Smith v. Yaryan.

the seducer. In such case, the damages against the seducer ought not to be enhanced in consequence of the birth of such child.

The question was before the jury, whether the defendant was or was not the father of the child, because, if he was, the pregnancy of the mother and birth of the child were proper matters to be considered by the jury, in assessing the plaintiff's damages; and if he was not, such pregnancy and birth could not have been properly taken into consideration.

It seems to us, therefore, that the question, whether the defendant was the father of the child, must be tested in the same manner as if the prosecution were for bastardy.

So far as this point in the case is concerned, the question arisingis the same as that arising in bastardy, and we see no reason for departing from the established practice in bastardy cases in this particular. It is well established that in bastardy cases it is competent to ask the prosecuting witness, on cross-examination, whether she had had sexual intercourse with any other person than the defendant, about the time the child was begotten. Walker v. State, 6 Blackf. 1; Hill v. State, 4 Ind. 112; Townsend v. State, 13 id. 357;. Whitman v. State, 34 id. 360.

The plaintiff, as has been seen, testified that she first had sexual intercourse with the defendant on the 14th of July, 1876, and that her child was born on April 12th, 1877. Hence, according to the usual period of gestation, the child must have been begotten about the time indicated by the first three questions above set out, viz., July 14, 1876.

We are of the opinion, therefore, that the first three questionswere competent, and that the objection to them was improperly sustained. No error was committed in sustaining the objection to the fourth question, as that covered such time as made it irrelevant and incompetent for any purpose.

The judgment below is reversed, with costs, and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

National Bank of Rockville v. Second National Bank of Lafayette.

No action can be maintained on an unaccepted check against the drawee. (Se note, p. 238.)

A

CTION on check. The opinion states the case. The defendant had judgment below.

G. S. Orth, J. Park and J. A. Stein, for appellant.

J. M. Larue and F. B. Everett, for appellee.

BIDDLE, C. J. Complaint in three paragraphs, by the appellant against the appellee, on a bank check. A. T. Colton is the maker of the check, the appellant is the payee, and the appellee is the drawee. Demurrer for want of facts sustained to the first and third paragraphs of the complaint. Answer of general denial to the second paragraph. Trial by jury, and special verdict for appellee; motion for a venire de novo overruled; motion for a new trial overruled; motion in arrest of judgment overruled; exceptions; judgment; and appeal.

We need not particularly state either the first or third paragraphs of the complaint. Each sets out the check and avers its presentation for payment, by the payee. There is no averment of its acceptance by the drawee, in either paragraph; indeed, each paragraph avers that the drawee refused to accept the check. In other respects these two paragraphs are well pleaded. Breach, non-payment of the check.

A bank check has all the requisites of a bill of exchange, except that it is due on demand, without days of grace, and if dishonored, requires no protest for non-acceptance nor for non-payment. There is no implied contract in favor of the payee, against the drawee, that he will either accept or pay the check. The drawee is no party to the check until he accepts it; and a party cannot be sued on an express contract before he enters into it. The fact that the drawee has funds in his hands, belonging to the drawer, sufficient

National Bank of Rockville v. Second National Bank of Lafayette.

to pay the check, does not change the rule. The case of National Bank v. Eliot Bank, 5 Am. Law Reg. 711, is in point. We believe there is no decided case contrary to it. ABBOTT, J., delivers a long and ingenious dissenting opinion, but we cannot regard it as sound. He places the right of the payee to sue the drawee for non-acceptance or non-payment of the check, upon the ground, that when a first party contracts with a second party to pay a sum of money to a third party, the third party, although not a party to the contract, may sue the first party upon the contract and recover. This is true upon express contracts; but there is no implied contract in such cases, that the first party shall pay the third party. Hence the necessity of an express acceptance of the check, before the drawee is liable. In the case put as an illustration, the drawer of the check is the first party, the drawee the second, and the payee the third. Now, as there is no implied contract between the drawee and the payee, he cannot sue the drawee upon the check, until he has accepted it. There are other convincing reasons in our minds against the rule contended for. If the drawee, having funds, refuses to pay the drawer's check, he becomes liable thereby to the drawer, and the drawer becomes liable to the payee. Now, if in such case the drawee was also liable to the payee, and the payee had his right against both the drawer and the drawee, this complication would take the qualities of commercial paper from the check, and place it upon the ground of a common-law contract; and to apply this principle to foreign and inland bills of exchange, the great movers and upholders of the world's business would be to embarrass, if not destroy, their usefulness in civilization, and impair the commercial faith of mankind. There are no implied contracts in commercial paper, and it must not be embarrassed by secret equities; and that express contracts touching it can be made in any other manner than in writing, is the constant regret of the ablest jurists.

