performance of the act enjoined. Upon the conscience of the donee alone is laid the duty of performing the sacred service named. The testatrix might have made the gift in the usual terms. That she coupled with it an injunction to the performance of a solemn religious ceremonial cannot avoid it. The case of Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305, is not in point against this view. The bequest in that case was made to trustees eo nomine. It was not made direct as in this case. There can be, of course, no trustee without a beneficiary in being; and, inasmuch as in the case named there was no beneficiary, there could be no trustee, and consequently no trust. Moreover, the case of Holland v. Alcock recognized the distinction we draw. The court in its opinion says: "If the bequest had been of a sum of money to an incorporated Roman Catholic church or churches, duly designated by the testator, and authorized by law to receive such beques's for the purpose of solemnization of masses, a different question would arise. But such is not the case. Since the decision of that case, the subordinate courts of New York have upheld bequests of the character of the one in question. In re Howard's Estate (Surr.), 25 N. Y. Supp. 1111; Vanderveer v. McKane (Sup.), 11 N. Y. Supp. 808.

"The fact that the legacy was a gift direct, and was not bequeathed in trust, obviates the necessity of noticing the objection made by counsel for plaintiff in error that it is void for uncertainty as to the beneficiaries. Neither is it void because repugnant to the law against bequests for 'superstitious uses. To properly interpret the part of the will in question, and to determine whether effect can be given to it, we must bear in mind the Catholic church doctrine of purgatory. Purgatory is defined by an authoritative expositor of the church's creed to be a state of suffering after this life, in which those souls are for a time detained who depart this life, after their deadly sins have been remitted as to the stain and guilt, and as to the everlasting pain that was due to them, but who have, on account of those sins, still some debt of temporal punishment to pay; as also those souls which leave this world guilty only of venial sins. In purgatory these souls are purified and rendered fit to enter into heaven, where nothing defiled enters. Catholic belief (Lambert's Am. Ed.). 196. Devotees of this church also believe that souls in purgatory are relieved by the sacrifice of the mass, by prayer, and pious works and alms deeds.' Id. 202. Scriptural authority, as it is recognized by Catholics, though by others re garded as apocryphal, exis's for the practice of offering prayers for the dead, and for contributions to the church to enable it to perform its offices in their behalf. And, making a gathering, he (Judas Maccabeus) sent 12.000 drachms of silver to Jerusalem for sacrifice, to be offered for the sins of the dead. (For, if he had not hoped that they that were slain should arise again. it would have seemed superfluous and vain to pray

for the dead.) And because he considered that they who had fallen asleep with Godliness had great grace laid up for them. It is therefore a holy and wholesome thought to pray for the dead, that they may be loosed from sin.' 2 Maccabees, xii., 43-46. In the light of these beliefs, the act of Mary Brophy in making the bequest is reasonable and consistent, and should be upheld unless it be prohibited by force of some positive rule of law. In the reigns of Henry VIII. and Edward VI., statutes were enacted to prevent the devoting of property to what was termed 'superstitious uses.' This was anterior to the reign of James I., during which the common law, consisting of the statutes and legal customs and usages then in force, was imported into the colonies; and therefore, unless these statutes have been abrogated or modified by constitutional or statutory law, judicial decisions, and the condition and wants of the people, they are of binding force in this State. Gen. St. 1897, ch. 1, § 4. If, by proper construction, the statutes of Henry and Edward prohibit the making of bequests for the purposes named in the will under consideration, assuming them to be parts of our law, the gift in question must fail. It is said, however, that the English courts did not hold the making of such gifts to be repugnant to the terms of these statutes, but declared them void by analogy to the prohibitions of the statutes, and by the general policy of the common law. 1 Jarm. Wills (6th Ed.), 197, 198. Be that as it may,-and, for the purpose of the question before us, it can make no difference whether the prohibition was originally statutory or otherwise,-we have no hesitation in declaring the English common-law interdiction of bequests of the kind named to be without force in this State. It is opposed to the spirit of religious toleration which has always prevailed in this country, and which has found expression in the federal constitution and statutes, and in the constitution and statutes of every State of the Union. That religious intolerance which infused itself through parliamentary enactments and judicial sentences, and which procured the law to anathematize different creeds as superstition' or 'heresy,' according as Catholic or Protestant gained governmental ascendancy, was, more than anything else, what our ancestors fled from. It would be strange, indeed, had they carried to this country, and established here, the very laws of religious persecution from which they sought to escape. They brought here such of the common law as was adapted to the condition and wants of the people, and as was consistent with the spirit and genius of free political and religious institutions."

HAS A CHECK HOLDER A RIGHT OF ACTION AGAINST A BANK FOR REFUSAL TO PAY SAME.

