money. Its characteristic feature is that title to the thing does not pass to the bank, except as bailee. We are concerned 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 depositor. The money becomes the banker's to use as he can.1 Whether interest be paid or not, whether the deposit be on an open checking account or a time deposit, the rule is the same. If it be a deposit in a savings bank, payable upon notice, the money belongs to the bank. The relation is not that of trustee and cestui que trust, although in some cases money placed in a bank by a depositor becomes a commonlaw 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; or where a person deposits money with one bank for transmission to his own bank,' in which case the transmitting 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; or where debts were due to a former owner of the bank which the bank collected and held in its general funds. 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

Bank of Kentucky v. Wister, 2 Pet. 324; Dabney v. State Bank, 3 S. C. 124; Robinson v. Gardner, 18 Gratt. 509, and numerous other

cases.

2 State v. Bartley, 39 Neb. 353. 3 Williams v. Rogers, 14 Bush, 776; Leaphart v. Commercial Bank, 45 S. C. 563.

4 Johnson v. Ward, 2 Bradw. 261. 5 Buchanan Farm Oil Co. v. Woodman, 1 Hun, 639.

6 City of St. Louis v. Johnson, 5 Dill. 241. Compare Ætna Bank v. Fourth Nat. Bank, 46 N. Y. 82.

7 Drovers' Nat. Bank v. O'Hare, 119 Ill. 646; Cutler v. American Ex. Nat. Bank, 113 N. Y. 593. See $$ 162, 163, 345, post.

8 Union Stock Yards Nat. Bank v. Dumond, 150 Ill. 501.

9 Parsons v. Treadwell, 50 N. H. 356.

8

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." The bank may select its own depositors," 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."

§ 131. When the deposit is made.- Where money is deposited the deposit dates from the time the deposit is entered in the pass-book,' or where not entered there when received whenever the duplicate deposit slip is delivered to the depositor, 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 or the

10 Boyden v. Bank of Cape Fear, 65 N. C. 13.

1 Wasson v. Lamb, 120 Ind. 514. But the money must have reached

11 Bushnell v. Chatauqua Co. Bank, the bank. Thus money in the post74 N. Y. 290.

12 Thatcher v. State Bank, 5 Sandf. 121. The rule ought to be that an incorporated bank could not make selection as to its depositors.

13 Union Bank v. Knapp, 3 Pick. 96. 14 Corbet v. Bank of Smyrna, 2 Harr. (Del.) 235; Way v. Tuskegee Ins. Co., 34 Ala. 58.

office which the bank has refused to receive is not a deposit nor is the bank liable for its loss. Simpson v. Pemegiwasset Nat. Bank, 38 Atl. R. 1005.

2 Manhattan Co. v. Lydig, 4 Johns. 377. The general principle of this case is right, but the actual decision is wrong. The same thing may

3 Hazleton v. Union Bank, 32 Wis. 34.

cashier or the paying teller 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." But it must be the intention of the party to make a deposit. 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. 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. But this is certainly wrong, because 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 was 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 complete." 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. But this case is

be said of Thatcher v. State Bank, 5 Sandf. 121. The money was deposited in both cases.

4 State Bank v. Kain, 1 Ill. 45. 5 East River Nat. Bank v. Gove, 57 N. Y. 597. But in any case, except under very remarkable circumstances, the deposit should be received at the bank.

6 Jackson Ins. Co. v. Cross, 9 Heisk. 283. The depositor violated the rule of the bank, but the receiving teller also violated the rule. 7 Calton v. Savings Bank, 7 Conn. 487, a case with very peculiar cir

cumstances.

But the real reason

for deciding the case as it was decided must be that the plaintiff never intended to make a deposit.

8 Rich v. Niagara Co. Bank, 5 Thomp. & C. 589; Shields v. Niagara Co. Bank, 3 Hun, 477.

9 Gettysburg Nat. Bank v. Kuhns, 62 Pa. 88.

10 Miller v. Western Bank, 172 Pa. 197.

Ihl v. St. Joseph Bank, 26 Mo. App. 129.

12 First Nat. Bank v. Brooks, 22 Ill. App. 238. Compare Beckly v.

13

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 certificate. 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 private 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." The same holding was made where no assurance whatever was given. 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 money 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." 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, which seems contra.

17 Dustin v. Hodgen, 38 Ill. 352. But money left with the bank to

13 West v. Elmira Bank, 20 Hun, deceive the examiner is not a de408. posit. United States v. Peters, 87 Fed. R. 984.

14 Steckel v. Allentown Bank, 93 Pa. 376. This case is wholly irreconcilable with Allentown Bank v. Williams, 100 Pa. 123. The difference on which the court relies is a fantastic quibble.

18 Long v. Citizens' Bank, 8 Utah, 104. The real point, however, in this case was that the paper, which was a certificate of deposit, was issued 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

16 East River Nat. Bank v. Gove, some place other than the bank 57 N. Y. 597. binds the bank if it ratifies or ac

$132. Effect of entries in books.- An entry upon the pass-book or in the bank books of a deposit is merely a receipt. It is explainable or revocable for mistake1 by either the bank or the depositor, and the depositor may contradict the entry even though a by-law of the bank requires an examination as to correctness at the time of the entry. 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 indorsed on the paper itself, that is sufficient notice to every one dealing with the paper that the depositor has never parted with his title. If the paper is not so indorsed, any

quiesces in the transaction by a course of dealing. Jumper v. Commercial Bank, 26 S. E. R. 725.

1 Talcott v. First Nat. Bank, 53 Kan. 480; Schneider v. Irving Bank, 1 Daly, 500; Branch v. Dawson, 36 Minn. 193.

entry is conclusive: otherwise, not. Manhattan Co. v. Lydig, 4 Johns. 377. The true rule is that the books are prima facie correct. Asher v. National Bank, 7 Alb. L. J. 43.

1 Bank of Guntersville v. Webb,

2 Mechanics' Bank v Smith, 19 108 Ala. 132. Johns. 115.

3 It was held that the entry on the books made an account stated, which could be attacked only for fraud. Hepburn v. Citizens' Bank, 2 La. Ann. 1007; Mechanics' Bank v. Banks, 11 La. Ann. 261. In another case it is said if the entry is made on the bank book first the

2 Sweeney v. Easter, 1 Wall. 166; Commercial Nat. Bank v. Armstrong, 148 U. S. 50; National Butchers' Bank v. Hubbell, 117 N. Y. 384; Manufacturers' Bank v. Continental Bank, 148 Mass. 553; Crown Point Nat. Bank v. Richmond Nat. Bank, 76 Ind. 561. And see § 175, post.