
    Fogarties & Stillman vs. The President, Directors & Co., of the State Bank. David Ambler vs. The Same.
    
      Barth — Depositor— Chech — Holder—Implied, Promise.
    
    Where a check is drawn by a depositor on a bank having sufficient of his funds to meet the check, the holder, on giving notice to the bank, has the right to be paid, and if payment be refused; may maintain an action of assumpsit against the bank, on the implied promise which the law raises in his behalf; and this is especially true where the charter of the bank declares that it “ shall receive money on deposit, and pay away the same to order, free of expense.”
    BEFORE WARDLAW, J., AT CHARLESTON, FALL TERM, 1859.
    ' The report of bis Honor, the presiding Judge, in the case first stated, is as follows:
    
      “ Action of assumpsit upon the following check:
    $1,000.' Charleston, April 14, ’58.
    Cashier of State Bank will pay to the order of Messrs. Fogarties & Stillman, one thousand dollars. Value received.
    E. W. BANCROFT.
    "The declaration contains three counts:
    
      “ 1st. That defendants, by their charter, were authorized and required to receive money on deposit, and pay away the same to order, free of expense ; that before the date of the above check, the said defendants having received, and then bolding on deposit, large sums of money from one Edward W. Bancroft, upon their promise to pay away the' same according to his order, free of expense, he, the said E. W. Bancroft, on the 14th April, 1858, for valuable consideration, made the above check, and thereby required defendants to pay to the order of plaintiffs, one thousand dollars ¡ that plaintiffs, relying and confiding in the promises and undertakings of defendants, received and took the said check for said consideration, and on 16th April, 1858, presented said check to defendants at their banking house, and demanded payment, but defendants refused to pay. . Plaintiffs aver, that at the time of presentment, and demand of payment, the said E. W. Bancroft had on deposit in the said bank, in the hands of defendants, a sum sufficient for the payment of the said check, by means whereof the defendants became liable to pay to the plaintiffs the said check, and being so liable, upon themselves assumed, &c., &c.
    “ 2d. Count upon the above check against defendants, as acceptors.
    “ 3d. Common money count.
    “Defendants pleaded non assumpsit, and gave the following notice of discount:
    “ Please take notice, that at the trial of the above cause, we-shall offer as discounts, or set-off, the following indebtedness of Edward W. Bancroft, the drawer of the bank check— the cause of plaintiffs’ action, — to the defendants,on the 14th day of April, 1858; to wit:
    “A note drawn by Edward W. Bancroft, dated 7th December, 1857, for six thousand dollars; a note drawn by Edward W. Bancroft, dated 2d February, 1858, for two thousand dollars; which said notes, upon maturity, were not paid, but renewed, and are still unpaid.
    “Also, the following indebtedness of Edward W. Bancroft to the defendants, on the 16th day of April, 1858, the day on which the said bank check was presented to the defendants, to wit:
    “ A note drawn by Edward W. Bancroft, dated 10th March, 3858, for five thousand dollars; a note, drawn by Edward W. Bancroft, dated 17th March, 1858, for one thousand dollars ; a draft, drawn by Edward W. Bancroft, dated 30th March, 1858, for seven thousand eight hundred and twenty-five dollars; a draft, drawn by Edward W. Bancroft, dated lObh April, 1858, for nine thousand dollars. Which said notes and drafts were then running to maturity, and the said Edward W. Bancroft having absconded, it was believed would not be paid, and which said notes and drafts are still unpaid.
    “Also, the following indebtedness of Edward W. Bancroft to the defendants, on the 14th and 16th days of April, 1858, to wit: a note drawn by D. P. Wing, in favor of E. W. Bancroft, for three thousand two hundred and eighty-six dollars and seventy-five cents, indorsed by him to defendants, unpaid at maturity; and of the non-payment whereof the said Edward W. Bancroft had notice, and which is still unpaid ; which fióte was not discounted, but endorsed over as a collateral for notes discounted.
    “The facts agreed upon, and admitted by counsel on both sides, were as follows:
    “That plaintiffs received the check upon which the suit was brought, from E. W. Bancroft, the drawer, for value, and presented it to the bank on 16th April, 1858, and then demanded payment, to which demand the teller of the bank, after consulting the cashier or president, or both of them, answered that there were no funds. But that in point of fact, at the time of the presentment of the check, there was to the credit of the drawer, E. W. Bancroft, as depositor, more than sufficient to pay the said check.
    “ That all the statements in the notice of discount, were. true, as therein set forth.
    “ The points submitted and argued were:
    “1st. Whether the plaintiffs could maintain this action upon the check.
    . “ 2d. If plaintiffs could maintain their action, then whether the discount set up by the defendants could avail them.
    “ Plaintiffs’ counsel submitted these points to the presiding Judge, asking permission to take a nonsuit, with leave to move to set it aside before the Court of Appeals, if the Judge’s opinion be against him.
    
