
    Cynthiana Simmons v. The Cincinnati Savings Society.
    The drawer of a cheek delivered it to the payee, intending thereby to give to the payee the fund on which the check was drawn—Held: That until the check was either paid or accepted, the gift was incomplete; and that in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check.
    
      Motion for leave to file a petition in error to reverse the' judgment of the Superior Court of Cincinnati.
    Rhoda "Wylie, the mother of the plaintiff', had three hundred dollars on deposit with the defendant. The mother was living with the plaintiff', and while lying sick she-sought to give this money to the plaintiff. To effect this object, the plaintiff, about two weeks before her mother’s-death, went to the defendant’s place of business, and told its officers that her mother intended to give her this money,, whereupon she was given by them a blank check to be filled up and signed by Mrs. Wylie, and told at the same time that .the check would be honored on presentation, and she could draw the money or reinvest it in her own name. On the-15th of September, 1875, the blank check was filled up forth e three hundred dollars, and Mrs. Wylie signed and delivered it to the plaintiff. Mrs. Wylie died before the check was presented to the defendant. Before it was presented, and before the defendant knew it had been given to the-plaintiff, D. Wylie, a brother of the plaintiff, was duly appointed administrator of the deceased. He notified the defendant of his appointment, and directed it not to pay the check. Two days afterward, the plaintiff presented the check, and demanded payment-, which was refused on the ground of the drawer’s decease, and of the direction from the administrator not to pay the check. The money was-afterward paid to the administrator, and the plaintiff then instituted this suit.
    The court in its charge told the jury that if the check was a gift to the plaintiff, and without consideration, it would be proper for them to take into consideration, in making up their verdict, whether the administrator, by notifying the defendant not to pay the check, did not revoke the gift; that if the check was-a gift, the maker had the right to revoke it at any time before the subject of the-gift had passed into the actual possession of the plaintiff,, and that the administrator had the same right.
    The verdict and judgment were for the defendant.
    
      On error, this judgment was affirmed in general term; and the’object of the present proceeding is to obtain the reversal pf these judgments.
    
      Milton Sater, for the motion :
    A cheek drawn on a fund in bank is an absolute transfer or appropriation of the amount named in the check to the holder, and becomes binding on the bank as soon as the-bank is notified, provided the bank have sufficient funds of the drawer on deposit to pay it. McGregor v. Loomis, 1 Disney, 247; Morrison v. Bailey, 5 Ohio St. 18; Andrews v. Blackly, 11 Ohio St. 93; Stewart v. Smith, 17 Ohio St. 82 ; Dodge v. Bank, 20 Ohio St. 246-7; Mann v. Burch, 25 Ilk 35 ; Insurance Co. v. Stamford, 28 111. 172; Bickford v. Bank, 42 111. 238 ; Brown v. Luken, 43 111. 497 ; Brown v. Lusk, 4 Yerg. 210 ; Van Bibber v. Bank, 14 La. Ann. 481; 2 Story, 513; 2 Daniel on Neg. Paper, secs. 1572, 1638.
    These authorities show that the right to the fund called for by the check vests co instanti in the holder of the check upon its delivery, and that checks are payable instantly on demand.
    It makes no difference if the drawer dies before the check is presented for payment. McGregor v. Loomis, 1 Disney, 247; Roberts v. Austin, 26 Iowa, 315; Lester v. Given, 8 Bush, 357; Buckner v. Lagre, 18 B. Mon. 745 ; Daniel on Neg. Paper, sec. 1643.
    As for what is an appropriation of a fund, see Hoyt v. Story, 3 Barb. 264.
    An appropriation is all that is necessary to transfer the possession of a fund, and any order, writing, or act which makes an appropriation is sufficient. Story’s Eq. Jur., sec. 1047; Adams’ Eq., sec. 54, note a; Smith’s Manual of Eq. 244, 245 ; Morton v. Nagler, 1 Hill, 583 Clemsen v. Davidson, 5 Binn. 392; Newby v. Hill, 2 Met. (Ky.) 530 ; Claw-sen v. Bayliss, 31 Beav. 351.
    We deny that the testimony shows that the check in controversy was a gift, but even if it was the rule is not changed.
    
