Jones, 2 Bush 103. But an entirely different question arises when we come to the liability of indorsers or the question of whether the holder is one in due course. A check being a bill of exchange payable on demand (Section 185) and governed by Section 71, must be presented within a reasonable time after its last negotiation, in order to hold the indorsers. If a paper payable on demand is negotiated for an unreasonable length of time after its issue, the holder is not deemed a holder in due course (Section 53). So it was held that where one acquired title to a check two days after it was drawn, he took it before it was overdue. Asbury v. Taube, 151 Ky. 142, 151 S. W. 372.

§ 187. Certification of Check Equivalent to Acceptance.-"Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance (Sec. 62)."

This section is materially affected by Section 188.

The certification of a check makes the bank, so certifying, an insurer of the check; and a bank which has received such a certified check may permit the one who deposits it to withdraw the proceeds after it has received notice of its protest

and dishonor, and still be a holder for value. First Nat. Bank v. Bank of Ravenswood, 141 Ky. 671, 133 S. W. 581.

§ 188. Certification Procured by Holder. "Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon."

The reader will notice that in order to relieve the drawer and indorsers under this section, the certification must be procured by the holder. The reason for this is that the holder could have received the money at the time he had the check certified, and if he would rather use the check certified than receive the money, he should bear the loss if any. A certification of a check amounts to the same thing as a withdrawal of the money and a new deposit to the credit of the holder of the check.

§ 189. Check Does Not Operate As An Assignment of Fund.-"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 (Sec. 187) the check."

This is again a violent change in the law of

this State. Before this statute was enacted the drawing and delivery of a check operated, without acceptance by the bank, as an assignment of the depositor's funds in the hands of the bank. Commonwealth v. Kentucky Distilleries & Warehouse Co., 132 Ky. 521, 116 S. W. 766 and cases cited. So also formerly the holder of the check could sue the bank directly. Columbia Finance & Trust Co. v. First Nat. Bank, 116 Ky. 364, 76 S. W. 156, 25 K. L. R. 561 and cases cited. But now the check does not operate as an assignment of the fund nor does the bank become liable to the holder until it accepts or certifies the check.

But even though the Court of Appeals persistently held to the doctrine that a check was an assignment of the fund and gave the holder a right of action against the bank, it departed from the inevitable result of the rule by holding that the death of the drawer and notice of that fact to the bank operated as a revocation of the check, Wieland v. State Nat. Bank, 112 Ky. 310, 65 S. W. 617, 66 S. W. 26, 23 K. L. R. 1517; Throgmorton v. Grigsby, 124 Ky. 572, 99 S. W. 650, 30 K. L. R. 66. Since now a check is not an assignment of any fund and since the bank incurs no liability to the holder until it accepts or certifies the check, it would seem that, subject to the rights of the holder or any indorser, anything

which would revoke a bill of exchange would revoke a check.

In Boswell v. Citizens' Saving Bank, 123 Ky. 485, 96 S. W. 797, 29 K. L. R. 988, the Court of Appeals was called upon to decide two questions, "(1) Whether a check drawn upon a deposit in a bank before an attachment or garnishment served upon the bank, takes precedence of the attachment, although the check may not be presented till after the service of the attachment. (2) Whether a certified check places the deposit beyond garnishment process, although it may not have gone into the hands of another holder for value in the due course of business." The Court refers to the old law and to this Act which was passed after these events had happened, and passing by the first question, held that no check, whether certified or not, was superior to the attachment unless it was in the hands of a holder in due course.

But while the holder cannot now recover from the bank on the check, yet where the money is deposited with the bank with the understanding that it is to be used in the payment of a particular debt, the creditor can sue the bank and the check will be evidential of the agreement. With this qualification the case of First Nat. Bank v. Barger, 115 S. W. 726, would still hold good.

TITLE IV.-ARTICLE I.

GENERAL PROVISIONS.

Section 190.

191.

192.

Definitions.

Who primarily or secondarily liable.
Reasonable time?

193. Sunday or holiday.

194. What instruments affected by this

Act.

195. Inconsistent laws repealed.

§ 190. Definitions.-"In this Act, unless the context otherwise requires:

"Acceptance' means an acceptance completed by delivery or notification.

off.

"Action' includes counterclaim and set

""Bank' includes any person or association of persons carrying on the business of banking, whether incorporated or not.

""Bearer' means the person in possession of a bill or note which is payable to bearer. "'Bill' means bill of exchange, and 'note' means negotiable promissory note.

66

'Delivery' means transfer of possession, actual or constructive, from one person to another.