Has a check holder a right of action against a bank for refusal to pay the same, and does such check operate as an assignment of the funds pro tanto? In the commercial world, in the transaction of its business, the existing right of debtor and creditor, the establishment of those rights, the laying down of just rules by our courts, has given rise to many complicated questions, and an abundance of litigation. The mad chase of creditors, to gain supremacy and preference, has been a fruitful field of utility for the practitioner. Take this day of extensive credit, the existing rights and constant endeavor of the creditor to obtain his foremost place, has given rise to much adjudication on the part of courts. To-day, when we are transacting so large a part of our business by the means of banks and banking corporations, it naturally has given rise to much litigation. The rights of the bank, its relation to its depositors, to third parties and to similar institutions, of the depositor and third parties toward the bank, are constantly arising. Upon what footing and in what relation the depositor of a bank should be held, so far as the bank was concerned, was early decided by our courts, where it has been held that the relation arising by the deposit of money in a bank, if it be a general one, is that of a debtor and creditor. Thus the relation having been established as that of debtor and creditor, the nature of the contract must be taken into consideration and the obligations arising thereunder. The general rule of law is that when deposits are made with the bank, unless they are special de posits, they belong to the bank as a part of its general funds.2 And a general depositor has no claim upon the money so deposited, but his claim is upon the bank for a like amount of money.3 That is, every deposit made in the bank is a loan to the bank and cannot be recovered, but the depositor's remedy is a personal action against the bank for money had and received. This is the rule laid down by Morse in his work on

Banks and Banking. Mr. Morse also adds, "And every payment by the bank, to or on account of such customer, is a repayment of the loan, pro tanto. But even though the bank is a debtor to the depositor it stands in a relation different from what the world understands a debtor to be. It must, from the very position in which it stands, belong to a class of debtors distinctly different from what the words commonly mean. A bank gives the community to understand that those who have funds in its hands have not only the right to draw upon the deposit, but that all drafts will be paid, and is for all practical purposes a parol promise to pay all checks, that the owner of the deposit may draw, or, I would add, the payment of all of such claims or any part thereof as the creditor may present for payment at any time during which the bank holds its doors open to the public for business, and there is a fund to meet the checks presented. The first question that would naturally arise under such an offer held out by the bank is, Is a bank compelled to honor and pay in small portions the checks of such depositor? The court of Illinois has laid down this rule: A depositor may draw checks upon his bank at pleasure, for the whole or any part of moneys to his credit in the bank, and each holder of a check may recover the amount expressed in it, and extend it to cover an action by the depositor himself. That is, so long as the relation of debtor and creditor exists it is the depositor's inherent right to draw such checks at it may be necessary for him, and so split the debt as to suit his purposes. The bank may cease the existing relation by refusing to accept more deposits from such depositor, and offer him the whole amount due, when his right to draw out in parcels would be terminated, unless in favor of bona fide holder of his check." It is this upon question that the courts of both this country and England are not uniform. To the question as to whether a check drawn upon a

bank operates as an assignment pro tanto of the depositor's fund we find two, and, in fact, three lines of authorities. Taking up the first line, which holds that such drawing

4 Morse on Banks & Banking, sec. 289.

5 Chicago, Marine & Fire Insurance Co. v. Slangford, 28 Ill. 168; Bank of Antigo v. Union Trust Com

pany, 149 Ill. 352.

of the check does not operate as an assignment of such fund, we find that they have taken one or more cases as their foundation and followed them, regardless of the exact fact involved, and also the laying down of principles somewhat broader than the case required and followed by the other courts, have been construed to cover their case, when upon closer observation it will be found that the same question is not involved. The courts of Massachusetts have laid down the rule that the promise to the drawer by the drawee of a negotiable draft or bill of exchange, to accept and pay the same, does not make the drawee liable to an action by a holder, unless he has taken the draft on the faith of such promise, is a mere chose in action, upon which he only to whom it was made can sue. Bankers agree with their customer to receive his deposits, to account with him for them, to repay them to him on demand, and to honor his checks to the amount for which they are accountable to him, when the checks are presented; and for any breach of that agreement they are liable to an action by him. But the money when so deposited is the absolute property of the bankers, impressed with no trust, and which they may dispose of at their pleasure, subject only to their personal obligation to the depositor to pay an equivalent sum upon his demand or order. The right of the bankers to use the money for their own benefit is the very consideration for their promise to the depositor. They make no agreement with the holders of his checks.

