ought to be accepted, it is the duty of the bank to use diligence in presenting it, and in giving notice if there is a failure of due acceptance.12 But the bank is not liable for neglect to present a draft, left for collection, where presentment was not necessary to charge the parties, and would have been useless if made.13 It is the duty of the bank to place the paper in the hands of a notary for protest, when necessary; 14 in which case, the notary is the agent of the bank, and the bank is liable for any neglect of duty by him, by which any of the parties are discharged. 15 It has, however, been held that the bank, by showing the delivery of the paper to a notary for demand and protest in due time, is prima facie exonerated from liability; 16 and that if the bank places the paper in the hands of the notary to whom its own business is uniformly intrusted, it will not be liable for the neglect of the notary to protest the note, or to notify the proper parties. 17 If a bank mistakes the date of a note received for collection, and presents it for payment before the proper time, whereby the indorser is discharged, it is responsible. 18 And if a bill sent to a bank for collection is accidentally lost, through the neglect of the bank to take sufficient care of letters brought to it by mail, a presumption of negligence in the bank is raised, and the burden of proof to excuse the negligence is thrown upon the bank. 19 The courts in many of the states have adopted the rule, that paper payable at a distant place, and left with a bank for collection, is presumed to be intended to be transmitted to and collected by a suitable sub-agent, at the place where payable; 20 and, as in the case of paper expressly left for transmission only,21 if the bank acts in good faith, it is not liable for the neglect or default of the subagent.22 But the rule adopted in New York holds the bank first receiving the paper answerable for the conduct of any and all the subsequent agents, unless there be some agreement to the contrary, express or implied.28 And such is also the rule in Ohio.24 The duty of a bank

to collect paper left with it for collection, is raised in behalf of such person as may be beneficially interested in having the duty performed; 25 as, where A. leaves a note for collection, and B. becomes the owner of it before the time for the performance of the duty arrives, B. is the proper person to sue for an injury caused by the neglect of that duty.26 After a collection made, the bank becomes a simple contract debtor to the depositor, for the proceeds; 27 and the amount may be properly passed to the credit of the depositor in his general account.28 If a note deposited for collection is credited to the depositor in his general account, then overdrawn, and the bank fails, the proceeds are assets available to the general creditors,29 notwithstanding the account was made good by other deposits prior to the collection of the note.80 The measure of damages in an action against a bank, to recover for the injury resulting from neglect of duty in the undertaking to collect, is the actual loss sustained by the party interested in the paper.31 It is not within the scope of a collecting bank's agency to employ counsel and bring suit upon paper left with it for collection, 32

1 Tyson v. State Bank. 6 Blackf. 225.

2 See Hall v. Bank of State, 3 Rich. 366: Thompson v. Bank of State, 3 Hill, (S. C.) 77; Curtis v. Leavitt, 15 N. Y. 9, 167.

3 Smedes v. Utica Bauk, 20 Johns. 372; Hall v. Bank of State, 3 Rich. 306; Shiells v. Blackburne, 1 Black. II. 158.

4 Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 459; Bank of Mobile v. Huggins, 3 Ala. 206. Compare McBride v. Farmers' Bank, 26 N. Y. 450.

5 Bank of Mobile v. Huggins, 3 Ala. 206; Alley v. Rogers, 19 Gratt. 366; Daly v. Butchers' etc. Bank, 56 Mo. 94. See Chapman v. White, 6 N. Y. 412.

6 Smith v. Essex County Bank, 22 Barb. 627.

7 Smith v. Essex County Bank, 22 Barb. 627. See also Runyon v. Latham, 5 Ired. 551.

8 Ward v. Smith, 7 Wall. 447.

9 Ward v. Smith, 7 Wall. 447.

10 Fabens v. Mercantile Bank, 23 Pick. 330; Nat. Bank of Commerce v. Merchants' Nat. Bauk, 91 U. S. 92.

11 Ayrault v. Pacific Bank, 47 N. Y. 570; 7 Am. R. 489.

12 Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 459; Bank at Montgomery v. Knox, 1 Ala. 148; Walker v. Bank of State. 9 N. Y. 582; Steele v. Russell, 5 Neb. 211; Bank of New Hanover v. Kenlan, 76 No. Car. 340; Capitol State Bank v. Lane, 52 Miss. 677.

13 West Branch Bank v. Fulmer, 3 Pa. St. 399; Mobley v. Clark, 28 Barb. 390; and see Jacobsohn v. Belmont, 7 Bosw. 14.

14 Georgia Nat. Bank v. Henderson, 46 Ga. 487; Citizens' Bank v. Howell, 8 Md. 530; and see Bank of Mobile v. Huggins, 3 Ala. 206; Fabens v. Mercantile Bank, 23 Pick. 330; Borup v. Nininger, 5 Minn.

