19 Downes v. Phoenix Bank, 6 Hill, 297; Marzetti v. Williams, 1 Barn. & Ad. 415; Rolin r. Steward, 14 Com. B. 5.5; Boyd r. Emerson, 2 Ad. & E. 184, 202; Watts v. Christie, 11 Beav. 546. Compare Lancaster Bank v. Woodward, 18 Pa. St. 357.

20 Taylor v. Sip, 1 Vroom, 284; and see Salter r. Burt, 20 Wend, 205; Matter of Brown, 2 Story, 502; Bull v. O'Sullivan, Law R. 6 Q. B. 209; Gatty v. Fry, Law R. 2 Ex. Div. 265.

21 Taylor v. Sip, 1 Vroom, 284. A post-dated check payable to or der is not illegal: Emanuel r. Robarts, 9 Best & Smith. 121.

22 Godin v. Bank of Com. 6 Duer, 76.

23 Meads r. Merchants' Bank, 25 N. Y. 143; Girard Bank v. Bank of Penn Township. 3) Pa. St. 92; Bickford v. First Nat. Bank, 42 Ill. 238. 24 Rounds v. Smith, 42 Ill. 245.

25 Farmers' etc. Bank v. Lutchers' etc. Bank, 4 Duer, 219; Com. Bank v. Hughes, 17 Wend. 94; Seventh Nat. Bank v. Cook, 73 Pa. St.

483.

26 See Meads v. Merchants' Bank, 25 N. Y. 143; First Nat. Bank v. Leach, 52 N. Y. 350; Simpson r. Pacific Mut. Life Ins. Co. 44 Cal. 139; Essex County Nat. Bank v. Bank of Montreal, 15 Am. Law Reg. 418; Merchants' Bank r. State Bank, 10 Wail. 604; Nolan v. Bank of New York etc. 67 Barb. 24.

27 Nat. Bank of Commerce v. Nat. Mech. Bank, 55 N. Y. 211; 14 Am. R. 232; Weisser r. Denison, 10 N. Y. 68. Compare First Nat. Bank v. Ricker, 71 Ill. 43; Schroeder v. Harvey, 75 iù. 638; Levy v. Bank of America, 24 La. An. 220.

28 Marine Nat. Bank v. Nat. City Bank, 59 N. Y. 67; Security Bank v. Nat. Bank, 67 id. 45; and see Mussey v. Eagle Bank, 9 Met. 306; Espy r. Bank of Cincinnati, 18 Wall. 604; City Bank e. First Nat. Bank, 45 Tex. 201; Bank of North America v. Nat. Bank, 59 N. Y. 628; Ex parte Swan, 7 Com. B. N. S. 400. But see Barnet v. Smith, 30 N. H. 256; La. Nat. Bank v. Citizens' Bank, La. Law J. 80; 23 La. An. 189; Helwege v. Hibernia Nat. Bank, 23 id. 520; Belknap v. Nat. Bank, 100 Mass. 876.

29 Badger v. Bank of Cumberland, 26 Me. 428; and see Clarke Nat. Bank v. Bank of Albion, 52 Barb. 532; Pope v. Bank of Albion, 59 Barb. 226.

30 Merch. Nat. Bank v. State Nat. Bank, 10 Wall. 604.

§ 225. Certificates of deposit.—A certificate of deposit, issued by a bank, is an evidence of debt in the nature of a receipt. It is intended to represent moneys actually left with the bank for safe-keeping, which are to be retained until the depositor actually demands them.' It is, however, negotiable, if expressed in negotiable words; and so far as negotiability is concerned, it must be placed on the same footing as a promissory note.* Some of the authorities hold, that a certificate of deposit, in the usual form, payable to the order of the depositor, is in the nature of commercial paper,5 and that the payee is chargeable upon his indorsement thereof. By other

authorities it is regarded rather as an agreement than a promissory note.7

1 Hotchkiss v. Mosher, 48 N. Y. 478; Payne_v. Gardiner, 29 id. 146, 171. See Moore v. Ulster Bank. Co. 11 1. R. C. L. 512.