      
      “I was of opinion that the plaintiffs could not maintain their action upon the check, but that if they could maintain their action, the discount set up could not avail the bank.
    “ I allowed the «plaintiffs’ counsel to take a nonsuit, as he requested, with leave to move to set it aside before the Court of Appeals, which motion I have been notified will be made upon the grounds stated in the notice hereto annexed.
    “ The preceding statement has been prepared by the counsel on the two sides, according to their agreement.
    “ The matters in the notice of discount will probably not come within the consideration of the Court of Appeals: if they should, it will be seen that none of them were due at the time when the check was presented for acceptance, except Wing’s note ; and that the debt for which that note was deposited as collateral security, was not then due.
    “ The plaintiffs cited the charter, 8 Stat., 8, to show that the bank was bound to pay to order, free of expense, money received on deposit; but I am of opinion that the duty of the bank, thus specially enacted, had reference to the depositor, and did not enlarge the rights of the payee of a bill of exchange drawn upon the bank. Without some acceptance, I thought, the payee could not recover on the bill, and here there was no acceptance.”
    The plaintiffs appealed and now moved this Court to set aside the nonsuit upon the grounds :
    1. That by law, and by its charter, the State Bank was bound to pay to the plaintiffs, upon presentment, the amount of the check drawn in their favor by E. W. Bancroft, the drawer then having to his credit, as depositor, in the said bank, more than enough to pay the same.
    2. That the duty of the bank to pay the said check upon the facts in this case, authorized the plaintiffs as bona fide 
      holders for value, to require the said, bank to pay, and entitled them, to an action against the said bank, upon refusal and breach of such duty.
    3. -That the plaintiffs were entitled to maintain this action on each and all the counts of their declaration, and the non-suit ought to be set aside, and the case submitted to a jury, with full liberty to find a verdict for the plaintiffs upon the facts of the case as they now appear.
    McCready, Campbell, for appellants.
    In support of the first ground of appeal, cited,
    1st. As to the duty of defendants according to the law. Levi on Mercantile Law, 211, (11 Law Lib’y, 6 series, 163,) Sec. 258. An implied duty undertaken by the banker, in receiving sums of money belonging to his customers, is to pay any check drawn by him after the lapse of such reasonable time as afforded an opportunity to the different persons in the establishment of knowing the fact of the receipt of such money. Grant on Banking, 18. Maizette vs. Williams, I B. & Ad., 115. (20 E. O. L. Rep. 112.) Robin vs. Stewart, II 0. B., 595, at 606; 78 E. G. L. R., at same pages, citing Maizette vs. Williams; Story on Pro. Notes, see. 189 ; Murray vs. Judah, 6 Cow. 190; Conroy vs. Warren, 3 Johns Oa., 261; Biles on Bills, 16.
    2d. Under the charter, 8 Stat. 8, Sec. V. 2d. Fundamental Rule, “ They shall receive money on deposit, and pay away the same to order, free of expense.”
    In support of the second ground of appeal:
    1st. In answer to the objections that a check is only an inland bill of exchange, and the bank only a borrower. 1. That a check differs from an inland bill. Story on Pro. Notes, See. 189, and note 1. Grant on Banking, 91, 95, 96, and 97. 2. That the banker is not a mere borrower. Maizette vs. Williams. 2d. If there be a duty on the part of the defendant an action will lie. Hardress, 486 ; Speake vs. Richards, Hob. Bep., 200; Kendrich vs. Campbell & Ciarle, 1 Bail., 522.
    3. That it is an assignment and appropriation of the money to the plaintiffs. Story on Pro. Notes, Sec. 489 ; Murray vs. Judah, 6 Cowan. 490; Conroy vs. Warren, 3 Johns. Cases, 264; In re Brown, 2 Story Bep., 217.
    4th. That such an appropriation will authorize the action. ' Weston vs. Barker, 12 Johns. Bep., 278, and authorities there cited ; Kendrick vs. Campbell and Clark, 1 Bail., 522.
    Third ground of appeal.
    As to 1st. count. Authorities above. Hardres, 486, and Hobart, 206. As to 2d. count. Hillier vs. Robertson, 2 Sp., 398; Kendrich vs. Campbell and Clark, 1 Bail. 522. 3d Count. Randolph vs. PI. and M. Bank, 7 Bich., 134.
    
