several. Where this is the sound construction the bank may either sue any one of the parties singly, or it may sue them all together. But it cannot sue any intermediate number. Its option is strictly confined to a suit against one only or against the whole. Of course, if it neglects this rule and does sue more than one party and less than all, the defendants can only take advantage of the error by a plea in abatement and will waive it by a plea to the merits.1 Where a bond is given by a principal in a certain sum, and by two sureties in a much less sum each, the obligation of the sureties is several; either one of them may be sued singly, and recovery may be had from him to the full amount of said less sum, provided this is not greater than the amount of the loss or injury sustained.2

Answer by defendants that the officer had made and ex cuted his promissory note in full satisfaction, and that it had been accepted and received in full satisfaction, was held to be sufficiently met by a denial only of the making and executing.3

Where the obligation of the officer and his sureties is joint, and they are jointly sued thereon, the admissions and declarations of the officer are admissible in evidence against all the defendants alike. But the language in the Massachusetts case cited points directly to the important qualification that this joint character of the obligation and of the suit must be taken to be essential to the operation of the rule; and that if the undertaking of the surety were a separate and independent one, and probably even where it was joint and several and he alone was sued upon it, precisely the opposite doctrine would obtain. This view of the law is hardly sustained by the Kentucky case cited; and Grant says that the English principle is, that "whatever is evidence available against the principal is available against the surety." But though he makes this statement so broadly he cites no authority which sustains it quite to its full extent. The case which he gives declares simply that in a suit

1 Minor v. Mechanics' Bank, 1 Pet. 46.

* Stetson v. City Bank, 12 Ohio St. 577.

Morris Canal & Banking Co. v. Van Vorst, 3 Zabr. 98.

4 Amherst Bank v. Root, 2 Met. 522; Pendleton v. Bank of Kentucky, 1 T. B. Monr. 171.

against the surety after the death of the principal, entries by the latter, in his official books, of receipts of money, were evidence in behalf of the bank that these sums had been received, upon the ground that the bond itself also guaranteed the faithful keeping by the same officer of these very books.1

In suit against the principal and sureties on a cashier's bond, their liability being by the terms of the bond several and not joint, it was held that, under the practice act of Massachusetts, all three might be joined as parties defendant in one and the same action.2

It cannot be set up in defence to a suit upon a bond that the bank commenced operations in a manner contrary to its charter; neither that it has failed to perform its public duties in redeeming its circulating notes. Such matters cannot be introduced thus indirectly, neither are they available for the purpose of absolving a debtor from his liability.3

Two or three English cases should be noticed in this connection before dismissing the subject.

A clerk who had fraudulently misappropriated considerable sums, died before discovery, leaving considerable personalty and no will. His widow deposited the personalty with the banking-house and took out letters of administration. She then sought to recover the personalty, which the bankers sought to retain. She sued them, and they filed a bill against her, asking for an injunction and for leave to administer on the estate. It was held to be no answer to the bill to reply that it alleged a felony and that no civil remedy lay in respect thereof.4

The father of a banker's clerk transferred stock into the name of the banker, in order to cover defalcations of his son. Held, that this was a composition of a felony to prevent a prosecution. Semble, that the father could not recover the value of the stock nor obtain an order for its transfer back to himself.5

1 Grant on Bankers and Banking, p. 257, citing Whitnash v. George, 8 Barn. & C. 556. 2 Grocers' Bank v. Kingman, 16 Gray, 473.

3 Hughes v. Bank of Somerset, 5 Litt. 45. 4 Wickham v. Gatrill, 2 Sm. & G. 353.

5 Claridge v. Hoare, 14 Ves. Jun. 59.

A clerk, who had embezzled, prior to conviction deposited with the banking-house certain title-deeds which he possessed, and transferred to them some policies of insurance upon his life, as security, so far as they would go, for the money taken. The bankers, however, thereafter pushed the prosecution to conviction, whereupon the clerk sought to recover back what he had transferred. The court said that the amount which the clerk had embezzled was a debt owing from him to his employers; that it constituted a good and sufficient consideration for his transfer to them of the aforesaid securities; and that they were entitled to hold and realize upon these.1

Surety's Right to Demand and Notice.

No demand need be made upon a surety prior to bringing suit against him.2 Neither is he entitled to prompt notice of a loss covered by his obligation. The bankers may continue to employ the principal and cloak the fact of the loss so long as they like, saying nothing about it to the surety, and concealing it even from their own employees by a false entry on their books of a loan to the clerk of the amount. This law was practically established by the jury, who seem to have thought that there was nothing in the obligor's contract with the bank which put it under any obligation to look after his interests in the way of notifying him of the occurrence of a loss. Nor is the rule devoid of reason, for the surety incurs no risk on the ground of being deprived of the opportunity at once to withdraw and annul his suretyship, and so to save himself from further loss; for we have already seen that no new liability can accrue against him if the bank continues to employ the officer after knowledge of his misconduct. And even if this last rule should ever be construed, as is within the bounds of possibility, to apply only to cases where the officer's misconduct has been fraudulent, or otherwise wrongful in its character, and not to apply where his default has been simply the

1 Chowne v. Baylis, 31 Beav. 351; Grocers' Bank v. Kingman, 16 Gray, 473. 2 Pierce v. Williams, 23 L. J. Exch. 822; Grocers' Bank v. Kingman, 16 Gray, 473.

3 Grant, p. 259, citing Peel v. Tatlock, 1 Bos. & P. 419.

result of incompetence, ignorance, or carelessness; still it is not improbable that, if the sureties wish to secure the right to be notified even of such acts, they must insert express stipulations to that effect in their undertaking with the bank. If they neglect to take such precautions in their own interest, the law may well refuse to interfere to protect them from the results of their own laches, except in cases which are tainted with actual wrong-doing.

CHAPTER V.

CHECKS.

Description and Elements of a Check.

A CHECK is the instrument by which, customarily, a depositor seeks to withdraw his funds, or any part thereof, from the bank. It is a draft or order on the bank requiring it to pay a sum named. It may be made payable "to bearer," or to " A. or bearer," or to "A. or order," or "to the order of A." In the two latter forms it must be paid to A. in person, or to one deriving title from him through his indorsement. It is customary to indorse even when the payee makes the presentment and demand, the indorsement then having the effect of a receipt. The rules governing indorsement in cases of bills of exchange, promissory notes, and other business paper made payable to order, govern checks also. Thus a check may be indorsed generally, or in blank, or to the order of B., who again may indorse generally, or in blank, or to the order of C. Any bona fide holder of the check indorsed in blank may fill in a special direction above the indorsement, making it payable to himself or order; and in suing thereon, though he has not written in such direction, he may declare upon it as indorsed to himself, and will sufficiently support his declaration by

Note. In using this chapter it should be borne in mind that it does not profess to treat exhaustively the entire subject of checks considered as a species of commercial paper. To do so would be to trespass more largely upon the domain of works on Promissory Notes, Bills, &c., than our space permits. It is of the law of checks so far as banks are parties to them, and owe duties, assume obligations, or enjoy rights in respect to them and to transactions into which they enter, that we design to treat. Beyond these limits this chapter does not pretend to state the law or cite authorities. — AUTHOR.