Year: 1871

ACCto Va OI1lo vi CACItSllSC.


Kent, vol. 3, p. IS, 4th ed, says
of a check "It is transferable like
a bill of exchange ;" snd Story on
Promissory Notes. par. 491, says !:
"It is a well known rule of law that
a bill Of exchange or q promissory
note taken after the day ofpayment,
or, as the common phrase is, when
it is overdue, subjects the holder to
all the equities attaching to it in the
hands of the party from whom he
receives it. But this rule does not
apply to a check, for it is not treat
ed as overdue, although it is taken
by the holder some days after its
date, and is payable on demand.
On the contrary, the holder in such
a case takes it subject to no equities,
of which he had not at the time
notice" etc.


1t is therefore certain that the
defendants could not have success
fully resisted an action brought
against them by the Crescent City
Bank, had the Canal Bank refused
payment as intended.


On the other hand, we learn from
Morse on Banks and Banking, p.
27S, that "a check is simply writ
ten order of depositor to his bank
to make certain payment. 1t lis
executory, and as such tits of course
revocable at any time before the
bank has committed itself to pay it.
The bank is the drawers agent. It's
primary duty is to hold or pay his
money as he directs. Primarily it
owes no duty to the holder, except
under and by the directions from the
drawer. OF course so
long as the drawer retains the right
to countermand payment upon a
check, he retains the right to draw
out any funds to his credit on which
the bank has no lien. The question
in each case alike is merely of lis
right to control the deposit. This
right he possesses until the bank
has paid it out, or promised, or be-
come bound to pay it out. x
It is matter of no consequence
how many CHECKS are with the
bank outstanding in the hands Of
his creditors at the time of his
counter directions, or demand pay
ment OF the whole fund to himself
The bank is not and has no right
to constitute itself the agent of these
parties, however honest may be
their claims, or hard their case. It
not only owes them no duty, but it
has not even any legal power to act
in their behalf"


These rules do not materially diff
fer from those which define the
duties of a drawee of bill of ex-
change in regard to the drawer, or
other agent in regard to his princi-
pal. These rules are prescribed by
the law of mandate. Hence, like
any other agent, the drawee of a
check is primarily under no obliga-
ton or liability to third persons.
Hence, also, he cannot by an act
done after his mandate is revoked,
or done beyond or contrary to it,
bind his principal to third parties
SO as to give them rights which
they would not otherwise have
against that principal. On the
other hand the rights third parties
have against the principal cannot
be impaired or changed by bis own
arbitrary act or that Of his agent or
by the revocation of the mandate
1t is only the mandate that the
principal may revoke, not bis own
obligation or liability; as, for in
stance, his original Allegation to the
payee of the check, or his liability
to an innocent transferee. The re-
vocation of the banker, OK other
agents authority to pay, neither in
crease or diminishes, nor does it
extinguish the obligation OF the
drawer, whatever it may be. Hence,
the only consequence Of such a re-
vocation is, that the drawer or prln-
cipal, if, indeed, he is lawfully in
debted on liable, must, In proper
person, make the payment, since he
will not allow his agent to do so for
him.


If then the Inability of defendants
to the Crescent City Bank was not
impaired, changed or extinguished
bv the revocation of the bankers
.nthoritv To nay. what is the effect