      Besaussure, contra,
    cited Byles on Bills, 10, 13; Story, § 489; Grant on Bank., 34, 48; 7 Exch. B., 403; Chit, ou Bills, 280; LeviMer. L, 214; 16 Mass. B., 327; 20 Pick., 15; 1 Bich., 215.
   The opinion of the Court was delivered by

Johnston, J. —

Edward W. Bancroft having deposited money in the State Bank, drew, in favor of these plaintiffs, severally, cheques for portions of his deposits ; and, payment being refused by the Bank, suits-were brought against it by the plaintiffs. The Circuit Court having decided against their right to recover, this Court is moved, by way of appeal, to reverse that judgment. The two appeals have been put on the same footing, and argued together, and are now to be decided by us.

The Court is not insensible to the unusual importance of the points involved; and, so far as its ability extends, has bestowed upon them a corresponding attention and consideration. The question, whether a depositor’s cheque, drawn upon his-funds, actually in bank, entitles the holder, upon presentation, to maintain suit against the bank, has not hitherto been brought directly before our Courts ; nor are we aware of but one single decision upon it, either in this country or abroad. In the case of the National Bank vs. Eliot Bank, noticed in one of the law periodicals, (5 Amer. Law Register, 711), this question was decided in the negative ; but not without a dissent, entitled to much' respect; and, after mature reflection, our own persuasion' is, that a codtrary decision would have been better upheld by principle, and by sound commercial usage and policy.

In the best conducted banking institutions, the well recognized usage is this: when a customer deposits funds, the bank is understood to receive them with a tacit engagement to pay them out to his order, or cheque drawn in his own favor, or in favor of third persons, with whom he may have dealings. This is understood to be the bank’s duty and en gagement, incurred by the simple act of receiving the deposits as a consideration for its right to employ the money, and which it is to perform, upon the single condition of being notified of the existence of the cheque, in such manner as to free it. from danger of being made liable to pay the same amount twice- — -that is to say, the cheques take precedence according to the order of the notification.

In addition to the obligation arising from this mercantile usage, forming part of the law of the land, and of which Courts are bound to take notice, the charter of the defendant bank declares, that it shall receive money on deposit, and pay away the same to order, free of expensewhich direction must be construed in thp light of the' custom, or habit, and to mean, that the bank shall pay to the depositor’s order, not only when drawn in his own favor, but also when made payable to third persons.

Banks, by going into business, are understood to hold themselves out us having undertaken, and assumed upon themselves to be- liable for, all that that business, in commercial usage, obliges them to do; and when they accept charters, their acceptance must be regarded as an undertaking to do what the charter commands ; so that we are here presented, in a single view, with the scope of this defendant’s. duty, both from custom and charter; and at the same time with its own promise to do it.