      “ The delivery of a cheek for money in bank is a good, gift of the amount.” Succession of De Ponilly, 22 La Ann. 97; Gormley v. Linsebigler, 51 Penn. St.'345; Rhodes v. Childs, 64 Penn. St. 24.
    As to the rule in equity in such cases, see Story’s Eq. Jur., sec. 793; Adams’ Eq. 98; Smith’s Manual of Eq. 2-32; Thompson v. Thompson, 17 Ohio St. 654 ; Stone v. Hackett, 12 Gray, 227; Sherwood v. Andrews, 2 Allen, 79; Ellison v. Ellison, 6 Yes. 662 ; Donaldson v. Donaldson, 1 Kay, 711; Kerwick v. Manning, 1 De G., M. & G.176.
    It is clearly shown that the drawer of the check intended the money which it named for the plaintiff." It is the intention which governs. Shan ¡clin v. Commissioners, 21 Ohio ■St. 575 ; Porter v. Dunlap, 17 Ohio St. 591; Galway v. Fullerton, 2 E. C. Green, 289 ; Story’s Eq. Jur., secs. 972, 973 ; Camp’s Appeal, 36 Conn. 88 ; Meaor v. Rogers, 40 Conn. ■512; ELM v Stevenson, 63 Me. 364; Penfield v. Thayer, 2 E. D. Smith, 305 ; Fillinghost v. Wheaton, 8 R. I. 536.
    To revoke a gift it must be done in the lifetime of the •donor. The administrator of the donor would not have the right to revoke it. Stone v. Hackett, 12 Gray, 227; Adams’ Eq., sec. 98.
    
      Goodman $ Storer, contra :
    The cheek was but a naked gift, inter vivos. It has none ■of the ingredients of a donatio morles causa, and was not ■valid after the death of the drawer. Miller v. Miller, 3 P. W. 356 ; Ward v. Turner, 2 Yes., Sr. 440 ; Tate v. Hilbert, 2 Broom’s Gh. Ca. 286, aud 2 Yes., Jr. 120; Grant on Banking, 50, 93; Morse on Banking, 260; Thompson on Bills, 244; 2 Daniels on Neg. Inst., sec. 1618 ; Byles on Bills, 25; Heioitt v. Kaye, L. R. Eq. C. 198; In re Beck, L. R. Eq, C. 489.
    As to what the law is as to the effect of giving a cheek •upon the ownership of the fund, see Bank of Republic v. Millard, 10 Wall. 152 ; Keene v. Beard, 8 C. B. (N. S.) 582 ; Daniel on Neg. Inst., sec. 1638; Morse on Banking, 471; Bank v. Williams, 13 Mich. 282.
   "White, C. J.

We find no error in tbis case to the-prejudice of the plaintiff.

The question as to what are the rights of the holder of a. cheek for value, against the drawee or drawer, does not arise in this case. Many of the authorities cited by counsel for the plaintiff, relate to this question and need not here be considered.

The plaintiff claims as the payee of a check delivered, to her by the drawer, who intended thereby to transfer to-the plaintiff, by way of gift, the fund on which the check was drawn; and the question is whether before the payment or acceptance of the check by the drawee, the gift was executed.

It seems clear to us that until the check was either paid, or accepted the gift was incomplete; and that iu the absence of such payment or acceptance, the death of the drawer operated as a revocation of the check.

It is well settled that, in order to constitute a valid gift,, there must be a complete delivery of the subject of the gift, either actual or constructive.

The cheek in the present instance was a mere order or-authority to the payee to draw the money ; and being without consideration, it was subject to be countermanded or revoked while it remained unacted on in the hands of the payee.

This conclusion is fully supported by authority. Hewitt v. Kaye, L. R., 6 Eq., C. 198 ; The Second National Bank of Detroit v. Williams, 13 Mich. 282; 1 Parsons on Con; *235, *236; Bayles on Bills (6th Am. ed. by Sharswood), *25.

Leave refused.  