amount of the checks. As a general proposition of law, as applied to ordinary transactions, the plaintiff is undoubtedly correct; but the question here is whether the ordinary principles of law in this regard apply to negotiable instruments, including bank checks. It is believed that they do not apply, at least in the absence of actual fraud, which is not alleged in this case. The Negotiable Instruments Law was intended to fix and settle the rights of the parties, so far as they are affected by its operation. Columbian Banking Company v. Bowen, 134 Wis. 218, 114 N. W. 451. Section 132 of that law, quoted above, provides that the acceptance of a bill of exchange must be in writing. Section 185, quoted above, provides that checks shall be governed by the same rules as bills of exchange. Section 189 provides that a check of itself does not operate as an. assignment of any part of the funds to the credit of the drawee with the bank, and that the bank is not liable, unless and until it accepts or certifies the check. The oral statement that the checks were good was not a lawful acceptance, as required by the statute. Neither was it a certification, because à certificate means a declaration in writing, and a certificate must be in writing.

"The equitable grounds under which plaintiffs claim seem to be strong; but a consideration of all the facts show that, even on equitable grounds, the bank is entitled to consideration. Suppose that, when asked about the checks, the drawer had to his credit in the bank an amount sufficient to pay them. The bank would naturally answer that the checks were good. They were good as the account then stood; and if other checks, sufficient to reduce the balance below the face of those in controversy, had not come in before they were presented, they would have been paid. If no other checks had been issued, the bank would have done the drawer a grave injustice if it had answered that the checks were not good. Then, after giving out the information, suppose other checks had been presented. Under section 189 of the Negotiable Instruments Law, the giving of the checks in suit did not

operate as an assignment of any part of the drawer's fund. The bank could not refuse to pay other checks that were presented. The checks sued on had not been certified. The bank would have been liable to any person presenting a check, unless they paid it. It is clear that to require the bank to pay these checks would be to make it responsible for having told the checks were good, without any fraudulent intention, and at a time when its books showed they were good. The inquiry was made concerning the checks as such; and there is nothing in the petition to indicate that either the plaintiffs or the bank had in mind anything except the status of the drawer's account, and certainly no contract, equitable or otherwise, except as contained in the checks was contemplated by the parties.

Question 452: (1) State the facts, the question presented and the Court's decision.

(2) Suppose when the inquiry had been made the bank had no funds of the drawer on deposit and knew the checks were not good and made the statement fraudulently, would the holder taking the bills on the faith of such statement have a case? (See Van Buskirk v. State Bank of Rocky Ford, 35 Colo. 142, 83 Pac. 778.)

Case 453. Uniform Negotiable Instruments Act, Sec. 138.

"A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete, or when it is overdue, or after it has been dishonored by a previous refusal to accept, or by non-payment. But when a bill payable after sight is dishonored by non-acceptance and the drawee subsequently accepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first presentment.

Question 453: May a bill be accepted before complete? After it is due? Would acceptance in either case be a usual method of acceptance?

§ 441. (Nego. Instru., Sec. 49.). How acceptance may or

must be made.

(Note: See last two cases and three following cases.)

Case 454. Uniform Negotiable Instruments Act, Sec. 133.

"The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and, if such request is refused, may treat the bill as dishonored."

Question 454: In what form is the holder entitled to have acceptance made? If such form of acceptance is refused, what right has the holder? Whom could he then sue?

Case 455. Uniform Negotiable Instruments Act, Secs. 134, 135.

"Where an acceptance is written other than upon the bill itself, it does not bind the acceptor except in favor of a person to whom it has been shown and who on the faith thereof receives the bill for value.

"An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value."

Question 455: May an acceptance be written other than on the bill itself? Is the holder obliged to take such acceptance? If acceptance is written other than on the bill itself who is entitled to the benefit of such acceptance?

§ 442. (Nego. Instru., Sec. 50.) Acceptance presumed from retention.

Case 456. Uniform Negotiable Instruments Act, Sec. 137.

"When a drawee to whom a bill is dishonored for acceptance destroys the same or refuses within twenty-four hours after such delivery or within such other period as the holder may allow, to return the bill accepted or non

accepted by the holder, he will be deemed to have accepted the same.'

Question 456: Is a drawee to be charged as an acceptor for failure to return the bill to the holder?

(Note: This section has been greatly criticised. In Illinois and South Dakota it is omitted from the Act. In Pennsylvania it has been amended following the case of Wisner v. Bank, 220 Pa. 21, 17 L. R. A. N. S. 1266, which held that a drawee bank was liable upon a check as acceptor if it merely failed to return the check within twenty-four hours. In Wisconsin, the words are added "Mere retention of the bill is not an acceptance." It seems an injustice to hold a drawee for merely failing to return the bill. Mere retention is not refusal. Furthermore the common law rule was that the drawee had 24 hours in which to decide whether he would accept or dishonor the bill. This provision cuts the time short and requires decision within 24 hours.)

§ 443. (Nego. Instru., Sec. 51.) Kinds of acceptance.

Case 457. Uniform Negotiable Instruments Act, Secs. 140, 141, 142.

"[Sec. 140.] An acceptance to pay at a particular place is a general acceptance unless it expressly states that the bill is to be paid there only, and not elsewhere.

"[Sec. 141.] An acceptance is qualified which is; "1. Conditional; that is to say, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated.

"2. Partial; that is to say, an acceptance to pay part only of the amount for which the bill is drawn.

"3. Local; that is to say, an acceptance to pay only at a particular place.

"4. Qualified as to time.

"5. The acceptance of some one or more of the drawees but not of all.

"[Sec. 142.] The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken, the

drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto. When the drawer or indorser receives notice of a qualified acceptance, he must within a reasonable time express his dissent to the holder, or he will be deemed to have assented thereto.'

Question 457: (1) A, as drawee, writes across the bill "Accepted, payable at First National Bank" and returns it to the holder, who refuses to take such acceptance and treats the bill as dishonored. Has it been dishonored?

(2) In what ways may an acceptance be qualified?

(3) If the acceptance is qualified, must the holder content himself with such acceptance? What can he do?

(4) What is the effect of a refusal to dissent upon receiving notice of a qualified acceptance?

§ 444. (Nego. Instru., Sec. 52.) Effect of qualified acceptance.

(See above Section.)

§ 445. (Nego. Instru., Sec. 53.) Acceptance of check.

Case 458. Uniform Negotiable tions 187, 188.

Instruments Act, Sec

"Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance." "Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon."

Question 458: (1) A check was drawn on the O. N. Bank by J. L. to order of J. D. and indorsed by the payee to F. N. Bank. F. N. Bank presented it to O. N. Bank for certification. O. N. Bank certified same. About an hour later O. N. Bank suspended and a receiver was appointed. F. N. Bank then presented check to O. N. Bank (or receiver) for payment. Same refused. F. N. Bank sues J. L. the drawer. Is he liable? (First Nat. Bank v. Leach, 52 N. Y. 350).

(2) If certification had been procured by drawer before delivery, would your answer be the same?