), 332. v. Hennen (4 Mart, N. S., 227), 496. v. Kurd (12 Mass. 172), 419, 443, 445. v. Kain (1 111. 45), 206, 292. v. Lindeman (161 Pa. 199), 248. v. Lockwood (16 Ind. 306), 560. v. Napier (6 Humph. 270), 443. v. Slaughter (7 Blackf. 133), 483. v. Smith (62 Minn. 540), 136. v. Smith (18 Me. 99), 419. v. Snelling (35 Mo. 190), 571. v. State (1 Blackf. 270), 570. v. Van Horn (4 N. J. Law, 382), 563. 780 TABLE OF CASES. References are to pages. State Bank v. Vaughan (36 Ma 91), 489. v. Ward (6 Munf. 166), 559. State Building Ass'n v. Merchants' Sav. Bank (36 S. W. R 967), 282. State Nat Bank v. Boettcher (5 Colo. 185), 255. v. Flathers (45 La. Ann. 75), 67, 196. v. Freedman's Bank (2 Dill. 11), 270, 272. v. Newton Nat. Bank (66 Fed R 691). 165. v. Young (14 Fed. R 889), 364 State Savings Ass'n v. Boatmen's Sav. Bank (11 Mo. App. 292), 246. State Savings Bank v. Foster (76 N. W. R 499), 94. State Savings Co. v. Stewart (65 111. App. 361). 150. State Treasurer v. Mann (34 Vt. 371), 117. Staylerv. Bell (24 Md. 183), 450, 544. Steamboat v. King (16 How. 474), 122. Steam es v. Lawrence (83 Fed. R 738), 121. Stebbins v. Lardner (2 S. D. 127), 172, 175. v. Scott (52 N. E. R 535), 585. Steckel v. Allentown Bank (93 Pa. 376), 207. Stedman v. Eveleth (6 Met 114), 84. Steel v. Davis Co. (2 G. Greene, 469), 404, 405. Steele v. Russell (5 Neb. 211), 304, 312. Steffe v. Bank of Conneautville (22 Pittsb. L. J. 157), 149. Stein v. Richardson (37 L. J. Ch. 369), 577. Steinhart v. National Bank (94 Gal. 362), 296. Steinkers v. Loofbourrow (54 Pac. R 120), 103, 585. Steinmetz v. Curry (1 DalL 234), 509. Stephens v. Bernays (119 Mo. 143; S. C. ,44 Fed. R 642), 624 v. Follett (43 Fed. R 842), 78,82. v. Fox (83 N. Y. 313).9a v. McNeil (26 Barb. 651), 432. v. Monongahela Bank (111 U.S. 197), 337. v. Overstolz (43 Fed. E. 771), 122, 131, 133. Stephenson v. Dickson (20 Pa. 148), 471, 513. v. Primrose (8 Port 155), 477, 480, 538. Stern v. Richardson (37 L. J. Ch. 369), 247. Sterne v. Atherton (51 Pac. R 791), 101. Stetson v. City Bank (12 Ohio St 577), 193. v. Exchange Bank (7 Gray, 425), 230. Stevens v. Commercial Ex. Bank (3 Hun, 147), 258. Stewart v. Armstrong (56 Fed. R 167), 151, 169. v. Eden (2 Caines, 121), 450, 518. v. French (2 Cranch, G C. 300), 392, 431. v. Millard (7 Lans. 373). 460. v. Smith (17 Ohio St 82), 432, 436. Stinson v. Lee (63 Miss. 113), 416. Stix v. Matthews (63 Mo. 371), 490, 549. 550. Stockdale v. Keyes (79 Pa, 251), 171, 175. Stockholders' Cal. Nat Bank, In re (53 Fed R 38), 113. Stockman v. Riley (2 McCord, 398), 431. Stockton v. Mechanics' Sav. Bank (32 N. J. Eq. 163), 629, 651, 652. Stockwell v. Bramble (3 Ind. 428), 379. Stoller v. Coates (88 Mo. 514), 282, 603, 609. Stone v. Dodge (96 Mich. 514), 230. v. Jennison (70 N. W. R 149), 578. v. Pratt (25 III 25), 227. v. Smith (30 Tex. 130, 70 N. W. R 149), 577, 578. Storer v. Logan (9 Mass. 55), 362, 363, 364 Stothart v. Parker (1 Overt 260), 45a Stoughton v. Swan (4 Cal. 213), 467. Stout v. Benoist (39 Mo. 277), 264 v. Stevenson (4 N. J. Law, 178), 403. Stowe v. Bank of Cape Fear (3 Dev. 408), 311. Strader v. Batchellor (8 B. Mon. 168), 404 Strauss v. Bloom (18 La. Ann. 48), 321. v. Tradesmen's Nat. Bank (123 N. Y. 379), 172, 175, 233. TABLE OF CASES. 781 References are to pages. Streater v. Bank of Cape Fear (55 N. C. 31), 558. Streissguth v. National German- American Bank (43 Minn. 50), 306. Stribling v. Bank of Valley (5 Rand. 132), 320. Strohecker v. Cohen (1 Spears, 349), 366. Strong v. Farmers' Bank (4 Mich. 350), 560. v. King (35 III 9), 420. 454. v. Riker (16 Vt 554), 402, 533. v. Southworth (Fed. Cas. No. 13,545), 112. Struthers v. Kendall (41 Pa. 214), 444, Stuart v. Hayden (169 U. S. 1, 72 Fed. R 402), 80. Stuckert v. Anderson (3 Whart. 116), 419. Studebaker v. Ryan (46 Kan. 273), 529. Studebaker Mfg. Co. v. First Nat. Bank (42 S. W. R 573). 298. Stufflebeam v.De Lashmutt (83 Fed. R. 449), 79. Sturges v. Bank of Circleville (11 Ohio St. 153), 152. v. Burton (8 Ohio St. 215), 126. v. Fourth Nat. Bank (75 III 595), 362. v. Keith (57 III 451), 285. Sturgis v. Rogers (26 Ind. 1), 620. Stuyvesant Bank v. National Me- chanics' Bank (7 Lang. 197), 657. 658. Suffolk Bank v. Lincoln Bank (3 Mason, 1), 557, 559. Sullivan v. Lewiston Sav. Inst (56 Me. 507), 645. Sumner v. Bowen (2 Wis. 524), 548. Sunderlin v. Mecosta Sav. Bank (74 N. W. R 478), 601. Susquehanna Valley Bank v.Loomis (85 N. Y. 207), 393. Sussex Bank v. Baldwin (17 N. J. Law, 487), 513. Sutcliffe v. McDowell (2 Nott & McC. 251), 458, 461. Svendsen v. State Bank (64 Minn. 40), 242. Swan v. Hodges (3 Head, 251), 420, 539. Swartwout v. Mechanics' Bank (5 Denio, 555), 216. Sweeney v. Easter (1 Wall 166), 208, 297, 315. Swentzel v. Penn Bank (147 Pa. 140), 122 Swift v. Beers (3 Denio, 70). 554 v. Whitney (20 111. 144), 279, 405, v. Williams (68 Md. 236), 218. Swope v. Ross (40 Pa. 186), 375. Sykes v. First Nat. Bank (2 S. D. 242), 287. v. Halloway (81 Fed. R 432). 81. v. People (132 III 32), 59. Sylvester v. Crohan (138 N. Y. 494), 453. . v. Downer (18 Vt 32), 403. v. Staples (44 Me. 496), 375. Syracuse Bank v. Davis (16 Barb. 188), 59. Syracuse Co. v. Collins (57 N. Y. 641), 458, 461. T. Taber v. Cannon (6 Met. 456), 383. Taft v. Bowker (132 Mass. 277), 644 v. Quinsigamond Bank (52 N. E. R. 387), 211. Taggart v. First Nat. Bank (12 Wash. 538), 359. Talbot v. First Nat. Bank (76 N. W. R 626), 185. v. Gay (18 Pick. 534), 403. v. National Bank of Commerce (129 Mass. 67), 448. Talcott v. First Nat Bank (53 Kan. 480), 208. 290. Taliafero v. First Nat Bank (71 Md. 200), 187. Talladega Ins. Co. v. Landers (43 Ala. 115). 554. Talmage v. Pell (7 N. Y. 328), 190, 197. v. Third Nat. Bank (27 Hun, 61, 97 N. Y. 531), 627. Talman v. Rochester Bank (18 Barb, 123), 191, 195, 199. Tardy v. Boyd (26 Grat 631), 544 Tarlton v. Miller (1 111. 39), 452. Tate v. Bates (118 N. C. 287), 130, 132. v. Hilbert (2 Ves. Jr. Ill), 224 v. Sullivan (30 Md. 464), 451. Tatum v. Bowner (27 Miss. 760), 400. Taunton Bank v. Richardson (5 Pick. 436), 532, 534 Tay v. Concord Sav. Bank (60 N. H. 277), 648. Taylor v. Bank of Illinois (7 T. R Mon. 576), 349, 393, 491, 494, 495, 506. 782 TABLE OF CASES. References are to pages. Taylor v. Cook (14 Iowa, 500), 559, 563. v. Davidson (2 Cranch, C. C. 434), 413. v.. Empire State Bank (66 Hun, 538), 636. v. Miami Ex. Co. (6 Ohio, 177), 189. v. Sip (30 N. J. Law, 284), 260, 425. v. Snyder (3 Denio, 145), 452, 462, 463, 500. v. Wilson (11 Met. 44), 348, 432, 434. v. Young (3 Watts, 339), 485. Teconic Bank v. Johnson (21 Me. 426), 234, 534. v. Stackpole (41 Me, 321), 467, 548. Tefft v. North River Bank (14 N. Y. Supp. 8), 582. Tel ford Co. v. Garhab (13 Atl. R 90), 66. Terbell v. Jones (15 Wis. 253), 473. Terhune v. Bank of Bergen Co. (34 N. J. Eq. 667), 614. Terrell v. Branch Bank (12 Ala. 502). 181. Terry v. Anderson (95 U. S. 628), 113. v. Little (101 U. S. 116), 106, 107. v. Martin (10 S. C. 263), 106, 108. v. Sisson (125 Mass. 560), 223. v. Tubman (92 U. S. 156), 108, 113, 561. Tete v. Farmers' Bank (4 Brewst. 308), 90, 91. Teutonia Nat. Bank v. Loeb (27 La. Ann. 110), 329. Tevis v. Randall (6 Cal. 632), 411. v. Wood (5 Cal. 393). 471. Thacher v. State Bank (5 Sandf. 121), 48, 147, 157, 205, 206. Thaeker v. West Reserve Bank (19 Mich. 196), 50. Thatcher v. Goff (13 La. 360), 550. v. Mills (14 Tex. 13), 382. Thayer v. Peck (84 111. 74), 391. Thebus v. Smiley (110 111. 316), 105, 107. Third Nat. Bank v. Allen (59 Mo. 310), 270. v. Central Nat Bank (76 Hun, 475), 271. v. Harrison (10 Fed. R 243, 3 McCrary, 316), 182, 234, 626. v. Miller (90 Pa, 241), 336. v. Teal (5 Fed. R 503), 625. v. Vicksburg (61 Miss. 112), 306. Thomas v. City Nat. Bank (40 Neb. 501), 199. v. Dakin (22 Wend, 76), 58, 620. v. Farmers' Bank (46 Md. 43), 52, 567. v. International Bank (46 III App. 461), 277. v. Marsh (2 La. Ann. 353), 503, 508. v. Mayo (56 Me. 40), 532. v. Richmond (12 Wall. 349), 55, 60, 555, 556, 557. v. Thomas (7 Wis. 476), 375. v. Todd(6 Hill, 340', 342. Thomaston Bank v. Stimpson (21 Me. 195), 194, 195. Thompson v. Bank of British North America (82 N. Y. 8), 226, 248. v. British North American Bank (45 N. Y. Super. Ct 1), 389, 433. v. Cummings (2 Leigh, 321), 374. v. German Ins. Co. (77 Fed. R 258), 114. v. Greeley (107 Mo. 577). 631, 63& v. Hynds (15 Utah, 389), 120. v. McKee (5 Dak. 172), 159. v, Meisser (108 111. 359), 102, 10a v. Pool (70 Fed. R 725), 594, 624. v. Riggs (5 Wall. 663), 238. v. St. Nicholas Nat. Bank (146 U. S. 240), 67. v. Schaetzl (2 S. D. 395), 624 v. Sioux Falls Bank (150 U. S. 231), 592. v. State Bank (3 Hill, S. C., 77), 304. v. Williams (14 Cal. 160), 167. Thorn v. Rice (15 Me. 263), 520. Thornburg v. Evans (23 W. Va. 325), 422. Thornton v. Exchange Nat. Bank (71 Mo. 221), 67, 197. v. Lane (11 Ga. 459), 561. v. Stoddert (1 Cranch, C. C. 534), 399, 438. v. Wynn (12 Wheat. 183), 541. Thorp v. Craig (10 Iowa, 461), 386. v. Peck (28 Vt. 127), 421. Throop Grain Cleaner Co. v. Smith (110 N. Y. 83), 245, 372. Thruston v. Wolfborough Bank (18 N. H. 391), 56a Thurman v. Van Brunt (19 Barb. 409), 377. Thweat v. Bank of Hopkinsville (81 Ky. 1), 194 TABLE OF CASES. 783 References are to pages. Tickner v. Roberts (11 La. 114), 545. Tiernan v. Commercial Bank (7 How., Miss., 648), 808. Tiffany v. State Bank (18 Wall 409), 334. Tifft v. Quaker City Bank (8 Pa. Co. Ct. R. 606), 167. Tilden v. Bernard (43 Mich. 376), 179. Tillman v. Wheeler (17 Johns. 326), 402. Timberlake v. First Nat. Bank (43 Fed. R. 231), .333, 339. Timms v. Delisle (5 Blackf. 447), 474. Tinkham v. Hevworth (31 111. 519), 621. Tishimingo Sav. Inst. v. Buchanan (60 Miss. 496), 330, 635. Titus v. Mechanics' Nat. Bank (35 N. J. Law, 588), 294, 306. Titn- -. Scantling (4 Blackf. 89), 57. Tol ey Manuf. Nat. Bank (9 R. L *#>) 230. Tobi.i k . Manhattan Bank (26 N. Y. 14), 646. Todd v. Edwards (7 Bush, 89), 393. v. Kentucky Bank (3 Bush, 626), 383. v. Neal (49 Ala. 266), 385, 409, 476, 542, 544. Toothaker v. Cornwall (3 Cal. 144), 438, 509. Tootle v. First Nat. Bank (6 Wash. 181), 63. Toronto Bank v. Hunter (4 Bosw. 646), 379. Torrey v. Foss (40 Me. 74). 399. Tousey v. Brown (1 Biss. 81), 361. Tower v. Appleton Bank (85 Mass. 387), 564. v. Durell (9 Mass. 332), 539. Town Council v. Union Nat. Bank (22 S. R. 291), 63. Townsend v. Heer Dry Goods Co. (85 Mo. 503), 443, 446. v. Lorain Bank (2 Ohio St. 345), 467, 468, 470, 545. v. Quid (31 N. Y. Supp. 29), 476. v. Smith (13 N. J. Eq. 350), 72. v. Williams (117 N. C. 330), 128. Townsley v. Springer (1 La. 122), 512. v. Sumrall (2 Pet. 170), 349, 363, 366, 408, 547, 551. Townson v. Havre de Grace Bank (6 Har. & J. 47), 115. Tracy v. Tallmage (14 N. Y. 162), 55. Traders' Nat. Bank v. Chipman (164 U. S. 347), 75. Tradesmen's Bank v. Mei'ritt (1 Paige. 302). 274, 277. Tradesmen's Nat. Bank v. Bank of Commerce (39 N. Y. Supp. 554\ 167. v. Third Nat. Bank (66 Pa. 435), 346. Trasnell v. Farmers' Bank (11 Ky. Law R. 900), 225, 226, 261. Trasher v. Everhardt (3 Gill & J. 234), 58. Treble v. Bank of Grenada (2 Smedes & M. 523), 343. Tredeck v. Wendell (1 N. H. 40), 419. Trego v. Lowry (8 Neb. 238), 377. Tremont Nat. Bank, Ex parte (2 Low. 409), 540. Trenholm v. Comm. Nat. Bank (88 Fed. R. 323), 570. Trent Tile Co. v. Fort Dearborn Nat. Bank (54 N. J. Law, 38). 370, 599. Trenton Banking Co. v. Woodruff (2 N. J. Eq. 117;, 195. Trezevant v. Bank of Tennessee (1 Rob., La., 465), 51. Triggs v. Newnham (I C. & P. 631), 420. Triplett v. Hunt (3 Dana, 126), 487. Tripp v. Curtenius (36 Mich. 494), 281. Troy City Bank v. Lauman (19 N. Y. 477), 383. Trowbridge v. Scudder (U Cush. 83), 60. True v. Collins (85 Mass. 438), 487, 492. Trumbower v. Ivey (2 Pa. Co. Ct. R. 470), 357. Trunkey v. Crosby (33 Minn. 464), 319. Trust Co. v. National Bank (91 Tenn. 336), 232. Trustees v. Pace (15 Ga. 486), 220. Tuckerman v. Hartwell (3 Me. 153), 383, 388. Tulley v. Citizens' State Bank (18 Ind. App. 240), 150. Tunesma v. Schuttler (114 111. 156), 106. Tunno v. Lague (2 Johns. Cas. 1), 464, 488, 524. Tunstall v. Walker (2 Smedes & M. 638), 499. Turn bull v. Maddox (68 Md. 579), 541. 784: TABLE OF CASES. References are to pages. Turner v. Bank of Fox Lake (3 Keyes, 425), 299. v. First Nat Bank (78 Ind. 19), 194. v. First Nat Bank (26 Iowa, 562), 592, 594, 595. v. Patten (49 Ala. 406), 524 Tuttle v. Nat Bank of Republic (48 111. App. 481), 198. Twenty-Sixth Ward Bank v. Stearns (148 N. Y. 515), 175, 181. Tyler v. Stack (103 Mich. 268), 381. v. Waddington (58 Conn. 375), 403. v. Young (130 Pa. 143), 392, 431. Tyrie v. Rives (57 Ala. 173), 409. Tyson v. Oliver (43 Ala. 455), 501, 505, 506. v. State Bank (6 Blackf. 225), 200, 306. u. Ueland v. Haughan (73 N. W, R 169), 103. Ulrich v. Hower (156 Pa. 414), 357. v. National Bank (36 Pac. R 500), 289. Ulster Co. Bank v. McFarlan (3 Denio, 553), 362. v. McFarlan (5 Hill, 432), 363, 365. Underbill v. Poughkeepsie Sav. Bank (32 Hun, 432), 649. Union Bank v. Bagley (10 Rob., La., 45), 151. v. Campbell (4 Humph. 392), 176. v. Coster (3 N. Y. 203), 361, 365. v. Denere (17 La. 234), 51. v. Ellicott (6 Gill & J. 363), 574, 591. v. Ezell (10 Humph. 385), 431. v. Fonteneau (12 Rob., La,, 120), 478. 511. v. Fowkles (2 Sneed, 555), 549. v. Govan (10 Smedes & M. 333), 502, 544. v. Grimshaw (15 La. 321), 489. v. Humphreys (48 Me. 172), 551. v. Hunt (1 Mo. App. 42), 189. v. Hyde (6 Wheat 572), 408, 530, 54a v Johnson (9 Gill & J. 297), 213, 320, 321. v. Jones (4 La. Ann. 220), 151. v. Knapp (3 Pick. 96), 205, 290. Union Bank v. Laird (2 Wheat. 390), 87, 90. v. McDonough (5 La. 63), 80. v. McDonough (15 La. 25), 572. v. Middlebrook (33 Conn. 95), 547. v. Morgan (2 La. Ann. 418), 417. v. Parkhill (1 Fla, 666), 326. v. Planters' Bank (9 Gill & J. 439), 290. v. Ridgeley (1 H. & G. 324), 115, 116. v. Robertson (19 La. Ann. 72), 404, 523. v. Shea (57 Minn. 180), 363. v. Solee (2 Strobh. 390), 27a v. Wando Mfg. Co. (17 S. C. 339), 176. v. Warren (4 Sneed, 167), 558. v. Willis (8 Met. 504), 413. Union Banking Co., In re (12 Phila. 469), 576. v. Gillings (45 Md. 181), 170. Union Manuf. Co. v. Rocky Mount- ain Bank (2 Colo. 248), 278. Union Nat. Bank v. First Nat Bank (45 Ohio St. 236), 152. v. Hill (49 S. W. R 1012). 131. v. Louisville R Co. (145 III 208), 332, 338. v. Miller (15 Fed. R 703), 622, 623. v. Oceana Nat Bank (80 111. 212), 225. v. Rowan (23 S. C. 339), 198. v. Sixth Nat. Bank (43 N. Y. 452), 321. Union Pacific R. Co. v. Chicago, etc. R Co. (163 U. S. 564). 66. Union Stock Yards Bank v. Gilles- pie (137 U. S. 411), 216, 217, 219, 230. v. Stearns (15 Wend. 314), 50. Union Stock Yards Nat Bank v. Moore (79 Fed. R 705), 220. v. Dumond (156 III 501), 204. Union Trust Co. v. Illinois Midland Co. (117 U. S. 434), 62. Union town Bank v. Mackey (140 U. S. 220), 384. United German Bank v. Katz (57 Md. 128), 635, 636. United Society v. Underwood (9 Bush, 609), 219, 230, 285. United States v. Allen (47 Fed. R 696). 137, 139, 141. v, Allis(73 Fed. R 165), 139, 140, 141, 142, 275, 276. TABLE OF CASES. 785 References are to pages. United States v. American Ex. Nat. Bank (70 Fed. R 232), 300. v. Bank of United States (5 How. 383). 385. v. Barker (Fed. Gas. No. 14,519, 4 Wash. C. C. 464), 465, 471, 510, 511, 519. 523. v. Barker (12 Wheat. 559), 472, 510, 514. v. Barry (36 Fed. R 246), 116. v. Bartow (10 Fed. R 874). 139. v. Booker (80 Fed. R 376), 139. v. Britton (108 U. S. 199), 143, 144. v. Buskey (38 Fed. R 99), 143. v. Cadwallader (59 Fed. R 677), 143. v. Church (5 Utah, 361, 136 U. S. 1), 572, 583. v. City Bank (21 How. 356), 153. v. Cook Co. Nat. Bank (9 Biss. 55), 73. v. Eno (56 Fed. R 218). 143. v. Eye (49 Fed. R 853), 139. v. French (57 Fed. R 382), 143. v. Graves (53 Fed. R 634), 140, 141. v. Harper (33 Fed. R 471), 139, 141, 143, 144. v. Hughitt (45 Fed. R 47). 139. v. Jewett (84 Fed. R 142), 597. v. Johnson (Fed. Cas. No 15,483), 165. v. Kenney (90 Fed. R 257), 144. v. KHOX (102 U. S. 422), 102, 111. v. Lee (12 Fed. R 816). 143. v. Means (42 Fed. R 599), 139. v. Metropolis Bank (15 Pet. 377), 381. v. Monongahela Bridge Co. (Fed. Cas, No. 15.796), 556. v. National Bank (73 Fed. R 379), 218, 220. v. National Ex. Bank (45 Fed. R 163), 267, 273. v. Northway (120 U. S. 327), 143, 597. v. Peters (87 Fed. R 984), 206. v. Potter (56 Fed. R 97), 139, 140, 145. v. Southern Pacific Co. (63 Fed. R 281), 626. v. Taintor (11 Blatchf. 374), 144. v. Van Auken (96 U. S. 366), 556. v. Voorhees (9 Fed. R 143), 143. v. Warner (26 Fed. R 616), 144. v. White (19 Fed. R 723). 557. v. Wilson (106 U. S. 620), 557. 50 United States v. Yontsey (91 Fed. R 864), 141. United States Bank v. Bank of Georgia (10 Wheat. 333), 377. v. Daniels (12 Pet. 32), 408. v. Devaux (5 Cranch, 85), 624 v. Goddard (Fed. Cas. No. 6,973), 304. v. Hatch (6 Pet. 250), 384. v. McAllister (9 Pa. 475), 233, 278. v. Merle (2 Rob., La., 117), 512. v. Sill (5 Conn. 106), 558, 559. v. Stearns (15 Wend. 314), 50. United States Nat. Bank v. First Nat, Bank (79 Fed. R 296), 178. United States Nat. Bank v. Wester- velt (75 N. W. R 857), 304. United States Trust Co. v. Fire Ins. Co. (18 N. Y. 199), 48, 100. Upham v. Clute (105 Mich. 350), 356. Upton v. National Bank (120 Mass. 153), 195. Utica Ins. Co. v. Cadwell (3 Wend. 296), 555. v. Kip (8 Cow. 20), 55. v. Scott (19 Johns. 1), 60, 6& Y. Vail v. Newark Sav. Inst. (32 N. J. Eq. 627), 607, 651. Valk v. Bank of State (1 McMul. Eq. 414), 486. v. Galliard (4 Strobh. 99), 483. Valle v. Cerre (36 Mo. 575), 362. Van Alen v. American Nat. Bank (52 N. Y. 1), 218, 603. Van Allen, In re (37 Barb. 225), 240, 584, 586. Van Allen v. Assessors (3 Wall 578), 52. Van Alstyne v. Sorley (32 Tex. 518), 375. Van Antwerp v.Hulburd (8 Blatchf. 282), 624, Van Ardsdale v. Board man (3 How. Pr. 60), 380. Van Atta v. State Bank (9 Ohio St. 27), 327, 335. Van Brunt v. Vaughan (47 Iowa, 145), 490. Van Campen, In re (Fed. Cas. No. 16,835), 49, 143. Van Dyck v. McQuade (45 N. Y. Super. Ct. 620), 125, 230. 786 TABLE OF CASES. References are to pages. Van Dyck v. McQuade (85 N. Y. 616), 230, 633, 651, 653. Van Hoesen v. Van Alstyne (3 Wend. 75), 432. Van Horn v. Whitlock (26 Wend, 43), 101. Van Leuven v. First Nat. Bank (54 N. Y. 671), 192. Van Norden v. Buckley (5 CaL 283), 539. Van Steenwyck v. Sackett (17 Wis. 645), 42, 106. Van Vacter v. Flack (1 Smedes & M. 393), 350. Van Vechten v. Pruyn (9 How. Pr. 222, 13 N. Y. 549), 474. Van Wart v. Smith (1 Wend. 219), 392. 525. Van Wenke Gin Co. v. Citizens' Bank (89 Tex. 147), 234. Van Wert Nat. Bank v. First Nat Bank (6 Ohio Cir. Ct. R. 1 30), 271. Vance v. Collins (6 Cal. 435), 400. Vansands v. Bank (26 Conn. 144), 89. Vanstrum v. Liljengren (37 Minn. 191), 356. Vantrol v. McCulloch (2 Hilt 272), 425. Varner v. Nobleborough (2 Me. 121), 351. Varsey v. Reynolds (5 Russ. 12), 247. Veasy v. Graham (17 Ga. 99), 172. Veazie Bank v. Fenno (8 Wall 533), 44 v. Paulk (40 Me. 109), 335. v. Wiun (40 Me. 60), 396, 432, 434 Veeder v. Mudgett (95 N. Y. 285), 78. Venango Nat. Bank v. Taylor (56 Pa. 14), 230, 587. Venner v. Cox (35 S. W. R. 769), 602, 609. 615. Verdes v. Verdes (63 Vt 38), 427, 429. Vermont Marble Co. v. Mann (36 Vt 697), 359. Vickey v. State Sav. Ass'n (21 Fed. . R. 773), 209. Viets v. Union Nat Bank (101 N. Y. 563), 213, 241, 243, 290, 291. Virginia v. Turner (1 Cranch, C. C. 261), 349. Voight v. Lewis (Fed. Cas. No. 16,989), 23a Voltz v. Blackmar (64 N. Y. 440), 181. v. National Bank (158 III 532), 62. Von Phul v. Sloan (2 Rob., La,, 148), 362. Voorhees v. Atlee (29 Iowa, 49), 530. Vose v. Grant (15 Mass. 505), 132. Voss v. German American Bank (83 III 599), 234 Vowell v. Patton (2 Cranch, C. C. 312), 473. Vreeland v. Hyde (2 N. Y. Super. Ct 429), 42& W. Wachsmuth v. Merchants' Nat Bank (96 Mich. 426), 154 Wachusett Nat Bank v. Fair- brother (148 Mass. 181), 480. Wade v. New Orleans Banking Co. (8 Rob., La., 140), 558. Wads worth v. Hocking (61 III App. 156), J 13, 289. Wagner v. Cook (167 Pa 259), 434 v. Howard Sav. Inst (52 N. J. Law, 225). 648. v. Kenner (2 Rob., La., 120), 438. Wakefield Bank v. Truesdell (55 Barb. 602), 151, 152. Walden Nat Bank v. Birch (130 N. Y. 221), 66. Walford v. Andrews (29 Minn. 250), 530. Walker v. Bank of Augusta (3 Ga. 486), 474 v. Laverty (6 Munf. 487), 542. v. Lide (1 Rich. Law, 249), 358, 381. v. Manhattan Bank (25 Fed. R. 247), 230. v. Manhattan "Bank (130 U. S. 267), 286. v. Popper (2 Utah, 96), 530. v. Rogers (40 111. 278), 459, 541. v. St. Louis Nat Bank (5 Mo. App. 214), 170. v State Bank (13 Barb. 936,9 N. Y. 582), 382, 383. v. State Bank (8 Mo. 704), 469. v. Stetson (14 Ohio St. 89), 479, 492, 494, 496, 497i v. Tunstall (3 How., Miss., 259), 498. v. United States (106 U. S. 413), 55. v. Walker (7 Ark. 542), 538. v. Windsor Nat Bank (56 Fed. R. 76), 623. Wall v. Emigrant Sav. Bank (64 Hun, 249), 646, 647, 648. Wallace v. Agry (4 Mason, 336), 356, 389, 391, 424, 467. TABLE OF CASES. 787 References are to pages. Wallace v. Bacon (86 Fed. R 553), 79. v. Connel (13 Pet. 136), 397. v. Crilley (46 Wis. 577), 447. v. Exchange Bank (126 Ind. 265), 149. v. Hood (89 Fed. R 11), 79, 189, 595. v. Lowell Institution (7 Gray, 134), 648. v. Savings Bank (89 Tenn. 630). 121, 124. v. Stone (107 Mich. 190), 319, 603, 610, 616. Walmsley v. Acton (44 Barb. 312), 469, 550. Wain v. Bank of North America (8 S. & R 89), 89. Walsh v. Blatchley (6 Wis. 422), 356. v. Bowery Sav. Bank (7 N. Y. Supp. 669), 644. v. Dart (23 Wis. 334), 424. v. Nat. Broadway Bank (33 N. Y. Supp. 998), 288. Walters v. Brown (15 Md. 285), 510. v. Galveston R Co. (1 White & W. 757). 356. v. Munroe (17 Md. 154), 539. v. Swallow (6 Whart. 446), 540. Walton v. Henderson (Smith, 168), 463. v. Mandeville(56Iowa,597),358. Walworth v. Seaver (30 Vt. 728), 475. Wamesit Bank v. Buttrick (11 Gray, 387), 490. Wamsley v. Rivers (34 Iowa, 463), 550. Ward v. Allen (2 Met. 53). 359. v. Griswold Co. (16 Conn. 593), 97. v. Johnson (5 Bradw. 