523.

15 Ayrault v. Pacific Bank, 47 N. Y. 570; 7 Am. R. 487; and compare Hoover. Wise 91 U. S. 308. Contra: Daly v. Butchers' etc. Bank.55 Mo. 93; Etna Ins. Co. v. Allen Bank, 25 Ill. 243; Citizens' Bank v. Howell, 8 Md. 530.

16 Agr. Bank v. Commercial Bank. 7 Smedes & M. 592; Bowling v. Arthur, 34 Miss. 41; Stacy v. Dane County Bauk, 12 Wis. 629.

17 Citizens' Bank v. Howell, 8 Md. 530; Baldwin v. Bank of La. 1 La. An. 13; aud see Bank of Owego v. Babcock, 5 Hill, 152; Gerhardt v. Boatinen's Sav. Inst. 38 Mo. 60.

18 Bank of Del. Co. v. Broomhall, 38 Pa. St. 135.

19 Chicopee Bank v. Phila. Bank, 8 Wall. 641.

20 See Bank of Washington v. Triplett, 1 Peters, 25.

21 See Mechanics' Bank v. Earp, 4 Rawle, 384.

22 Dorchester etc. Bank v. New Eng. Bank, 1 Cush. 177; Wingate v. Mechanics' Bank, 10 Pa. St. 104; Daly v. Buteliers' etc. Bank, 56 Mo. 93; East Haddam Bank v. Scovil, 12 Conn. 303; Hyde v. Planters' Bank, 17 La. 560; Stacy v. Dane County Bank, 12 Wis. 629; and see Van Wart v. Woolley, 3 Barn. & C. 439. But compare Mackersay v. Ramsay, 9 Clark & F. 818.

23 Ayrault . Pacific Bank, 47 N. Y. 570; 7 Am. R. 489; Allen v. Merchants' Bank, 22 Wend. 215; Indig v. Nat. City Bank, 16 Hun, 200. 24 Reeves v. State Bank, 8 Ohio St. 465; and see Young v. Noble, 2 Disn. 485.

25 Bank of Utica v. McKinster, 11 Wend. 473.

26 Bank of Utica v. McKinster, 11 Wend. 473.

27 Marine Bank v. Rushmore, 28 Ill. 463. See § 220, ante.

28 Marine Bank v. Rushmore, 28 Ill. 463; Re Bank of Madison, 5 Biss. 515.

29 Re Bank of Madison, 5 Biss. 515.

30 Re Bank of Madison, 5 Biss. 515. Compare Re Farnsworth, 5 id. 223.

31 Tyson v. State Bank, 6 Blackf. 225; McKinster v. Bank of Utica, 9 Wend. 46; 11 id. 473.

32 Crow v. Mechanics' etc. Bank, 12 La. An. 602; Wetherill v. Bank of Penn'a, 1 Miles, 399.

§ 224. Checks.-In paying out money held for one on deposit, the banker is entitled, by established usage, to the protection of a written check.1 A bank-check is substantially the same as an inland bill of exchange, and the same rules are, in general, applicable to both.2 But a check is always drawn on a bank or banker, and no days of grace are allowed; 4 so, a check is never presentable for mere acceptance, but only for payment. The BOONE CORP.-28.

formal parts of a check are, the signature of the drawer, a statement of the sum to be paid, the address, the date, and sufficient words of request to pay the sum therein named.10 A check is an appropriation of so much of the maker's funds in the bank as is necessary to meet it; or if the maker's deposit is less than the sum for which the check calls, at the time of presentation, it is an appropriation of the deposit, whatever it may be.12 The maker has no right to withdraw the money after the delivery of the check, 13 and he cannot object to delay in presenting it, unless he shows some special injury to himself therefrom. 14 The bank owes no duty to the holder of a check until it is presented and accepted; 15 and the holder cannot sue the bank for refusing payment, in the absence of proof that the check was accepted by the bank, 16 or charged against the drawer.17 But in case of the dishonor of a check, the holder has recourse against the drawer, although, at the time the check was presented, the bank held funds of the drawer sufficient to pay it; 18 and the drawer has his remedy against the bank.19 Post-dated checks are payable on, or at any time after, the day of their date; 20 and payment by a bank of such a check before that day, is a payment in its own wrong,21 and is no defense to an action for the amount of the fund, by the assignee in good faith of the fund.22 The certifi cate of a bank that a check, drawn payable by the bank, is "good," operates as an engagement of the bank to pay the debt as its own.23 It is an unconditional promise by the bank to hold sufficient funds of the drawer to meet the check.24 The sum mentioned in the check ceases to stand to the credit of the drawer, and thenceforth passes to the credit of the holder, and is specifically appropria ted to pay the check when presented.25 A certificate that the check is "good" is equivalent to an acceptance.26 The bank certifies to the genuineness of the signature of the drawer, and that he has funds sufficient to meet the check; but does not warrant the genuineness of the

body of the check, either as to payee or amount.28 The cashier has authority, in virtue of his office, to certify checks; 29 and the fact that he certified a check as "good," while away from his banking-house, is no objection to its validity.30