This bank may, therefore, be considered to have promised Bancroft, when it obtained the custody of his money, that it would honor his cheques by paying out the fund, either to himself or to other persons, as his cheques might direct. When a draft under these circumstances comes to the bank, it comes as its own contract, made by it on the consideration of having received funds as the means of its fulfilment; and, as between the bank and the holder of the cheque (when drawn to a third person) Bancroft is really the bank agent, empowered to give the order. The contract presented is the original personal promise of the bank, itself.

These dealings in bank cheques stand upon peculiar grounds. The exigencies of trade do not admit of the delays attending the process of acceptance, or arising from the efflux of days of grace. If these drafts are delayed; if the bank, being in funds, be at liberty to refuse payment, the inevitable consequence to the parties disappointed, can be none other than such as the want of scrupulous punctuality always inflicts. The drawer’s credit suffers; and it is well known that for this injury a depositor is entitled to his. action against the bank.

We do- not hear of a right of action on the part of the holder; but is not this very fact some incidental proof that his right is the money contained in the draft, and that his right of action is for the money, and not for special damages, for its non-payment?

But in contemplating the consequences of the bank’s violation of its general duty, the disappointment of the holder is not to be overlooked, though no special action lie for it, and he be left, as in other cases, to an action for the debt due him.

The holder is certainly affected; the whole commercial community, and every interest dependent on commerce, (and thht is every interest in the civilized world,) is affected. These instruments pass daily from hand to hand, and perform good service in exchanges and settlements. The public confidence in them is of a twofold nature. It is, first, in the drawer. Is he of known character? One who habitually draws only upon real resources ? Is it based, again, upon the certainty of bank usage. Is it a fixed rule of trade, that when in possession of a drawer’s funds, the bank will, on no account, permit itself to withhold payment, if properly notified? These two things being fixed in the public mind, universal, undoubting confidence obtains.

As to the character of the depositor, men must judge of that for themselves. But as to the punctuality of banks, destroy it, and who shall calculate the consequences? It is for this reason that when their duty is ascertained, it is the duty of judicial tribunals to hold them to the exact and unvarying performance of it.

Now, having described the duty of the defendant bank, both under the lex mercatoria and under its charter, the question recurs, whether the plaintiffs, holding and presenting cheques drawn by the depositor on his funds actually in bank, were entitled to recover the money which the bank refused to pay.

It is hardly necessary to observe, that the money,- when the order was drawn, belonged, of strict right, to Bancroft, the depositor; and had he demanded it, to himself, the bank had no right to withhold it from him. It was his property^ and had he, on refusal to pay it to him, brought suit, it would have been incompetent for the bank to set off demands not yet due, against his claim. This is plain and familiar law.

It is not intended to go beyond the case, and say, whether if at the time of the order, Bancroft’s debts had been due, they might have been set off or not, either against himself or the holder of his cheque. The case requires no such speculative decision. What I intend to assert is, that demands yet to mature, were no set off either against Bancroft or his assignee. In reference to notes discounted by him in bank, the dependence of the bank was not upon his deposites; it was under no necessity, and had no right, to count for its security upon the deposites. Its calculations should have been on the endorsements of his notes; and it should have taken care that this security was good.

To return from this digression. Instead of drawing in his own favor, this depositor drew in favor of the plaintiffs. That • is to say, he assigned to them such portion of the deposites as he deemed fit.

It is not perceived upon what principle the justice of the plaintiffs’ claim to the thing assigned can be disputed.

I do not understand, indeed, that it is its justice that is contested. Nor, strictly, is it their legal right to the fund which is denied. The thing disputed is its enforceability. The law is reproached with the doubt, whether its technical rules do not interpose obstacles to the remedy which the right seems to require.