A check drawn by him in common form, not designating any special fund out of which it is to be paid, nor corresponding to the whole amount due to him from the bankers at the time, is a mere contract between the drawer and payee on which, if payable to bearer, and not paid by the drawees, any holder might doubtless sue the drawer, but which passes no title, legal or equitable, to the payee or holder in moneys previously paid to the bankers by the drawer; and the banker's promise to the drawer to honor his checks does not render them, while still liable to account with him for the amount of any check as a part of his general balance, liable to an action of contract by the holder also, unless they have made a direct promise to the latter by accepting the check when so pre

sented or otherwise. The Supreme Court of the United States says, in relation to the contract existing between the parties, it is purely a legal one, and has nothing of the nature of a trust in it. And it is very clear that the holder of a check can sue the drawer if payment is refused, but can he also sue the bank? It is conceded that the depositor can bring assumpsit for the breach of contract to honor his check, and if the holder has a similar right, the anomaly is presented of a right of action upon one promise for the same thing, existing in two distinct persons at the same time. On principle, there can be no foundation for an action on the part of the holder, unless there is a privity of contract between him and the bank. How can there be such a privity when the bank owes him no duty and is under no obligation to the holder? The holder takes the check on the credit of the drawer in the belief that he has funds to meet it, but in no sense can the bank be said to be connected with the transaction. If it were true that there was a privity of contract between the banker and the holder when the check was given, the bank would be obliged to pay the check, although the drawer, before it was presented, had countermanded it, and although other checks, drawn after it was issued, but before payment of it was demanded, had exhausted the funds of the depositor. If such a result should follow the giving of checks, it is easy to see that bankers would be compelled to abandon altogether the business of keeping deposit accounts for their customers. If, then, the bank did not contract with the holder of the check to pay it at the time it was given, how can it he said that it owes any duty to the holder until after the check is presented and accepted? The New York court considers the right of the depositor as a chose in action, and his check does not transfer the debt or give a lien upon it to a third person without assent of the depositary. Here the court says a check is a bill of exchange payable on demand, and then argues that it does not operate as an assignment of the funds.8 The holder of an ordinary check, unaccepted and uncertified, cannot compel payment from the bank upon which it is drawn, even if the account of the

6 Carr v. National Security Bank, 107 Mass. 45. 7 National Bank v. Millard, 10 Wall. 152. 8 Chapman v. White, 6 N. Y. 417.

14

drawer is sufficient to meet it when presented. Under such circumstances, the right of action belongs to the drawer or creditor of the bank, and not to the holder, who is merely a stranger. The check being considered an order, which may be countermanded and payment forbidden by the drawer before it is actually cashed,10 and knowledge of the bank of the drawing of such check is not sufficient to bind it," although a check in the hands of a third party does affect the legal transfer of the debt, if it was the intention to transfer such debt, the court should carry out that intent.12 The English courts are as divided as the American upon this rule, the court holding a check a bill of exchange,13 and, being a check, is not an assignment of money in the hands of a banker, but is a bill of exchange, payable at a banker's, thus making bank checks fall within the definition of bills of exchange, and making it difficult to indicate with precision their differential features. 15 There being no privity, expressed or implied, the holder of the check, in its original form, can bring no suit on the check against the drawee, even if it be conceded that he may maintain an action for any special injury by reason of the omission of the drawee to perform a legal duty.16 Judge Jollario, after reviewing decisions on both sides, thinks that the weight of authority takes the stand that a check does not operate as an assignment of the funds.17 In that class of cases holding that a check operates as an assignment pro tanto, Illinois takes the lead. 18 The court of this State has laid down this rule: "It is, by universal consent of the commercial world, the contract between depositors and banker, that the bank, when it receives the deposit, shall pay it out on the presentation of the depositor's checks, in such sums as those checks may call for, and the person present

9 O'Connor v. Clark, 124 N. Y. 332; First National Bank v. Clark, 134 N. Y. 368.

10 Florence Mining Company v. Brown, 124 U. S. 385-391.

11 Lund v. Bank of North America, 49 Barb. 221; Atty. General v. Insurance Company, 71 N. Y. 325. 12 Throop Grain Company v. Smith, 110 N. Y. 83. 18 Lamb v. Sutherland, 37 U. C. Q. B. 149. 14 Hopkins v. Forester, L. R. 19 Eq. 74.

