93; Bell v. Alexander, 21 Gratt. 1; Purcell v. Ellemong, 22 Gratt. 739. For cases applying this section of the statute, see Gordon v. Levine, 194 Mass. 418, 421; Aebi v. Bank of Evansville, 124 Wis. 73, 77; Citizens' Bank v. First Nat. Bank, 135 Iowa, 605; Cox v. Citizens' State Bank, 73 Kans. 789; Moskowitz v. Deutsch, 46 Misc. (N. Y.) 603; Singer Manufacturing Co. v. Summers, 143 N. C. 103; Asbury v. Taube, 151 Ky. 142.

Where check is negotiated. The fact that the payee indorses the check to a third person does not extend the time for presentment as between the drawer and the payee. Dehoust v. Lewis, 128 App. Div. (N. Y.) 131. But as respects an indorser, section 71 applies, and presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof. Columbian Banking Co. v. Bowen, 134 Wis. 218; Plover Savings Bank v. Moodie, 135 Iowa, 685. See note to section 71. The reason for this distinction is obvious. The drawer intends that the check shall be presented to the bank for payment promptly, and presentment ought not to be delayed at his risk. But when the payee, instead of presenting the check for payment, negotiates it and puts it into circulation, he cannot complain if delay results from his own act.

Death of drawer. The payment of a check made by a bank after the death of the depositor, but before the bank has received knowledge of that fact, is a valid payment, and the bank is not liable for the amount to the personal representative of the depositor. Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12; Rogerson v. Ladbroke, 1 Bing. 93; Tate v. Hilbert, 2 Ves. Jun. 112. The original draft of the Negotiable Instruments Law submitted to the commissioners contained a provision (which was taken from the statute of Massachusetts) as follows: "The death of the drawer does not operate as a revocation of the authority to pay a check, if the check is presented for payment within ten days from the date thereof." But it was thought by the conference of commissioners that this would be objected to in some of the States because of the effect it might have on the estates of decedents.

Payment through Clearing House. The payment of a Clearing House balance is not a payment of any particular check, and does not become so until the time within which the check may be returned has expired. Hentz v. Nat. City Bank, 159 App. Div.

(N. Y.) 743; Merchants' Nat. Bank v. Nat. Bank of the Commonwealth, 139 Mass. 513. And while the adjustment of balances by the clearing-house constitutes a sort of tentative or provisional payment, that adjustment occurs without an opportunity to the members to examine the items, and regardless of whether the checks are good; and, therefore, the question of payment is not, and cannot be, ultimately decided until the bank upon which the check is drawn has had an opportunity to examine the checks at its banking house. Columbia-Knickerbocker Trust Co. v. Miller, 215 N. Y. 191.

Certificate of deposit.-As to the time within which a certificate of deposit should be presented for payment, see Pierce v. State Nat. Bank, 215 Mass. 18.

§ 187. Certification of check effect of. Where a check is certified by the bank on which it is drawn the certification is equivalent to an acceptance.

Rule at common law. This section makes no change in the law. See Merchants' Bank v. State Bank, 10 Wall. 604; Cooke v. State Nat. Bank, 52 N. Y. 96; Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y. 125.

Effect of certification.-Where a bank certifies a check at the request of the payee, the effect is the same as though the funds had been paid out to him and deposited to his own credit, and hence the bank may not refuse to pay the check upon the ground that it was procured from the drawer by fraud. Times Square Auto. Co. v. Rutherford Nat. Bank, 77 N. J. L. 649. But where the certification is not made at the instance of the payee, or of a holder in due course, but at the instance of one who has induced the negotiation of the instrument by fraud, and who has not been authorized to represent the payee, it is not binding upon the payee. Anglo-South Am. Bank v. Nat. City Bank, 161 App. Div. (N. Y.)

268.

When certification become effective.-When the certification is made at the instance of the drawer, it does not become effective until the delivery of the check to the payee. Anglo-South Am. Bank v. Nat. City Bank, 161 App. Div. (N. Y.) 268, 274.

Necessity for writing.-Section 132 applies to an acceptance by a bank as well as by any other drawee, and hence it must be in writing; and an action cannot be maintained against the bank on an oral promise to pay. See note to section 132, and cases there cited.

Signature of indorser.-The certification does not admit the genuineness of the indorser's signature. First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296.

Check delivered without indorsement of payee.-Where a check delivered without the indorsement of the payee is afterwards certified by the bank, the holder may recover of the bank, though he is unable to obtain the indorsement of the payee. Meuer v. Phenix Nat. Bank, 94 App. Div. (N. Y.) 331.

Drawer's right of set-off.-Where the bank has certified a check it may not refuse to pay the same in order that the drawer may enforce a right of set-off against the payee. Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301.

§ 188. Effect where the holder of check procures it to be certified. Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon.

