was made by the husband in his wife's name, but not as a gift to her, and she be dead, the husband may sue without joining her representative. Similarly a deposit made in escrow to be paid to a third party may be sued for by the depositor without joining the third party. A deposit by a man as agent may be sued for by him even where a suit is required to be brought by the real party in interest. A trustee may sue in his own name, either joining the beneficiary or not. Joint deposits to be drawn upon a joint check must be sued for by the partners jointly;" but a joint deposit of collaterals upon a debt after the debt has been paid does not give a joint right of action for the collaterals; each one must sue for his own collaterals. Where the depositor has an action against the stockholders, the parties defendant must be determined according to the right given by the statute.

§ 168. Bank's rights when sued.- Wherever conflicting claims are made upon the bank by different persons, the bank has the undoubted right to compel the parties to interplead and relieve it of the necessity of contending with either.' When an action is brought by a third party against the bank for the deposit, the bank performs its duty to the depositor by giving him full and timely notice and requiring him to defend the action.2

2 Davis v. Lebanon Co. Sav. Bank, not in a manner required by the 53 Mich. 163. articles of incorporation. In former Ullrich v. National Bank (Cal.), sections the persons to be sued as 37 Pac. R. 500. stockholders upon the liability to McLaughlin v. First Nat. Bank, creditors has been considered. See § 58, ante, et seq., for the liability

6 Dak. 406.

5 Munnerlyn v. Augusta Sav. upon the stock subscription and the Bank, 88 Ga. 333.

6 Rand v. State Bank, 77 N. C. 152. 7 Henelly v. Rittenhouse, 7 D. C. 76.

8 Wadsworth v. Hocking, 61 Ill. App. 156. Here the party suing was not required to join those who had transferred their stock, though

liability for debts. Deposits are, of course, debts of the corporation. 1 Foss v. First Nat. Bank, 3 Fed. R. 185; Dreschied v. Exchange Bank, 28 W. Va. 340; Ullrich v. National Bank, 37 Pac. R. 500.

2 Detroit Sav. Bank v. Burrows, 34 Mich. 153.

§ 169. Limitations upon actions for deposits.- Various rules have been laid down as to when the statute of limitations will begin to run upon a deposit. Under some statutes there is no limitation. In another state the pass-book is held to be an evidence of indebtedness in writing and the action is governed by the provision applicable thereto. But in another state a receipt for a deposit was held to be not a written contract.3 Other states hold that the statute begins to run from the statement of the account, which would be the monthly balance struck." The rule is held in another jurisdiction that the statute begins to run from the date of the deposit. This rule is held in other states as to certificates of deposit payable upon demand.' But the rule ought to be in reason and common sense that the statute begins to run both upon deposits and upon certificates of deposit, whether payable on demand or not, from the demand," or from a refusal to pay the deposit,10 or something equivalent thereto, such as a notification that the bank will not pay " or its suspension.12 The publication of an unclaimed deposit

8

1 Green v. Odd Fellows Bank, 65 Gill & J. 439; Munnerlyn v. Augusta Cal. 71. Sav. Bank, 88 Ga. 333. The last case contains a foolish suggestion as to laches.

2 Schalucky v. Field, 124 Ill. 617. 3 Talcott v. First Nat. Bank, 53 Kan. 480.

4 In re Penn Bank, 152 Pa. 65. Union Bank v. Knapp, 3 Pick. 96. See Dickinson v. Leominster Bank, 152 Mass. 49.

6 Locke v. First Nat. Bank, 65 N. H. 670. This is the rule as to certificates of deposit payable on demand in some jurisdictions. Brummagim v. Tallent, 29 Cal. 503; Mitchell v. Easton, 37 Minn. 335. 7 See the last note.

8 Viets v. Union Nat. Bank, 101 N. Y. 563; Starr v. Stiles, 19 Pac. R. 225; Branch v. Dawson, 33 Minn. 399; Girard Bank v. Bank, 39 Pa. 92; Brown v. Pike, 34 La. Ann. 576; Union Bank v. Planters' Bank, 9

9 Howell v. Adams, 68 N. Y. 314; McGough v. Jamison, 107 Pa. 336; Fells Point Sav. Inst. v. Weedon, 18 Md. 320. If it be a time certificate the same rule ought to apply, because no suit lies until a demand is made.

