NEW YORK COURT OF APPEALS. John DANAHER, Admr., etc., of Thomas P. Danaher, Deceased, Appt., v. CITY OF BROOKLYN, Respt. (....N. Y.....) 1. A city is not liable for injuries caused by the drinking of water from free public wells where neither failure on its part to keep the wells properly cleaned out nor notice to it that the water therein had become impure is shown, and there were no circumstances to cause suspicion as to the purity of the water, and a sufficient supply of pure water was furnished from 2. A city is not bound to make a chemical examination of the water of free public wells for the purpose of ascertaining whether or not it is pure and wholesome where it has no notice that the water is unwholesome and furnishes a public supply of running water in addition to other sources for the use of its inhabitants. the wells. (February 25, 1890.) nevertheless, if their ignorance was owing to an omission of the duty of inspection and of the degree of diligence which might reasonably be expected under all circumstances, the opportunity of knowledge stands for the purposes of the case as actual knowledge, and the City is equally chargeable as if express notice had been actually proven. Kunz v. Troy, 6 Cent. Rep. 493, 104 N. Y. 349. See also McCarthy v. Syracuse, 46 N. Y. 194; Brusso v. Buffalo, 90 N. Y. 679; Jones v New Haven, 34 Conn. 6; Rehberg v. New York, 91 N. Y. 133; Fort Worth v. Crawjord, 64 Tex. 2 2, 53 Am. Rep. 753; Vosper v. New York, 17 Jones & S. 296; Requa v. Rochester, Syracuse, 36 N. Y. 45 N. Y. 129; Barton v. 54; Todd v. Troy, 61 N. Y. 06; State v. Portland, 74 Me. 263, 43 Am. Rep. 5-6; Chicago v. Major, 18 Ill. 349; Vanderslice v. Philadelphia, 103 Pa. 102; Addison, Torts, pp. 1312, 1313; Wharton, Neg. SS 291, 963, 965; Deyoe v. Earatoga Springs, 3 Thomp. & C. 504, 505; Morristown v. Moyer, 67 Pa. 355; Donaldson v. Boston, 16 Gray, 508; Howard Co. v. Legg, 110 Ind. 479; Post v. Clark, 35 Conn. 342; Hunt v. New APPEAL by plaintiff from a judgment of the York, 20 Joues & S. 198, 12 Cent. Rep. 60, 109 General Term of the Supreme Court, Second Department, affirming a judgment of the King's Circuit dismissing the complaint in an action to recover damages for the death of plaintiff's intestate, which was alleged to have resulted from the use of unwholesome water negligently furnished by defendant. Affirmed. The facts sufliciently appear in the opinion. Messrs. Franklin M. Danaher and Roger A. Pryor, for appellant: The City of Brooklyn furnishes drinking water to its inhabitants in its private as dis tinguished from its public capacity, and is liable for a failure to use its power well or for an injury caused by using it badly, and for negligence, the same as an individual under similar circumstances. Dillon, Mun. Corp. 3d ed. § 58; 4 Wait, Act. and Def. 596-615; Bailey v. New York, 3 Hill, 531, approved and followed in Ro sevelt v. Draper, 23 N. Y. 325, and People v. Batchelor, 53 N. Y. 141; McAvoy v. New York, 54 How. Pr. 245; See also Benson v. New York, 10 Barb. 223, 235; Fleming v. Suspension Bridge, 92 N. Y. 372; People v. Civil Service of N. Y. 17 Abb. N. C. 64; Britton v. New York, 21 How. Pr. 253; Milhau v. Sharp, 15 Barb. 193; Lowber v. New York, 7 Abb. Pr. 251; Rummey v. Gedney, 57 How. Pr. 221; Western Sav. Fund Society v. Philadelphia, 31 Pa. 183; People v. Hurlbut, 24 Mich. 44; People v. Detroit, 28 Mich. 228; Livingston v. Pippin, 31 Ala. 512; Rome v. Cabot, 28 Ga. 50; Wells v. Atlanta, 43 Ga. 67; McKnight v. New Orleans, 24 La. Aun. 412; Grant v. Davenport, 36 Iowa, 3,6; Hale v. Houghton, 8 Mich. 45; Indianapolis v. Indianapolis Gas Co. 66 Ind. 396; San Francisco Gas Co. v. San Francisc, 9 Cal. 453; Bigelow v. Randolph, 14 Gray, 543; Oliver v. Worcester, 102 Mass. 500; Eastman v. Meredith, 36 N. H. 284; Boyd v. Insurance Patrol, 5 Cent. Rep. 233, 113 Pa. 269; Jones v. New Haven, 34 Couù. 1; Detroit v. Corey, 9 Mich. 165. If the city authorities had no actual notice, N. Y. 134. Milnes v. Huddersfield, L. R. 10 Q. B. Div. 124; on appeal, L. R. 12 Q. B. Div. 443, is on all tours with the present case. See also Chapman v. Rochester, 1 L. R. A. 296, 110 N. Y. 273. The City is chargeable with notice of the operations of the natural