30), 629, 630. v. Johnson (95 111. 215), 63, 198, 237, 283, 651. v. Perrin (54 Barb. 89), 502. v. Smith (7 Wall 447), 295, 296. Wardens v. Moore (1 Ind. 289), 352. Warder v. Tucker (7 Mass. 449), 374. Wards v. Sparks (53 Ark. 519', 424. Ware v. Macon City Bank (59 Ga. 840), 373. Warhus v. Bowery Sav. Bank (5 Duer, 67), 639. Waring v. Betts (90 Va. 46), 413, 419. Warner v. Briscoe (12 La. 472), 549. v. Callender (20 Ohio St. 190), 112. Warner v. Citizens' Bank (6 S. D. 152), 426, 427, 433. v. Commonwealth (1 Pa. 154), 350. v. De Witt Co. Bank (4 Bradw. 305). 67. v. Fourth Nat Bank (115 N. Y. 318. v. Pennoyer (91 Fed. R 987), 134. Warren v. Fake (19 How. Pr. 430), 125, 583. v. Gilman (17 Me. 360), 152, 468, 475, 515. v. Robinson (57 Pac. R 287), 124, 132. v. Shook (91 U. S. 704), 29, 71. Warren Bank v. Suffolk Bank (10 Gush. 582), 187, 304. Warrensburg Ass'n v. Zoll (83 Mo. 94), 589. Washer v. White (16 Ind. 136), 542. Washington Bank v. Lewis (22 Pick. 24), 182. Washington Nat. Bank v. Averell (2 App. D. C. 470), 157. v. Eckels (57 Fed. R 870), 74, 113, 592, 593. v. Pierce (6 Wash. 491), 173. Wasson v. Hawkins (59 Fed. R 233), 603, 614, 615. v. Lamb (120 Ind. 514), 205. Watch Co., In re (89 Hun, 196), 328. Waterloo Milling Co. v. Kuenster (158 111. 259). 307. Waters v. Bank of Georgia (R M. Charlt. 193), 558. v. Petrovic (19 La. 584), 409. Watervliet Bank v. White (1 Denio, 608), 296. Watkins v. Crouch (5 Leigh, 522), 445. v. National Bank (51 Kan. 254), 565. Watrous v. Holbrook (39 Tex. 572), 353. Watson v. Bennett (12 Barb. 196), 154 v Hart (6 Gratt 633), 402, 533. v. Phoenix Bank (8 Met 217), 275. 287, 28a v. Templeton (11 La. Ann. 137), 486. v. Watson (69 Vt 243\ 644. Watterson v. Masterson (15 Wash. 511), 108, 585. Watts v. Christie (11 Beav. 546), 331. 788 TABLE OF CASES. References are to pages. Waxahachie Bank v. Vickery (26 S. W. R 876), 149. Way v. Butterworth (106 Mass. 75), 50, 442. v. Towle (155 Mass. 374), 348. v. Tuskegee Ins. Co. (34 Ala, 58), 205. Waynesville Bank v. Irons (8 Fed. R. 1), 182. Wear v. Lee (87 Mo. 358), 433. Weaver v. Emigrant Sav. Bank (17 Abb. N. C. 82), 642. v. Penn (27 La. Ann. 129;, 518, 519. Webb v. Mears (45 Pa. 222), 353, 388. Webber v. Gotthold (28 N. Y. Super. Ct. 763), 492. Weber v. Spokane Nat Bank (64 Fed. R 208). 66. Webster v. Howe Machine Co. (54 Conn. 394), 385. v. State Bank (4 Ark. 423), 330. Weckler v. First Nat. Bank (42 Md. 581), 62, 190. Weed, In re (11 Blatch. 243), 338. Weed v. Snow (3 McLean, 265), 554. Weedsport Bank v. Park Bank (41 N. Y. 561), 236. v. Park Bank (2 Robt. 418), 320. Weeks v. Pryor (27 Barb. 79), 429. Weems v. Bank of Maryland (15 Md. 231), 552. Wegner v. Second Ward Sav. Bank (76 Wis. 242), 646. Weinstein v. National Bank (69 Tex. 38), 265. Weiser v. Dennison (10 N. Y. 68), 266. Weld v. Eliot Sav. Bank (158 Mass. 339), 649. Welles v. Larrabee (36 Fed. R. 866). 83. v. Stout (38 Fed. R 807), 105, 109,113. Wells v. Brigham (6 Gush. 6), 350. v. Graves (41 Fed. R 459), 122, 135, 571. v. Jackson (6 Blackf. 40), 533. Wells, Fargo & Co. v. Northern Pac. Ry. Co. (23 Fed. R 469), 31. Welsh v. German American Bank (73 N. Y. 424), 265, 267. Wetnple v. Dangerfield (2 Smedes & M. 445). 512. Wendell v. Washington Bank (5 Cow. 161), 557. Werk v. Mad River Valley Bank (8 Ohio St 301), 433. Wesson v. Garrison (8 La. 136), 417. West v. Elmira Bank (20 Hun, 408), 207. v. St. Paul Nat. Bank (54 Minn. 466), 304, 312. West Branch Bank v. Feltmer (3 Pa. 399), 521. West River Bank v. Taylor (7 Bosw. 466; 34 N. Y. 128), 475. 487, 488, 489, 514. 515. West St. Louis Sav. Bank v. Shaw- nee Co. Bank (95 U. S. 557), 165, 166. Western Bank v. Mills (7 Gush. 539), 66. Western Ins. Co., In re (38 111. 289), 600. Western Mfg. Co. v. Toole (11 Pac. R 119). 351. Western Nat. Bank v. Armstrong (152 U. S. 346), 149, 151, 168, 169. Western Reserve Bank v. Mclntire (40 Ohio St. 528 >, 48. Western Scraper Co. vi Sadilek (69 N. W. R 765), 305. Westervelt v. Mohrenstecker (76 Fed. R. 118), 116. Westfall v. Farwell (13 Wis. 504), 474, 477, 486. Westfield Bank v. Cornen (37 N. Y. 320), 173. Westphal v. Ludlow (6 Fed. R. 348), 392. Weston v. Myers (33 III 424), 555. Wetherell v. O'Brien (140 III 146), 284 Wethey v. Andrews (3 Hill, 582), 429. Wetumpka R. Co. v. Bingham (5 Ala. 657), 351, 352. Whaley v. Houston (12 La. Ann. 585), 355. Wheat v. Bank of Louisville (5 S. W. R 305), 151, 160. Wheatley v. State (12 CaL 92), 356, Wheaton v. Wilmarth (13 Met 422), 470. Wheeler v. Frontier Bank (23 Me. 308), 48. v. Maillot (20 La. Ann. 75), 484 v. Miller (90 N. Y. 353), 104, 105, 107, 109. v. Webster (1 E. D. Smith, 1), 353, 356. Wherry v. Hale (77 Mo. 20), 68, 195. Wheton v. Mears (11 Met 563), 403. Whetstone v. Bank of Montgomery (9 Ala. 875), 66. TABLE OF CASES. 789 References are to pages. Whipple v. Walker (2 Thomp. & C. 456), 298. Whitaker v. Morrison (Branch, 25), 543. White v. Commonwealth Nat. Bank (Fed. Cas. No. 17,544), 285, 286. v. Continental Bank (64 N. Y. 316), 377. v. Dienger (25 S. W. R 666), 358. v. Engelhard (2 Smedes & M. 38), 547. v. Franklin Bank (22 Pick. 181), 55, 62. v. How (3 McLean, 111), 126. v. Keith (99 Ala. 668), 545. v. Knox (111 U. S. 784). 594. v. National Bank (102 U. S. 658), 297. v. Springfield Inst (134 Masa 232), 214. v. Stoddard (11 Gray, 258), 439, 517. v. Third Nat. Bank (4 Wkly. Law Bui. 791). 200. v. Weaver (41 III 409), 533. v. Wilkinson (10 La. Ann. 394), 452, 501. White Mountain Bank, In re (46 N. H. 143), 590. Whitehall Bank v. Tisdale (18 Hun, 151), 158. Whiting v. City Bank (77 N. Y. 363), 320. v. Wellington (10 Fed. R 810), 637. Whitman v. Cox (23 Me. 335), 573. Whitney v. Brattleboro Bank (55 Vt. 154), 285. v. Butler (118 U. S. 655), 80. v. Eliot Nat. Bank (137 Mass. 354), 372. v. First Nat Bank (50 Vt 388), 287. v. South Paris Mfg. Co. (39 Ma 316), 527. Whitney Arms Co. v. Barlow (63 N. Y. 62), 63, 66. Whitridge v. Rider (22 Md. 548), 454, 513, 538. Whittemore v. AmoskeagNatBank (134 U. S. 527), 623. Whitten v. Wright (34 Mich. 92), 525. Whittier v. Collins (15 R L 44), 535, 537, 538. Whittington v. Farmers' Bank (5 Har. & J. 489), 238, 550, 621. Whitwell v. Johnson (17 Mass. 449), 443, 445, 449, 453. Wickersham v. Crittenden (93 CaL 17), 117. Wickham v. Hull (60 Fed. R 326), 84, 100. Wiggins v. Stevens (53 N. Y. Supp. 90), 604. Wilber v. Selden (6 Cow. 162), 548. Wilcox v. Mitchell (4 How., Miss., 273), 502. Wild v. Gorham (10 Mass. 336), 187. v. Passamaquoddy Bank (3 Mason, 505), 152, 258, 389. v. Van Valkenburgh (7 Cal. 166), 448. Wilder v. Union Nat Bank (9 Biss. 178), 623. Wildes v. Savage (1 Story, 22), 352, 363. Wiley v. Starbuck (44 Ind. 298), 335, 336, 337. Wilkens v. Commercial Bank (6 How., Miss., 217), 483. Wilkinson v. Dodd (41 N. J. Eq. 566), 130, 632, 634, 638. Willard v. Dubois (29 111. 48), 72, 560. Willets v. Paine (43 III 432), 238, 425, 436. Willett v. Farmers' Sav. Bank (77 N. W. R 519), 190. Williams v. American Nat Bank (85 Fed. R 376), 63, 67, 81. v. Bank of United States (2 Pet 96), 463, 473, 497, 508, 522. v. Bartlett (4 Lea, 620), 461. v. Brailsford (25 Md. 126), 479. v. Cox (37 S. W. R 282), 615. v. Dorrier (135 Pa. 445), 166. v. Drexel (14 Md. 566), 377. v. Germaine (7 B. & C. 468), 387. v. Granger (4 Day, 444), 403. v. Halliard (14 Atl. R 880. 38 N. J. Eq. 373), 125, 135, 162. v. Importers' and Traders' Nat Bank (44 111. App. 295), 636. v. Irwin (3 Dev. & B. 74). 403. v. Jones (77 Ala. 294), 29a v. Matthews (3 Cow. 252), 467, 500, 516. v. McDonald (43 N. J. Eq. 397), 632. v. McKay (46 N. J. Eq. 25, 46 N. J. Eq. 409), 631, 632, 633, 634, 635. v. Montgomery (148 N. Y. 512), 92. 790 TABLE OF CASES. References are to pages. Williams v. National Bank (70 Md. 843), 185. v. Patterson (2 McCord, 132), 548. v. Planters' Bank (12 Rob., La., 125), 591. v. Probst (10 Watts, 111), 430. v. Putnam (14 N. H. 540), 386. v. Riley (34 N. J. Eq. 898), 631. v. Rogers (14 Bush, 776), 204. v. State (23 Tex. 264), 45, 70. v. Union Bank (21 Tenn. 339), 50. v. Wade (1 Met. 82), 386. v. Winans (14 N. J. Law, 339), 358. Williamson v. Turner (2 Bay, 410), 410. Williamsport Gas Co. v. Pinkerton (95 Pa. 62), 295, 397. Willis v. Greene (5 Hill, 232), 484 Wilson v. Bank (7 AtL R 145), 164, 182. v. Bank of Lexington (72 N. C. 621), 563. v. Book (13 Wash. 676), 101. v. Brett (11 M. & W. 113), 122. v. Clements (3 Mass. 1), 367. v. Coburn (85 Neb. 530), 615. v. Dawson (52 Ind. 513), 234. v. First Nat. Bank (1 Wyo. 108), 123. v. Isbell (45 Ala. 142). 376, 384. v. Pauley (72 Fed. R 129), 168. v. Richard (28 Minn. 337;, 55a v. Senier (14 Wis. 380), 430, 439, 458, 483. v. Spencer (1 Rand. 76), 556. v. Tisson (12 Ind. 285), 572, 57a Wilson Co. v. Third Nat. Bank (103 U.S. 770 ),622. Wiltz v. Peters (4 La. Ann. 339), 93. Winans v. Davis (18 N. J. Law, 276), 447. Winchester v. Winchester (4 Humph. 51), 546. Wind v. Fifth Nat. Bank (39 Mo. App. 72), 265. Windham Bank v. Norton (22 Conn. 213), 426, 427, 430. Wing v. Beach (31 III App. 78), 388. Wingate v. Mechanics' Bank (10 Pa. 104), 304, 306, 311. 31& Winn v. Levy (2 How., Miss., 902), 543. Winslow v. Harriman Iron Co. (42 & W. R. 698), 174, 602. Winson v. Lafayette Co. Bank (18 Mo. App. 665), 153. Winstandley v. Second Nat. Bank (13 Ind. App. 544), 603, 605, 612. Winston v. Kelly (33 Tex. 854), 431. Winter v. Baldwin (89 Ala. 483), 93. v. Bank of New York (2 Caines, 337), 214 v. Cox (41 Ala. 207), 391. v. Drury (5 N. Y. 525), 372. Winterbottom v. Wright (10 M. & W. 109), 250. Wintermute v. Post (24 N. J. Law, 420), 371. Winters v. Armstrong (37 Fed. R 508), 78. Winterset Nat. Bank v. Eyre (52 Iowa, 114), 334 Winton v. Little (94 Pa. 64), 151, 161, 165, 190. Wiseman v. Chiappella (23 How. 368), 355, 385, 417, 447, 448. Wiswell v. Starr (48 Me. 401), 561, 571, 583. Witeford v. Burckmeyer (1 Gill, 127), 508. Withers v. Lafayette Co. Bank (67 Mo. App. 115), 164 Witters v. Sowles (32 Fed. R. 767), 77, 80, 84, 135. v. Sowles (32 Fed. R. 130), 108. v. Sowles (61 Vt 365), 624 Wittich v. First Nat Bank (20 Fla. 843), 411. Wogan v. Thompson (9 La. Ann. 300), 415. Wolf v. Bureau (1 Mart., N. S., 162), 148. v. Lauman (30 Mo. 575), 468. v. National Bank (178 111. 85). 592 v. Simmons (23 S. R 586), 129. Wolfe v. Jewett (10 La. 384), 453, 467. Wolverton v. Exchange Nat. Bank (11 Wash. 94), 334 Wood v. American Ins. Co. (7 How., Miss., 609), 552. v. Boylston Bank (129 Mass. 358', 216, 220, 231, 329. v. Callaghan (61 Mich. 402), 476, 486 487. v. Corl (4 Met 203), 504 v. Dummer (3 Mason, 308), 95, 98, 562, 584 v. Duvall (9 Leigh, 6), 404 v. Merchants' Trust Co. (41 III. 267), 234 252, 295. v. Merchants' Sav. Co. (41 III. 267), 234, 252, 295. TABLE OF CASES. 791 References are to pages. Wood v. People's Nat. Bank (83 Pa. 57), 196. . v. Pugh (7 Ohio, 488), 388. v. Steele (6 Wall. 80). 406. Wood River Bank v. First Nat Bank (36 Neb. 744), 295, 309, 348, 411. Wopdbury v. Crum (1 Biss. 284), 538, 539. Woodin v. Foster (16 Barb. 146), 443. v. Fraser (38 N. Y. Super. Ct. 190).. 432. Woodman v. Eastman (10 N. H. 359), 538. Woodruff v. Hensel (5 Colo. App. 103), 372. v. Merchants' Bank (25 Wend. 673, 6 Hill, 174), 454. v. Plant (41 Conn. 344), 433. v. Trapnall (10 How. 205), 44, 555 Woods v. Milford Sav. Inst. (58 N. H. 184), 222. v. Nield (44 Pa. 86), 492. Woodson v. Moody (4 Humph. 303), 403. Woodward v. Central Bank (4 Ga. 323), 590. v. Commission Co. (43 Minn. 260), 361, 363. v. Ellsworth (4 Colo. 580), 596. Woolen v. New York Bank (12 Blatchf. 359), 299, 304 Wooley v. Lyon (117 III 244), 385, 386, 492, 496. Worcester Bank v. Wells (8 Met. 107), 354. Worcester Nat, Bank v. Chieney (87 111. 602), 196. Worden v. Mitchell (7 Wis. 161), 522, 535. Workingmen's Banking Co. v. Rau- tenberg (103 111. 460), 67, 327. Worley v. Waldron (3 Sneed, 548), 444, 550. Worth v. Piedmont Bank (28 S. E. R. 488), 103, 108. Wright v. Andrews (70 Me. 86), 538. v. Dyer (48 Mo. 525), 403. v. First Nat. Bank (Fed. Cas. No. 18,078), 339. v. Liessenfeld (93 CaL 90), 534. v. Merchants' Nat. Bank (1 Flip. 568), 592. Wyckoff v. Andrews (50 N. Y. Super. Ct. 196), 540. Wykoff v. Irvine (6 Minn. 496), 344. Wylie v. Brice (70 N. C. 422), 381. Wylie v. Northampton Nat. Bank (119U. S. 631 ), 199, 286. v. Northampton Nat. Bank (15 Fed. R. 496), 199. Wyman v. Adams (12 Cush. 210), 456. v. Citizens' Bank (29 Fed. R. 734), 67. v. Colorado Nat. Bank (5 Colo. 30), 316. Y. Hallowell Bank (14 Mass. 58), 170, 568. Y. Yakima Nat. Bank v. Knipe (6 Wash. 348), 50. Yancey v. Littlejohn (9 N. C. 525), 511. Yardley v. Clothier (49 Fed. R. 337), 240. v. Clothier (51 Fed. R 506), 587. v. Dickson (47 Fed. R. 835). 624. v. Philler (167 U. S. 344), 580, 660. v. Philler (62 Fed. R. 645), 580. v. Philler (58 Fed. B. 746), 580, 654. Yeager v. Farwell (13 Wall. 6), 540, 541. Year Book (30-31 Edw. I), 241. Yeaton v. Berney (62 111. 61). 398. Yerkes v. National Bank (69 N. Y. 382), 192, 200, 344. York Bank v. Asbury (1 Biss. 230), 340. Young v. Bryan (6 Wheat. 146), 411. v. Durgin (15 Gray, 264), 492. v. Hughes (12 Smedes & M. 93), 72. v. Hudson (99 Mo. 102), 621. v. Lehman (63 Ala. 519), 365. v. Pattison (11 Rob., La., 7), 552. z. Zantsingers v. Gunton (19 Wall. 32), 194, 195. Zebley v. Voisin (7 Pa. 527), 378. Zeile v. German Sav. Inst. (4 Mo. App. 401), 233. Zeugner v. Best (44 N. Y. Super. Ct. 393), 639. Zimmerman v. Miller (2 Penny. 226), 638. ^-'nn v.'Mendell (9 W. Va. 580), 630. Zi mer v. National Bank (54 I1L App. 602), 658. INDEX. References are to pages. ACCEPTANCE of bond of officer, presumed, 117. of check, see CERTIFIED AND ACCEPTED CHECKS. of commercial paper, in full, 347-385. paper requiring presentation for acceptance, 347-349. bills of exchange payable at sight, or so many days after sight, or so many days after demand, must be presented, 349. if not presented for acceptance, drawer and indorsers discharged, 525. paper not requiring presentation for, 351-353. checks, unless post-dated, need not be presented for, 348. bills of exchange payable at fixed time or on demand need not be presented for, 349. orders payable out of a particular fund or upon contingency are not bills of exchange and need no presentation for, 349, 350. municipal orders or warrants need no presentation for, 350. bill drawn by partner on his firm needs no presentation for, 351. by agent on his principal needs no presentation for, 351. by officer upon his corporation needs no presentation for, 352. by drawer upon himself needs no presentation for, 352. no consideration required for, on bills and checks, 358. of non-negotiable order requires consideration, 358. waiver of, express waiver on bill, 353. by notification of drawer to drawee not to pay, 353. by parol, 353. by parol, indorser must assent to bind him, 353. by drawer by notification to drawee, 353. by acceptor waiving acceptance, 353. does not dispense with demand of payment, 385. does not dispense with notice of non-payment, 385, 526. governed by law of place for acceptance, 354. presentment for, sufficiency of, 355. should be personal to drawee or at dwelling-house or place of business, 355. See DEMAND. drawee's change of residence, 463. person presenting for, should have bill, 355. presentation for, should be within reasonable time, 355. See DE- MAND. should be before maturity, 355. of sight bills, or demand bills, or so many days after sight or demand, 356. such bills may be negotiated, 356. if improperly presented, refusal to accept cures defects, 413, 419. form of, in full, 356-370. written acceptance under statutes, 356. checks are within statutes, 356. 794: INDEX. References are to pages. ACCEPTANCE (continued) written acceptance, form of, 356, 357. estoppel to claim, 359, note 1. oral acceptance, valid unless forbidden by statute, 358. implied, 359, 360. by retention of instrument, 359. by dealing with instrument, 360. promise to pay bill, 358. inures to all holders, 359, 361. promise to accept by bank, when not binding, 244 promise to accept bill as acceptance, 360. may be oral or written, 360. letters of credit, or authority to draw, 361-363. promise or authority, inures to all holders who gave credit to au- thority or promise, 361. proof of promise to accept, 363. if promise written, writing sole evidence, 364. promise by telegraph, 364. promise to accept or authority, revocation of, 364, 369. revoked by actual revocation, 869. by delay, 367, 369. by exhaustion, 369. promise to accept or authority, construction of, 365. promise to accept conditional on bills of lading, 365. receipt of goods immaterial, 360, 365, note 1. promise to pay existing bill, 366. bill must conform to promise or authority, 367, 368. promise or authority must be acted upon within reasonable time, 367. promise to accept, defenses to, 369, 370. arrangements between drawer and promisor do not affect, 370. revocation of, not permitted after delivery of acceptance, 370. drawee not bound except by, 371. exceptions to rule, 372, 373. if acceptance refused, notice must be given, 374, 389, 466. no presentment for payment necessary, 889, 390. but as to bill not requiring acceptance, quaere, 390. notice on paper not requiring acceptance, 374, 472. if acceptance refused and notice not given, prior parties released, 525. contract of, and effect of, 375. acceptor becomes principal debtor as to holder, 375. between drawer and acceptor rule different, 376. admissions by, 377. genuineness of drawer's signature, 377. genuineness of no other signature, 377. acceptor compelling repayment, 378. See CERTIFIED CHECKS. acceptor, prima facie liable to drawer for amount of bill, 378. no demand necessary as to acceptor, 388, 389. absolutely liable to holder, 379. measure of acceptor's liability, 380. conditional and variant acceptances, 380, 381. binding when condition performed, 381. must be notified to drawer and indorser, 382. acceptance by person other than drawee, 383. date of, presumption as to, 383. discharge of parties to accepted bill, 383-385. by conditional acceptance unless notified, 383. INDEX. 795 References are to pages. ACCEPTANCE (continued) discharge by acceptance not according to tenor of bill, 384. by extension of time to acceptor, 384. by release of one joint acceptor, 385. may be made payable at particular place, 388, 433, 434. accepted bill must be presented for payment, 388. if payable at particular place must be there for payment, or demand made there, 389, 433, 434. acceptor's change of residence, 463. ACCEPTANCE SUPRA PROTEST form of, 387. engagement of, 387. need not be notified to drawer and indorser, 387. acceptor supra protest should notify the party for when he accepts, 387. presumed to accept for drawer, 387. bill must be presented at maturity to drawee, 387, 390. measure of recovery if paid, 388. ACCOMMODATED PARTIES TO COMMERCIAL PAPER (see GUAR- ANTORS) drawer or indorser not entitled to demand and notice, 393, 399, 400, 401. indorser of check not entitled to demand and notice, 396. irregular indorser not entitled to demand and notice, 402. varying rule as to irregular indorser, 402. parol evidence to show contract of irregular indorser, 402, 531-534. ACCOMMODATION bank cannot lend credit for accommodation, 199, 200. savings bank no power to become surety, 635. ACCOMMODATION PARTIES TO COMMERCIAL PAPER drawer and regular indorser entitled to demand and notice, 392, 399. irregular indorser of note not entitled to demand and notice, 394. irregular indorser of bill entitled to demand and notice, 395, 402. drawer of check entitled to demand and notice if injured, 396. maker of note or acceptor of bill not entitled to demand, 397, 399. ACCOUNT bank books, whether an account stated, 208. bank book returned to depositor an account stated, 288. ACTION upon stock subscription, 96, 98. upon statutory liability of stockholders, 99, 104-107, 634, 635. . in national banks, 110-114 upon liability of officers, brought by bank, 119, 120, 121, 631-634, for negligence, 121, 122. in national banks, 134. brought by receiver, 125. in national banks, 134. brought by stockholders, 123, 124. in national banks, 134. brought by creditors, 130, 131, 59a upon statutory liability of officers for debts, 125, 126. upon liability of officers to creditors for negligence. 128, 129. in national banks, 134. for deposit in insolvent bank, 126-128, in national bank, 134, 593. 796 INDEX. References are to pages. ACTION (continued) by drawer for refusal to honor check, 241-243. history and development of this action, 17-19. by holder of check for dishonoring check, 243-250. upon general deposit, 287, 288. upon special deposit, 285, 286. by interpleader of bank, 289. by owner of collection against bank for negligence, 302. against correspondent bank, 308. against notary, 308. for proceeds of collection, 315, 621. by bank for overpayment or money wrongly paid, 266, 269, 270, 273, 277. for usury, 335. for lost or mutilated bank notes, 558, 559. for illegal bank notes, 556. for forfeiture of charter, 571, 650. for receiver, 582, 591, 650. against savings bank, 649, 650. ADMINISTRATOR (see PERSONAL REPRESENTATIVE) liability upon shares of stock, see STOCKHOLDERS. demand of payment by administrator, 439. demand of payment upon administrator, 440, 441. service of notice by administrator, 517. service of notice upon administrator, 517-519. survival of action upon official neglect against administrator, see OFFICERS. survival of statutory liability against, see STOCKHOLDERS. ADMISSIONS (see OFFICERS) by acceptance, see ACCEPTANCE. by officers or agents of bank, 169-171. are binding when part of res gestce, 169. are binding when within scope of the agent's authority, 170. indorsement of amount for which discounted upon note as an ad- mission of the bank, 621. AGENCY (see OFFICERS OF BANK; CLEARING AGENT) confused with bailment and trust, 18. importance in banking law, 19. agent's act purely ultra vires may be ratified, 60, 62, 63, 148, 160, notes 2 and 3, 167. forbidden by positive rule of law cannot be ratified, 60, 63, 148. bank may appoint agent without seal, 115. agency for bank may arise by estoppel, 115. liability of officer to bank is that of agent to principal, 119. extent of agent's authority, 145, 146. admissions by agent, see ADMISSIONS. agent's power as affected by customary course of action, 159, 160. agent's powers where agency general, 155. agent with interest adverse to principal, 161-164, 177-183. deposits by agent, 216-218, 220. if paper payable at bank, bank not holder's agent, 295. bank's liability for agents in collecting, 306. whether correspondent bank agent of owner of collection, 306, 307. whether bank liable for notary as agent, 308, 309. agent's commission as usury, 332. bills of agent on principal need no acceptance, 351. INDEX. 