10 This is equivalent to a demand. Farmers' Bank v. Planters' Bank, 10 Gill & J. 422; Viets v. Union Nat. Bank, 101 N. Y. 563, a refusal to pay a check.

11 See last note.

12 Union Bank v. Planters' Bank, 9 Gill & J. 439; but Riddle v. First Nat. Bank, 27 Fed. R. 503, is contra as to certificates of deposit, where a receiver was appointed.

13

has been held to be a new promise to take the case out of the statute. But the payment of interest after the withdrawal of a partner will not continue the cause of action against the withdrawing partner. And a bank may pay an undisputed check without suspending the statute as to a disputed part of the deposit.15

§ 170. Presumptions and burden of proof.- Wherever the fact of a deposit appears, the burden is on the bank to prove payment; although, if the depositor retains his passbook for a time without objection, the burden is upon him to show a mistake. So likewise, although the burden is upon the bank to show that the payee's indorsement upon a check is genuine, yet the retention of the check by the depositor for a long time without objection throws the burden of proof upon him. Where it is shown that notice was given to the bank by the depositor not to pay a check, the burden is upon the bank to show that the check was paid before the notice was received;" and after notice given by the person claiming to be the true owner, where the deposit indicates the ownership, has been shown to the bank, the burden is upon the bank to show payment to the true owner." Where funds are mingled in one deposit, the presumption is that the depositor's checks were drawn against and paid from the funds belonging to the person drawing the check.7 Where the administrator of a decedent makes claim to a deposit upon the fact of a pass-book being found among the decedent's effects, if the name upon the pass-book and the description of the depositor do not correspond to that of the deceased, the burden is upon the administrator to show

the decedent's ownership. The receipt of the cashier is presumptive proof of a deposit, and where the amount in the body of the certificate differs from the amount stated in the margin, the presumption is that the body of the certificate is correct.10 But a certificate of deposit is said to be a receipt and explainable by parol evidence," but the certificate can be overcome only by clear and satisfactory proof.12 It is presumptively correct,13 as are the books of the bank even as against the stockholders in favor of the depositor.1

8 People v. Third Ave. Sav. Bank, 98 N. Y. 661.

9 State Bank v. Kain, 1 Ill. 45. 10 Payne v. Clark, 19 Mo. 152.

11 Hotchkiss v. Mosher, 48 N. Y. 478. This case is not correct on this point. All the authority is that a certificate of deposit is the bank's promissory note.

12 First Nat. Bank v. Myers, 83 Ill 507.

13 Cushman v. Illinois Starch Co., 79 Ill. 281.

14 Davis v. Naper, 91 Ill. 44. They are admissions, and hence need not be the books of original entry. The books of a savings bank are admissible to show the fact of deposit and ownership. McKavlin v. Bresslin, 8 Gray, 177. See also § 132, ante.

CHAPTER VIIL

COLLECTIONS.

§ 171. The nature of the relation.-The deposit of paper with a banker for collection creates a relation which has generally been defined as that of principal and agent. But an accurate use of language requires something other than such a description. The banker is certainly an agent in so far as he is authorized to receive payment. But he is certainly not an agent to collect the paper, because there are numerous steps which the principal might take in collecting which the bank cannot take. All paper deposited for collection necessarily requires an indorsement either general or for collection. In either case the legal right to the possession of the paper passes to the bank. The relation is properly called a bailment, because while it does not contemplate the receiving back of the particular thing, yet, as in cases of pledges of negotiable paper, it may be collected and yet remain a bailment as to the proceeds.2 The relation is not that of trustee and cestui que trust, because the remedy is at law, not solely in equity, where a breach of trust must be redressed. It is a trifle singular that in our day the old confusion which existed between agency, trust and bailment should reappear. We are told in that work which represents such a marvelous amount of industry and acumen, Pollock and Maitland's History of English Law, that originally there was no distinction made between agency, trust and bailment. See pages 226, 227, 231, of volume 2. The relation being that of bailment, it has an important bearing upon the question of the collecting bank's liability for the acts of its

1 Evansville Bank v. German Am. Nat. Bank, 155 U. S. 556. It is conceived that this statement means no more than that the bailee has

title against every one except the bailor.

2 Beal v. Somerville, 50 Fed. R. 649, 5 U. S. App. 14.