These views are fully supported by the following authorities: Edw. on Bills, 405; Byles on Bills, 18; Glenn v. Noble, 1 Blackf. 104; St. John v. Homans, 8 Mo. 382; Chapman v. White, 6 N. Y. 412; Bullard v. Randall, 1 Gray, 605; Pope v. Luff, 7 Hill, 577; Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, 57 id. 232; Henshaw v. Root, 60 id. 220.

Under the authorities, we must hold the first and third paragraphs of the complaint insufficient.

National Bank of Rockville v. Second National Bank of Lafayette.

The appellant relies upon the case of Wilson v. Dawson, 52 Ind. -513; but in that case, the bank- the depositary-was not a party to the suit; besides, the money was deposited under an express agreement, and for an express purpose. In this case, as the money was deposited with the drawee generally, there is no express contract, and the bank-the depositary- is a party. We can see no analogy between the two cases.

[Omitting obiter dicta.]

It appears to us that the whole question turns upon the acceptance or non-acceptance of the check by the drawee. As we have held, as a principle of law, that the drawee is not liable, unless the check was accepted, and as the jury have found that it was not accepted, it follows that the appellant cannot recover. The facts found by the jury in the special verdict are the same in substance, and almost literally indeed, as those averred in the first and third paragraphs of the complaint. As we have held these paragraphs insufficient in law to constitute a cause of action, it follows again, that the appellant cannot recover; and we think the following authorities sustain us fully. Johnson v. Collings, 1 East, 98; Levy v. Cavanagh, 2 Bosw. 100; Dykers v. Leather Manufacturers' Bank, 11 Pai. 612; Luff v. Pope, 5 Hill, 413.

[Unimportant matters omitted.]

The judgment is affirmed, at the costs of the appellant.

Judgment affirmed.

NOTE BY TEE REPORTER.- See, to same effect, Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325; s. c., 27 Am. Rep. 55, and references.

In Rosenthal v. Martin Bank, United States Circuit Court, Southern District of New York, November, 1879, the same doctrine was held, BLAtchford, J., observing :

"The question presented for decision is, whether the Metropolitan National Bank ought to pay the $1,998 which it owes, as a debtor to the plaintiff. It is contended for the plaintiff, that he could have sued the drawee, on the draft, before its acceptance, and even before presenting it to the drawee, and that the assignment to the defendant, Coates, after the drawing of the draft and before it was presented to the drawee, did not carry to Coates the title to the $1,998 or affect the right of the plaintiff thereto; that Coates took the property of the assignor, under the assignment, subject to all the equities existing against it in favor of the plaintiff that Coates succeeded only to the rights of the assignor, and that the drawing of the draft operated as an assignment to the plaintiff of $1,998, then in the hands of the drawee.