79 T References are to pages. AGENCY (continued) demand of payment upon agent for his principal, 416, 417. death of agent of holder excuses delay in demand, 439. service of notice of non-payment by agent, 474, 475, note 19, 487, 489, 515. service of notice of non-payment upon agent, 481-483, 503. waiver of acceptance or demand or notice by agent, 527, 540. AGENT OF STOCKHOLDERS (see NATIONAL BANKS) statutes as to, 696-699. is officer of the United States, 597. may sue in or remove suit to federal court, 624 indictable under laws of United States, 597. payment of stockholders who have paid assessment, 598, when stockholders succeed to assets, 598. ALTERATION (see FORGED PAPER) by officer without authority as a spoliation by a stranger, 156. APPROPRIATION OR APPLICATION OF DEPOSIT (see DEPOSITS). ASSIGNEES FOR CREDITORS (see RECEIVERS) succeed to all bank's rights and can enforce them, 125. though bank declared dissolved by- statute. 125. can sue officers for negligence in managing bank, 125. service of notice of non-payment upon, 485. ASSIGNMENT (see BILLS OF EXCHANGE; CHECKS) check not an assignment, 245. bill of exchange drawn generally not an assignment, 245. when check or bill of- exchange becomes an assignment of deposit, 245. exceptional rule, 245-253, 576, note 7. where deposit cannot be appropriated as against assignment, 232. of deposit in savings bank, 644. ASSIGNMENT FOR CREDITORS (see INSOLVENCY) banks may make, with preference unless forbidden, 149, 193, 574, 577. power of directors to make assignment, 149, 574. president cannot make, 150. ATTACHMENT (see GARNISHMENT) no court has power to issue attachment against national bank, 595, 596, 628. of stock subscription, 97. upon statutory liability, 99. of deposit, 220-222, 232, 644. . of special deposit, 319. of collectible paper, 319. of proceeds of collection. 818, 319. when deposit cannot be appropriated as against attachment, 233, B. BAILMENTS (see QUASI-CONTRACT) older than agency or trust, 15. confused with agency and trust, 18. collection to be made by bank is a bailment, 17, 208-213, 293. deposit was originally a bailment, 16. 793 INDEX. References are to pages. BANK (see BANKING POWERS; CORPORATE BANKS; NATIONAL BANKS; PRIVATE BANKS) classification of banks, 26-28. definition of bank and banker, 28-33, 35. loan company not a bank, 29. 31. trust company receiving deposits not a bank, 32. trust company as a bank. 41, note 4. money changer includes banker, 29. right of private banking, 33-39. formation of banks, 39-47. partnership for banking, 39. limited partnership for banking, 40. joint-stock company for banking, 40. corporate bank, 41-45. See CORPORATE BANKS. constitutional provisions, 30, 33, 34 constitutional restrictions, 30, 35, 41, note 4. state governments have power to charter, 41. See STATE BANKS. congress power to charter national banks, 41. bank may be chartered by general law or special act, 41, 45. delegation of power to charter banks, 45. conditional grant of charter requires performance, 45. word " corporation " need not be used in special act, 45. de facto banking corporations, see DE FACTO CORPORATIONS. irregularities in forming corporation, 46. name of corporation. 46. state bank cannot call itself national, 46, note 4, 703. identity of name forbidden, 46. no pow'er in one state to charter corporation for another state, 46. necessity for subscription of whole capital, 46. whether subscription may be paid in money or property, 47. conversion of state into national bank, 47, 675. charter of bank becomes a contract. 41, 48. ultra vires acts of bank, see UNLAWFUL BANKING. legislative regulation of banking, see LEGISLATIVE REGULATION, banks of issue, see NATIONAL BANKS; STATE BANKS. jurisdiction of courts over banks, see JURISDICTION. powers of banks, see BANKING POWERS. officers of banks, see OFFICERS. dissolution of banks, see DISSOLUTION. insolvency of banks, see INSOLVENCY. banking acts must be done at bank's place of business, 157, 344, 682. notice to a bank, see NOTICE. banking customs and usages, see CUSTOMS. deposits in banks, see DEPOSITS. collections by bank, see COLLECTIONS. BANK BILLS (see CIRCULATING NOTES). BANK BOOKS (see BOOKS OF BANK). BANK NOTES (see CIRCULATING NOTES). BANKING POWERS (see NATIONAL BANKS; SAVINGS BANKS) meaning of the term, 27-33. under revenue statutes, 29. under constitutional and statutory restrictions, 30. under charters, 31. under penal and forfeiture statutes, 33. in constitutions, 30, 35. INDEX. 799 References are to pages. BANKING POWERS (continued) express company with banking powers, 32. company issuing negotiable due-bills, 32. trust companies with banking powers, 33, 41, note 4 power to make by-laws, 48. power to create lien on its own shares, 49, 189. power to maintain branches, 51. powers of a bank result from statute or custom, 188. powers may be proven by custom, 188. may be prohibited by statutory implication, 188. bank dealing in its own stock, 188, 189. bank's lien upon its own shares, 189. bank's loaning upon its own shares, 190. bank cannot become stockholder in another corporation, 190, 191. unless necessary to preserve a security, 190. bank cannot subscribe for stock in another corporation, 190. engage in buying and selling stocks, 190. buy or sell merchandise unless to preserve security, 191, 192. bank may take charge of shipment. 191. bank not liable where it collects draft on shipment, 191. on its representation as to goods forwarded, 192. bank to preserve debt may receive merchandise or chattel mort- gage, 192. or assignment, 192, 193. acquire elevator stored with grain, 192. bank may hold escrows and securities, 193. may have savings department, 193. may hold real property only as permitted by statute, 193-195. statute as to bank's holding real property is binding in another state, 193, note 1. bank's power to maintain office buildings, 194 and note 3. power to purchase real property at its own sale, 194, 195. power as to mortgages on realty, 195-197. bank may mortgage its real property, 197. may cash checks upon other banks, 344. may purchase negotiable paper, 197, 198, 344 whether power to discount implies power to purchase, 69, 197. may transfer or sell paper, 198. may buy and sell negotiable bonds, 344 may issue its promissory note, 198. may borrow money, 198, 199. may issue certificates of deposit, 199, 279, 554 cannot lend its credit, 199, 200. may guarantee or indorse paper transferred by it, 199, may receive special deposits, 199, 287. may make loans for customers, 344 See 191, note 1. may undertake collections, 200. may make exchanges of government bonds, 344 may issue letters of credit, 344. may issue drafts which circulate as money, 555. bank notes unless forbidden. 554 and note 4 bank's power to receive deposits does not give power to issue bank notes, 554 powers of natural bank, see NATIONAL BANKS. powers of savings banks, see SAVINGS BANKS. BANKRUPTCY (see INSOLVENCY). 800 INDEX. References are to pagea. BILLS OF CREDIT states may not issue bills of credit, 36. note 3, 42. may incorporate bank to issue bills of credit, 42, 555, 558. may be sole stockholder in such bank, 42. are now suppressed by state bank tax, 43. BILLS OF EXCHANGE (see ACCEPTANCE; DEMAND; NOTICE OF NON- PAYMENT) drawn generally, not assignments, 245. paper requiring presentation for acceptance, 347-349. notice of non-acceptance necessary, 466. paper not requiring presentation for acceptance, 351-353. if presented for acceptance, notice of non-acceptance necessary, 374, 466. waiver of acceptance, see ACCEPTANCE. acceptance of bill supra protest, see ACCEPTANCE SUPRA PROTEST. discharge of parties to accepted bill, see ACCEPTANCE. accommodation drawer and indorser, see ACCOMMODATION PARTIES. drawer and indorser accommodated, see ACCOMMODATED PARTIES. guaranty of bill, see GUARANTORS. irregular indorsers of bill, see IRREGULAR INDORSEMENT. bills of exchange must be demanded at maturity, 423, 426. sight bills or bills after sight or demand may go into circulation be- fore demand. 423. acceptance may go into circulation, 423. maturity of bills of exchange, 427. See DAYS OF GRACE, bills indorsed overdue, 430, 431. place of demand upon bills, 441-453. excuses for failure to demand, 455-465. when drawer or indorser entitled to notice, 465, 466. notice of non-payment necessary where due diligence to make de- mand and failure, 466. form and manner of notice, see NOTICE OF NON-PAYMENT. excuses for failure to give notice, 521-525. waiver of demand and notice, 525-545. lost bills of exchange, see LOST PAPER. forged bills of exchange, see FORGED PAPER. altered bills of exchange, see FORGED PAPER. BILLS OF LADING (see COLLECTIONS) bank may hold, to secure debt, 191, 192. See Addendum, bank has lien upon bill of lading for advances, 328. See Addendum, even though it may charge draft back, 328. promise to accept draft accompanied by, 365. immaterial that goods were received, 360, 365, note 1. bank may deliver bill of lading upon acceptance, 299. See Adden- dum. rule where bill of lading to order of drawer, 299. bank by collecting draft not liable as seller of goods, 191. See Ad- dendum, bank not liable for representation as to goods forwarded, 191, 192. BOND bank's power to take bonds from officers, 116. needs not conform to law, 116. needs not be signed by officer. 117. binding whether signed by officer before or after entry upon office, 117. acceptance by bank presumed, 117. liability upon bond, see OFFICERS. INDEX. 8Ul References are to pagea. BOOKS OF BANK prima facie correct, 208, 292 and note 14, 292. admissible with suppletory oath if original entry, 208. admissible against bank if not books of original entry, whether ad- missible against officers without suppletory oath, 141. controlling evidence as to stockholders, 80. stockholder not bound if he directed proper entry, 80. stockholders by estoppel through the books of bank, 83. collusive transfers, 80, 81. unrecorded transfers, 85-89. stockholder's right of access to, 93. effect of state statute upon national banks, 93. entries in books explainable by proof of usage, 239. not conclusive as to fact of special deposit, 283. BOOK-KEEPER receipt of deposit by, 157. demand upon book-keeper at place of business, 417. notice served upon book-keeper at place of business, 478. BORROWING power of banks to borrow money, 198, 199. BRANCH BANKS power of bank to maintain branches, 51. manager of a branch bank, powers of, 155. conversion of state bank with branches into national bank, 676. BROKER savings bank not a, 29. BUSINESS HOURS (see DEMAND; NOTICE OF NON-PAYMENT). BY-LAWS power of bank as to. 48. creating lien upon stock by, 49. how far binding upon customers of bank, 146. of savings banks, part of contract of deposit, 639. c. CAPITAL STOCK (see SHARES; STOCKHOLDERS). CASHIER (see OFFICERS) liability of cashier as officer, see OFFICERS. criminal liability of cashier as officer, see CRIMES. failing to notify maker of note, 120. cashier holding stock not personally liable, 83, note 5. indorsement to cashier indorsement to bank, 620. may be sued upon by bank, 620, 621. powers of cashier, 151-154. is general executive officer of bank, 151. is not agent of board of directors, 152. may issue checks of bank, 152. certify checks upon bank, 258. receive deposits, 205, 206. transfer stock, 152. extend time of payment, 152. bind bank by his statements, 152. by his admissions, 169. 51 802 INDEX. References are to pages. CASHIER (cont'nued) may transfer bank's paper, 152. employ counsel, 153. acknowledge deed, 153. cannot transfer judgment, 153. convey real estate, 153. make contracts out of his usual authority, 153. release bank's claims, 154. purchase other than bankable paper, 154 make accommodation acceptances, 154. give indemnity bond, 154. powers varied by ratification or course of dealing, 154. power as to agreeing to make loans, 191, note 1. power as to allowing overdrafts, 275. notice of non-payment to bank may be directed to cashier, 479, note 23. cashier of savings bank has not same powers as other cashiers, 637. may properly be served with garnishment, 620. may make answer thereto, 620. clerk acting for cashier, see CLERK. CERTIFICATE OF PROTEST (see PROTEST). CERTIFICATES 'OF DEPOSIT are of two kinds, demand and time, 280. banks, state and national, may issue certificates of deposit, 199, 279, 554. payment of certificates in violation of injunction, 221, note 4 may be set off against bank's claim, 241. forged as to indorser's name, 266. overdue not negotiable, 272. 280, 281. lost unindorsed or overdue recoverable without security, 272, 280. do not draw interest except by agreement, 274 draw interest from demand, 275. or suspension of bank, 275. bringing suit upon, a demand, 275. claiming a set-off, a demand, 275. sometimes forbidden by statute, 279. but deposit recoverable as a loan, 279. issued without consideration, void, 279. except in hands of bonafide holder, 279. are negotiable, 279. indorser upon, is indorser of promissory note, 280, 405. demand upon indorser of certificate of deposit, 405. must be delivered up upon payment, 280. are payable at bank, 280. forged indorsement of, payment upon, 280. draw interest though overdue, 281. suit may be brought upon, without demand, 280, note 14, 288. when document is a certificate of deposit, 281. figures governed by body of certificate, 281. remedy at law generally, 288. limitation of actions upon, 290. certificate can be overcome only by convincing evidence, 292. not entitled to priority in assets of insolvent bank, 600. CERTIFIED AND ACCEPTED CHECKS (see CHECKS; FORGED PAPER> wrongful certification as a crime, 145. statute as to national banks, 670, 671, 689. accepted and certified checks in full, 243, 255-259. INDEX. 803 References are to pages. CERTIFIED AND ACCEPTED CHECKS (continued) if check certified to payee or holder, drawer discharged, 255, 295, note 3. if check certified to drawer, drawer not discharged, 256. certification granted to drawer may be revoked, 256. except to an indorsee for value, 256. transferee without indorsement not protected, 257, note 5. certification to drawee or holder cannot properly be revoked, 257. is payment, 295, note 3. but there is much authority contra, 257, 262, 263, 264. president, cashier, board of directors or paying teller may certify, 258. form of certification when written, 258, 356. oral certification or acceptance, 243, 258. 356-358. certification where drawer has no funds, 258. certification of forged or altered paper, 259, 262-271. certification warrants drawer's signature, 259. does not warrant indorsements or amount, 259, 266. bank liable upon alteration after certification if negligent, 259. certified check good until demanded, 259. bank's set-off against certified check, 259. check certified to fictitious payee, 259. certified check not revocable by drawer, 261. certification of forged paper, 266-270. bank liable if it misleads holder, 268. certifying check does not create special deposit, 282. collecting bank may take its own certified check, 298. certified checks may go into circulation, 432, note 6. demand upon certified checks, 437. not entitled to priority in assets of insolvent bank, 600. CHARTER (see CORPORATE BANKS) of bank, is a contract, 51. may be changed as to statutory liability by imposing it, 101. statutory liability cannot be repealed, 99. statutory liability a (/Mast-contract, 20, 99. congress power to charter national banks, 41, 48. special charters forbidden, 45. CHECKS (see CERTIFIED AND ACCEPTED CHECKS; DEMAND; NOTICE OF NON-PAYMENT) cashier may issue checks of bank, 152. bank's power to cash checks upon other banks, 344 bank cannot payout partnership funds on check of one partner, 217. checks of agent upon deposit by agent, 216-218. death of depositor, effect upon checks outstanding, 223-229. if check accepted or certified, death has no effect, 223. if check unaccepted, death revokes, 224. ^ exceptional rule in certain states, 225-229. in those states checks revoked if unpresented, 225-229. ,j insolvency of depositor revokes checks unaccepted, 229, 230. except in certain states where holder can sue, 230. liability of bank to depositor for dishonoring check, 241-243. depositor may sue for deposit, 241. depositor may sue for damages. 241.' history and development of this action, 17-19. is a survival of the law of bailment, 17-19. damages recoverable in this action, 242. 804 INDEX. References are to pages. CHECKS (continued) bank not liable to holder of unaccepted check, 243-245. acceptance of checks, see CERTIFIED AND ACCEPTED CHECKS check not an assignment, 245. unless so made by agreement, 245. exceptional rule that bank is liable to holder of check, 245-253. necessary under the rule that check be presented, 246. unfortunate results of this rule, 228, note 26, 229, note 2, 233, note 22, 586, note 13. confusing effect upon law in Illinois, 250, note 30. must be paid in order of presentation, 254. bank must pay as directed by depositor, 255, note 5. checks payable to fictitious payees, see FICTITIOUS PAYEES. date upon checks, 260. if without date, payable upon demand, 260. post-dated check is bill of exchange, 261. may be revoked prior to acceptance, 261. in some states revocable prior to presentation, 262. unless against bonaflde holders, 228, note 26. bank paying revoked check liable to depositor, 262. liable to payee, 262. payment of forged or altered checks, 262-271. See FORGED PAPER, bank cannot charge forged check to depositor, 265. lost checks if negotiable in form pass title to bona fide holder, 272. bank may charge to depositor, when, 272. not negotiable in form, governed by rules as to forged paper, 272. overpayment of check may be recovered by bank, 273. partial payment of check cannot be required, 237, note 7, 255, 436, note 28. payment to wrong person recoverable by bank, 273. but not if payee without fault. 273. depositor cannot recover from one to whom check wrongly paid, 273. payee of check cannot recover from one to whom check wrongly paid, 273. payment of genuine check to payee final, 274. checks over drawing deposit, see OVERDRAFTS. check may be taken by collecting bank for a collection if it use due diligence as to cashing the check, 299, 303, note 7. what is due diligence in cashing check taken for collection, 434, 435. no presentment for acceptance needed upon checks, unless post- dated, 348, 349. if acceptance of check refused, notice must be given, 389. if acceptance refused, check needs no presentment for payment, 389, 390. drawer not notified, released only to extent of his injury, 387, 395, 435. must have had credit to amount of check when bank failed, 436, 437. partial payment of check cannot be enforced, but bank may bind itself to make partial payment, 237, note 7. accommodation parties to checks, see ACCOMMODATION PARTIES. accommodated parties to checks, see ACCOMMODATED PARTIES. indorser of check released by failure to demand unless accommo- dated by check, 396. payment of checks must be demanded next day if in same place, 432. check may be forwarded upon next day, 432. may be deposited in bank on next day, 433. INDEX. 805 References are to pages. CHECKS (continued) loss of check excuses resulting delay, 434 depreciation in money deposited as loss to drawer, 436. checks by banks upon other banks are checks, 348, 437. may be put into circulation. 432, note 6. insolvency of bank or assignment of drawer excuse for lack of de- mand upon check. 458, 461. checks as set-off, 587. presented checks as set-off, when check an assignment, 586. effect of assignment for creditors upon checks, 576, note 9. when overdue so as to admit defenses, 433, note 8. whether they may go into circulation, 432, note 6. CIRCULATING NOTES (see NATIONAL BANKS) power of legislature to prohibit foreign bank notes, 76. bank notes received as money are general deposit of money in bank, 205. power of banks to issue circulating notes, 554, note 4, 555, 556. power of national banks, see NATIONAL BANKS. state may incorporate bank to issue bills of credit, 36, note 3, 42, 555, 556. notes of private banker depend upon statutory prohibition, 554. notes of corporation depend upon grant of power, 554 right of state to restrict power to bsue circulating notes, 33-35. right of state to make such power a franchise, 33, 35. certificates of deposit not circulating notes, 554. power to receive deposits does not give power to issue circulating notes, 554. insurance company, canal company or loan company has no power to issue circulating notes. 