2 Nat. Bank v. Wash. Co. Nat. Bank, 5 Hun, 605; and see Brown v. McElroy, 52 Ind. 404; Meador v. Dollar Sav. Bank, 56 Ga. 605.

3 Nat. State Bank v. Ringel, 51 Ind. 393; Johnson v. Henderson, 76 No. Car. 227.

4 Welton v. Adams, 4 Cal. 37; Poorman v. Mills, 35 id. 118; Pardee v. Fish, 60 N. Y. 265. A certificate of deposit payable to order, in "currency," is negotiable: Klauber v. Biggerstaff, 47 Wis. 551; 32 Am. R. 773. But see contra, Huse v. Hamblin, 29 Iowa, 501; 4 Am. R. 244.

5 Kilgore v. Bulkley, 14 Conn. 363; Cate v. Patterson, 25 Mich. 191; Lindsey v. McClelland, 18 Wis. 431; Laughlin v. Marshall, 19 Ill. 390; White v. Franklin Bank, 22 Pick. 181; Cushman v. Ill. Starch Co. 79 11. 281.

6 Pardee v. Fish, 60 N. 265; 19 Am. R. 176.

7 See Paterson v. Poindexter, 6 Watts & S. 227; Charnley v. Dulles, 8 id. 353: Sibree v. Tripp, 15 Mees. & W. 23; Talladega Ins. Co. v. Woodward, 44 Ala. 287.

§ 226. Bank-notes or bills.-A bank-note or bill is simply the promissory note of the bank, payable on demand to the bearer. If payable at any future time certain, it is a bank post-note; 2 but being intended to circulate after the time of payment has arrived, it is subject to the rules applicable to ordinary bank-notes. Any bank having power to issue paper for circulation may issue post-notes if there is no limitation in the charter as to the kind of paper to be issued.4 And although a bank violates its charter by circulating as currency notes or bills not payable on demand, this fact does not vitiate a contract made by the bank with other parties involving the circulation of such notes or bills.5 Strictly speaking, bank-notes are not money, and no state has power to render them such. But in the ordinary transaction of business they pass current as money by virtue of a tacit agreement to that effect. They are a good tender in payment of debts, unless specially objected to at the time; and they pass under the word "money" in a will.10 So they may be made, by statute, a legal tender in payment of debts due the bank itself which issued them; and if so, the receiver of the bank,12 or the as

signees of an insolvent bank, must receive them in payment of debts due the bank. 18 But it is otherwise if the bills were purchased by the debtor subsequently to the failure of the bank. 14 If a bank sues a debtor, the latter may set off bills of the bank held by him, at par.15 Generally, in the absence of circumstances excusing a demand, 16 a cause of action does not accrue on bank-bills until a demand and refusal.17 But there is no necessity for a demand upon each separate bill; one demand in the aggregate upon a package of bills is sufficient.18 Where interest is allowed at all, the holder of a banknote is entitled to interest from the time of demand and refusal to pay, to the date of actual payment. 19 If a bank has suspended payment, and its bills no longer circulate as money, the statutes of limitation apply to them as to other contracts.20 It is the duty of the bank to redeem its bills with reasonable dispatch; 21 and unreasonable delay amounts to a refusal of payment.22 A bank is bound to know its own paper, and the receipt by it of forged notes purporting to be its own, must be deemed an adoption of them.23 If a bank-bill, completely executed in every material respect, be stolen from the bank and fraudulently circulated, it is good as against the bank in the hands of a bona fide holder for value.24 And generally, any bona fide holder for value of lost or stolen bankbills, can recover upon them against the bank.25 So if the total and absolute destruction of a bank-note is clearly established, the bank is bound to pay the last holder or owner the amount of it.26 And where the holder of a bank-note divides it, for the purpose of transmission by mail, and loses one-half, he may recover the amount of the whole note; 27 but no other person can recover on the other half.28 If a bank receives the forged notes of other banks upon general deposit, and credits the depositor therefor at the time, a debt from the bank to him is not thereby created,29 as would be the case if the notes were genuine, or were forged notes purporting to be its own.81