"It was decided by the Supreme Court of the United States in Bank of Republic v. Millard, 10 Wall. 152, that the holder of a check drawn on a bank cannot sue the bank for refusing payment of it, in the absence of proof that it was accepted by the bank or was charged against the drawer. In that case the court say: 'It is no longer an open question in this court since the decisions in the cases of Marine Bank v. Fulton Bank, 2 Wall. 252, and of Thompson v. Riggs, 5 id. 663, that the relation of banker and customer, in their pecuniary dealings, is that of debtor and creditor. It is an important part of the business of banking to receive deposits, but when they are received, unless there are stipulations

National Bank of Rockville v. Second National Bank of Lafayette

to the contrary, they belong to the bank, become part of its general funds and can be joaned by it as other moneys. The banker is accountable for the deposits which he receives as a debtor, and he agrees to discharge these debts by honoring the checks which the depositors shall from time to time draw on him. The contract between the parties is purely a legal one and has nothing of the nature of a trust in it.' This subject was fully discussed by Lords COTTENHAM, Brougham, LYNDHURST and CAMPBELL in the House of Lords, in the case of Foley v. Hill, 2 H. L. Cas. 28, and they all concurred in the opinion that the relation between a banker and a customer who pays money into the bank, or to whose credit money is placed there, is the ordinary relation of debtor and creditor, and does not partake of a fiduciary character, and the great weight of American authority is to the same effect. As checks on bankers are in constant use, and have been adopted by the commercial world 'generally as a substitute for other modes of payment, it is important for the security of all parties concerned, that there should be no mistake about the status which the holder of a check sustains toward the bank on which it is drawn. It is very clear that he can sue the drawer if payment is refused, but can he also in such a state of case sue the bank? It is conceded that the depositor can bring assumpsit for the breach of the contract to honor his checks, and if the holder has a similar right, then the anomaly is presented of a right of action upon one promise for the same thing existing in two distinct persons at the same time.

"On principle there can be no foundation for an action on the part of the holder unless there is a privity of contract between him and the bank. How can there be such a privity when the bank owes no duty and is under no obligation to the holder? The holder takes the check on the credit of the drawer in the belief that he has funds to meet it, but in no sense can the bank be said to be connected with the transaction. If it were true that there was a privity of contract between the bank and the holder when the check was given, the bank would be obliged to pay the check, although the drawer, before it was presented, had countermanded it; and although other checks, drawn after it was issued, but before payment of it was demanded, had exhausted the funds of the depositor. If such a result should follow the giving of checks it is easy to see that bankers would be compelled to abandon altogether the business of keeping deposit accounts for their customers. If then the bank did not contract with the holder of the check to pay it at the time it was given, how can it be said that it owes any duty to the holder until the check is presented and accepted? The right of the depositor, as was said by an eminent judge (GARDNER, J., in Chapman v. White, 2 Seld. 417), is a chose in action, and his check does not transfer the debt or give a lien upon it to a third person without the assent of the depositary. This is a well-established principle of law and is sustained by the English and American decisions. Chapman v. White, 2 Seld. 412; Butterworth v. Peck, 5 Bosw. 341; Bullard v. Randall, 1 Gray, 605; Harker v. Anderson, 21 Wend. 373; Dykers v. Leather Mfg. Co., 11 Pai. 616; National Bank v. Eliot Bank, 5 Am. Law Reg. 711; Pars. on Bills and Notes (ed. of 1863), pp. 59 to 61 and notes; PARKE, B, in assignment, in Bellamy v. Majoribanks, 8 Eng. Law & Eq. 522, 523; Wharton v. Walker, 4 B. & C. 163; Warwick v. Rogers, 5 Mann. & Gr. 374; Byles on Bills, ch. Check on a Banker; Grant on Banking (London ed., 1556), p. 967. "The few cases which assert a contrary doctrine it would serve no useful purpose to review.

The decision in the case cited is for this court the law of this case; so far then as this suit is a suit on the draft against the drawee to recover the amount of the draft, it cannot be maintained, for the draft was not accepted by the drawee, nor was it charged by the drawee against the drawer. The draft was a draft or check in the ordinary form, not describing any particular fund, or using any words of transfer of the whole or any part of any amount standing to the credit of the drawer, but containing only the usual request. Under the settled law of New York, where the draft was payable, this was not an assignment of the funds of the drawer in the hands of the drawee. Att'y-Gen. v. Continental Life Ins. Co., 71 N. Y. 325, 330, 331; 8. o., 27 Am. Rep. 55. Before the draft was accepted the drawer could withdraw the deposit or countermand the draft."

1