Reason for the rule.-When the holder, instead of insisting upon immediate payment, has the check certified, he, in effect, causes the funds to be withdrawn from the control of the depositor, and leaves them with the bank for his own accommodation; and it would be unjust that the money should be left in the bank at the risk of the drawer. Davenport v. Palmer, 152 App. Div. (N. Y.) 761; Lyons v. Union Exchange Nat. Bank, 150 Id. 493; Bank v. Carter, 88 Tenn. 279. The effect of the certification in such case is to create a new contract between the holder and drawee. AngloSouth Amer. Bank v. Nat. City Bank, 161 App. Div. (N. Y.) 268, 275.

Where drawer has check certified.-But where the drawer causes the check to be certified before delivery, the same reason does not exist for holding him discharged from liability; and in such case

the certification operates merely as an assurance that the check is genuine, and the certifying bank becomes bound with the drawer. Davenport v. Palmer, 152 App. Div. (N. Y.) 761, 763; Born v. First Nat. Bank, 123 Ind. 78; Cincinnati Oyster & Fish Co. v. Nat. Lafayette Bank, 51 Ohio St. 106; Andrews v. German Nat. Bank, 9 Heisk. 211. See also cases cited above. And this is so though the drawer has the check certified at the request of the payee. Randolph Nat. Bank v. Hornblower, 160 Mass. 401.

Where bank taking check as deposit has it certified.-This section applies where a bank, which has taken its customer's check on another bank and given him credit therefor, has the check certified by the drawee. Lyons v. Union Exchange Nat. Bank, 150 App. Div. (N. Y.) 403.

Where name of payee changed in certified check.-An attorney of a mortgagee stated to the mortgagor that a certified check would be received in payment of the mortgage, and when a certified check was offered in payment, demanded that it should be made payable to himself as well as to the mortgagee, which was done, and the change noted on the books of the bank: Held, that the case was not within this section, and that the drawer was not discharged. Davenport v. Palmer, 152 App. Div. (N. Y.) 761.

Where bank has cashed check.-Where a bank has cashed a check upon a forged indorsement, the payee cannot maintain an action against such bank to recover the money collected by it upon the check. Tibby Bros. Glass Co. v. Farmers & Mfgrs. Bank of Sharpsburg, 220 Pa. 1.

Suit in equity.-A bank is not liable on equitable grounds to the holder for the amount of an unaccepted check which it has refused to pay though the holder acquired the check on the oral representation of the bank that the drawer had funds on deposit to meet the check, and that the check was good, and that the holder might safely take it in payment for goods sold the drawer. Rambo v. First Nat. State Bank of Argentine, 88 Kans. 257.

§ 189. Check does not operate as an assignment.—A check of itself does not operate as an assignment of

any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.

Rule at common law.-Prior to the statute there was considerable conflict in the authorities. The rule adopted in the act is supported by the weight of authority. See Bank v. Millard, 10 Wall. 152; Bank v. Schuyler, 120 U. S. 511; Florence Mills Co. v. Brown, 124 U. S. 385; First Nat. Bank v. Whitman, 94 U. S. 343, 344; St. L. & S. F. Ry. Co. v. Johnston, 133 U. S. 566; AttorneyGeneral v. Continental Life Insurance Co., 71 N. Y. 325, 330; First Nat. Bank of Union Mills v. Clark, 134 N. Y. 368; O'Connor v. Mechanics' Bank, 124 N. Y. 324; Maginn v. Dollar Savings Bank, 131 Pa. St. 362; Saylor v. Bushong, 100 Pa. St. 27; Covert v. Rhodes, 48 Ohio St. 66; Cincinnati H. & D. R. R. Co. v. Metropolitan Nat. Bank, 54 Ohio St. 60; Pickle v. People's Nat. Bank, 88 Tenn. 380; Boetcher v. Colorado Nat. Bank, 15 Col. 16; Hopkinson v. Foster, L. R. 18 Eq. 74. Contra, Fonner v. Smith, 31 Neb. 107; Munn v. Burch, 25 Ill. 35; Bank v. Patton, 109 Ill. 479, 485; Nat. Bank of America v. Nat. Bank of Ill., 164 Ill. 503.

Assignment by agreement.-But while the mere making and delivery of a check in the ordinary course of business does not operate as an assignment of the fund, it is yet competent for the parties to create such an assignment by a clear agreement or understanding, oral or otherwise, in addition to the giving of the check, that such shall be the effect of the transaction. Fourth Street National Bank v. Yardley, 165 U. S. 634; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83, 88.

Application of the statute.-For cases applying this section, see Hentz v. Nat. City Bank, 159 App. Div. (N. Y.) 743; Rambo v. First State Bank of Argentine, 88 Kans. 257; Baltimore & Ohio R. R. Co. v. First Nat. Bank, 102 Va. 753; Van Buskirk v. State Bank, 35 Colo. 69; Tilby Bros. Glass Co. v. Farmers & Mechanics' Bank, 220 Pa. St. 1.

§ 326. Recovery of forged check.-No bank shall be liable to a depositor for the payment by it of a forged or raised check, unless within one year after the return to the depositor of the voucher of such payment,