A deposit with a bank of a parcel of its own bills as collateral for a loan, constitutes the bank a bailee and not a debtor; 32 and the bank will be liable in trover if it fails to return the deposit.33

1 See 1 Bouv. Dict. 187; McDonnell v. Murray, 9 Ir. R. C. L. 495; 1 L. T. N. S. 498.

2 Fulton Bank v. Phoenix Bank, 1 Hall, 619. See Forbes v. Marshall, 11 Ex. 167.

3 Fulton Bank v. Phoenix Bank, 1 Hall, 619.

4 Campbell v. Miss. Union Bank, 6 How. (Miss.) 625. See Root v. Wallace, 4 McLean, 8; Bank Comm'rs v. St. Lawrence Bank, 7 N. Y. 513; International Bank v. Bradley, 19 id. 245.

5

6

177.

7

Canon v. McNab, 48 Ala. 99.

Governor v. Carter, 3 Hawks, 328; Morrill v. Brown, 15 Pick. 173,

U. S. Const. art. 1, § 10.

8 Pierson v. Wallace, 2 Eng. (Ark.) 282; Handy v. Dobbin, 12 Johns. 220; Bradley v. Hunt, 5 Gill & J. 58;_ Bank of U. S. v. Bank of Ga. 10 Wheat. 333; Wright v. Reed, 3 Term Rep. 554.

9 Hoyt v. Byrnes, 11 Me. 475; Bank of U. S. v. Bank of Ga. 10 Wheat. 333; Warren v. Mains, 7 Johns. 476; Gillard v. Wise, 5 Barn. & C. 134; and see Legal Tender Cases, 12 Wall. 457; Frank v. Wessels, 64 N. Y. 155.

10 Chapman v. Hart, 1 Ves. Sr. 271.

11 Suffolk Bank v. Lincoln Bank, 3 Mason, 1; Railey v. Bacon, 26 Miss. 455; Dunlap v. Smith, 12 Ill. 399; Hallowell etc. Bank v. Howard, 13 Mass. 235; Farmers' Bank v. Willis, 7 W. Va. 31. When the law grants authority to a bank to issue bills to circulate as the representative of money, it tacitly annexes to the grant the condition that the bank shall accept its own bills in payment of debts due it: Blount v. Windley, 68 No. Car. 1; 12 Am. R. 616.

12 Moise v. Chapman, 24 Ga. 249; and see American Bank v. Wall. 56 Me. 167.

13 Com. Bank v. Thompson, 7 Smedes & M. 443; Bank of Md. v. Ruff, 7 Gill & J. 448; Bank of Penn'a v. Spangler, 32 Pa. St. 474; and see Blount v. Windley, 63 No. Car. 1. But compare Farmers' Bank v. Willis, 7 W. Va. 31; Hallowell etc. Bank v. Howard, 13 Mass. 235; Matter of White Mts. Bank, 46 N. H. 143.

14 American Bank v. Wall, 56 Me. 167; Thorp v. Wegefarth, 56 Pa. St. 82; Exchange Bank v. Knox, 19 Gratt. 739; Clarke v. Hawkins, 5 R. I. 219.

15 Diven v. Phelps, 34 Barb. 224; Robinson v. Bank of Darien, 18 Ga. 65; American Bank v. Wall, 56 Me. 167; Tillon v. Britton, 4 Halst. 120. Compare Abbott v. Agr. Bank, 11 Smedes & M. 405.

16 See Nashville Bank v. Henderson, 5 Yerg. 104; Thurston v. Wolfborough Bank, 18 N. H. 391; Bryant v. Damariscotta Bank, 18 Me. 240.

