Yet in spite of the great weight of authority, the usage of the commercial world, the necessities of business, the convenience of banking transactions and the dictates of common sense, as settled by the courts of England and America, it is held in Illinois,1 Kentucky,2 South Carolina,3 Nebraska,4 and perhaps Texas,5 that the holder of a check can sue upon it, if when presented at the bank the depositor has sufficient credit to meet the whole of it,6 but not a lesser amount.7 This same rule was adopted

Co. v. Brown, 124 U. S. 385, and every state in the Union, except those mentioned in the next section. 15 Fourth St. Bank v. Yardley, 165 U. S. 634; Florence Mining Co. v. Brown, 124 U. S. 385.

16 See cases last cited.

17 Fourth St. Bank v. Yardley, 165 U. S. 634. This case must be closely confined to the particular facts, or it is misleading. See also Coates v. First Nat. Bank, 91 N. Y. 26; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; First Nat. Bank v. Clark, 134 N. Y. 368. But compare First Nat. Bank v. Dubuque Ry. Co., 52 Iowa. 378.

18 Bush v. Foote, 58 Miss. 5; Jones v. Pacific Co., 13 N. W. R. 359; First Nat Bank v. Dubuque, etc. Ry. Co., 52 Iowa, 378; Hawes v. Blackwell, 107 N. C. 196. This last case succeeds in being wholly unintelligible as to the check-holder's rights against the bank. The court seemed not to have any well-defined idea upon the subject. See also the cases cited in the three preceding notes.

1 Munn v. Burch, 25 I11 35, and cases to the present time.

2 Lester v. Given, 8 Bush, 357; Herndon v. Louisville Banking Ass'n, 10 Ky. Law R 584.

3 Fogarties v. State Bank, 12 Rich. Law, 518; Simmons Hardware Co. v. Bank of Greenwood, 41 S. C. 177.

4 Fonner v. Smith, 31 Neb. 107.

5 First Nat. Bank v. Randall, 1 White & W. Civ. Cas. Ct. App., sec. 975.

6 See cases last cited and those cited in note 27 to this section.

7 Coates v. Preston, 105 I11. 470; Pabst Brewing Co. v. Reeves, 42 I11. App. 154

8 McGrade v. German Sav. Inst., 4 Mo. App. 330; State Sav. Ass'n v. Boatmen's Sav. Bank, 11 Mo. App. 292; Senter v. Continental Bank, 7 Mo. App. 532.

9 Dickenson v. Coates, 79 Mo. 250; Coates v. Doran, 83 Mo. 337.

10 Roberts v. Corbin, 26 Iowa, 315.

11 First Nat. Bank v. Dubuque, etc Ry, 52 Iowa, 37a

12 Gordon v. Muchler, 34 La. Ann. 604. But it denied the general right. Case v. Henderson, 23 La. Ann. 49. Perhaps Ohio belongs in this list with Louisiana. Gardner v. National City Bank, 39 Ohio St. 600, was a check for the whole deposit. Compare Railway Co. v. Metrop. Nat. Bank, 54 Ohio St. 60.

13 See cases cited in note 2 and note 30 to this section.

14 Detheridge v. Crumbaugh, 8 Ky. Law R 592. Illinois holds otherwise. See note 30 to this section. These courts cannot agree even upon their own rule.

15 Rosenbaum v. Lytie, 8 Ky. Law R 607. This is implied in all the Illinois casea See note 30 to this section.

16 25 I11. 35. This opinion was written at a comparatively early day. It really was a presumption for a court in a state that had so little banking to assume to talk with such absolute aplomb of commercial usage. The case was a hard one, and hard cases make bad law. It should be remembered that it was an equity case, and is no authority for the proposition that the holder can sue at law. The facts of the case were that a man had a check upon a bank for wheat sold to a buyer for eastern people. The check was brought to the bank and the buyer had funds. The check was left there and by the bank was charged against the account of the drawer. It was therefore accepted. But a draft of the buyer's came back protested, and the bank charged off the credit and refused to pay the check, but at the same time the bank had the bill of lading for the wheat and actually got the proceeds. It would have been a simple matter to hold that the check had been accepted and that the holder could sue. But neither court nor counsel saw this obvious solution, and the consequence was a great mass of dictum now become law in Illinois.