law of decay. It was its duty to anticipate dilapidation and decay; to inspect the well, and call to its assistauce those whose skill would have enabled it to ascertain its condition. Vosper v. New York, 17 Jones & S. 296; Howard Co. v. Legg, supra; Howard Co. v. Legg, 93 Ind. 528; Indianapolis v. Scott, 72 Ind. 197; Rapho v. Moore, 68 Pa. 408; Jones v. New Haven, 34 Conn. 13; Norristown v. Moyer, 67 Pa. 355, approved in Ilume v. New York, 74 N. Y. 273, and in Rehberg v. New York, 91 N. Y. 145. See also Noyes v. Gardner, 1 L. R. A. 354, 147 Mass. 505. The City ought to have foreseen that an impure condition of its drinking water might occur, and the omission to provide against it is actionable negligence, Loftus v. Union Ferry Co. 84 N. Y. 460. The water in the well having become impure, poisonous and dangerous to human life and health, it was a public nuisance, and the municipality is liable for all damages sustained by reason of its existence, in short, for the wrongful act of maintaining it irrespective of any question of negligence or notice. Shawneetown v. Mason, 82 Ill. 337; Hamil ton v. Columbus, 52 Ga. 435; Nevins v. Peoria, 41 Ill. 502. See also People v. Albany, 11 Wend. 539; Wood, Nuisance, S 749, 784, p. 833; Gould, Waters, § 212, 545; Mills v. Hall, 9 Wend. 815; Chapman v. Rochester, 1 L. R. A. 296, 110 N. Y. 273; Dillon, Mun. Corp. 3d ed. § 1048, note; 4 Wait, Act. and Def. 765; Addison, Torts, 1315; Wharton, Neg. § 187, 259, 265; Brower v. New York, 3 Burb. 254. The defendant is liable in tort for furnishing See also 43 L. R. A. 117; 46 L. R. A. 036; 48 L. R. A. 331. impure and poisonous drinking water, upon the ground of a violated or neglected duty voluntarily assumed, irrespective of any ques tion of negligence or notice, or of any privity of contract between the parties. Reg. v. Sindall, 2 Car. & K. 232. See also Norton v. Sewall, 106 Mass. 143; Bishop v. Weber, 139 Mass. 417; Gilbert v. Hoffman, 66 Iowa, 205; Fitzpatrick v. Garrisons & W. P. Ferry Co. 49 Hun, 288. The City erected and maintained the pump and assumed the duty of providing for the health, safety and protection of i s citizens who drank of this water, and is liable for any injuries sustained by such person by reason of the poisonous condition of the water, irrespective of any question of notice or negligence. the soil, reached the bottom of the well, and that the water, upon the earth, or in passing through the earth, came in contact with the unclean and deleterious substances which rendered it impure and unwholesome. The wa ter was limpid, cold and agreeable to the taste. Its impurity could not be detected by drinking it, and its dangerous character could only be discerned by a careful chemical analysis. This water was not furnished for a compensation paid for its use, and so there was no contract relation between the City and those who used it. The well was for public, gratuitous use; and hence nothing that was said or intimated in Milnes v. Huddersfield, L. R. 10 Q. B. Div. 124, and L. R. 12 Q. B. Div. 443, has any pertinency here. Archer v. New York, N. H. & II. R. Co. 9 The City was not an insurer of the quality Cent. Rep. 233, 106 N. Y. 589; Turner v. New- of the water, and bound, under all circumburgh, 12 Cent. Rep. 330, 109 N. Y. 301; Jetter stances, to keep it pure and wholesome. This v. New York & 11. R Co. 2 Abb App. Dec. 458; is not claimed. It owned this well as it owned Weston v. New York El. R. Co. 73 N. Y. 595; its other property kept for public use, such as Brassell v. New York Cent. & H. R. R. Co. 84 streets, parks and public buildings, and owed NY. 246, Neuson v New York Cent. R. Co. the duty of reasonable diligence to care for it 29 N. Y. 383, Chaffee v. Boston & L. R. Co. as it was bound to care for such other prop104 Mass. 108, Brusso v. Buffalo, 90 N. Y. erty. Its liability for unwholesome water in 679, McGuire v. Spence, 91 N. Y. 303; Todd any of its public wells must rest upon negliv. Troy, 61 N. Y. 510; Barton v. Syracuse, 36 gence, and hence we are brought to the quesNY. 