554, 555. army sutler issuing notes, 555. drafts to circulate as money not notes, 555. notes not to be returned for a period, 555. municipal corporations have no power to issue, 555. must be an intent to violate act against illegal notes, 556. recovery may be had on illegal notes, 556. where parties are not in pari delicto, 556. state bank tax suppresses circulating notes of state banks, 44, 557. state bank tax statute, 44, note 1. instances of statutes to compel state banks to maintain their notes at par, 557. pass by delivery, 557. if lost, recovery may be had, when, 558. if destroyed, recovery may be had, when, 558. if half of note lost, recovery may be had, 558, 559. worn-out notes may be recovered for, 559. illegal notes binding in hands of bonafide holder, 559. payment of notes must be in specie, 559. interest must be paid from demand, 560. agreement with third person to redeem notes, 561. partners' liability on notes, 561. stockholders' liability for notes of bank, 561. payment of note, whether a discharge, 563. liability survives dissolution of bank, 561. iirectors' liability upon notes, 562, 563. remedies against bank upon notes, 562, 563. statute of limitations upon, runs from demand, 563. suspension dispenses with demand. 563. when demand should be proven, 563. parties to actions against stockholders, 563. 806 INDEX. References are to pages. CIRCULATING NOTES (continued) description of notes in pleading, 563, 564. illegal organization of bank no defense upon, 564. for stockholders' liability, see STOCKHOLDERS. notes of insolvent banks, 590. sometimes holders given preference on assets, 590. notes, how far a set-off, 590, 591. extent of recovery, 590. transferred, whether a set-off against assignee or receiver, 590. CLEARING AGENT (see CLEARING-HOUSE; rights and duties of, 657, 658. recovery by clearing agent upon check paid for his principal, 658, notes 1 and 2. whether entitled to a lien for payments made after notice of insolv- ency, 660, 661. CLEARING-HOUSE presentment of paper for payment through, is due diligence, 299. notice not necessary upon clearing-house dishonor, but demand should be made directly from bank, 471, note 47. nature of clearing-house, 654. may sue as a voluntary association, 654, note 1, 655, note 1. it is not a bank, but is a voluntary association, 654, note 1, 655, note 1. certificates of clearing-house are negotiable, 655, note 1. whether they are currency, 557, 655, 683. national bank act makes them part of lawful money reserve, 683. whether taxable under state bank tax, 557, 655. rule of, in regard to indorsements, see Addendum, rules of, bind only members, 656. mutual credits revocable under this rule, 656. rule in particular jurisdiction, 656. effect or rule upon payment of forged paper, 271. settlements through, when not binding, 236, note 7, 658, 659. do not inure to customers of banks, 658. lien of clearing-house, 660, 661. does not give right to a preference after notice of insolvency, 660. 661. CLERK acting for cashier, powers of, 155. powers of, in savings bank, 637, 638. COLLATERALS (see LOANS) for bills of lading as, see Addendum; BILLS OF LADING. COLLECTIONS the duty enjoined by acceptance of collection a gram-contract, 17, 294. modifying special agreements or stipulations, must be proven, 294. it is a bailment defined by custom, 17, 293. contract need not be proven, simply the relation, 294. confused with agency and trust, 18, 293. power of bank to undertake collections, 200. deposit of collectible paper with bank, 208-213. bank may either discount or hold and collect, 294 transaction may be a purchase. 208. deposit of paper on another bank or person a bailment, 208, 210-212. contrary rule held in some jurisdictions. 211. when paper collected it becomes a general deposit, 209, 301. action on case does not lie for proceeds properly credited, 621. INDEX. 807 References are to pages. COLLECTIONS (continued) unless a different agreement, express or arising from course of deal- ing, 209, 301. deposit and credit of paper on same bank is payment, 209. relation that of depositor, 294. collection is complete when credits are given between banks, 210, 300, note 2. bank cannot by contract limit its own negligence, 294, 305, note 5. 640, 645. collection duty governed by law of state where to be made, 295. if paper made payable at bank, bank not holder's agent, 295. but holder may make bank at which payable his bailee, 295. in such case bank held to all duties of collecting agent, 295. if bank made agent has funds and does not credit it is liable, 296. but may revoke credit before communication, 296*- bank may pay out of general deposit paper payable at bank, 296. if it does not credit the deposit upon a collection taken by it, it makes the paper its own, 296. except where bank has no right to pay, 296. power to collect may be revoked, 296. is revoked by injunction, 296. by insolvency of bank, 297. if bank insolvent when it took collection, power not granted, 297. bank has lien on proceeds of collection, if general deposit. 297. particular agreement or course of dealing prevents lien. 297. correspondent bank has no lien on proceeds where it has notice of the fielder's ownership, 297, 298. banks cannot control the indorsement on paper, 316. indorsement for collection is notice, 208, 297, 316. for collection and credit is notice, 297, 316. for account is notice. 297, 316. for credit is notice, 297. general indorsement is not notice, 209, 297. correspondent bank without notice may hold lien for its claim against remitting bank, 298. if it has one by agreement or has given credit to the remitting bank on the strength of the particular paper, 298, 316. authority of collecting bank, 298. collecting bank can take nothing but money except at its risk, 298. under custom may take its own certificate of deposit, 298, 303. without custom may take its own certified check, 298. collecting bank may take check if it use due diligence in collecting the check, 299, 303, note 7. when it shows due diligence, 434, 435. presentment of collection through clearing-house due diligence, 299. owner may waive bank's negligence and claim what it received, 299, 301. bank may surrender bill of lading if draft accepted, 299. See Ad- dendum, bank's power to employ agents for owner, 305, 306. varying rule as to this matter, 299, 306. bank has no power to employ attorney for owner or bring suit, 299. bank must employ attorney if so instructed, 303. liability of bank upon collection, 300. bank collecting liable to person from whom it wrongly collects, 300. not liable where it collected as agent and has paid over proceeds, 300, note 1. See Addendum, liable to person for whom it collects for proceeds, 301. 808 INDEX. References are to pages. COLLECTIONS (continued) bank collecting may correct mistake if it has not paid over, 800, note 1. collection is paid when proceeds received by collecting agent, 300, note 2. duty of bank in collecting, 302. bank must follow instructions given, 294 may follow customs of business, 303, 304, note 16. if no demand made, bank makes paper its own, 303. bank must present at proper time for acceptance and payment, 302, 303. ascertain residence of party liable, 303. liable if accepted in wrong name, 304, note 16. cannot defer holder's claim to its own, 30-1. drawer is presumed solvent if bank does not present and protest paper, 303. bank must give notice of non-acceptance or non-payment, 804. fire at bank no excuse, 304, note 16. bank must notify all indorsers, 304, note 17. present at bank where payable, 304. if paper indorsed generally, bank may so indorse, 304. correspondent bank liable as transmitting bank is liable, 805. bank employing as its agent bank where paper payable is negligent. 305. negligent for sending paper directly to bank where payable, 305. liable for failure in ordinary care in selecting agent, 305. varying rule as to bank's liability for correspondent bank's defaults, 18, 308, 309. bank not liable where owner selected and treated with correspond- ent, 315. note 4. varying rule as to whether bank liable for its notary's defaults, 308, 309. bank using its own notary, 309. waiver of bank's negligence by holder, 309. acceptance by holder of something else than money, 309. withdrawal of collection not .a waiver. 309. actions for negligence in collecting, 310-313. owner of collection must sue first bank where that bank liable for its correspondent's defaults, 310. owner of collection cannot sue correspondent bank, 310. may sue correspondent bank where the first bank is not liable for it, 310. the first bank may also sue correspondent, 308, note 32. only the existence of the relation and the duty needs be alleged, 810. contract, unless special, need not be shown, 310. damage must be shown, 311. presumption of solvency of drawers, 303. proof as to solvency of parties released and insolvency of those re- maining liable, 311. no consideration needs be averred, 311. loss of paper raises a presumption of negligence, 811. delivery to bank at which payable must be averred to have resulted in loss of the paper or amount, 311. insolvency of parties released provable in mitigation of damages, 311. for negligence as to check, its collectibility should be shown, 812. insolvency of drawer should appear, 312. INDEX. 809 References are to pages. COLLECTIONS (continued) possession of collateral provable in mitigation of damages, 312. return of nulla bona or general reputation proves insolvency, 813. payments after negligence occurred provable in mitigation, 312. measure of recovery for paper a total loss is face value, 313. rule does not apply to non-negotiable paper, 313. rights in proceeds of collection, 313-325. form of indorsement not material between bank and depositor, 315. actual agreement governs, 315. paper deposited for credit, proceeds of collection belong to depositor until final crediting in first bank, 315. owner may claim it against the whole world, 315. except as against correspondent bank with lien, 315. deposit for credit does not pass title even in states which hold such deposit an absolute sale of the paper, where owner treated with correspondent bank, 315, note 4. primary bank has lien if proceeds would become a general deposit, 316. has lien for credit given on the paper, 316. garnishment of proceeds of paper, 318. . uncollected paper cannot be garnished, 318. proceeds received and credited may be garnished, 319. proceeds as a special deposit in primary bank, 319. proceeds of collection deposited with insolvent bank, 319. primary bank having received proceeds must credit or pay over, 320. unless enjoined, garnished or proceeds claimed by true owner, 320. may recover from holder if it pays supposed proceeds by mis- take. 320. may revoke credit mistakenly given, 320. depreciation in medium of payment falls on bank holding proceeds, 321. proceeds as between banks. 321. secondary bank crediting primary bank by mistake may recover, 321. cannot cut off owner's claim, 321. bound by injunction against primary bank, 321, note 8. proceeds of collection, a general deposit not entitled to- priority in insolvent bank, 600. improperly credited as a general deposit have priority, 609. varying holdings as to proceeds of collections, 609-614 where owner may claim priority in primary bank, 610, 611. may claim priority in secondary bank, 611, 612. proceeds of collection where paper deposited in insolvent bank, 615. varying holdings as to, 615, 616. COMITY (see CONFLICT OP LAWS). COMPTROLLER OF THE CURRENCY bureau of. 663. office of, 663. bond and oath of, 663. deputy of, 663. clerks of, 663. seal of, 664. cannot be interested in national bank, 664 810 INDEX. References are to pages. COMPTROLLER OF THE CURRENCY (continued) enjoining comptroller, 665, 701. examination prior to incorporation, 678. certificate of authority, 679. certificate is conclusive, 78. reports to, 690. returns to, 691. appointment of receivers by, 695. appointment presumed to be by secretary of treasury, 592. power over national banks, 74. power to appoint receiver, 74, 591, 695s for failure to redeem notes, 74, 695. or upon insolvency, 74, 591, 695. power to permit increase or decrease of national bank's capital, 77, statute as to increase or decrease, 672, 673, 687, 688. certificate of increase or decrease conclusive, 78 and note 4. cannot grant certificate of increase after insolvency, 78, note 7. no increase until certificate issued, 78. until certificate issued bank is trustee for increase paid, 78. if increase not allowed no subscription is made, 78. determines amount of assessment upon stockholders if bank insolv- ent, 107. assessment is conclusive, 110, 112. may make second assessment up to full liability, 112, note 11. receiver may bring suit against officers without order from, 134, 593, note 14, 594. decision as to insolvency conclusive, 112, note 16, 592. CONFLICT OF LAWS as to private banking, 56, 57. as to partnerships, 40. power of one state to charter bank for another state, 46. legislature has power to forbid foreign banks doing business in state, 75, 76. can prohibit foreign bank notes, 76. state statutes as to foreign banks do not affect national banks, 75. state regulations of national banks, 71, 74 conveyances prohibited by state law are prohibited to national banks, 74. national bank not governed by state.statute as to transfers, 85. national bank needs not file agent's name under state law, 75. state may define act of national banker as a crime, 75, notes 4 and 5, 142, 336. usury statute against national banks exclusive of state legislation, 75, 335, 336. corporation forbidden by state statute to set up usury may do so under national bank act, 338. taxation of national banks by state, 51-53. national bank bound by state law as to inspection of books, 93. statutory liability may be enforced in another state, 100. special remedy will not be given in another state, 100. federal court will not apply state statute as to filing state reports, 73, 620. collection governed by law of state where collection to be made, 295. acceptance governed by law of place for acceptance, 354. demand and notice governed by law where instrument payable, 385, 386. form of certificate of protest governed by the law where protest made, 545. INDEX. 811 References are to pages. CONFLICT OF LAWS (continued) admissibility of certificate as evidence governed by law of place of trial, 546. law giving preference to savings bank does not apply to national banks, 618. state statute as to service governs federal court, 51, note 5. state statute as to banks holding real property binding in another state, 193, note 1. law governing performance of contract governs rate of interest, 330. CONSIDERATION for reception of special deposit, 199. for assumption of duty of collection, 18, 310, note 7. for acceptance of negotiable paper, 358. non-negotiable paper, 358. for promise to pay existing bill, 366. for promise to accept existing bill, 361-363. for waiver of demand and notice before maturity, 535, 536. after maturity, 540. illegal notes as a consideration for a contract, 58, note 1, 556. for a guaranty, 328. CONSOLIDATION OF CORPORATIONS (see REORGANIZATION). CONSTITUTIONS provisions in regard to banking, 30, 33. 34. provisions requiring banking laws to be adopted by popular vote, 41 r note 4 latter provisions do not apply to crimes, 137. CONTRACT charter of bank as a contract, 48. statutory liability of stockholders as a contract, 98, 99. duty of banker to honor check, whether a, 17. duty of collection, whether a, 17. CONVERSION - by national bank of its own shares, 189. whether trover lies, 189. of state into national banks, 47, 675. of gold banks into national, 675, 676. CORPORATE BANKS (see DE FACTO BANKS; NATIONAL BANKS; SAV- INGS BANKS) classification of banks, 26, 28. definition of term " bank," 27-33, 41, note 4 joint-stock company may amount to a corporation, 40. formation of corporate banks, 41-45. in states and territories legislature power to charter, 41. constitutional restrictions upon, 30, 33, 84, 41, note 4 state may incorporate bank to issue bills of credit, 42, 555, 556. state may charter banks by general law or special charter, 41, 45. special charters forbidden, 41, 45. banks irregularly formed may be made regular by legislation, 59. such legislation is not special, 59. congress has power to charter national banks, 41. delegation of power to charter, 45. conditional grant of charter requires performance, 45. 812 INDEX. CORPORATE BANKS (continued) the word ' corporation " need not to be used in act, 45. de facto banks, 46. irregularities in formation to be objected only by the state, 48. provisions for name, 46. same name forbidden to more than one bank, 46. whole capital must be subscribed, 46. payment of capital stock, how made, 46, 47. state banks cannot call themselves national, 46, note 4, 703. certificate of incorporation evidence of due incorporation, 47. not the only evidence, 47. conversion of state into national banks, 47, 675. conversion of state bank with branches, 676. conversion of gold bank into national bank, 675. conversion of banks in District of Columbia, 48. old board of directors may act after conversion, 47. non-voting stock cannot vote on conversion, 47. national bank succeeds to all property of converted bank, 48. which succeeds may be sued, 48. charter of bank becomes a contract alterable only by authority, 48. power of corporate bank as to branches, 51. powers of bank, see BANKING POWERS. power to create lien on its own stock, see LIEN. state bank tax suppressing state banks of issue, 44, 557. proof of corporate existence, 49, 50. in quo warranto, 49. in collateral proceedings, 49. by certificate, 49, 50. proof of user, 49. general reputation, 49. under statutes, 50, note 8. corporate existence illegal, 50. illegal corporations, see UNLAWFUL BANKING. formed under unconstitutional law, 58. liability of corporators of illegal corporation, see PARTNERSHIP. acts of officers, see OFFICERS. legislative regulation of banks, see LEGISLATIVE REGULATION. license taxes upon banks must be reasonable, 72. state banks of issue, deposit of funds, 73. See STATE BANK TAX. examiners of state banks, 74 stockholders of bank, see STOCKHOLDERS. shares of stock, see STOCK. dissolution of banks, see DISSOLUTION. forfeiture of charter, see DISSOLUTION. insolvency of banks, see INSOLVENCY. receivers of banks, see RECEIVERS. CORRESPONDENT BANK liability of collecting bank for its correspondents, see COLLECTIONS. right of correspondent bank to proceeds of collection, see COLLEC- TIONS. COSTS in creditors' actions against bank and officers, 595. COUPONS (see INTEREST COUPONS). COURTS (see JURISDICTIONX INDEX. References are to pages. CREDITORS right to sue in equity upon stock subscription, 97. directors for false representations, 126-128. for receiving deposits in insolvent bank. 129. 130, 134. stockholders for statutory liability, 103, 108. to enforce statutory liability in national banks, 103, 118, 594. to enforce claims of bank against officers, 130, 181. to enforce bank's claim against officers in national banks, 134, 593. costs in creditors' action against national bank, 595. cannot set up usury even if judgment creditors, 339. for priorities among, see PRIORITIES. who are general creditors, 599-602, 603 and note 10. CRIMES unlawful banking as a crime, 70. whether offenses at common law or under statute, 135, 1361 receipt of deposit in insolvent bank, 136. exception where depositor indebted to bank, 136. deposit needs not be made in banking room, 136. knowledge of insolvency an element, 136. dispensed with by one statute, 137. fraud in selling draft knowing bank insolvent, 137. statutes as to crime do not need popular approval, 137. false returns and reports as crimes, 137, 138. conversion of bank bills, 138. wrongful overdraft as a crime, 138. false returns by national bank officers, 138. require two intents, 138. overdrafts returned as loans, 140. false entries in national banks, 143. statutes as to false returns and false entries, 689. embezzlement and misapplication of funds of national banks, 14& statute as to, 689. wrongfully certifying check, 145. statute as to certifying in national banks, 670, 671, 689. forgery of note to deceive examiner, 145. wrongful issuance of bank notes of national banks, 681. imitation of national bank notes, 681. mutilation of national bank notes, 682. offenses by national bank officers, 687, 689. agent of stockholders indictable as officer of United States, 597. CURRENCY (see LEGAL TENDER) evils of a fluctuating, 43, note 5, 44, note 2, 321, 332, 341, 436, 557, 562, 563, 590, 591. bank notes as currency, see CIRCULATING NOTES; NATIONAL BANKS. bank notes as legal tender, see NATIONAL BANKS; LEGAL TENDER. clearing-house certificates as, 557, 655, 683. CUSTOMS AND USAGES the foundation of the customary duty of bank in collecting, 17, 1&. the foundation of depositor's right against bank, 16, 17. help to define authority of officers, 145, 146. help to define powers of the bank, 188. have lai-ge influence in banking law, 21, 184 must be lawful, 184. INDEX. References are to pages. CUSTOMS AND USAGES (continued) cannot abolish days of grace given by statute, 184. cannot increase legal rate of interest, 185. cannot create a legal tender, 238, note 22. must be reasonable, 185. must be known to party to be charged, 186, 188. bank is bound by its own usages, 187. cannot abrogate without notice, 187. change of usage does not affect one without notice, 188. notice or knowledge may be actual or constructive, 187. constructive notice from notoriety, 187. customs of bank apply to those who make or indorse paper payable at bank, 187, note 7. 