It is a part of the duty of banks, which some courts mistakenly call an implied contract,1 to pay the checks of a depositor in the order in which they are presented.2 If checks are presented at the same time, the bank may pay in the order that it pleases.3 If there are more accounts than one, and one or more of them are disputed, the bank may apply the check upon an undisputed account.4 It follows from the rule as to order of payment, that where a creditor of the depositor has obtained a lien by trustee process and has taken a check and gard a plain and well-settled rule of law produced By the rules of business. The text writers who support this rule had not contemplated the practical results of its working. The history of the decisions in one state shows that "a good thing is," as Howells somewhere says, "never so much of a good thing as when it gets thoroughly started." The painful spectacle presented by these Illinois decisions ought to be a valuable lesson to code-tinkers and the perpetrators of crude judicial or other legislation. Those people cannot be made to understand that the vital principles of the common law are the result of ages of experience and common sense tried and tested in the discussions in courts from day to day, from year to year, from century to century. The product of these discussions has been a system of law, imperfectly developed here and there, it is true, but one whose ideal is simply justice.

"On the rock primeval, hidden in the past its bases be, Block by block the endeavoring ages built it up to what we sea"

Its principles are not for yesterday, but for to-day. Its marvelous capacity for a natural growth is proven every day by its rapid adaptation to new conditions. As the great Grecian said of the fundamentals of morals we may say of the vital principles of the common law: "The power of the Lord is mighty in them and groweth not old." Take, for instance, the development of jury trial and the rules of evidence. What a jury or other trial is without such rules we see in the hideous travesties of France. Those rules are of the same character, for they, as Lord Erskine splendidly says, are founded in the philosophy of nature, in the truths of history and in the experience of common life. Matters of mere forms of pleading, or of the competency of witnesses, may vary from day to day, but the principles of substantive law, being a natural growth, cannot be tampered with without great evil resulting.

1 Chambers v. Northern Bank, 5 Ky. Law R. 123.

2 National Safe Co. v. People, 50 I11 App. 336.

3 Dykers v. Leather Manuf. Bank, 11 Paige, 612.

4 Hauptmann v. First Nat Bank, 83 Hun, 78.

Sec. 149. Refusal Of Payment

We have already noticed the instances' where a bank may refuse payment. It may refuse to pay a part of a check,1 but may agree to pay pro tanto2 If it refuses to pay on account of defects in the check, such as to the signature, the defect should be pointed out.3 It cannot refuse to pay checks because they were given without consideration or illegally,4 unless, of course, payment on the check has been stopped. The checks must be paid in the form and manner prescribed by the depositor.5 The bank is entitled to a reasonable opportunity to examine its books before payment.6