17 Nat. Bank etc. v. Wash. County Nat. Bank, 5 Hun, 605; Craw ford v. Bank of Wilmington, Phill. (N. C.) 136; Thurston v. Wolfbor ough Bank, 18 N. H. 391. If a bank-note is payable on demand, at a particular time and place, a demand at the specified place is necessary, and at the specified time or afterward: Dougherty v. Western Bank, 13 Ga. 287. Compare Ware v. Street, 2 Head, 609; Haxtun v. Bishop, 3 Wend. 13; State Bank v. Van Horn, 1 South. 382.

18 Reapers' Bank v. Willard, 24 Ill. 433; Suffolk Bank v. Lincoln Bank, 3 Mason, 1.

19 Est. of Bank of Penn'a, 60 Pa. St. 471; and see Bank v. Thornsberry, 3 B. Mon. 519.

20 Samples v. Bank, 1 Wood, 523. See Hinsdale v. Larned, 16 Mass. 64, 7.

21 Suffolk Bank v. Lincoln Bank, 3 Mason, 1.

22 Reapers' Bank v. Willard, 24 Ill. 433; and see Boatmen's etc. Inst. v. Bank of Mo. 33 Mo. 497; Hubbard v. Clienango Bank, 8 Cowen, 88. 23 Third Nat. Bank v. Allen, 59 Mo. 310; Bank of U. S. v. Bank of Ga. 10 Wheat. 333.

24 Salem Bank v. Gloucester Bank, 17 Mass. 1; Gloucester Bank v. Salem Bank, 17 id. 33.

25 City Bank v. Farmers' etc. Bank, Taney, 119; Olmstead v. Winsted Bank, 32 Conn. 278; Raphael v. Bank of England, 17 Com. B. 161.

26 Hagerstown Bank v. Adams' Ex. Co. 45 Pa. St. 419; Bank of Louisville r. Summers, 14 B. Mon. 306; Bank of Mobile r. Meagher. 33 Ala. 622; Tower v. Appleton Bank, 3 Allen, 387; Irwin v. Planters' Bank, I Humph. 145.

27 Com. Bank v. Benedict, 18 B. Mon. 307; United States Bank v. Sill, 5 Conn. 106; Allen v. State, 1 Dev. & B. Ch. 3. Compare Mayor v. Johnson, 3 Camp. 324; Redmayne v. Burton, 2 L. T. N. S. 324.

28 Hinsdale v. Bank of Orange, 6 Wend. 378; Bank of Va. v. Ward, 6 Munf. 166; Martin v. Bank of U. S. 4 Wash. C. C. 253.

29 See Third Nat. Bank v. Allen, 59 Mo. 310; Cabot Bank v. Morton, 4 Gray, 156; Coffin v. Anderson, 4 Blackf. 395.

30 See Boyden v. Bank of Cape Fear, 65 No. Car. 13; Bank of Republic v. Millard. 10 Wall. 152.

31 Bank of U. S. v. Bank of Ga. 10 Wheat. 333 Third Nat. Bank v. Allen, 59 Mo. 310.

32 Abrahams v. Southw. R. R. Bank, 1 Rich. N. S. 441.

33 Abrahams v. Southw. R. R. Bank, 1 Rich. N. S. 441. Compare Cutting e. Marlor, 78 N. Y. 454; Foster v. Essex Bank, 17 Ms. 479; Scott v. Bank of Cherry Valley, 12 Pa. St. 471; Giblin v. McMullen, Law R. 2 P. C. 318.

§ 227. Bank-books.-It is the prevalent custom for every depositor with a bank to have a bank-book, and to present it at the bank counter when a deposit is made, in order to have the amount and date of the deposit entered therein by the bank teller or clerk. Such entry is prima facie evidence that the bank received the amount, and casts on it the burden of showing that the entry is a mistake.2 If, however, the bank clearly shows this, it is no longer bound by the entry. Nor is a depositor bound by an erroneous entry. If he can afterward prove a mistake in the entry, there is a remedy, as in ordinary cases of mistake; 5 and this, notwithstanding a by-law or rule