1 McEwen v. Davis, 39 Ind. 109.

2 See Harker v. Anderson, 21 Wend. 372; Lunt v. Bank of North America. 4) Barb. 221; Woodruff v. Merchants' Bank, 25 Wend. 673; Barnet v. Sinith, 10 Fost. 256; Conroy v. Warren, 3 Johns. Cas. 259; Billing v. Devaux, 3 Man. & G. 571; Carew v. Duckworth, Law R. 4 Ex. 313.

3 Harris v. Clark, 3 N. Y. 93; Keene v. Beard, 8 Com. B. N. S. 372. 4 Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 604; Sutton v. Toomer, 7 barn. & C. 416; Morrison v. Bailey, 5 Ohio St. 13; Westminster Bank v. Wheaton, 4 R. I. 30; Hare v. Copland, 13 I. R. C. L. 426.

5 See Keene r. Beard, 8 Com. B. N. S. 372; Matter of Brown, 2 Story 502; Overman v. Hoboken City Bank, 31 N. J. L. 533; Veazle Bank v. Winn, 40 Me. 60; Morso r. Mass. Nat. Bank, 1 Holmes, 20J. 6 Saunderson v. Jackson, 2 Bos. & P. 238.

7 See Corgan v. Frew, 39 Ill. 31; Rastell v. Draper, Croke, 88; Kear ney v. King, 2 Barn. & Ald. 301.

8 See Harker v. Anderson, 21 Wend. 372; Murray v. Judah, 6 Cow. en, 484.

9 See Godin v. Bank of Commonwealth, 6 Duer, 76; Begbie v. Levy, 1 Cromp. & J. 180; Strickland v. Mansfield, 8 Q. B. 675, Ward v. Oxford Railw. Co. 2 De Gex M. & G. 750.

10 See Wells v. Brigham, 6 Cush. 6.

11 Emery v. Hobson, 63 Me. 32; Deener v. Brown, 1 McAr. 350. Compare Egerton v. Fulton Nat. Bank, 43 How. Pr. 216; Strain v. Gourdin, 11 Bank. R. 156; Van Alen v. Am. Nat. Bank, 3 Lans. 517; Hopkinson v. Forster, Law R. 19 Eq. 74.

12 Bromley v. Com. Nat. Bank, 9 Phila, 522. But compare Murray v. Judah. 6 Cowen, 4.0; Foster v. Bank of London, 3 Fost. & F. 214; Mum v. Burch, 25 Ill. 35.

13 Deener v. Brown, 1 McAr. 350; and see Union Nat. Bank v. Ocean County Bank. 80 II. 212. Compare Etna Nat. Bank v. Fourth Nat. Bank, 45 N. Y. 82; 7 Am. R. 314.

14 Keene v. Beard, 8 Com. B. N. S. 372; Emery v. Hobson, 63 Me. 32; Stewart v. Smith, 17 Ohio St. 82; Smith v. Jones, 2 Bush, 103; Woodin v. Frazee, 6 Jones & S. 10. Compare Sinith v. Miller, 43 N. Y. 171; 3 Am. R. 60; Daniels v. Kyle, 5 Gd. 245; Bickford v. First Nat. Bank, 42 Ill. 238.

15 Essex County Nat. Bank v. Bank of Montreal, 15 Am. Law Reg. 418; First Nat. Bank v. Whitman, 4 U. S. 343; Carr v. Nat. Sec. Bank, 107 Mass. 45; 9 Am. R.6; Duncan v. Berlin, 60 N. Y. 151; Bank of Republic v. Millard, 10 Wall. 152.

16 Bank of Republic v. Millard, 10 Wall. 152.

17 Bank of Republic v. Millard, 10 Wall. 152; and see Seventh Nat. Bank v. Cook, 73 Pa. St. 751; 13 Am. R. 751; Carr v. Nat. Sec. Bank, 107 Mass. 45; 9 Am. R. 6; Schroeder v. Central Bank, 24 Week. R. 710; 34 L. T. N. S. 736.

18 Moses v. Franklin Bank, 34 Md. 574; Duncan v. Berlin, 60 N. Y. 151; Simpkins v. Pothecary, 5 Ex. 253.