mands existing between them as compensated so far as they equal each other, and credit the demands accordingly; and, if there is not then sufficient balance standing to the credit of the drawer, payment of the check may be refused for want of funds. Ib.

A bank check or draft for a part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn. Covert v. Rhodes, 48 Ohio St. 66. (1891.) When, after the drawing of such check or draft, the drawer makes an assignment of all his property for the benefit of his creditors, and notice of the assignment is received by the drawee before the check or draft is presented for acceptance or payment, the title to the whole amount standing to the credit of the drawer at the time of the assignment, passes to the assignee for the equal benefit of all the creditors. The holder of the check or draft is not entitled to priority over the other creditors. Covert v. Rhodes, 48 Ohio St. 66. (1891.)

A drew his negotiable draft in favor of C, a banker, on B for the exact amount due him, for the purpose of having C discount the same, which he did, in the usual course of business, and paid to A the proceeds. While the draft was in transit to B for acceptance and payment, he, without any knowledge of its existence, remitted the amount due, by certified check on his banker to A, who received and converted it to his own use, by depositing it to his credit with his banker, as cash, together with his other deposits, subject to his checks. On presentation of the draft, B refused to accept or pay, and it was returned to C. A then made a general assignment, having a bank balance to his credit greater than the amount of his draft. This check was forwarded by his banker for payment, and two days after the assignment, was paid by the bank certifying the same: Held, (1) That as between A and C, and under these circumstances, C acquired, by equitable assignment, the right to the amount then in B's hands. (2) That B having remitted to A the amount, by check, before notice of the draft, which was afterwards paid, was released from the obligation to accept or pay, but the check in the hands of A, or his banker, or its proceeds when collected, belonged in equity to C in the absence of any intervening right, and he may, in an action for equitable relief against the parties, have the same applied to the payment of his draft. (3) The conversion by A of this check, by obtaining a credit therefor on his account in bank, did not defeat this right to the proceeds of the check when collected, there being a sufficient balance out of which to pay the same, and no intervening right of the bank or others having attached. Gardner v. Bank, 39 Ohio St. 600. (1883.)

The drawer of a check payable to the order of the plaintiff, delivered it to a third person in exchange for property of the plaintiff, such third person claiming to be the plaintiff, and saying that he could identify himself at the bank. In ignorance of the circumstances under which the check was given, the bank paid the check to the

bearer without inquiry, on the forged indorsement of the plaintiff's name: Held, (1) That the plaintiff could ratify the act of the drawer in giving the check, and by such ratification the check became his property, for the amount of which he could maintain an action against the bank. (2) The fact that the drawer, with notice of the plaintiff's claim against the bank, subsequently lifted the check and was charged with its amount in his settlement with the bank, did not affect the rights of the plaintiff. Dodge v. National Exchange Bank, 20 Ohio St. 234. (1870.)

A covenant on the part of a debtor to pay the debt out of the first money received from a particular fund, but which gives the covenantee no present right or control over the fund, save through the covenantor, and looks to the future acts of the covenantor to render the fund available, does not operate as an equitable assignment of the fund to the covenantee. Christmas v. Griswold, 8 Ohio St. 558. (1858.)

The drawing and delivering of a check operates as an equitable assignment of so much of the funds of the depositor. Voorhees v. Hesket, 1 Circ. Dec. 1 (1 R. 1). (1885.)

A payee of a check for a part of the money on deposit cannot, before acceptance, sue the bank therefor, as there is no privity between the parties. Railway Co. v. Bank, 8 Dec. 585. (1896.)

A payee of a check cannot sue a bank for refusing to cash a check drawn on it. Ib.

Where a note is deposited with a bank for collection it has no authority to accept anything but money as payment; and, therefore, giving a check which the bank accepted, is not payment. Dunn v. Dewey, 5 Dec. 149.

SUBDIVISION 4.

GENERAL PROVISIONS.

3178 (5087) [Definition and Meaning of Terms.] In this chapter, unless the context otherwise requires:

"Acceptance" means an acceptance completed by delivery or notification.

"Action" includes counterclaim and set-off.

"Bank" includes any person or association of persons carrying on the business of banking whether incorporated or not. "Bearer" means the person in possession of a bill or note which is payable to bearer.

“Bill” means a bill of exchange, and "Note" means negotiable promissory note.

"Delivery" means transfer of possession, actual or constructive, from one person to another.

"Holder" means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.

ery.

"Indorsement" means an indorsement completed by deliv

"Instrument" means negotiable instrument.

"Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder.

"Person" includes a body of persons, whether incorporated

or not.

"Value" means valuable consideration.

"Written" includes printed and "writing" includes print. The words "bonds, bills and notes," in the act for the relief of sureties and bail in certain cases, includes bills of exchange. Ohio Insurance Co. v. McCague, 18 Ohio 54. (1849.)

3178a (5088) [Person Primarily Liable on Instrument.] The person "primarily" liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are "secondarily" liable.

31786 (5089) [Reasonable Time; What Constitutes.] In determining what is a "reasonable" time or an "unreasonable time" regard is to be had to the nature of the instrument, the

usage of trade or business (if any,) with respect to such instruments, and the facts of the particular case.

3178c (5090) [Time; How Computed; When Last Day Falls on Holiday.] Where the day or the last day for doing any act herein required or permitted to be done falls on Sunday, or on a holiday, the act may be done on the next succeeding secular or business day.

Where a note payable in specific articles falls due on Sunday, a tender on the Monday following is good. Barrett v. Allen, 10 Ohio 426. (1841.)

3178d (5091) [Application of Chapter.] The provisions of this chapter do not apply to negotiable instruments made and delivered prior to the taking effect hereof.

3178e (5092) [Law Merchant; When Governs.] In any case not provided for in this chapter, the rules of the law merchant shall govern.

Where, in the absence of any statutory provision on the subject, a rule of commercial law has been adopted by the court of last resort in this state, the usage will thenceforth be presumed to conform to such rule throughout the state; and this presumption, if not conclusive, can only be rebutted by clear proof of a uniform and settled local usage to the contrary. Isham v. Fox, 7 Ohio St. 317. (1857.)

As to negotiable paper strictly commercial, such as that on its face negotiable at banks, the act of Ohio, of 1820, makes no change in the rule of the law merchant. Davis v. Herrick, 6 Ohio 55. (1833.)

1

HOLIDAYS.

181

SUBDIVISION 5.

HOLIDAYS.

3178ƒ (5093) [Holidays.] The following days, viz: 1. The first day of January, known as New Years Day. 2. The twenty-second day of February, known as Washington's birthday.

3. The thirtieth day of May, known as Decoration or Memorial Day.

Day.

5.

4. The fourth day of July, known as Independence Day. The first Monday of September, known as Labor Day. The twenty-fifth day of December, known as Christmas

6.

7. Any day appointed and recommended by the Governor of this state or the President of the United States as a day of fast or thanksgiving; and

8. Any day which may hereafter be made a legal holiday, shall, for the purposes of this chapter, be holidays; but if said days firstly (1), secondly (2), thirdly (3), fourthly (4), sixthly (6) and eighthly (8) herein be the first day of the week known as Sunday the next succeeding secular or business day shall be a holiday. [92 v. 61; 90 v. 129; 81 v. 104; 77 v. 9; Rev. Stat. 1880, Sec. 3177; 67 v. 15, Sec. 3 (S. & S 490).]