453. usage of bank as to demand, 453. demand without presence of paper demanded, 417, note 2, 419, note 12, 454. demand upon paper due Sunday, 438. a part of contract upon paper payable at bank, 453. unless contrary to law, 454. as to days of grace, 454. See DAYS OF GRACE. usage of bank as to notice of non-payment, 187, 519, 520. who bound by the usage, 187, 520. usages as to mailing notices, 520. usage of bank as to collections, 298. may act according to established customs, 303, 304, note 16. may take its own certificate of deposit, 298. holidays by custom, 438, 453. Saturday a half holiday, 453. D. DAMAGES for dishonoring check, see DEPOSITS. for failing in collection, see COLLECTIONS, DAYS OF GRACE custom may abolish where not created by statute, 184, 454. checks not entitled to days of grace, 432. post-dated checks entitled to grace. 432. demand bills not entitled to days of grace, 427. bills of exchange at or after sight or due after date entitled to grace, 427. promissory notes entitled to grace, 428. acceptances entitled to grace, 427. usage to make demand upon first day of grace, 454. to make demand upon paper maturing Sunday upon Monday, 454. to give notice upon next day after fourth day of grace, 520. DEATH effect upon check outstanding. 223-229. liability of officer survives, 123. liability of stockholder survives, see STOCKHOLDERS. effect upon demand, 439-441. agent's death excusing delay, 439. effect upon notice, 517-519. agent's death excusing delay, 517. of notary, see PROTEST. INDEX. 815 References are to pages. DE FACTO CORPORATIONS banks irregularly organized, 46. irregular organization curable by legislative act, 59. irregularities cannot be urged collaterally, 59. unless the act not done was a condition precedent, 59. cannot be a bank de facto unless a de jure bank was possible, 58. a bank formed under an unconstitutional law is not de facto, 58. but it has been held that debtor cannot make objection, 58, note 1. DE FACTO JOINT-STOCK COMPANY if joint-stock company not properly formed it is a general partner- ship, 40. gucere, whether it might not become a corporation, 40. DE FACTO NOTARY may make demand and protest, 409. DE FACTO OFFICERS acts bind bank, 115, 116. DEMAND (see ACCEPTANCE; WAIVER) presentation for payment of collectible paper in full, 885-465. is governed by law of place of demand, which is where payable, 385, 386. rules for ascertaining where paper payable, 386. necessary of accepted bill as to drawer. 388, 390. indorser, 388, 390. acceptor supra protest, 387, 390. iinless payable at particular place, 388. waiver of acceptance does not dispense with demand, 388. no demand necessary as to acceptor, 388, 397. if paper payable at particular place, demand must be there, 388, 389. if paper not there or demand there, drawer and indorser released, 388, 389. interest stops as to acceptor, 388. if accepted check drawer not already released, released only to ex- tent of his injury, 387, 389. if acceptance refused, no demand necessary on bill or check, 389, 390. notice must be given drawer and indorser of bill, 389. quaere as to bill not requiring acceptance, 389. demand of payment of bill necessary to drawer and indorser, 390. notice is necessary wherever demand is necessary, 391. demand not made or excused releases drawer and indorser of bill, 391, 525. if new paper given reserving rights, it is not binding. 525, note 1. original claim to extent of bill extinguished, 392, 525. if paper were security, indorser entitled to credit on debt, 395, 525. accommodation drawer and indorser of bill entitled to demand, 392. if drawer or indorser accommodated, no demand necessary, 393. irregular indorsers of bill, whether entitled to demand, 394. contrary rule in certain jurisdictions, 395. drawer of check entitled to demand, but released only to extent of his injury, 395. indorser of check, unless accommodated or irregular, released by want of demand, 396. accommodation drawer of check released to extent of his injury, 816 INDEX. References are to pages. DEMAND (continued) maker of note not entitled to claim demand, 397. regular indorser of note entitled, 398. time of demand upon demand notes, 398. demand must be made upon maturity of note, 398, indorsers after maturity entitled to demand, 399. accommodation maker not entitled, 399. indorser entitled, 399. indorser accommodated not entitled to demand, 399, 400. guarantors are not entitled to demand and notice, 403. unless they have stipulated therefor, 403. who are guarantors, 400-403. form of express guaranty, 400. guaranty by parol, 401. irregular indorsers are guarantors, 402. varying rule as to irregular indorsers, 402. parol evidence to show irregular indorser a guarantor, 402. guaranty by waiver, express or implied, 525-545. drawers and indorsers of non-negotiable instruments, 404. municipal orders require no demand as against indorser, 405. certificates of deposit, demand upon, as to indorser, 405. forged paper, no demand necessary as to indorser, 406. altered paper, demand upon, 406. stolen paper, demand upon, 407. sufficiency of demand, 407. foreign bill of exchange, demand must be by notary, 408. must be regularly protested, 408. test of whether or not bill foreign, 408. who may act as notary, 409. de facto notary, 409. notary's protest must be upon his own demand, 410. protest by notary's clerk or deputy, 410. notary is holder's agent, 411. foreign, bills where sued upon for non-payment must show protest for non-acceptance and for non-payment, 411, note 26. domestic paper, demand upon by holder or his agent, 411. evidence as to agency, 411, 412. . demand must be upon maker or drawee or his agent, 413. absolute refusal to accept or pay cures defects in demand, 413, 419. joint obligors, demand upon each, 414. partnerships, demand upon either partner, 414. after dissolution rule is the same, 414, 415. agency to receive demand, 416, 417. demand at place of business on clerk, 417. demand at place of business, when closed not necessary, 417. demand at bank, 417. manner of presenting for payment, 417-419. paper must be with the one who presents, 417. demand by bank according to custom without presenting paper, 417, note 2, 419, note 12. demand through mail not sufficient, 418. unless payment is refused, 419. refusal of payment cures defects in manner of demand, 419. hour of demand, 419-423. must be during business hours at a place of business, 420. at bank good after business hours if any one there to answer,. 420, 421. must be at reasonable hour at dwelling-house, 422. INDEX. 817 References are to pages. DEMAND (continued) day of demand, 423-441. upon bills of exchange, 423-427. must be on day of maturity, 423, 426. circulation of sight or demand bills, or bills so many days after sight 423, 424, note 7. circulation of acceptances, 423, 426. maturity of bills of exchange, 426, 427. of acceptances, 426, 427. premature demand, 427. by agreement releases indorser not consenting, 427. demand notes must be demanded within a reasonable time, 427. statutes fixing maturity, 427. what is reasonable time, 428. circumstances excusing demand on demand notes, 429, 430. delays in postoffice, 430. delays through loss of paper, 430. notes or bills indorsed overdue, demand must be in reasonable time, 430, 431. demand upon checks, 432. checks must be presented within a reasonable time, 432. which is next day, or forwarded on next day, 432. may be deposited in bank on next day, 432. delay through loss of check, 434. check taken in payment, rule as to, 434, 435. drawer of check, when injured, 436. failure of bank with funds an injury, 436, 437. loss of secret equity between drawer and payee not an injury, 436. depreciation in money deposited, 436. checks drawn by banks, 348, 437. may be put into circulation, 432, note 6. certified checks may be put into circulation, 432, note 6. when certified checks must be demanded, 437. holidays as affecting demand, 437-439. death of holder excuses delay, 439. sickness excuses delay, 439. personal representative of deceased holder must demand, 439. death of agent of holder excuses delay, 439. death of maker, drawee or acceptor excuses delay, 440. demand must be on personal representative, if one, 440. if no personal representative, demand should be at dwelling-house of deceased, 440, 441. place of demand, 441-453. paper payable at particular place, demand only at that place, 443, 444 if paper at that place at maturity demand is made, 443, 444. whether paper should be there or demand made when no tender of payment was made, 443, note 10. paper payable at more than one place, as at any bank, 442. acceptance payable at particular place, 433, 444. place agreed upon by parties, 445. place designated by indorser, 446, 451, note 26. paper not payable at particular place, 446-451. demand should be personal or at dwelling-house or place of busi- ness, 446. if personal demand made, hour and place is immaterial, 446. either dwelling-house or place of business may be chosen for a de- mand constructively personal, 447. 818 INDEX. References are to pages. DEMAND (continued) if place of business closed, or residence closed, demand is complete, 448, 450. demand at place of business, how made, 448, 449. demand at residence, how made, 449. demand where two residences. 450, 498-500. how made if residence closed, 450. if residence changed to another state no demand necessaiy, 450, 452, 462. if residence at date of making paper was out of state, demand is nec- essary, 452, 462, note 7, 463. if change in same state demand necessary, 450, note 21. duty of holder to communicate knowledge to his agent, 450, 451. or agent to take notice of addresses on paper, 451. demand where residence or place of business unknown, 451. question of reasonable diligence, 451. cautious in making inquiries, 451. inquiries of parties to paper, 503-507. presumptions as to residence of maker, 452. residence of drawee stated in bill place of demand, 452. if no residence ascertained, bill is dishonored and notice should be given, 453. holder diligent if he acts on his reasonable belief, 453. customs and usages as affecting demand, 453, 455. excuses for failure to demand, 455, 465. demand dispensed with by statute, 456. inclemency of weather, 456. injunction, 456, 461. fraud in indorser, 457. estoppel, 457. insolvency of bank or assignment of drawer, excuse as to check, 458, 461. failure to provide funds, excuse as to drawer, 459. not an excuse as to indorser, 459. no reasonable expectation on drawer's part that draft would be honored, 460. direction of drawer to drawee not to pay. 461. if funds provided demand necessary, 461. if demand excused as to drawer, notice to indorser necessary, 460, note 12, 461. absconding of maker or drawee or acceptor, 463. not an excuse as to paper payable at particular place, 463, .note 4 removal of particular place of business where payable, 462. disease or pestilence, 464. war or interdiction of commerce, 464, 465. infancy of maker not an excuse, 456. suit pending not an excuse, 456. insolvency of maker or drawee no excuse, 457, 458. change of residence not an excuse, 462. unless change out of state, 452, 462. nor where paper payable at particular place, 462. if absence temporary, demand at residence or place of business, 462. rule is same as to joint makers, 463. acceptor's change of residence, 463. drawee's change of residence, 463. DEPOSITS (see CHECKS; SAVINGS BANKS; SPECIAL DEPOSITS) historical development of deposit, 16, 17. classification of banks as banks of deposit, 27, 28. INDEX. 819 References are to pages. DEPOSITS (contimied) trust company receiving, not a bank, 41, note 4, depositors as creditors, see CREDITORS. deposit in insolvent bank, liability of officers for, see OFFICERS. deposit in insolvent bank as crime, see CRIMES. bank may select its depositors, 205. either general or special, 203. special deposits, see SPECIAL DEPOSITS. general deposits are subject to check, 204 certificates of deposit, see CERTIFICATES OF DEPOSIT. nature of relation upon a general deposit, 16, 17, 201-204 creates a debt, 201. creates also a (jMcm-contract between bank and depositor, 16, 17, 201. bank notes received as money are a general deposit of money, 205. Confederate notes not money deposited, 238, note 22. when deposit is made, 205, 207. whether must be made at banking house, see CRIMES. president, cashier or tellers may receive, 205, 206. money must reach bank, 205, note 1. must have been intention to make, 207. entries in books prima facie correct, 208. may be contradicted, 208. deposit of collectible paper, see COLLECTIONS. ownership of deposit, 213-215. See SAVINGS BANKS. presumed to belong to depositor, 213. true owner may claim fund, 213. transfer of deposit, 643, 644. bank must after notice respect true owner's rights, 214 must rectify mistakes, 214 may have interpleader, 289. deposit in another's name not a transfer, 205, 214 may be orally assigned or a trust declared, 214, 215, 642, gifts of deposit, 644. bank must respect liens on deposit, 215, 221. deposit may be made collateral. 328. partnership deposits cannot be paid on check of one partner, 217. bank may defend if money went for partner- ship purposes, 217, note 15. trust funds as a deposit. 215-220. notice to bank of trust character, 215, 216. deposit by agent, 216-218. deposit by husband and wife, 219. deposit by corporate agent. 220. governmental deposits, 220. attachment and garnishment of deposit, 220-222, 644 payments in violation of injunction, 221, note 4 misnomer in garnishment, 222. death of depositor, effect upon checks, 223-229. if check accepted, death immaterial, 223. if check unaccepted, death destroys check, 224 rule in states where check an assignment, 223. insolvency of depositor, 229, 230. payments good until notice to the bank, 229. rule in states where check an assignment, 230. application of deposit by bank to its own claim, 230. form of claim immaterial, 230. bank cannot appropriate deposit not belonging to depositor, 280, unless it gave credit upon deposit, 230. 820 INDEX. References are to pages. DEPOSITS (continued) bank may apply deposit on claim against true owner, 231. cannot apply if claim secured, 231. if claim not matured, 232. unless depositor insolvent, 232. cannot apply individual deposit on partnership debt, 231. when cannot apply as against attachment, 232. or assignment, 232. no duty to apply as to third parties, 233-235. exceptional rule in Pennsylvania, 234. note 4. if bank insolvent surety entitled to deposit. 234, note 2. case of non-residence, 235, note 8. application by bank to claim If another payable at bank, 235. payment upon such application final except under clear- ing-house rule. 235, 236, note 7. payment of deposit, 236-239, 645-649. in savings bank, see SAVINGS BANK. by remittances, 236. when bank may refuse, 237, 255. bank may refuse to pay part of check, 237, note 7, 255, 436, note 28. cannot dispute depositor's title, 238. must pay in current funds, 238. custom cannot make legal tender, 238, note 22. depositor's right of set-off for his deposit, 239-241. debt must be matured unless bank insolvent, 240. set-off for firm deposit against his own debt, 240, note 5. setoff not affected by appointment of receiver or as- signee, 240. certificates of deposit as set-off, see CERTIFICATES OF DEPOSIT. depositor's right of set-olf, if waived, cannot be revived, 241. liability of bank for dishonoring check, 241-250. to depositor for deposit, 241. necessary to allege check indorsed, 241, note 6. to depositor for damages, 241. substantial damages may be recovered, 242. remote damages may not, 242. to holder of check, none, 243. unless check accepted, 243. acceptance of check, 243. See ACCEPTANCE. promise to accept, when not binding, 244. to holder, exceptional rule, 245-253. unfortunate results of this rule, 225, 228, note 26, 229, note 2, 233, note 22, 250, note 30, 586, note 13. unfortunate confusion in law of Illinois, 250, note 30. order of paying checks must be in order of presentation, 254. bank must pay as directed, 255, note 5. certified and accepted check, see CERTIFIED CHECKS. forged and altered checks, see FORGED PAPER. lost checks, see LOST PAPER. overpayment of check may be recovered, 273. payment to wrong person may be recovered, 273. not if payee without fault, 273. depositor cannot recover from person to whom wrongly paid, 273. nor can payee recover from person, 273. or from bank, 273. INDEX. 821 References are to pages. DEPOSITS (continued) payment of genuine check or note payable at bank is final, 274 interest on deposits, see INTEREST. overdrawing deposit, see OVERDRAFTS. special deposits, see SPECIAL DEPOSITS. actions upon deposit, 287-293. demand necessary, 287. unless bank's contract illegal, 287. or bank suspended payment, 287. or stated account, 288. or notified depositor that it refuses to pay, 287. or claims deposit as its own or another's, 288. or an overpayment has been allowed to bank by mistake, 288. right of action not lost by suing one who wrongly received de- posit. 288. nor by proving claim before receiver, 288. if deposit attached, bank entitled to a stay, 288. remedy is at law on general deposit, 288. upon certificates of deposit, see CERTIFICATES OP DEPOSIT. parties to actions upon deposit, 288, 289. depositor if true owner must sue, 288. true owner may sue, 288, 289. agent may sue "for deposit as agent, 289. trustee may sue, 289. joint deposit must be sued for by depositors jointly, 289. bank may have interpleader. 289. bank should give notice to depositor if suit by third party, 289. limitations upon actions for deposit, 290, 291. presumptions and burden of proof, 291, 293. as to payment, 291. as to mistake in books, 291. as to indorsement, 291. as to check revoked, 291. by receipt of cashier, 292. books of bank as evidence, 208, 292, and note 14 DIRECTORS (see DE FACTO OFFICERS: OFFICERS) forbidden loan to, may be recovered, 62, note 3, 327, 341. cannot release subscriber to stock, 79, note 1. have power to declare dividends, 114. may collect surplus before declaring dividend, 114 may hold stockholder's stock dividend for debt to bank, 114 generally select officers other than themselves, 116. must be selected as provided by charter, 114. may fix salaries, 117. hold all the corporate power, 115, 148. may be paid for services beyond salary, when, 118. may act at general or special meeting, 118. notice need not be given of fixed or stated meetings, 118. nor of customary special meetings, 118, note 2. board not required to keep written record, 119. quorum necessary to act, 119. unless custom otherwise, 119. may resign though elected until successor qualified, 119. cannot act where personally involved, 119. liability for official acts to bank, see OFFICERS. liability to stockholders, see OFFICERS. liability to creditors, see OFFICERS. 822 INDEX. References are to pages. DIRECTORS (continued) notice to bank through director's knowledge, see NOTICE. must act as a board, 148. acting individually unless specially authorized not officers, 148, note 2. only board of directors can allow overdrafts, 275. liability for notes of bank, 562. directors' liability in forfeiting charter of national bank, 570, 702. liability as officers, see OFFICERS. DISCHARGE of drawer by failure to present for acceptance, see ACCEPTANCE. of indorser by failure to present for acceptance, see ACCEPTANCE. of indorser or drawer by failure to demand, see DEMAND. of indorser or drawer by failure to give notice, see NOTICE OF NON- PAYMENT. of parties to accepted bill, see ACCEPTANCE. DISCOUNT power to discount includes power to purchase, 69, 197. person discounting paper at bank warrants signature, 340. bank discount not usury, 333. statute as to national banks, 686. bank may rescind fraudulent discount, 339. and even where not fraudulent, 339. DISSOLUTION though statute declares dissolution, receiver may enforce bank's, rights, 125. of bank by surrender of charter, 565. voluntary dissolution of national banks, 692. notice of, 692. deposit of money to redeem notes, 692. retransf er of bonds, 692. by expiration of charter, 566. by statute dissolving, 566, 572. by action to forfeit charter, 571. waiver of forfeiture by state, 570, 571. decree of dissolution and forfeiture, 566, 5681 declaration of forfeiture, 572. effect of dissolution, 572, 573. of savings bank, 650. DIVIDENDS (see DIRECTORS; LIEN; STOCK). DOMESTIC PAPER for demand upon, see DEMAND. supplementing notarial certificate of protest by parol evidence, 552, 553. E. EQUITY for remedy of stockholders in, see STOCKHOLDERS. for remedy of creditors in, see CREDITORS. for remedy in, upon statutory liability, see STOCKHOLDERS. ESTOPPEL for agent by estoppel, see AGENCY. for stockholder by estoppel, see STOCKHOLDERS. INDEX. 