It is supposed that there is a want of privity between the Bank and the holders of these cheques, which screens it from suit; that such privity is not established until the Bank, over and above all that it has done, shall have assumed payment to the holders.

I apprehend this is a misconception and an unnecessary disparagement of the law.

It "is enough if it appears that ex equo et bono, the plaintiffs are entitled, as between the parties to the suit,* and to the instrument, to tbe money. If so, an action lies for money had and received to their use.

I have said that an action might have been brought by Bancroft, against the Bank, for the injury^ done his credit by refusing his cheque. And what does this prove but that (in a single breath) the refusal was wrong ? Wrong to the plaintiffs, wrong to Bancroft, wrong on the part of the Bank. An act which it was illegal to do: contrary to right. Can less be made of this, than that the plaintiffs were ex equo entitled to the money ?

I refer to a passage in Dunlop vs. Silver, (1 Cranch, 440,3, Appendix A.) too long to be brought out here, in which there is an enumeration of cases in which the action for money had and received applies: and among them cases of a fictitious payee of a bill of exchange, where it was conceded there was a want of privity, yet the plaintiffs recovered in this form of action: and actions against stakeholders on the determination of wagers, when there was no higher privity than exists in this case; and when Lord Holt observed, such was the mutability of the right, that the right to the money was altered by the cast of a die.

In these cases there are counts -for money had and received to the plaintiffs’ use. Had there been an omission to insert them, the declarations might have been amended.

But as it is unquestionable that on the money, counts the cheques might have been given in evidence: that, of itself, in my humble opinion, would have authorized a recovery on counts on the cheques themselves, had there been no others. For can it be vicious pleading to state, in a special way, the facts under cover of which you may recover on the general counts ?

I now proceed to consider the plaintiffs’ right to this money, under the form of contract which was adopted; relinquishing all advantages arising from the doctrine ex equo et b'ono. I think the Bank has made a contract, which, regarded as its own contract, makes it liable to a legal recovery by the plaintiffs.

Wherever one, by his own engagement, (and I have shown what this of the Bank is,)-promises to pay to the order of another, the person in whose favor the order is made, may enforce the promise.

And in the case of Weston vs. Barker, (12 John. R. 276,) where Bowen and Bobbins made an assignment to Barker, to collect the funds, and, after paying speijified creditors, hold the residue subject to the order of the assignors: and it was held that Weston, to whom they ordered this balance to be paid, might maintain an action against Barker for it, as money received to his use. Mr. Justice Thompson said: “ It was not denied by defendant’s counsel, that the action would be supported, if an express promise to pay” (meaning an express promise to Weston, such as was contended was necessary to constitute a privity with him,) “was proved.” “It appears to me,” says he, “that the proof in this case, establishes such a promise, according to the good sense and sound interpretation of the rule.” The defendant “ expressly engaged to comply with the condition mentioned in the letter.” “The money has been, in fact, received by the defendant: and, according to the very terms of his engagement, was received as the money of the plaintiff, and not-as the money of Bowen and Bobbins, they having previously' directed the same to be paid to the plaintiff.”. “It was considered,” proceeds the judge, “in the argument, that had the plaintiff been named in the declaration of trust, as one of the persons to be paid, he could maintain this action. And where, in good sense and sound principle, can be the difference, whether he was originally named or subsequently designated according to the terms of the defendant’s undertaking? His express promise was to hold the balance subject to the order of Bowen & Bobbins. As soon as such order was given, this promise attached, and enured to the benefit of tbe person named in such order.” And tbe learned Judge goes into an examination of cases and principles to sustain bis conclusion: for wbicb, I refer to bis argument.

This case, (Weston vs. Barker,) stands upon a principle, that, when fully understood and appreciated, is sufficient for tbe case before us; and it is tbis, that where one in consideration of money to come into bis bands, promises to disburse that money as be shall be ordered by him from whom be receives it, be thereby creates a contract, negotiable in its very nature, wbicb puts him in privity with whomsoever, in tbe world be may be ordered to make payment to, so that the promise is, according to tbe law merchant, made to that person, and be is bound by bis promise to pay him.