17 See cases cited in note 30. It is probable that this peculiar idea is due to a confusion in the minds of the judges- between the relation of debtor and creditor, and the old idea that a man actually had his own money with his banker. This same confusion survives in common speech and the courts are compelled to give it effect in wills. A bank credit passes under a bequest of ready money or money in hand. Parker v. Marchant, 1 Ph 356; In re Powell, Johns. 49; Fryer v. Rankin, 11 Sim. 55; Stern v. Richardson, 37 L. J. Ch. 369; Varsey v. Reynolds, 5 Russ. 12; Langdale v. Whitfield, 27 L. J. Ch. 795.

18 This is implied in the Illinois cases. Fourth Nat. Bank v. City Nat. Bank, 68 111. 398, admits that an assignment in bankruptcy revokes an unpresented check.

19 Thomson v. Bank of Brit No. Am., 82 N. Y. 8.

20 Rosenbaum v. Lytle, 8 Ky. Law R 607. See note 15 to this section.

21 Metrop. Bank v. Jones, 137 111. 634

22 See AEtna Nat Bank v. Fourth

Nat Bank, 46 N. Y. 82; Montgomery v. Reif, 15 Utah, 495, and cases therein cited; and see specially National Bank v. Eliot Bank, 5 Am. Law Reg. 711, and Simson v. Brown, 68 N. Y. 355. 23 See Sec. 128, ante.

24 See note 20 and note 18 to this section.

25 Keener on Quasi-Contract, a most admirable work and one that reflects the highest credit upon the jurists of this country.

26 See the opinions in the cases cited in note 14 to Sec. 140, ante.

27 Winterbottom v. Wright, 10 M. & W. 109. Heaven v. Pender, 11

Q. B. D. 503, cannot be considered as overruling this case and drawee before presentation. The learned judge must mean payee instead of drawee, but the confusion produced by this doctrine is so great that an erudite court must go " thundering down the ages " as holding the belief that the payee of a check is its drawee. Then we are informed that although the check on presentation does not release the drawer, yet the bank loses its right of set-off as against a presented check, although the debt is matured. Brown v. Leckie, 43 I11 497; Fourth Nat, Bank v. City Nat. Bank, 68 ILL 398. And it loses this right as against a holder on an unmatured demand even though the check be not presented (Merchants' Nat. Bank v. Ritzinger, 20 Bradw. 27), it being immaterial that the maker is insolvent. Merchants' Nat. Bank v. Robinson, 47 Ky. 552. Again it is held that the outstanding unpresented assignment by check is not good against the bank's assignment of the deposit to itself by application of it on the debt of the depositor. Fort Dearborn Nat. Bank v. Blumensweig, 46 I11. App. 297. Yet it is plain that the same rule ought to apply to an unmatured demand if the depositor is insolvent. The latter is a case of equitable set-off, which ought to be good against an equitable assignment. If the holder has a claim against the bank by reason of a check, he surely ought to be able to set off the check which he holds against the debt which he owes to the bank. But by this process any depositor, by giving checks to men who owe the bank, can get paid in full, while other depositors must take what is left. The bank's assets could be reduced to a minimum by such a process. See Sec. 221, post. Finally, the court long ago, in McCagg v. Woodman, 28 111. 84, held that a depositor could set off his deposits against a note of his own to the bank maturing after insolvency. This was right, as it was a good case of equitable set-off. Yet the bank cannot set off its unmatured demand against an insolvent depositor. The result is most inequitable. To be consistent the court should hold that the holder of a presented or unpresented check can set it off against an insolvent bank for a debt which is unmatured at the date of the insolvency. This doctrine has so confused the court that it has forgotten that a bank cannot lend its credit for accommodation. Turning now to overdrafts, the court holds that if an officer of the bank promises the drawer without funds to pay his check, and the drawer tells this to the holder, the holder can sue upon it as a contract made with himself. Nelson v. First Nat. Bank, 48 I11. 36. And by this decision the court puts a bank in the position of guaranteeing a corn-merchant's account merely for his accommodation. It went further in Springfield Marine Bank v. Mitchell, 48 111. App. 486, and made a bank a horse-dealer by estoppel.