name, and he may execute checks and withdraw the same (unless a statute to the contrary intervenes), and the bank will be protected. But upon notice given to the bank by the parent or guardian that such funds are claimed, the bank may refuse payment of the minor's checks.

A bank may be estopped from the payment of a deposit by process of law, for example the deposit may be attached or garnisheed. When the court issues a writ and the same is served upon the bank, the bank must respect and obey the notice and refuse to pay until the proceedings are determined.

The death of a depositor, when known by the bank, estops the bank from payment of checks though delivered to the payee' by the maker thereof prior to death.

The rule is, that the death transfers the deposit to his personal representatives, and a bank, having the knowledge of the death and which afterward pays checks, does so at its peril.

The statutes of some States, however, provide that the personal representatives may draw upon the account of the deceased in a certain sum before letters of administration are granted.

The bank is also estopped from making payment after notice of insolvency and assignment by the depositor. The assignment transfers the deposit to the assignee for the benefit of all the creditors.

If the bank honors the check before notice to it of assignment, it is protected.

Where the bank has a claim or debt due it from the depositor, it may set off the deposit (if done before the death of the maker) as against such debt, and this operation acts as a withdrawal of the deposit.

The deposit must belong to the debtor in his own right. The bank cannot apply trust funds in this way, and even after the application is made, if it is shown that the deposit belonged to someone else, the court will order the bank to return the same to the rightful owner.

Where a debt is secured, the bank has no authority to apply the deposit in payment of such a debt. Also after notice of death, a bank has no right to apply the deposit standing in the name of the deceased, to the payment of his debt though the debt be due and acknowledged.

CHAPTER XXI.

CHECKS.

§ 181. Defined.

Bouvier's Law Dictionary defines a check to be:

"A written order or request addressed to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to person therein named, or bearer, or to such person, or order, a named sum of money."

Norton on Bills and Notes, defines a check as follows:

"A check is a draft or order on a bank or banker, purporting to be drawn on a deposit of funds, for the payment, at all events, of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand."

There is no essential difference in the definition. Bouvier defines it to be a written order or request addressed to a bank or banker by a party having money in their hands, requesting them to pay on presentment, to a person named, or bearer, a fixed sum of money.

A form of the written instrument commonly used is in the words and figures as follows:

No.

“Pasadena, California, Jan. 1st, 1906. SAN GABRIEL VALLEY BANK.

Pay to the order of Robert J. Burdett One Hundred Thousand Dollars."

$100,000.00

"Frank C. Bolt."

The form of the check presents a very accurate definition. It is a written instrument dated, addressed to a bank, directing it to pay to a person named therein or to his order (or bearer), a fixed sum of money, and is signed by the drawer.

The requisites of a check, are that it shall be, first, dated, second, it must be drawn on a bank; third, it must be payable to a person named to order (or bearer); fourth, it must specify a certain sum of money to be paid; fifth, it must be signed by the drawer.

If it is defective in any one of these requisites, it is an imperfect instrument and may be refused when presented to the bank for payment.

A check, being an order on a bank to pay a certain sum of money, is a direction to the bank to charge the drawer's account with the sum named therein.

§ 182. A check must be dated.

If a check has no date, it has no definite time for payment. A check is only payable on the day of its date or on a day a future date, or at the time of presentment subsequent to its date. The bank, therefore, if a check is not dated has no direction when to pay or charge the drawer's account; but a bank may pay a check without risk and without a date when presented by and payable to the drawer himself. A bank may pay to a customer his deposit in full, at any time without direction or authority in writing from the depositor, upon the ground that the bank can select its customers, receive deposits and repay them at any time. Therefore, it may close the account with the depositor by payment in lawful funds at any time without being requested to do so; and a check in such a case, is not required as an evidence of authority. But the bank cannot charge the depositor's account with a sum of money, which sum is to be paid to or transferred to the account of another, without direction or authority in writing; and this authority must be dated and signed by the party to be charged.

The date is important, as stated, because it fixes accurately the time in which payment may be demanded. It is not due until a date is fixed. If it fails to bear a date, the bank is at once put upon inquiry and may refuse payment upon the special ground that the check not being dated, no time of payment is fixed.

Checks are either payable on demand or at a date fixed in the future.

In the case of Crawford v. Westside Bank, 2 N. E. 881, the court says:

"In the present case, the plaintiff, on the twentieth of April, intending to be absent from his place of business for a few days, drew his check on the defendant, dated April 22d, for $700, payable to his clerk, one Morgan, for the purpose of enabling

him to obtain funds to pay wages becoming due to the drawer's employees on the 22d. The check was left in the drawer's check-book, in his safe, with directions to Morgan, who had a key to the safe, to take the check on the 22d, draw the money, and deliver it to his foreman to pay out to the employees in case the drawer did not return before noon upon that day. The plaintiff did not return until after the time appointed; but on the 21st, Morgan took the check, and, having altered the date to the 21st, drew the money from the bank, and absconded with the funds on the same day.

"The check, as drawn, conferred no authority on the bank to pay the amount for which it was drawn out of the plaintiff's funds before its date.1

"Such payment did not, therefore, justify the bank in charging the check to the plaintiff. The bank, undoubtedly, had the same right as any other person to purchase a post-dated check, and enforce payment, however, depended upon the question as to whether the purchaser became a bona fide holder of the paper, and also whether it was then a valid obligation of the maker. A material alteration of its terms, after execution and before payment, would destroy its validity. A change in its date, whereby the time of its payment was accelerated was undoubtedly such an alteration.

"Thus, it was held, in the case of Vance v. Lowther, 1 Exch. Div. 176, where the date of a check had been altered from March 2d to March 26th, and, as thus altered, was attempted to be enforced against the drawer by one who had paid value to an unlawful holder for it, that such alteration vitiated the check, and no recovery could be had thereon."

The fact that a check is not dated or that the date is changed as stated, would put the bank on inquiry, and it has been held that an undated check is never payable.

§ 183. It must be drawn on bank.

The Supreme Court of the United States, in distinguishing a check with a bill of exchange, says that a check is always drawn on a bank or banker; while a bill of exchange is not.

1 Godin v. Bank of the Commonwealth, 6 Duer, 76; Mohawk Bank

v. Broderick, 10 Wend. 304; S. C. 13 Wend. 133.

It is always necessary that the drawee be designated as a banker, so that the instrument will not be construed as a bill of exchange.

The Supreme Court of the United States, in defining the difference says:

"The chief differences are, that a check is always drawn on a bank or a banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the default. It is not due until payment is demanded, and the Statute of Limitations runs only from that time. It is, by its face, the appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer.

"It is not necessary that the drawer of the bill should have funds in the hands of the drawee. A check, in such a case, would be a fraud."

The court further says that a check is never presented for acceptance but only for payment.

§ 184. Check must be payable to a person named or to his order or to bearer.

A check failing to designate a payee, or to designate him with sufficient certainty, it is claimed, will render the check void.

A check payable to a person named is a negotiable instrument and may be transferred simply by the payee indorsing his name on the back or on the face of the check.

It is held, that where a check is drawn payable to a fictitious person or to a name or figure, as for example "1905" or a word "rent" is in law regarded as payable to bearer, and is transferable on delivery.

§ 185. A check must be for the payment of a certain sum of money.

Daniels on Negotiable Instruments, 3d Edition, § 1570, says, "In this respect it does not differ from other negotiable instruments, and though perhaps it still might be termed a check, although not paid in money, by which is meant the legal tender currency of the country, it would certainly not be nego