55; Chicago v Major, 18 Ill. 349; Haz- tion, Was there any proof of negligence imman v. Hoboken, L. & 1. Co. 50 N. Y. 60; putable to the City? It is not claimed that the Gilbert v. Hoffman and Bishop v. Weber, City had any notice of the unwholesome charsupra; Howard Co v. Legg, 9 West. Rep. 212, acter of this water prior to the death of plain110 Ind 479; State v. Syphrett, 27 S. C. 29; tiff's intestate; but the claim is that by reasonBarry Terkildsen, 72 Cal. 254; Dorland v. able diligence it could have had notice, and New York Cent. & H. R. R. Co. 19 N. Y. Week. hence that notice must be imputed to it. This Dig. 76 Barber v. Abendroth, 20 N. Y. Weck. well had existed for many years, and its water Dig. 7; McGuire v. Spence, 16 N. Y. Week. had been extensively used by persons in the Dig 22. Jennings v. Van Schaick, 11 Cent. neighborhood; and there is no proof whatever Rep 317, 108 NI 530, 37 Alb. L. J. 292; that prior to the month of August, 1882, it Indiana, B & W. R. Co. v. Barnhart, 13 had caused injury to anyone, or that there was West Rep 425 115 Ind. 399; Marseilles v. the least suspicion by anyone that it was unHowland, 14 West. Rep. 564, 124 Ill. 547; Re- wholesome. qua v. Rochester, 45 N. Y. 134; Fitzpatrick v. Garrisons & W. P. Ferry Co. supra. Mr. Almet F. Jenks for respondent. Earl, J., delivered the opinion of the court: Several persons were called as witnesses by the plaintiff, who testified that they became sick from drinking the water of this well in the early part of August, 1882. It is inferable from the evidence that the same persons drank the water previously with impunity. The We entertain no doubt that this well in De plaintiff had four sons. Three of them drank Kalb Avenue was a public well, belonging to the water in the early part of August and bethe defendant, and under its control, and that came very sick, two of them dying. They the water of the well was in August, 1882, un- had previously, for years, drank it without inwholesome, and dangerous to the health of jury. The fourth son drank it down to about such persons as should drink thereof; and we the 1st of August, and then, in consequence will assume, although we would hold so with of his absence from the City, he ceased to some hesitation, that the death of plaintiff's drink it; and he did not become sick. The intestate was cau ed by drinking of the water; inference therefore is, so far as there is any and yet, we think, the plaintiff was properly proof upon which to base it, that the water nonsuited at the trial. There is no claim that was wholesome-at least not dangerous, and the well or pump was improperly constructed, not so impure as to cause sickness-down to or out of repair, or that the water became un- the 1st of August. In view of these facts, it wholesome from any defect in the well or certainly cannot be said that there is any proof pump, or from any external exposure which that the water was dangerous before the time could by any reasonable care have been avoid it is shown to have caused any injury. The ed. It does not appear that the City, or any plaintiff, claiming that the water of this well of its officers, or, in fact, that any person, did had for a long time been impure and dangeranything to render the water impure. Nor ous, should have given some proof to maindoes it appear that anything could have been tain his claim; and, if it were well founded, it done to purify it, or prevent its impurity. cannot be doubted that the proof would have The theory of the plaintiff, as developed upon been readily obtainable, as many persons must the trial, was that this well was supplied by have used the water for many years. So, water which fell upon the surface of the sur- while there is no proof that, during any conrounding earth, and, by percolation through|siderable time prior to the drinking of this impure water from the wells after it has had notice of their dangerous qualities, and an opportunity to remove the danger. The higher degree of diligence as to water apparently pure and wholesome, agreeable to the taste, and in common use by the public without complaint, would be unreasonable. water by the plaintiff's intestate, it had been | earth; and was the City bound to anticipate impure, un wholesome or dangerous, there is that such water would become impure and no proof that any reasonable diligence on the dangerous in the wells? There