823 References are to pages. EVIDENCE statute making failure of bank within certain time, evidence of in- tent to defraud, 128. for books of bank as evidence, see BOOKS OF BANE. for evidence of insolvency, see INSOLVENCY. in suits upon collections, see COLLECTIONS. in suits upon deposits, see DEPOSITS. for dishonoring check, see DEPOSITS. for certificate of protest as, see PROTEST. EXAMINERS for examiners of state banks, see STATE BANKS. national banks, see NATIONAL BANKS. EXCHANGE DEALER savings bank not an exchange dealer, 29. EXCHANGES (see COLLECTIONS; FORGED PAPER). EXCUSES for failure to present for acceptance or payment, see DEMAND. for failure to give notice of non-payment, see NOTICE OF NON-PAY- MENT. EXECUTORS (see PERSONAL REPRESENTATIVE) for liability upon decedent's stock, see STOCKHOLDERS. for demand upon, see DEMAND. for notice of non-payment to, see NOTICE OF NON-PAYMENT. F. FALSE ENTRIES (see CRIMES). FALSE REPORTS (see CRIMES). FALSE RETURNS (see CRIMES). FICTITIOUS PAYEES (see FORGED PAPER) check payable to fictitious payee is payable to bearer, 259. payment upon indorsement of fictitious payee, 259, 260, 845. certification to, is good in hands of bona fide holder, 260. but real person intended is not a fictitious payee, 260. not person believed to be in existence, 260. indorsement by person intended not a forgery, 260, 345. FOREIGN BILLS (see DEMAND) certificate of protest upon, cannot be supplemented, 553. FOREIGN COIN taken by weight, 560. FORFEITURE (see DISSOLUTION) of charter of savings bank, 650. FORGED PAPER (see CERTIFIED CHECKS) bank liable for permitting transfer of stock on forged power, 85. certification or payment of forged checks or notes, 262-271. certification of check forged as to drawer's name revocable, 262. except as to holder for value, 263. nor where bank can charge check to drawer, 264 payment of check or note, maker's or drawer's name forged is final, 264. unless person to whom paid was at fault, 264 824 INDEX. References are to pages. FORGED PAPER (continued) bank cannot charge check forged as to drawer's name against de- positor, 265. unless depositor misled the bank, 265. or was guilty of negligence after payment in not examining the returned checks or notes, 265. in latter case depositor responsible to extent of bank's loss, 265. certification of check, indorser's name forged, 266. on certificate of deposit, 266, 280. bank may recover from person to whom it paid, 266. certification of check altered in amount, 267-270. bank not liable except on original check where alteration was be- fore certification, 268. unless its conduct is an estoppel, 268. check altered after certification, bank not liable, 268. unless it was negligent in drawing check, 269. bank may recover from person to whom it pays altered check, 269. unless it can charge check to depositor, 270. bank paying negligently cannot complain of depositor's negligence, 270, 271. forged paper as between banks, 270, 271. rule as to forgery of drawer's signature between banks, 270. bank paying may recover from bank indorsing, 271. effect of clearing-house rule, 271, 656. lost checks not negotiable in form governed by rule as to forgery, 272. fictitious payee not person believed to be in existence, 260, 345. indorsement by person intended is not a forgery, 345. payment upon indorsement of fictitious payee, see FICTITIOUS PAY- EES. payment of certificate of deposit upon forged indorsement is not payment, 280. payment of forged exchanges, 345, 346. payment of draft to fictitious payee, see FICTITIOUS PAYEES. indorsement of person intended not a forgery, 345. but in some jurisdictions rule seems to be different, 260. negligence of drawer where draft raised, 345. bank must repay money obtained on a forged signature, 346. bank may recover money paid on forged signature, 346. unless it be drawer's signature to paper upon that bank, 346. payee to whom paid liable only for amount actually received upon forged paper. 346. upon forged paper no demand is necessary, 406. demand upon altered paper, 406. FRAUD liability of officers for, see OFFICERS. as an excuse for failure to demand, see DEMAND. fraudulent discount, see DISCOUNT. keeping open insolvent bank, see OFFICERS. fraudulent representations by officers, see OFFICERS statute making failure within thirty days evidence of intent to de- fraud, 12a G. GARNISHMENT (see ATTACHMENT) may be served on cashier, 620. misnomer of depositor in garnishment, 222. whether garnishment lies upon statutory liability, 99. INDEX. 825 References are to pageat GARNISHMENT (continued) of stock subscription, 97. of deposits, 220-223. does not reach assigned deposit, 644. of proceeds of collection or collectible paper, 318, 819. GENERAL REPUTATION as impeaching proof against notary or his certificate, 552, note 2. . as proof of insolvency, 312. as proof of corporate existence, 49. GOLD state cannot make anything but gold and silver a legal tender, 42. GOLD BANKS under national bank act, 681. conversion of, into national banks, 675, 676. GOLD NOTES under national bank act, 670. GOLD RESERVE under national bank act, 670. GUARANTY of commercial paper, consideration for, 328. who are guarantors, see DEMAND. endorsers of non-negotiable paper, 404. whether continuing or not, 328. of negotiable paper by irregular indorsement, 394, 395, 402, 403. express guaranties, 400. by waiver of demand and notice, see WAIVER. blank regular indorsement as a guaranty, 531, 532, 533. GUARDIAN (see TRUSTEE) liability upon stock of ward, see STOCKHOLDERS. bank transferring stock by guardian's fraud, 85, note 3. H. HOTEL demand at, as residence, see DEMAND. service of notice on non-payment at, 480. HOUR OF DEMAND (see DEMAND). HOUR OP SERVICE (see NOTICE OF NON-PAYMENT). HUSBAND AND WIFE for deposits by, see DEPOSITS. by, in savings bank, see SAVINGS BANK. demand and notice of non-payment upon paper belonging to wife, 412. ILLEGAL BANKING (see UNLAWFUL BANKING). ILLEGAL DEPOSITS (see SAVINGS BANK). ILLEGAL LOANS (see LOANS). 826 INDEX. References are to pages. ILLEGAL NOTES (see CIRCULATING NOTES). IN PARI DELICTO (see UNLAWFUL BANKING). INCREASE OF STOCK (see STOCK). INDORSEMENT, REGULAR form of, where notice of owner's rights, see COLLECTIONS. whether blank regular indorsement may be shown a waiver, 53L 532, 533. parol waiver at time of indorsement, 532, 533. parol waiver after indorsement, 532, 533. by bank upon note of admission, 621. INDORSEMENT, IRREGULAR (see ACCOMMODATED PARTIES; ACCOM- MODATION PARTIES). in blank, is guaranty, 402. effect of the indorsement, 394, 396. 402, 531, 532, 533. varying rules as to, 402, 532, 533, 534. parol evidence to show contract, 402, 533, 534. irregular indorser stipulating for demand and notice, 403. as a waiver, 531, 532, 533. parol evidence to show waiver, 533, 534, INJUNCTION against use of corporate name, 46. against transfers of stock, 84 payments of deposit in violation of, 221, note 4. power to .collect revoked by injunction, 296. correspondent bank bound by injunction against primary, 821 r note 8. state cannot grant injunction against national bank, 628. federal court may grant injunction. 628. may continue injunction improperly granted by state court, 62a INSOLVENCY (see OFFICERS; RECEIVERS; STOCKHOLDERS) as ground of enforcing statutory liability, see STOCKHOLDERS. when bank insolvent, 129, 574, 579. proof of insolvency, 113, 574. general reputation as proof of insolvency, 312. return of nulla bona, 312. as ground for making officers liable to depositors in bank, 127, 128. knowledge of insolvency necessary, 128. neglect of means of knowledge is knowledge, 128, note 4, of depositor, effect on checks, 229, 230. power to collect not granted when bank insolvent, 297. revoked by insolvency, 297, 322. power of correspondent bank to remit revoked by primary bank's insolvency, 322. insolvency of drawer must be shown in suit for negligence in col- lecting check, 312. insolvency of maker, drawee or acceptor no excuse for demand, 457, 458. insolvency of drawer of check as excuse, 458, 461. insolvency of bank on which check drawn as excuse for demand, 458, 461. assignments for creditors by bank, 574. See BANKING POWERS. power to make preferences, 574. See ASSIGNMENTS FOR CRED- ITORS. INDEX. 827 References are to pages. INSOLVENCY (continued) when assignment prevails over receivership, 575, 576k general assignment transfers all bank's property, 576. effect upon checks outstanding, 576, note 9. of savings banks, 650. preferences by banks, see PREFERENCES. receivers and assignees of banks, see RECEIVERS. payment of claims, see RECEIVERS. priorities upon assets, see PRIORITIES. INTEREST AND USURY national bank act exclusive, 75, 336, 337. decree or assessment for statutory liability draws interest, 114 general deposits do not draw interest except by agreement, 274. overdrafts do not draw interest except by agreement or custom, 278. except from date of demand, 278. certificates of deposit drawing interest, see CERTIFICATE OF DEPOSIT. banks are governed by general law, 329. unless barred by special charter or statute, 330. reservation of greater rate than law allows is unlawful, 330, 335. law governing performance of contract governs rate, 330. rate lawful where contract to be performed, lawful everywhere, 330. exceptional rule in some jurisdictions, 331. attempt in Illinois to extend usury laws over other states, 331, note 4. under state statutes usurious discounts not always forbidden, 334 usury statutes sometimes apply only to discounts, 331. national-bank statute applies to discounts, purchases and loans, 334. must be an intent to take more than legal rate, 331, 338. lending by bank of its own depreciated bills not usury, 332. another bank's depreciated bills is usury, 332. commissions of agent as usuiy, 332. usurious transactions, what are, 332, 333. rate for national banks, 333. statute as to national banks, 686. whether, where no rate, national bank can charge more than seven per centum, 334, note 26. renewal notes, whether within statutes, 332, 333, 334. parties affected by usurious transaction depends upon statute, 334. statutes usually affect only immediate parties, 337, 338. borrower may recover interest overpaid without statute, 335. statutes give right to recover, 335. so national bank act, 335, 686. statutes sometimes make loan void, 335. forfeit interest, 335. forfeit excess over legal rate, 335. national bank statutes impose penalty of twice the interest paid, 335. whether this means twice the interest or twice the excess, 335. make whole interest void before payment, 335. loan or deposit of collaterals not void, 336. interest-bearing quality of paper destroyed, 838. applies to overdrafts, 336. negotiability of note not destroyed, 336. state statutes may makf usurious act of national bank officers an offense against the state, 75, notes 4 and 5, 142, 836. two years' limitation in national bank act begins to run from the date of payment of interest, 337. S2S INDEX. References are to pages. INTEREST AND USURY (continued) penalty recoverable does not draw interest, 337, note 16. usurious interest paid cannot be made set-off, 337. no set-off to the penalty, 337. corporation forbidden by state statute to set up usury may set it up under national bank act, 338. legal representative, indorsee, assignee, but not judgment creditor, may set up usury, 339. for jurisdiction of courts over national bank's usurious transactions, see JURISDICTION. INTEREST COUPONS may be demanded without having note, 418. INTERPLEADER (see DEPOSITS) by savings bank, 649, 650. J. JOINT OBLIGORS OR OBLIGEES officers jointly liable in tort, release to one releases all, 126, 135. stockholders jointly liable, see STOCKHOLDERS. presentment for acceptance must be to each, 414 presentment for payment must be to each, 414, 462. service of notice of non-payment must be upon each, 483. joint deposit must be sued for in name of both depositors, 289. joint deposit of collaterals individually owned does not give a joint right of action, 289. admission of liability by one binds all as waiver, 542. JOINT-STOCK COMPANY as a bank, 40. if not lawful is a general partnership, 40, 56. whether a corporation, queer e, 40. no de facto joint-stock companies, 40. JURISDICTION in cases brought by creditors of banks, federal courts are governed by ninety-fourth equity rule, 93. except in winding up national banks, 112, 622, 623, 628, note 3. over suits for usury in national banks, state courts as well as fed- eral courts have jui-isdiction, 339. in suit in state court, right of national bank under federal law must be specially claimed in order to obtain review in supreme court, 339, 623. national bank now citizen of state where located, 622, 623. statutes as to jurisdiction over, 664, 665. usury suits governed by this rule, 622. no attachment can be issued by any court against national bank, 628. no injunction by state court, 628. federal court may grant injunction, 628. in jurisdiction of federal courts of suits over national banks, juris- dictional amount governs, 623. and where federal question involved, 623. receiver of national bank may sue in federal court, 624. may remove suit, 624. agent of stockholders may sue in federal court, 624. method of alleging residence of bank, 625. INDEX. 829- References are to pages. JURISDICTION (continued) national bank having right to sue in federal court may sue either where located or where defendant lives, 625. in local actions must sue where property located, 626. if defendants live in different districts suit may be in either dis- trict, 626. in usury suits jurisdiction is in state court where the bank is lo- cated, 626. same rule applies to other suits against bank, 626, 627. unless the action is local, when it must be brought where prop- erty located, 628. LACHES stockholder may lose right to object to increase of stock by, 79, note 10. of bank as a defense in creditors' suits against officers, 134. no defense where officers control the bank, 134, 135. LEGAL REPRESENTATIVE not liable on stock personally, 83. only by estoppel, 84. stock bequeathed estate liable until transfer to legatee, 84. estate of persons who have reached majority cannot be held in suit against guardian, 84. executor's failure to transfer to himself, 84, note 6. usury suits by, see INTEREST. demand upon, see DEMAND. notice to, see NOTICE OF NON-PAYMENT. LEGAL TENDER custom cannot create, 238, note 22. payment must be in legal tender or current money, 341, 342. bank notes, how far a legal tender, 342 and note 6. national bank notes how far a legal tender, 343, note 15. 680. 686. are legal tender to every other national bank^ 686. treasury notes, how far legal tender, 238, note 22, 560, note 24. silver coin as a legal tender, 560. foreign coin as a legal tender, 560. LEGISLATIVE REGULATION (see CONFLICT OF LAWS) legislature has power to regulate banking. 71. has power to forbid foreign banks doing business in state, 75, 76, foreign bank notes may be prohibited, 76. may prohibit private banking, 33-39. cannot prohibit all banking, 71. state regulations of national banks, 71, 74, 93. prohibited conveyances, 74 filing of agent's name. 75. defining act of national bank officer as crime, 75, notes 4 and 5,. 142, 336. deposit of funds by state banks of issue, 73. requirement of reports, 73. federal statutes will not apply state law as to filing reports, 73, 620. bank examiners, 74. lawful money reserves, 74. usurious rates of interest, 74. 830 INDEX. References are to pages. LEGISLATIVE REGULATION (continued) federal usury statute exclusive of state legislation, 75, 335, 336. federal courts not bound by state statutes in usury suits against na- tional banks, 338. or as to preferences, 618. LENDING CREDIT banks cannot lend credit, see BANKING POWERS. LICENSE TAXES must be reasonable, 72. LIEN lien on shares by bank, national banks can have none, 89, 189. in other banks, permissible if not forbidden, 89, 91, 189. forbidden by denial of power to hold its stock, 49. 89. does not extend to dividends, 90, 92. all parties have notice where lien given by charter, 90. covers all kinds of liabilities, 90. does not give power to sell, 90. may be waived by taking security, 90, 91. by by-law binds stockholders. 91. by by-law does not bind creditors of stock- holder, 91. sureties are subrogated to bank's lien, 90. when lien cannot be created by by-law, 49. upon deposit, bank must protect, 215, 221. bank's lien upon dividends for claims due bank. 114. lien by bank upon proceeds of collection, 297, 316. correspondent bank's lien, 297, 298, 316. extends only to credit given on paper or by agreement, 316. lien by bank upon bill of lading for advances, 328 and note 8. general lien by bank upon collaterals, 329. no lien upon note it refuses to discount, 329. clearing-house lien, see CLEARING-HOUSE. LIMITATIONS (see STATUTE OF LIMITATIONS). LIMITED PARTNERSHIP (see PARTNERSHIP). LOAN COMPANY is not a bank, 29-31. LOANS (see NATIONAL BANKS) joint deposit of collaterals upon, 289. right to iaan upon collaterals incident to banking, 328. deposits may be collateral even when general, 328. loans contrary to law may be recovered, 327, 341. collateral may be enforced, 327. indorser's collateral may be enforced though indorser released, 535. loans permitted only to particular persons, 326, note 2. loans compelled to stockholders, 326. guaranty of a loan, 328. See GUARANTY. lieu upon bill of lading, 328. See Addendum. bank has lien whether it may charge back draft or not, 328, note 8. president's collaterals deposited on bank's loan to him cannot be sold without notice, 329. bank's general lien upon collaterals, 329. INDEX. 831 References are to pages. LOANS (continued) no lien on paper bank refuses to discount, 329. interest upon loans, see INTEREST. usurious loans, see INTEREST. creditor may have dividend upon debt and upon collaterals, 589. payment of loans must be in legal tender or current money, 341, 342. in state bonds, 342. in hank's own bills, 342. not allowed if bank assigns note, 345. but not a good tender, 342. national bank notes, 343. in treasury notes. 238, note 22, 560, note 24 LOST PAPER lost or stolen bank notes, redemption of, 680. if paper lost, negligence of collecting bank presumed, 311* measure of recovery, 313. delays in demand through loss of paper excused, 430. loss of check, 434. lost bank notes of state banks, recovery upon, 558. half of note lost, recovery without indemnity, 558, 559. worn out and mutilated notes, 539. worn out and mutilated national bank notes, 680. loss in postoffice excusing want of notice, see NOTICE OF NON-PAY- MENT. non-receipt of notice sent by mail, see NOTICE OF NON-PAYMENT. M. MANDAMUS to compel transfer of stock, 84 to compel call for stock subscription, 97. MISNOMER in garnishment, see GARNISHMENT. of depositor, see DEPOSITS. in certificate of protest, see PROTEST. MISTAKE in payment of deposits, see DEPOSITS. in payment of collections, see COLLECTIONS. MONEY CHANGER bank is a, 29. MONEY HAD AND RECEIVED lies for money misappropriated by officer except against a bonafide holder, 119, 120. MORTGAGES (see BANKING POWERS). MUNICIPAL CORPORATIONS no power to issue notes, 555. MUNICIPAL ORDERS (see DEMAND). MUTILATED PAPER (see LOST PAPER). 832 INDEX. References are to pages. NATIONAL BANKS (see BANKS; BANKING POWERS; CORPORATE BANKS; LEGISLATIVE REGULATION) classification of banks into, 26. organization of, 665. congress power to charter, 41. conversion of state into national banks, 47, 675, 676. conversion of gold banks into national banks, 675, 676. conversion of banks in District of Columbia, 48. only national banks can use word " national," 46, note 4, 703. certificate of organization, 665, 666. copy as evidence, 665. until certificate issued, can do no business, 59, 667. acts done in its name not binding before certificate, 60, 68. corporators liable as partners, 56, note 7, 58, 69. powers of national banks under statute, 666, 667. as to real estate, 671. as to purchasing its own stock, 687. as to loaning upon its own stock, 687. as to purchasing stock in another bank, 64, 190, 191. bank cannot be held liable upon stock, 64. real-estate security may be enforced, 64 cannot have lien on their own stock, 189. cannot engage in buying and selling stocks, 190. may loan on stocks and purchase at sale, 191. may sell its own stock lawfully acquired, 189. cannot ratify purchase of its own shares, 189, 190. cannot be sued for conversion of its own shares, 190. may take personal property on claim, 192. take chattel mortgage, 192. deal in government securities, 193. receive special deposits, 199, 287. contract to recover them, 199. cannot make donation to manufactory. 192. may make its property productive, 192. sell or exchange its property, 193. assign judgment, 193. hold escrows and securities, 193. protect its own buildings by erecting others, 194, note 3. purchase real property at its own sale, 194. as to office buildings, 194 may take land in payment of debt, 194 as to mortgages, 196. may mortgage its real property, 197. borrow money, 199. issue certificates of deposit, 199, 279.. INDEX. 833 References are to pages. NATIONAL BANKS (continued) powers of national banks, may purchase negotiable paper, 197, 198. transfer and sell it, 198. issue its promissory note, 198. cannot lend its credit, 199, 200. has power to make collections, 200. may have savings department, 193. jurisdiction of courts over, see JURISDICTION. comptroller's power over, see COMPTROLLER OF CURRENCY. place of business (statute), 682. must transact business at banking house, 74 removal of place of business, 666. extension of period of existence (statute), 667, 668. deposit of bonds. 669, 670, 676. certifying checks without credit, as an offense, 670, 671, 689. checks valid against bank, 689. amount of capital, 671. shares, how transferable, 671, 672. payment of shares, 671, 672. sale of shares for failure to pay, 672. increase of capital stock, 77, 672. certificate of comptroller conclusive, 78 and note 7. comptroller cannot grant increase after insolvency, 78, note 7. no increase until certificate, 78. bank trustee for increase until certificate issued, 78. if certificate not issued there is no increase, 79. stockholder loses right to object by laches, 79, note 10. decrease of capital stock, 673. when reduced, bank cannot retain surplus of capital, 79. stockholders' right to vote, 673. right of stockholders to inspect books, 93. directors, how elected, 673. qualifications of directors, 673. oath of directors, 673. filling vacancies in board, 674, calling elections, 674 president, 674 statutory liability of stockholders, 674 liability of executors, trustees, guardians, etc., 674 as public depositories, 674 registered bonds, 676. annual examination of bonds, 677. transferring bonds, 677. - custody of bonds, 678. bank notes, 679, 680. how far a legal tender. 