Tbis is a principle of inappreciable value; and when tbe » law, from its ruder stages has traveled up to it, it should never be suffered to lapse away, again, under tbe load of mere technicalities. These should be brushed away, where they cease to be helps,„ and become mere incumbrances. Tbe principle should be secured to society.

We have traces of tbe same principle in every day life ; daily administered in our Courts: yet, wonderful to say, not fully perceived. Tbe learned Judge who dissented in tbe National Bank vs. Eliot Bank, point sout some of them. Where a party offers a reward for lost or stolen goods, what obliges hipa to pay tbe restorer of bis property, but tbis very principle ? Should be turn round, and deny privity with him, because be did not prophetically name him before, or make an assumpsit to him after be ascertained him, would tbe Courts let him escape ? No! And yet tbe only difference, in principle, between bis case and that of Barker, is, that bis promise is founded upon tbe consideration of recovering bis own property, and Barker’s upon that of getting possession of tbe property of other persons. Both are to persons unascertained when the promise was made.

Whenever a contract is essentially of a circulating nature, going about, as it were through society, to draw forth the exertions or the property of its members, as it may encounter them here and there, on the commercial arena, it carries its own consideration and its own obligation with it, and forms a privity with the persons to whom it comes.

Long before the Statute of Ann, as is shown in the instructive case of Dunlop vs. Silver, (1 Cranch, R. 367, Appendix A.,) the principle I have mentioned, the very principle of this case, was embedded, as the law merchant, in the laws of England; and was working its way through the noble chaos of the Common Law. Nothing but the sturdiness of Lord Holt, (a mere speck on that great character,) compelled the Parliament to put in a statutory form what was law before. 2 Shower, 161. (1 Cranch, 430, and cases there cited.)

It is’ believed to be incontrovertibly true, that he for whose benefit a promise is made, may maintain an action upon it, though no consideration (except in a commercial sense, as I have endeavored to explain it,) pass from him to the defendant ; nor any promise, from the defendant to him. That simple position fully supports, in principle, the present case.

Commercial' good, if not commercial necessity, seems to demand that cheques be regarded, as they are, in practice, intended to be; as transfers of the fund assigned: and not as mere powers to receive the money.

It is ordered that the nonsuit be set aside, and a new trial be granted.

Wabdlaw, J., concurred.

O’Neall, C. J.,

dissenting, said: I regret to differ with my brethren in these cases, but I think they have come to a conclusion which lacks the warrant of law to sustain it. Therefore I am bound respectfully to dissent, and express my concurrence in the ruling of the Judge below.

The various grounds of the plaintiffs’ motion may be all placed under the question: whether the holder of a Bank Check can maintain an action against the Bank, if it refuses payment ?

In such a state of things, I do not perceive how the right of action arises. The Bank Charter, it is true, provides “that they shall receive money on deposit, and pay away the same to order, free of expense.” 8 Stat. 8, sect. 5. This gives a right of action to the depositor. He can say very truly, in an action, if the Bank fails to pay his checks, “ you have violated your duty to me. I deposited with you upon the faith that you would pay. away the same to my order. Having failed to do this, I claim damagesand the Court would be bound to sustain his action. This right of action was fully sustained on the general obligation resting on a banker, without any such liability arising out of a charter, i-n the case of Maezetti vs. Williams and others, even where there was no damage. 20 Eng. Com. L. R. 412. In Bolin and another vs. Steward, Public Officer of the East of England Bank, (73 Eng. Com. Law R. 593,) it was held, that substantial damages may be recovered against "a banker for dishonoring an acceptance, and checks of a customer, there being sufficient in his hands to meet them. In Brodie vs. The Farmer's and Exchange Bank, tried before me here, a depositor sued the Bank for dishonoring his checks, and recovered a large verdict, which was appealed from, but the appeal never was brought before the Law Court of Appeals.