15 Planters' Bank v. Merritt, 7 Hersk. 177.

16 National Bank v. Miller, 77 Ala. 168; Bank of Republic v. Millard, 10 Wall. 152.

17 Harrison v. Wright, 100 Ind. 518.

18 Munn v. Buch, 25 Ill. 21; Chicago Fire & Marine Insurance Co. v. Slangford, 28 Ill. 168.

ing them, and it agrees with the whole world that whoever shall become the owner of such check shall, upon its presentation, thereby become the owner, and entitled to receive the amount specified in such check, provided the drawer shall at that time have that amount on deposit.19 The check of a depositor upon his bank, delivered to another for value, transfers to that other the title to so much of the deposit as the check calls for, which may again be transferred by delivery, and when presented at the bank the banker becomes the holder of the money to the use of the owner of the check, and is bound to account to him for that amount on deposit, subject to his check at the time it is presented, it operates as an equitable assignment, if not a legal, and transfers the money from the depositor to holder of the check.20 Such check carries with it the title to the amount named in the check to each successive holder, and the drawer, after a check has passed into the hands of a bona fide holder, it is not in his power to countermand the order of payment." The courts holding this doctrine say, in speaking of the want of privity, that, although at one time there was some conflict of opinion, it is now laid down by the text-writers to be settled that, in cases of simple contract, if one person makes a promise to another for the benefit of a third, the latter may maintain an action upon it, though the consideration did not move from him. And if it be true, as it doubtless is, that the banker is liable to the depositor for the damages resulting to him by reason of the failure to pay his checks, this liability ought not, upon principle, to ex empt him from performance of his promise or undertaking to pay the check; the holder may enforce the promise, while the depositor recovers nominal or special damages for the breach of it. 22

Upon the refusal to pay the check assump sit will lie on the implied promise which the law raises in his behalf, commercial good, if not commercial necessity, seems to demand that checks be regarded as they are in prac tice intended to be, as transfers of the fund assigned, and not as mere powers to receive

19 Brickford v. First National Bank, 42 Ill. 238. 20 Brickford v. First National Bank, 42 Ill. 238; Fourth National Bank v. City Bank, 68 Ill. 398. 21 Union National Bank v. Oceana Bank, 80 Ill. 213. 22 Roberts v. Austin, Corbin & Co., 26 Iowa, 325; May v. Jones, 87 Iowa, 198.

the money. Whenever a contract is essentially of a circulating nature, going about, as it were through society, to draw forth the exertions of the property of its members, as it may encounter them here and there on the commercial arena, it carries its own consideration and its own obligations with it, and forms a privity with the person to whom it comes.2 .23 The objection of a check holder suing a bank on the ground that there is no privity between him and the bank, seems to us utterly untenable. It is true that there is no privity before presentment of the check, but by that very act they are brought into privity and the check holder's right to sue the bank is completed.24 There is certainly no good ground for holding that a check drawn. upon a fund in a bank is not an equitable assignment as between the drawer and payee; and in a case where there is controversy as to the rights of the bank or drawee, it does not lie in the mouth of the drawer or his assignee to say that such an instrument is not an equitable assignment. 25 Surely every sound lawyer will at once perceive a privity of contract between the banker and the holder of a check created by the implied promise held out to the world by the banker on the one side, and the receiving of the check for value and presenting it, on the other. It is a familiar principle of daily illustration, that a promise made to the public, that the performance of a particular act shall entitle the person performing the act to particular right, is a valid assumpsit to such person. The promise on the one hand and the performance on the other, create a privity between the parties as intimate and as obligatory as if the promise had originally been made to the particular person.26 Shown, as it has been, that the relation of bank and depositor is that of debtor and creditor, without any element of trust entering therein, that the right of the creditor is a mere chose in action, does it follow that the creditor's relation in regard to the drawing of checks is to be restricted to the mere discretion of the bank? It has become established by long custom, that when a bank holds itself out to the world for business that

It

it must follow the dicta placed there by that custom. That does not mean that the bank cannot protect itself against loss by the reason of fraud or the part of depositors. Another statement advanced is that the depositary has the right to insist upon a single payment of the deposit. But when? Only when it is desirous of closing its account with the depositor, and not even then when there are outstanding checks to be paid; it is one of the laws of the great banking system, and so interwoven with its business as to have become its vital part, that the depositor has the inherent right to so split his account as to meet his just demands. Take that power away and your banks must go out of business; it is part of the contract held out to the world; it is one of the fundamental principles of the law merchant. It has been the source of much contention, that there is no privity of contract between holder and the drawee. seems that it ought to be very clear from the very usage of the business, that there is a privity implied between the banker, and whosoever the depositor should designate to receive it, the bank agreeing to pay whomsoever the depositor may designate. It has now been settled that where one person makes a promise to another for the benefit of a third, the latter may maintain an action upon it though the consideration did not move from him, and taking into consideration the fact that presentment having been made that act alone should be sufficient to bring them into privity. The fact that if the holder of a check can maintain an action against the drawee, there would be a right of action upon one promise for the same thing in two persons at the same time, the payee and drawer, is answered and discussed in one of the cases, upholding the theory of a check operating as an assignment.27 Another fact advanced by the first class of cases is, if a check works an assignment as against the drawee, he would be compelled to pay, although the deposit might be exhausted by subsequent checks. Checks do not have priority according to the time when they are drawn; that being the case, it would be impossible for banks to carry on their business; but when they are presented, then, if they are refused payment and subsequent checks are paid, the case would be changed. This is also followed by the proposi

Roberts v. Austin, Corbin & Co., 26 Iowa, 325