343, note 15, 680, 686. redemption of lost or stolen notes, 680. post-notes and other notes prohibited, 680. worn out and mutilated notes, 680. lawful money reserve, 74, 681, 682, 683. no reserve for notes except five per centum, 683, 684 mutilation of notes forbidden, 682. imitation of notes for advertising, 681. withdrawal of circulating notes, 669, 670, 684 dividends, 687. dividend report, 690. power of directors to declare dividends, 114 controllable by courts for abuse, 114 53 834 INDEX. References are to pages. NATIONAL BANKS (continued) extent of loans to any borrower, 687. limit upon indebtedness, 687. pledge of notes, 687, 689. withdrawal of capital except by reduction forbidden, 687, 688. impairment of capital stock, assessment for, 688. uncurrent notes not receivable. 688. reports to comptroller, 690. oath to reports, 690. power of state to tax (statute), 692. cannot be taxed except as permitted by congress, 52. discrimination against national banks forbidden, 52. meaning and purpose of statute, 51, 53, note 9. dissolution, voluntary, 692. effect of dissolution, see RECEIVERS. consolidation of banks, 692. See REORGANIZATION AND CONSOLIDA- TION. protesting notes for non-payment, 693. business after failure to redeem notes, 694. forreiture and sale of bonds deposited, 694, 695. notes a paramount lien upon assets, 694. counterfeit notes, 697. appointment of receivers, 695. for failure to redeem notes or insolvency, 74. management of property by receiver. 700. 701. must manage according to laws of state, 701. preserving bank's equities in property, 700, 701. receiver suable without leave, 701. forfeiture of charter, 702. bank examiners, 702. preferences, 703. national banks not foreign in state, 75. for state regulations of national banks, see CONFLICT OF LAWS. for stool; holders in national banks, see STOCKHOLDERS. for officers of national banks, see OFFICERS. for directors of, see DIRECTORS. for president of, see PRESIDENT. for cashier of, see CASHIER. for other officers, see BOOK-KEEPERS; TELLERS; VICE-PRESIDENT. for crimes in national banks, see CRIMES. for overdrafts, see OVERDRAFTS. for deposits in, see DEPOSITS. for collections by, see COLLECTIONS. for preferences by national banks, see PREFERENCES. for priorities in assets of national banks, see PRIORITIES. for suits for usury penalty, see INTEREST. for defense of usury, see INTEREST. for insolvency of national banks, see INSOLVENCY. for settlement of affairs of insolvent or dissolved bank, see Rn- CEIVERS. NEGLIGENCE negligence of directors, how differs from fraud, 20, 127. liability of officers for, see OFFICERS. in paying checks, see DEPOSITS. in paying deposits in savings banks, see SAVINGS BANKS. of depositor, see DEPOSITS; SAVINGS BANKS. in making collection, see COLLECTIONS. INDEX. 835 References are to pages. NOTARY for bank's liability for, see COLLECTIONS. for evidence impeaching, see GENERAL REPUTATION; PROTEST. for demand by, see DEMAND. for notice of non-payment by, see NOTICE OF NON-PAYMENT. for certificate of protest by, see PROTEST. NOTICE for notice of directors' meetings, see DIRECTORS. for notice to bank by indorsement, see COLLECTIONS. importance of notice in banking law, 19, 20. mistakes of courts as to, 19, 20. basis of the legal rules, 19, 20. to bank through agent, see AGENCY. to bank through officer, 171-188. to officer whose duty it is to act, 172. private knowledge of officer not binding, 172, 173, 176, 488. unless officer acted in transaction, 173. there must appear knowledge was in his mind, 176. to officer performing a continuous course of duty, 174. once received is always binding, 175. to bank through officer with adverse interest, 177-183. rule where officer acts for bank, 178. to third parties by form of paper, 166, 183. officer how far charged with bank's knowledge, 183. president not charged with notice so that his collaterals may be sold without notice to him, 329. of non-payment by mail, see NOTICE OF NON-PAYMENT. of non-payment to bank may be directed to president, 479, note 23. or cashier, 479, note 23. of officer's lack of authority, see OFFICERS. ratification of officer's unauthorized act as notice, see RATIFICATION. notice to bank as to ownership of deposit, see DEPOSIT. notice to savings bank of drawing deposit, 649. NOTICE OF NON-PAYMENT (see WAIVER) duty of bank collecting to notify drawers and indorsers, see COL- LECTION. acceptance waived does not waive notice, 388. if acceptance refused notice must be given, even on paper not re- quiring acceptance, 374, 389, 466, 472. notice necessary whenever demand is necessary, 391, 466. parties entitled to notice, 508, 509. guarantor not entitled to notice, 403. drawer and indorser of non-negotiable paper, whether entitled, 404, 472. if due diligence used and no demand made, notice necessary, 453, 466. demand excused as to drawer, notice necessary to indorser, 460, note 12, 461. where indorser or drawer entitled to notice, 465, 466. to indorser of certificate of deposit, 466. discharge from want of notice absolute, 466, 524 if paper taken in payment debt is paid, 525. but if rights of indorser are claimed, party must have indorsed, 525, note 5. i f paper was security party is entitled to credit on the debt, 525. if new security given But reserving rights, the security is unenforce- able, 525, note 1. 836 INDEX. References are to pages. NOTICE OF NON-PAYMENT (continued) exchanges of checks, release of one does not release other, 525, note 2. parties who cannot claim notice, 466. form of notice, 467-472. sufficiency of form, 467, 468. sufficiency of recitals, 469, 470. See PROTEST. necessary to notify upon first dishonor, 471. whether notice necessary of clearing-house dishonor, 471, note 47. modes of serving notice, 472. service by mail, when permitted, 472. by free delivery system, 473. notice must be mailed so as to be delivered by next day after demand, 473, 510. by banking custom, 476, note 13. residence of either holder or agent determines propriety of mailing, 474, 475, note 19. rule where parties have some postoffice, but person to be notified lives out of town, 473, 474, 493, 494. notice by drop-letter prima facie bad, 474, 506. notice properly mailed is notice whether received or not, 475. must be addressed to a place with a post- office, 476. when letter is properly mailed, 476. notice received in time good whether mail was proper service or not, 473. personal service of notice, 476-480. service actually personal, hour and place immaterial, 477. constructive service at either residence or place of business, 477. at place of business must be in business hours, 477. at residence hour not material, 477. at place of business by leaving notice, 478. service on bank at banking house, 479. notice directed either to president or cashier, 479, note 23. corporation at its place of business, 479. partnership either at place of business or residence of one partner, 479. rules to determine place of business, 478, 479. residence may be hotel, boarding-house or dwelling, 480. rules for serving at residence, 480. place of service designated by person to be served, 481. agreement as to service, 481. service upon agent, 481-483. upon joint obligors on each, 483. upon partnership upon any partner, 484. even if firm dissolved, 484. upon assignee, 485. notice by or to successive obligors, 485-488. holder may serve upon any or all prior parties, 486. each indorser must protect himself, 486. party notified held to all subsequent to notifier, 486, 490. all indorsements for collection or value the same, 487. rule seems to exclude agent to serve as holder, 487, 515. needs not give agent his information unless he directs agent to serve, 488. may send notice to agent to serve, 488. statutes requiring holder to serve all indorsers, 488. INDEX. 837 References are to pages. N.OTICE OF NON-PAYMENT (continued) by whom notice given, 489. by party to paper or his agent, 489. holder includes assignor, 489. eacli holder may notify prior parties, 486, 489. notice by stranger nugatory, 491. place to direct by mail, 491-508. mail not compulsory; may use messenger, 491, post-office with two names, 491. notice directed to county, 491, note 5, 506. notice to city not by street and number, 492. place to direct is place of actual residence, 492. person with different residence with season, 492. temporary absence from home does not change rule, 492, 496- 498. if person does not reside at post town, notice to nearest post- office. 493. or to place where he receives mail, 494. or to place directed by him. 495. if notice received in time, place sent immaterial, 496, 503. members of legislatures, rule as to service, 498-500. if residence changed, notice to new residence. 500. unless changed into another state, 500, 508. or person absconded, 508. if residence not known, presumption, 501, 502. residence changed, place of business retained, 502. service upon agent at former place of residence, 503. if residence not known due diligence to ascertain, 503. inquiries to be made, 503-507. where residence changed, due diligence, 507. inquiries to be made, 507, 508. if due diligence, no notice necessary if residence afterwards found, 508. day of giving notice, 509-515. notice before demand nugatory, 509. premature notice, 509. notice upon same day as demand, 509. needs not be given until next day after demand, 509, 511. time given for reasonable inquiries, 510. time that is reasonable for personal service, 510, 511. notice by mail next day after dishonor by first mail of day, 512. unless mail leaves at unreasonable hour, 512. what is reasonable hour, 513. successive obligors each one day to give notice, 514. rule applies to holder receiving notice from agent, 515. whether rule applies to notices sent to agent, quere, 417, 515. holder must give notice of his first notice, 514. / holidays and Sundays, 515, 517. service upon next day after holiday, 516. or upon day of demand, 516. whether notice can be given on holiday, 516, note 7. death of holder excuses delay, 517. service upon personal representative of the deceased, 517-519. sickness as affecting service, 519. customs and usages of banks as to service, 519, 520. as to demand on first day of grace, 520. as to service after last day of grace, 520. as to mailing notices to same place, 520. 838 INDEX. References are to pagea NOTICE OF NON-PAYMENT (continued) actual knowledge is not equivalent to notice, 530. what amounts to estoppel as to notice, 521. partner drawing on his firm entitled to no notice, 521. excuses for failure to notify, 521-525. due diligence, 521. miscarriage in mail, 522. nature of the paper, 522. agreement postponing maturity, 522. absconding, 522. departure without leaving ascertainable address, 522* failure to provide funds as to drawer, 522. not as to indorser unless accommodated, 522. insolvency not an excuse, 522, 523. fraud as an excuse, 523. war or pestilence, 523. excuses only during prevalence, 523, 524. waiver as an excuse, see WAIVER. protest by notary, see PROTEST. o. OFFICERS (see CASHIER; DIRECTORS; PRESIDENT; TELLERS; VICE-PRES- IDENT) the relation of an officer to his bank is a part of the law of principal and agent, 119. importance of the matter in banking law, 19, 20. confusion of the courts as to, 20, 123, 126, 127, 130, 131, notes 3 and 4. distinction between negligence and fraud, 20. torts of officers, bank liable for. 64, 148, 149. for salaries of officers, see SALARIES. liability of officers to bank, 119-123. funds misappropriated by officer may be followed until they reach a bona fide holder, 119. all officers who assisted misappropriation liable, 120. all officers who failed in duty to prevent, 120. all who failed in proper supervision, 121. statute not necessary to give action, 121. action may be money had and received, or bill in equity, 119, 120. president fraudulently issuing drafts to himself, 120. officers liable for failure to use ordinary care, 121, 122. for fraud, 120. allowing security to be taken from bank, 121. liable for subordinates, when, 121. for disobeying instruction, 122. remedy at law for negligence, 122. creditors suing must sue in equity by creditor's bill, 130, 131. joint or several suits, 122. action against officer survives, 123. liability of directors for negligence, 122. different tests of this liability. 122. bank may set off this claim againt officer's claim upon bank, 126. lack of meaning in term " gross negligence," 122, note 20. liability of officers to stockholders, 123. liability for frauds against stockholder, 123. not liable as directors to stockholders as stockholders, 123. INDEX. 839 References are to pages. OFFICERS (continued) stockholders may bring suit in equity in right of bank, 124 fruits of litigation belong to bank, 124. bank a necessary party, 124 stockholder may mingle his private claims, 124 suits by assignees and receivers of banks against officers, 125. creditors not proper parties, 125. statutory liability of officers for debt, 125, 126. will be enforced in another state, 126. is a ^wast-contract, 125. is joint, 126. release of one releases all, 126. no right of set-off, 126. liability to creditors, 126-134 as to creditors there is none, 127. liable for torts against creditor, 126, 127. false representations. 127. falsely representing bank to be solvent, 127. published reports, 127. keeping insolvent bank open as representation, 127. knowledge of insolvency necessary, 128. negligence of means of knowledge, 128, note 4 corporation not a party nor its receiver, 129. rules apply to national Juank officers, 130. neither bank nor receiver can release this action, 130, note 12. liable for negligence in managing bank's affairs only to bank, 130. creditors may pursue this liability as equitable assets, 130, 131. mistakes of courts, 131, notes 3, 4 suit as creditor's bill lies only in equity, 132. fruits of litigation belong to bank as assets, 132, 133. but creditor may mingle his private claims, 133. corporation or its receiver or assignee necessary party, 133. no demand upon bank to bring suit necessary, 133. laches of bank as a defense, 134 135. national bank directors responsible for false reports, 134 keeping insolvent bank open, 130. stockholders may sue for mismanagement if bank will not, 134 creditors may sue by creditors' bill, 134 withdrawal of deposit, 134 note 1. for violations of banking act creditors may sue, 134 receiver may sue without comptroller's order, 134 N forfeiture of charter, 134 laches as a defense, 134 135. release to one director jointly liable, releases all, 135. compromises of this liability, 135. criminal offenses by officers, see CRIMES. authority of officers and agents, 145, 170. extent of authority, how defined, 145, 146. modified by bank, 146. officer's act within scope of his authority binds bank, 146. error on guo warranto, 146, note 3. persons dealing with bank what presumed to know, 147. persons with notice of lack of authority, 146. without such notice, 147. where lack of authority, recovery is upon estoppel or in quasi- contract, 147. 840 INDEX. References are to pages. OFFICERS (continued) authority of officers and agents (continued) acts prohibited by law cannot be ratified, 148. authority of directors, see DIRECTORS. of president, see PRESIDENT. of cashier, see CASHIER. of vice-president, see VICE-PRESIDENT. of treasurer of saving bank, see SAVINGS BANK. of manager of branch bank, 155. of tellers, see TELLERS. must act at place of business, 157. authority as to surrendering bank's rights, 158. is part of parol evidence rule, 158. fraudulent representations for bank, 159. authority as affected by course of dealing, 159, 160. ratification of officers' act, see RATIFICATION. admissions by, see ADMISSIONS. notice to bank through officer, see NOTICE. officer's authority where he has an adverse interest, 162-168. as varied by ratification, see RATIFICATION. OVERDRAFTS only board of directors can allow, 275. overdrawing by officers as a crime. 138. overdrafts in national banks, when returnable as loans, 140, 276. board of directors may authorize officer to allow, 275. is overpayment of deposit, 276. if depositor given credit to a certain amount so that bank is liable for dishonoring check, it is not an overdraft, 140-142, 276. secured overdraft is money on deposit, 145. payment of checks does not prove overdraft, 277. wrongfully obtained, is fraudulent, 277. bank may recover money even if credited in another bank, 277. depositor overdrawing bound to repay on demand, 277, 278. does not draw interest except by agreement or custom, 278. until demand made, 278. overdraft once allowed irrevocable as to money paid, 278. usury statutes in national banks applies to overdrafts, 336. P. PARTNERSHIP for banking. 39. limited partnership, 40. limited partnership where not lawful becomes general, 40, 56. joint-stock company where not lawful becomes general, 40, 56. illegal corporation's corporators may be sued as partners, 56, note 7, 58, 69. liability of corporators as partners where corporation formed. 69. where no corporation formed, 69. statutory liability misnamed that of partnership, 102. bank cannot pay out partnership deposit on check of partner, 217. except where money went to partnership, 217, note 15. bank cannot apply individual deposit upon partnership debt, 231. demand of payment upon partnership made upon any partner either before or after dissolution, 414, 415. notice of non-payment served upon partnership at place of business or at residence of any partner, 479, 484. served upon assignee of firm, 485. even if firm dissolved, 484. INDEX. 841 References are to pages. PARTNERSHIP (continued) bill drawn by one partner on his firm, demand and notice not nec- essary to him, 521. partner may waive demand and notice for firm after dissolution, 527. liability of partners upon bank notes, 561. is clearing-house a partnership, 654, note 1, 655, note 1. PAYMENT of capital stock, see STOCKHOLDERS; NATIONAL BANKS. in legal tender, see LEGAL TENDER. of forged paper, see FORGED PAPER. of deposit, see DEPOSITS. of deposit in savings banks, see SAVINGS BANK. overpayment of check or payment to wrong person recoverable, 273. payment of checks and certified checks, when final, see CERTIFIED CHECKS: CHECKS: DEPOSITS. certification of check to payee is payment, 295, note 3. of collections, see COLLECTIONS. delivery of note by mistake not payment, 340. for payment of loans, see LOANS. circulating notes must be paid in specie, 559. to bank in its own notes, see CIRCULATING NOTES. of claims in insolvency, see RECEIVERS. PERSONAL REPRESENTATIVE (see LEGAL REPRESENTATIVE). PLACE of demand, see DEMAND. giving notice of non-payment, see NOTICE OF NON-PAYMENT. bank's business, see BANKS; NATIONAL BANKS. PLEDGE for pledgee of shares, see STOCKHOLDERS. for deposit of collaterals, see LOANS. POST-DATED CHECKS as bills of exchange, see CHECKS. POWERS OF BANK (see BANKING POWERS; NATIONAL BANKS). PREFERENCES assignments with preferences, see ASSIGNMENTS FOR CREDITORS result where check held to be an assignment, 576, note 7. forbidden by statutes, 577. forbidden by national bank act, 577, 703. by banks, what acts are. 577. payments in regular course of business, 578. payments in case of " runs " upon bank, 578. by withdrawing deposit, 134, note 1, 578, 579. by national banks, what acts are, 580, 581. " runs " upon the bank, 580. when clearing-house lien a preference, 660, 661. given to depositors over other creditors, 617, 618. state statute does not govern national bank, 619. PRESIDENT liability as officer, see OFFICERS. issuing drafts to himself, notice to third parties, 120. selling his own stock to bank, giving purchaser overdraft for price, 120. 842 INDEX. References are to pages. PRESIDENT (continued) allowing security to be taken from bank, 121. power to control litigation, 150. as to deeds, 150. as to transfers, 150. as to mortgages, 150. as to releasing claims, 150, 151. as to cashier's powers, 151. may recover deposit, 205, 206. certify checks, 258. make answer to garnishment, 620. his collateral deposited upon loan cannot be sold by bank without notice, 329. notice of non-payment to bank may be directed to president, 479, note 23. of savings bank, powers, 637. PRIORITIES when stockholder has a priority over creditors his claim is a set-off to his statutory liability, 113. no priority by attachment of national banks, see ATTACHMENT. upon any insolvent bank, 598. gained by set-off. 599. who are general creditors, 599-602. advance by directors to bank, 600. deposits by trustee, 600. public funds rightfully deposited, 600. certificates of deposit, 600. certified or accepted checks. 600. collections after collection and rightful credit, 600. banks with mutual credits, 601. wherever deposit goes rightfully into general funds of bank, de- positor is general creditor, 601. trust funds properly deposited give no priority, 602. if bank rightfully recovers trust funds, but pays out wrong- fully, beneficiary is general creditor, 603 and note 10. trust funds wrongfully deposited to knowledge of bank give a pri- ority over general creditors, 603-607. varying holdings of courts, 603-609. special deposit gives a priority, 608. varying holdings of courts, 608, 609. proceeds of collections before crediting or improperly credited give a priority, 609. varying holdings of courts, 609-614 when holder may claim priority in primary bank, 610, 611. when holder may claim priority in secondary bank, 611, 612. deposit in insolvent bank gives priority, 614, 615. fraudulent representation must cause deposit, 614. nature of deposit, whether of money or paper for collection, not material, 615. varying holdings of courts. 615, 616. public funds wrongfully deposited give a priority, 616, 617. liens existing not affected by insolvency, 617. statutory preferences of depositors over creditors, 617, 618, 651, 652. state statute does not affect national bank, 618. in savings banks, 651, 652. PRIVATE BANKING (see PARTNERSHIP) as a term of classification of banks, 26, 28. right of, 33-39. INDEX. 