Since the check is a mere order on the banker, the holder acquires no right against the bank until the check has been accepted or certified by the bank. Certification is, of course, an acceptance, but it is not the only method of accepting a check. Acceptance is a question of fact,1 and is provable by circumstantial as well as by direct evidence.2 An unexplained delay in refusing payment may be an acceptance by the bank.3 An oral statement or telegram4 by the cashier,5 or by the teller,5 that the check is good, either as to drawer or indorser, is an acceptance.6 But payment to the wrong person on an unauthorized indorsement does not give the holder of the check the right to sue the bank as on an acceptance;7 yet, if the drawer is allowed credit for the check after wrongful payment thereof, some courts say that it is an acceptance.8 A promise to accept is nudum pactum where the depositor has no funds,9 but may be binding as an estoppel, if communicated to the holder, according to one case.10 If the bank does accept the check to the holder who is in good faith, the drawer is released,11 and the bank becomes liable upon the check, whether it has funds or not.12 The holder of an accepted check may therefore sue the bank.13 But, unless the check has been either orally or otherwise accepted, the holder has no cause of action against the bank - his recourse is upon the drawer.14 A check drawn generally upon in the intermediate appellate courts of Missouri,8 but was rejected by the Supreme Court of that state.9 Iowa adopted it,10 but soon afterwards repudiated it.11 Louisiana recognizes an assignment by check where the check corresponds to the whole deposit.12 But all the cases agree that presentment is necessary to give the holder any right against the bank,13 except, it has been said, that the drawing of the check gives the holder thereof precedence over a garnishment.14 And finally, the rule must be in these states that the check takes effect upon moneys deposited after the check is drawn.15 The situation of a banker in these peculiar states is most insecure. Suppose a check is countermanded after presentation. The owner of the deposit, if the jurisdictional facts exist, can sue him in the United States court and obtain judgment if the banker pays the check. For the federal courts will be governed by the general rule, and will not follow the local law. But the holder of the check can sue him in the state courts and get judgment also. So it would be in the case of an unpre-sented check in the hands of a bona fide holder. It is nothing less than monstrous that such a condition should exist. As we pointed out in section 139, ante, this very condition confronts every bank in case of an insolvent depositor. This rule introduces such difficulties into the law that the grounds of it are worthy of serious attention, not less so on account of the fact that both Mr. Morse and Mr. Daniel have given the rule their enthusiastic commendation. The leading case is Munn v. Burch.16 The opinion is by Chief Justice Caton. He was no doubt a man of strong original power; but he cannot be said to have had any accurate scientific knowledge of the principles of the law. He put the holder's right upon three grounds: (1) that the check is an equitable assignment; (2) that the promise of the bank to the depositor to honor his check is made for the benefit of the check-holder, who may sue upon it; (3) that there is an implied contract between the check-holder and the bank. The first ground is refuted by all the other decisions to the effect that no assignment takes place until presentation, up to which time the bank can apply the deposit on its own claim,17 and the maker can revoke the check.18 It cannot in fact be an equitable assignment, because no consideration is paid for it; it is not payment in itself;19 it discharges nothing until acceptance; the original claim remains. It is merely an order to pay, and does not take effect upon the deposit as a fund existing when it was drawn, but upon what exists when it is presented.20 Otherwise it might be an assignment of a credit not in existence when it was made, and hence not an assignment at law at all. It is only an order and not an assignment, because the drawer is not released until it is accepted.21 Neither of the text writers spoken of above relies upon this ground as tenable. Next it is said that the promise of the bank to the depositor is made for the benefit of the third party, the check-holder, and therefore he can sue upon it. But this ground is based upon an actual contract, expressly made. A quasi-contract arising ex lege is not an obligation to a third party. Conceding such a contract actually made, the rule is that when a third party sues upon a contract made for his benefit, he must be a person ascertained at that time and pointed out by the contract.22 He cannot be "all the world," as Chief Justice Caton seems to think. The very nature of the transaction is such that the third party cannot be ascertained at the time of making the contract. But the real difficulty with this proposition is that the engagement existing between the depositor and the bank is not a contract at all, but a quasi-con tract. It is a customary duty imposed as the result of a relation, and is not an actual express contract nor one implied as of fact from circumstances.23 Therefore there is no chance left for this contention. The third ground is the one relied upon by the text writers, to wit: that there is an implied contract between the check-holders and the bank which creates a duty. This duty must arise either when the check is given or when it is presented. It must be the latter, because no duty whatever on the part of the bank exists until that time.24 This duty must arise out of a contract or out of a particular relation. It will not be contended that there is any express contract or one implied prior to the time of presentation. Now, if the duty arises out of a contract, it must be a contract made either expressly or impliedly at the time of presenting the check. No contract is made then expressly or impliedly, because none such is contended for except a customary duty arising from the general practice, which is called a contract. The first objection is that there is no such customary duty, as is settled by the almost unanimous concurrence of the courts of England and America and the practice of the business world. But the very statement of the so-called implied contract shows that it is a quasi-con-tract, not a contract proper, i. e., one implied as a fact by agreement. Therefore it arises out of a relation and depends upon the fact as to whether such a customary duty has so long prevailed as to have become an absolute rule of law. This is shown by the analogous relations of carriers and innkeepers. But here a court has invented a customary duty for itself and then enforced it, when it could only enforce such a rule of law if the customary duty had prevailed so generally or for so long as to become a fixed and permanent rule of law. On either ground, then, this rule is untenable. But the courts and text writers have lost sight of the fact that the depositor's right is a double one: first, an actual contract creating a debt; second, a customary duty creating an obligation quasi-contractual. The debt is not at all the result of a duty, but the rule that gives the holder a right to sue seeks to create an actual contract of debt out of a customary duty, which never creates more than a quasi-contract. It must be remembered that a debt and the common-law remedy of debt are not the same thing. The action of debt lies on quasi-contract, but a quasi-contractuaI obligation is not a debt. Text writers have confused debt with the action of debt, or they never could have said that a duty creates a debt. Yet the decisions going upon other grounds generally contend that the alleged contract between the parties creates the duty, and, because the nature of quasi-contract has not been until lately well understood,25 it had been conceded that there is a contract between the depositor and the bank to honor his checks upon his fund. The right of the check-holder to recover is denied, because he is not a party to the contract.26 This rule is unvarying wherever a contract is insisted upon as creating a relation out of which a duty arises. A contract of carriage of passengers,27 a contract between attorney and client,28 a contract between a telegraph company and the sender or receiver,29 can only be sued upon by one who is a party to the contract, not by some one who is injured by the manner in which the contract is failed to be performed. This analogy is complete and runs all through the law, that a man to claim the .benefit of a contract must be in some way a party to it. The point has already been noticed that the check-holder is not a party to any contract between the bank and its depositor, even if there can be said to be a contract between them as to the duty to pay checks. There is of course the contract of loaning, which creates a debt, but this duty is wholly outside of that relation. Such are the reasons which lead us to think that the rule in Illinois and the other states mentioned is unsound and has no excuse for existing. But the prolonged and never-ending trouble that it causes the courts of that state30 would be good reason for its abolition.