The right of action existing on the part of the depositor, how can the holder of the check have a similar right ?

To sustain assumpsit, there must be privity of contract. What privity can there be between the holder and the Bank ? I cannot1 perceive any. He takes the check on the credit of the drawer. Legally, we suppose, the depositor says, I have funds in the State Bank, and will give you a 'check for my debt to you.” When this is accepted by the holder, on whose credit does he take it ? Unquestionably, on the credit of the drawer. He believes, if his statement be true, he will receive the amount from the Bank. But so far the Bank has nothing to do with the transaction. When the holder presents the check, and the Bank refuses payment, against whom has he the right of' action; clearly it seems to me against him from whom he received it.

It is very true, when A receives money from 0 for the use of B, the latter may recover it, for the consideration is quite sufficient to maintain the promise implied by law. The money in such case .ex equo et bono is the money of B, and A has agreed so to hold it.

But that is not tbe case here. The money in Bank to the credit of the depositor is his money, and no one has the right to claim it, until by order he directs the bank, as his agent, to pay it to another. If the Bank refuses to pay it, how can that person to whom he has appointed payment claim it in an action against the Bank ? He cannot found his'action upon the cheek without an acceptance. Most of the cases relied upon, proceed upon the notion that there is enough to make it be regarded as so much money had and received to the plaintiff’s use, as in Weston vs. Barker, 12 Johns. R., 276, where A assigned securities to B, in trust to dispose of part of the money thereon received to certain purposes, and to hold the balance subject to the order of A, which trust B accepted, and A then directed B to pay the balance to C; B afterwards collected the fund, and it was held that C could recover. That case, it will be seen, goes not upon the order, but upon the notion that the money was in the defendant’s hands to the use of the plaintiff. This, I admit, was ingeniously argued and put by Thompson, 0. J. I think, however, his reasoning was met and its fallacy shown by Spencer, J., in his dissenting opinion, in which he shows that the promise to hold subject to the order of A, was, in fact and law, a promise to A, and an action for its breach lay at his instance, and not at the instance of C. Any other holding would seem to make the chose in action assignable.

In Kendrick vs. Campbell & Clark, 1 Bail. 522, the action was on a bill of exchange drawn on them by Elms. - The defendants had, in writing, before the bill was drawn, engaged that they would accept it. This letter was shown by Elms to Kendrick, whereupon he purchased the bill, and the Court held that this was an acceptance, and the action was maintained on that strange and, as I conceive, far-fetched notion. It is true, as my venerated brother Johnson said, there was "a promise to acceptbut to whom was it made? To Elms, and not to Kendrick, and could impose no legal obligation in his favor. But that case cannot help the plaintiff here. The action on the check has nothing to sustain the notion of acceptance. If it was case, I could understand that the plaintiff’ claiming the duty of- the defendant under the charter -to pay the check, and failing to do this, that he might claim damages possibly for this neglect of duty. But in an action of assumpsit, how he can recover I do not perceive.

The case of Randolph for Porter, assignee of Staats Fox vs. The Planters' and Mechanics' Bank, was sustained on the ground that the plaintiff had purchased from the agent of the Bank a draft on it, and was therefore, entitled to have his money back, if the Bank chose not to pay the draft. 7 Rich. 134.

Unless in law there is foundation for an implied contract, the plaintiffs have nothing upon which they can stand. There is no such foundation, for the contract is express with the depositor, and there oanbot be both an express and an implied contract. The holder of the check cannot sue on the deposit. That gives right of action to the depositor, and as we have seen, he may sue and recover.

It seems to me that there is no right of action, and I make no inquiry as to wbat may be the notions of bankers, or their customers. If they think a different course from that which I have pointed out, best subserves the purposes of business, they have only to pursue it, and not ask the aid of the law. If they think my conclusion is right, then I can only say I regret that hereafter we shall be governed by a different rule.

Motion granted.  