843 References are to pages. PRIVATE BANKING (continued)' right of legislature or constitution to prohibit, 83-39. not a nuisance, 36. formation of private bank, 39. of partnership, 39, 40. of limited partnership, 40. of joint-stock company, 40. limited partnership or joint-stock company illegal is general part- nership, 40, 56. illegal private banking, see UNLAWFUL BANKING. officers of private bank have same powers as similar officers in cor- porate bank, 115. crimes of private banker, see CRIMES. for deposits with private banker, see DEPOSITS. for collections by private banker, see COLLECTIONS. for legislative regulation, see LEGISLATIVE REGULATION. for circulating notes of private banker, see CIRCULATING NOTES. paper payable at any bank does not include private banker, 443, note 3. for loans by private banker, see LOANS. PROTEST meanings of term, 545. form of certificate governed by place of protest, 545. admissibility of certificate as evidence governed by lexfori, 546. time and place of execution of certificate, 546. certificate as evidence, statutes as to, 547, 548. certificate or books of deceased notary as evidence, 548, 551, note 1, form of certificate and recitals, 546, 548-551. what certificate must contain, 548-551. facts of which certificate evidence, 551. 552. certificate not conclusive may be rebutted, 552. may be supplemented by parol evidence if on domestic paper, 552, 553, cannot be supplemented if on foreign bill, 553. necessity of notarial protest of foreign bill, see DEMAND. customs as to protest, see CUSTOMS. PUBLIC FUNDS as a priority, see PRIORITIES. Q. QU ASI-CONTR ACT statutory liability of officers for debts is, 125. duty of bank to honor checks of depositor as, see DEPOSITS. duty of bank in collecting as, see COLLECTIONS. statutory liability as, see STOCKHOLDERS. recovery in cases of illegal banking upon, see UNLAWFUL BANKING, QUO WARRANTO (see DISSOLUTION) bill in equity by stockholder as, 49, note 1. officer's act binds bank in quo warranto if within scope of his au- thority, 146, note 3. in national banks acts must have been with knowledge of the board of directors, 570, 702. for proceedings in, see DISSOLUTION. QUORUM (see DIRECTORS). INDEX. Eeferences are to pages. E. RATIFICATION (see UNLAWFUL BANKING) banking act forbidden by express rule of law cannot be ratified, 60, 62. 63, 148. agent's or officer's act purely ultra vires may be ratified, 63, 154, 160, notes 2 and 3, 167. of salary, 117. powers of officers varied by ratification, 154, 160, notes 2 and 3, 287. of unauthorized acts of officers binds bank, 167, 287. of unauthorized act by savings bank, 637. may be express or implied, 167. implied by delay, reception of benefit or reten- tion of consideration, 167-169. binds bank by adopting agent's act where he has adverse interest, 163-166. may bind bank as to notice through an officer, 171, 180. RECEIVERS AND ASSIGNEES number of, 583. compensation of. 583. power to enforce statutory liability, 103, 585. in national banks, 103, 112, 113, 593. 594. either at law or in equity, 103, 108, 110, 113. in equity must sue all stockholders, 113. cannot compound statutory liability, 113. courts may allow compromise, 113. suing for officers' liability, see OFFICERS. suing for officers' liability in national banks, 134. without order of comptroller, 134, 594. when assignment for creditors prevails over receivership, 575, 576. take bank's title, 584. powers as to bank's property, 584 may sue to set aside preferences, 584, 597. creditor may sue if receiver refuses, 597. allowance and payment of claims, 588, 589. only one claim allowable for one debt, 588. creditor entitled to dividends on collateral, 589. suit upon disallowed claim, 589. in savings banks, 651. of national banks, 591-597. appointment by comptroller, 591. See COMPTROLLER. powers as to preserving bank's equities, 700, 701. voluntary assessment, 591. statute as to, 688. reduction in capital stock, 591. courts may appoint receiver, 592. appointment ex parte, 592, note 7. effect of appointment, 592, 593. does not dissolve corporation, 592. bank may be sued, 592. cannot release creditor's claim for fraud, 593. creditor may sue on bank's claims if receiver refuses, 593. may sue in United States courts, 594 See JURISDICTION. of savings banks, 650, 651. INDEX. 845 References are to pages. REORGANIZATION AND CONSOLIDATION for conversion of banks into national banks, see CONVERSION. national bank succeeds to all property of state bank, 48. may be sued, 48. old board of directors may continue to act, 47. non-voting stock cannot vote, 47. consolidation of national banks (statute), 692. liability of former corporation after consolidation or reorganization.. 566, 567. liability of new corporation, 567, 568. REVOCATION of checks, see CHECKS. of power to collect, see COLLECTION. s. SALARIES fixed by board of directors, 117. directors cannot fix their own, 117. director may be paid for special services, 118. officer cannot recover on quantum meruit, 118. stipulated salary covers officer's whole service, 118, ratification of salary, 117. SAVINGS BANKS power of commercial bank to have savings department, 193. kinds of savings banks, 629, 630. claim of depositor is a chose in action, not a bailment, 204, 630. officers of, 630-633. qualifications of officers, 631. election cf officers, 631. liability to bank, 631-634 stockholders, depositors are not, in some kinds of, 630. liability upon subscription, 634. upon statutory liability, 634, 635. powers of savings banks to loan on real estate, 635. cannot purchase real property, 635. sometimes to deny power to discount, 635. in subscribing to stock, 635. to become surety, 635. to borrow money, 636. to agree to pay interest, 636. illegal and ultra vires contracts, 636. may be enforced by bank, 636. bank must pay illegal deposit, 636. powers of officers, 637-639. of treasurer, 155, 637. 638. cashier of savings bank as compared with ordinary cashier, 639. of president, 637. of clerks in bank, 637, 638. ratification of unauthorized act, 637. deposit contract, 639-641. bank's by-laws a part of, 639. bank cannot change by-laws as to prior depositor, 639, 640. order from depositor. 640. bank liable for negligence regardless of by-law, 640. active vigilance required, 640. 84:6 INDEX. References are to pages. SAVINGS BANKS (continued) ownership of deposit, 641-643. See DEPOSITS. deposit in names of more than person, 641, 640. husband and wife's joint deposit, 641. survivorship in regard to deposit, 641. declaration of trust in deposit, 642. transfer of deposit by delivery of book, 643. does not transfer legal title. 643. assignment of deposit noticed to bank, 644 garnishment does not reach assigned deposit, 644 gifts of deposit not controlled by rules of bank, 644 fact of pass-book being among deceased's effects, 293. payment of deposit, 645-649. rules of bank do not release it from -negligence, 640, 645i antecedent negligence of depositor no defense, 646, 647. unless an estoppel, 647. appointee of depositor, 647. indemnity to the bank, 648. notice for drawing money, 649. waiver of notice, 649. actions against bank, 649, 650. interpleader, 649, 650. forfeiture of charter, 650. insolvency of savings banks, 650. receivers of savings banks, 650, 651. claims upon insolvency, 651. priorities among depositors, 651, 653. statutory priorities, 652. set-off by depositor, 652, 653. savings banks in District of Columbia, 697. SECESSIpN ORDINANCE amusing holdings as to, 523, note 2, 524, note 8. SET-OFF for depositor's right of set-off, see DEPOSITS. bank's right against depositor, see DEPOSITS. depositor's right of set-off in savings bank, 652, 653L to stock subscription, see STOCKHOLDERS. to statutory liability, see STOCKHOLDERS. by bank for its claim against officer for negligence, 126. no set-off to usury penalty. 337. usurious interest paid cannot be set off, 337. depositor's right of set-off against insolvent bank, 585, 586. other cases of set-off, as unpaid draft, cashier's check, accepted check, 586. presented check in some jurisdictions, 586. results of this rule, 536, note 13. unaccepted checks not, 587. rules as to, apply to national banks, 589. priority gained by, 599. SHARES (see STOCKHOLDERS). SILVER state cannot make anything but gold or silver legal tender, 42. coin must be legal tender to be good tender, 560. notes, how kept at par, 341. INDEX. 8i7 References are to pages. SPECIAL DEPOSITS power of banks to receive, see BANKING POWERS; NATIONAL BANES. are returnable in kind, 239. common-law trusts creating special deposits, 205. two kinds of special deposits, 231. certifying check does not create, 282. money deposited to pay a certain claim creates, 283. paid to bank for transmission creates, 282. for specific purpose creates, 282. paper deposited in insolvent bank as special deposit, 319, 614, 615. paper deposited for collection. 282, 283, 301, 609-614. property deposited to be returned, 283. for safe-keeping, 282. books not conclusive as to, 283. every deposit of money general unless made special, 283. money deposited to indemnify, 283. collectible paper when collected and credited rightfully not, 284, 319, when proceeds are a special deposit, 319, 610-613. bank liable as bailee, 284. for ordinary negligence, 284 for gross negligence, 284. for care it shows for its own property, 285. for its agents' and servants' defaults, 285. for ordinary care in employing agents. 285. for loss when notice of officer's unreliability, 285. bank not liable for burglary or theft if not negligent, 286. liable at all events for wrong delivery, 286. burden on bank to show due diligence, 286. statute of limitations runs from demand or discovery of fraud. 286. if special deposit wrongly mingled, depositor may hold bank as debtor, 282, note 4. 287. liable for special deposit even if no power to receive, 287. if bank receives a benefit, 287. or if it ratifies officer's act, 287. as a claim against receiver, 595. as priority in assets of insolvent bank, 608, 609. SPECIAL REMEDY upon stockholders' liability not enforced in another state, 100. STATE BANKS (see BANKS; CIRCULATING NOTES; CORPORATE BANKS) whether subject to statute of limitations, 623. STATE BANK TAX (see CIRCULATING NOTES) suppresses state bank of issue, 43. validity of, 44. STATUTE OF LIMITATIONS banks are subject to, 621. as to statutory liability, see STOCKHOLDERS. upon stock subscription, 98. on special deposits, 286. on deposits, 290, 291. on suits for usurious interest, 336. where the bank is the bank of the state, 622. STOCKHOLDERS (see NATIONAL BANKS; RECEIVERS) original capital can be increased or decreased only by authority, 77. increase of national bank capital, 77, 672. comptroller's certificate conclusive. 78. note 4. 84:8 INDEX. References are to pages. STOCKHOLDERS (continued) , comptroller cannot grant increase after insolvency, 78, note 7. no increase until comptroller's certificate issued, 78. bank is a trustee for the increase until issuance, 78. if certificate not issued there is no increase, 79. stockholder loses right to object to illegal increase by laches, 79 r note 10. decrease of capital stock, 79, 95, 591. statute as to national banks. 673. when reduced, bank cannot retain surplus capital, 79. are created by original subscription, 77. by transfer of shares, 77. by estoppel, 77. married woman as stockholder, 77. subscription may be informal, 79. sometimes be oral. 79. avoidance for fraud, 79. be rescinded for fraud after insolvency, 79, note 4. receiver cannot grant rescission, 79, note 4. directors cannot release, 79, note 1. state must pay, 80, note 7, 95, note 9. liability of, upon subscription. 93. to pay full amount subscribed, 93. no other liability except by statute, 93, 94. binding as soon as corporation formed, 95. payment may be made in what law permits, 95. cannot be diminished or released, 95. cannot be divided among stockholders, 95. paying debts of bank is no set-off, 95. may be defended against if bank illegal, 95. stockholder selling to bank remains liable, 96. valid transfer releases transferror, 96. statute may provide otherwise. 96. original subscriber sometimes made guarantor, 96. remedies upon subscription calls, 97. creditor's bill if no call made, 97. right accrues when legal remedy exhausted, 98. barred when remedy of corporation barred, 98. mandamus, 97. garnishment, 97. assignee or receiver may collect, 97. remedy may be at law, 97. transfer of shares, 80, 81, transferee becomes stockholder, transferror released, 80, 96. statutes prescribe a different rule, 80, note 1, 81. books of corporation as evidence of ownership, 80. but if transferror orders entry, he is released, 80. collusive transfers, 80, 81. pledgees of shares liable only by estoppel, 81, 83, note 1. real owner liable though not shown on books, 82. right to transfer. 84, 85. prohibited by law or injunction, 84, 85. by stock not being transferable, 84, 92. bank has right to examine its books. 85. bank liable for wrong transfer, 85. transfer complete when made on books, 85. certificate need not be issued, 85. national banks not governed by state statute, 85. INDEX. 849 References are to pages. STOCKHOLDERS (continued) transfer of shares (continued) unrecorded transfers. 85-89. transfer after levy, 87. unrecorded transfer as against levy without notice, 801 transfer without delivery of certificate, 89. under order of court, 88, 89. lien on shares by bank, see LIEN. transfers prohibited by law, 92. by agreement, 93. whether valid, 93. prohibition in articles, 93. cannot be prohibited by by-laws, 92. voting trust for stock, 93. right to inspect books, 93. state statute governs national banks, 93. estoppel creating, 83. those who allow themselves to be held out as, 83. cashier holding stock not personally liable, 83, note & receiving dividends, 82. acting as stockholders, 82. holders of improperly issued stock. 83. executors, guardians, administrators and trustees not personally lia- ble, 83. liable only by estoppel, 84 estate liable, 84 not liable after distribution, 84 executor's failure to transfer to himself, 84, note 6. statutory liability for debts, 93. applies only to banking part of business, 94 sometimes for deposits alone, 94 stockholders who are liable, 94, 103, 104 it is a ^wast-contract, 98, notes 1 and 3. mistakenly held to be a contract, 20, 99. whether attachment lies upon it, 99. not penal, is enforced in another state, 100. includes all claims except torts or judgments for torts, 100. special remedy not enforced in another state, 100. liability sometimes held to be penal, 100. may be imposed after bank formed, 100. statutes, how construed, 101. nature of liability, 101. is single, can be enforced but once, 113. creditor may waive it, 101. may be created by estoppel, 101. but not by by-law or form of certificate, 101. whether joint or several, 101-103. not that of partners, 102. survives against personal representative, 597. who may enforce, whether creditor or receiver, 103, 583, 588L remedy when at law, 104-107. in case of national banks, 107, 110. voluntary assessment, 591, 688. remedy when in equity, 108, 109. no set-off to this liability, 108, lia exceptions, 109, 113. receiver cannot compound, 113. court may permit it, 113. 64 850 INDEX. References are to pages. STOCKHOLDERS (continued) statutory liability for debts (continued) proof of insolvency, 113. when barred, 114. interest upon liability, 114 jurisdiction of suits as to national banks, see JURISDICTION. for dividends, see DIVIDENDS. for stockholders in savings banks, see SAVINGS BANKS. SUBORDINATE OFFICERS (see CLERKS; TELLERS) liability of officer for subordinates, 121. SUMMARY REMEDY of banks, 619. SURETIES whether entitled to have bank apply deposits, see DEPOSITS. drawer and indorser, when discharged by time to acceptor, see AC- CEPTANCE. statutory liability of stockholders not that of sureties, 101, subrogated to bank's lien, 90. SURVIVAL OF ACTIONS survival of officers' liability, see OFFICERS. of stockholders' liability, 597. See STOCKHOLDERS, after dissolution, 561. SURVIVORSHIP (see DEPOSITS; SAVINGS BANKS). T. TAXATION of national banks, see NATIONAL BANKS. taxes as set-off, see SET-OFF. TELLERS may receive deposits, 205, 206. powers of, 155-157, 258. certifying checks when no funds, 156, 157. TORTS of banks, see OFFICERS. not included in statutory liability for debts, see STOCKHOLDERS. by officer against creditor, see OFFICERS. TRANSFER OF SHARES (see STOCKHOLDERS). TREASURER OF SAVINGS BANK (see SAVINGS TRUST COMPANY as bank, 26. receiving deposits not a bank (wrongly held), 32. bank with trust powers as to constitutional restriction, 41, note 4 as a trustee, effect upon assets in insolvency, 606-608. is not a bank when paper is made payable at any bank in city, 442, note 3. no priority of one trust claimant over another, 607. trust claimant's priority over general creditors, 607. TRUST FUNDS as a deposit, 215-220. as a priority. 600, 602. if trust funds come into bank rightfully and bank pays wrongfully, beneficiary is a general creditor, 603, note 10. INDEX. 851 References are to pages. TRUST FUNDS (continued) wrongfully to bank's knowledge, there is a priority, 603-609, common-law trusts creating special deposits, 205, proceeds of collections as a trust, 609-614. deposits in insolvent bank as a trust, 614, 615. public funds as a trust, 616, 617. declaration of trust in deposit, 642. TRUSTEE may sue for deposit without joining beneficiary, 289. power over trust deposits, 215-220. liability upon stock, 83, 84. bank as a trustee, 606-608. no priority of one trust claimant over another, 607. u. ULTRA VIRES (see UNLAWFUL BANKING). UNLAWFUL BANKING illegal limited partnership or joint-stock company becomes general partnership, 56. if authorized where formed, their acts are valid everywhere, 57. private banking declared unlawful creates no contract, 55. if contract not illegal where made, it is legal everywhere, 57. unless forbidden by public policy, 57. when recovery on illegal contract may be had, 55. money deposited for illegal certificate recoverable as a loan, 279. parties not in pari delicto, 55. penalty on one and not on other, 55. illegal corporations, corporators suable as partners. 56, note 7, 58, 59. contract illegal where to be performed, illegal everywhere. 57. corporation under unconstitutional law cannot contract, 58. corporators suable as partners, 58. de facto corporations are corporations except as to state, 59. unless act not done a condition precedent, 59. illegal loans may be recovered, 56, note 11, 57, 60, 327, 341. banking act forbidden by express rule of law, not a contract, GO, 62. cannot be ratified or made basis of estoppel, 60, 62. conflict of laws as to private banking, 56, 57. banking act forbidden, recovery is in qwm'-contract, 60. 62. ultra vires acts, meaning of term, 61, 65, note 12. not acts done in violation of express rules of law. 61. may be enforced as contracts, 62. 66. differ from illegal acts, 63, 66. acts of agent may be ratified, 63, 66. See RATIFICATION. national bank's real-estate security enforceable, 64. forbidden loan to director recoverable, 62, note 3. but rule different as to national bank's purchase of stock, 64, 65, 66. rule to follow as to ultra vires acts sued upon, 67. presumption that all acts of bank are intra vires, 68. usurious transactions as unlawful banking, see INTEREST. USAGES (see CUSTOMS). USURY (see INTEREST). 852 INDEX. References are to pages. y. VICE-PRESIDENT has powers of president when president not acting, 151. w. WAIVER of acceptance, see ACCEPTANCE. of forfeiture by state, see DISSOLUTION; FORFEITURE. of statutory liability by creditor, 101. of bank's negligence by holder, 309. of savings bank's right to claim notice, 649. laches as a waiver, see LACHES. of demand and notice, 525-545. acceptance waived does not waive demand and notice, 520. must be made by party to be charged or his agent, 527. by person sui generis, 527. partner may waive for his firm after dissolution, 527. agent to make, 527, 540. express authority by ratification, 527. implied authority to agent, 527. must be given to holder or to some one for holder, 528. made to maker, whether inures to holder, 528. made to one about to become holder, 528. express waiver in writing, 529. form of, 529. modified by parol, 529. construction of, 530. implied waiver by extension of time, 530, 534, 535. whether blank regular indorsement may be shown waiver by parol, 531, 532, 533. blank regular indorsement may be, 532, 533, 534. parol waivers legal except where forbidden by statute, 532, 534. at time of regular indorsement, 532, 533. at time of irregular indorsement, 533, 534, after indorsement, 534. by conduct, 534. promise to pay before maturity, 535-537. parol promise at time of indorsement, 535. after indorsement, 535. promise express or implied, 536. is binding if acted upon, 536. promise to pay with extension granted, 537. promise must be unqualified, 537, 544, 545. indemnity as waiver, 538, 539. waiver after maturity, when enforceable, 539, 540. promise to pay after maturity, 540-542. must be with full knowledge of release, 541. burden upon indorser to show lack of knowledge, 54& new promise must be to party to paper, 542. . partial payment after maturity, 542, 543. must be with knowledge, 543. presumptive proof of demand and notice, 543. absolute if with knowledge, 543. unconditional acknowledgment of liability with knowledge, 548, 544, 545. by one joint contractor binds all, 542. giving of security after release, 544 acknowledgment must be unconditional, 544, 545. 7* 8E L iV Sm& X SOUTHERN REGIONAL LIBRARY FAOU A 000 698 205 2 r /V *f