As to the drawer, where a bank dishonors his check while funds are deposited to his credit sufficient to meet the check, the remedy is twofold. He may immediately sue for the deposit,1 because the check is a demand,2 or he may sue for damages. The fact of dishonor is to be determined by the true state of the account,3 not what the books show necessarily,.although they may be considered as prima facie correct as entries made in due course of business.4 The depositor when suing for his deposit does not sue upon his check - that is a mere order;5 but it is proof of a demand if it was indorsed by the payee.6 But this remedy will generally be considered insufficient by the depositor whose check has been dishonored, because the smaller the check the worse is the injury.7 The common action, therefore, is an action on the case for damages. It has been pointed out in the introduction how this remedy exists in favor of this particular creditor against his debtor, when it does not exist in favor of other creditors against their debtors. It is really a survival of the day when a deposit in a bank was a bailment, and is the old commonlaw action of the bailor against his bailee. It is proven by the fact that the depositor in this action can recover both his deposit and the other damages he has suffered. In this action reasonable and "temperate" damages,8 and what that phrase means depends wholly upon the taste and fancy of the particular court, may be recovered without any proof of special damage or of malice.9 Other courts say substantial damages may be recovered without such proof.10 These damages need not be immediately connected with a tangible pecuniary loss.11 But it was held that where the error was discovered and the check paid within a few days, only nominal damages could be recovered.12 This ruling can be justified only on the maxim humanum est errare, because the damages are not necessarily diminished by a rectification of the mistake. But damages, such as for the arrest of the drawer,13 or the seizure of his business,14 are too remote. It is a complete defense to the action that the check was not indorsed by the payee.15 The fact that in some states the holder has a right of action on the check is no defense16 in those particular states. It is no defense that the dishonor was caused by negligence of the bank's employee,17 but would the contributory negligence of the plaintiff be a defense?18 The fact that it has credited checks on itself as cash which were not good is no defense, but it would be a defense if the checks were on another bank.19 If a purchased draft, which has been credited as cash, has been lost in going through the mail, and the bank has charged off the draft on account of the drawer's and in dorse r's failure to furnish another draft, it will be no defense.20 Payment of the check on a forged indorsement will be no defense.21

13 Newberry v. Trowbridge, 13 Mich. 263.

14 In re Commercial Bank, 4 Ohio Dec. 108.

15 Bung Co. v. Armstrong, 34 Fed. R94.

1 First Nat. Bank v. Shoemaker, 117 Pa. 94 The reading of this case reminds one of the artless statement of the reporter in Year Book 30-31 Edw. L: "Defaute de bon serjant fet B perdre sez den-iers," quoted 1 Poll. & Mait. Hist. Eng. Law, 199; Viets v. Union Nat. Bank, 101 N. Y. 563.

2 Viets v. Union Nat. Bank, 101 N. Y. 563.

3 See cases cited in notes 17,18,19 and 20 to this section.

4 This is the general rule applicable to all transactions.

5 First Nat. Bank v. Shoemaker, 117 Pa. 94.

6 Rowley v. National Bank, 63 Hun, 550. But this allegation is dispensed with if bank refuses to pay for lack of funds. Eichner v. Bowery Bank, 45 N. Y. Supp. 68.

7 Marzetti v. Williams, 1 B. & Ad. 415.

8 Atlantic Nat. Bank v. Davis, 96 Ga. 334; Rolin v. Steward, 14 C. B. 595.

9 Schaffner v. Ehrman, 37 111. App 340, 139 I11. 109; Rolin v. Steward, 14 C. B. 595.

10 Schaffner v. Ehrman, 37 I11. App. 340, 139 111. 109; Svendsen v. State Bank, 64 Minn. 40; Patterson v. Marine Bank, 130 Pa. 419: Birchell v. Third Nat Bank, 15 Wkly. Notes Cas. 174.

11 Patterson v. Marine Bank, 130 Pa. 419 (but should be the reasonable and probable consequences); Svendsen v. State Bank, 64 Minn. 40. Contra, nominal damages only, Brooke v. Tradesmen's Bank, 69 Hun, 202; Burroughs v. Tradesmen's Bank, 87 Hun, 6.

12 See Brooke v. Tradesmen's Bank, 69 Hun, 202.

13 Bank of Commerce v. Goos, 39 Neb. 437. The court in this case excluded such evidence, but the plaintiff's attorney, in his desire to swell the damages, got the evidence improperly before the jury and then lost his judgment. But the opinion on this latter point is quite weak.

14 Brooke v. Tradesmen's Nat. Bank, 69 Hun, 202.

15 Rowley v. National Bank, 63 Hun, 550. But see note 6, sitpra, where this proof is dispensed with.

16 National Bank v. Boles, 12 Ky. Law R 422.

17 Atlanta Nat. Bank v. Davis, 96 Ga.334