was no proof part of the defendant would have discovered that it was the necessary, or even the natural. its impure or dangerous quality, if it existed. consequence that water in city wells, however The plain inference is that there was some they may be located, will become poisonous cause of contamination which had not long ex- and deleterious. On the contrary, the proof isted. There must have been some unobserved showed that the waters of such wells have been deposit of deleterious matter at some distance used for years with impunity. These wells from the well, upon or under the surface of were furnished for the accommodation of the the soil, or some new vein opened in the soil, public. They were not obliged to use them; through which impure water, for the first time, and most people have sufficient knowledge to percolated into the well in the early part of know that their waters may not be as pure as August. There is no proof or claim that any water brought from pure streams, far away improper or poisonous substance had been from the city limits, and from exposure to thrown into the well, or that the well was un- contamination. The public may use them; clean, or needed cleaning out. Assuming and when they are found unwholesome or delthat the defendant was bound to make a chem-eterious, and the City has notice thereof, it is ical analysis of the water of its wells from bound to protect the public health by purify time to time, how often should such analysis ing the waters, or filling up the wells. The be made? It appears that there were 296 wells burden upon the City is sufficient if it is held within the city limits belonging to the City. to the responsibility of keeping the wells and To analyze the waters of all these wells would pumps in order, and clean, and if it is made take a long time. If the defendant were reliable for any injury resulting from the use of quired to do it even once a quarter, it would probably take the whole time of a single chemist. But, if the chemical analysis of the water of this well had been made in June, or even early in July, there is no proof, and there can be no legal inference, that it would have been found unwholesome; and how, then, can it be said that at the precise time the deceased drank of this water, in August, the City was bound to have discovered and known that it was un-called. wholesome and dangerous? For aught that appears in the case, the City may, from time to time, during previous months or years, have examined and tested the waters of these wells. It appears that the department of public health, about the 1st of June, 1882, ordered the chemist of that department to make an examination of the waters of the wells of the City, and he proceeded with such examination, but did not reach the water of the well in question until the last of August. Here there was a well in perfect order, clean, free from filth and débris, the water of which had been used with impunity and satisfaction by those living in the neighborhood for many years; and no complaint had been made of it, and no suspicion had been raised that it was in any way unwholesome or dangerous. Under such circumstances, what was there to suggest to the City the duty of analyzing and testing this water prior to the 1st day of August, 1882? We find nothing. We have thus far assumed that the City was bound, from time to time, to make a chemical examination of the waters of the public wells, for the purpose of ascertaining whether they were pure and wholesome. But we are of opinion that such assumption is not well founded, and that no such burden rests upon the City. The City has its public water supply by running water in addition to these wells. The wells are furnished and kept for public use by the City. It was undoubtedly the duty of the City to keep the wel's and pumps in good order, and to keep the wells properly cleaned out, so they would not be come contaminated by anything that might be thrown into them. But these wells were to be supplied by water percolating through the These views are not in conflict with any of the authorities to which our attention has been In McCarthy v. Syracuse, 46 N. Y. 194, it was held that, when the duty was imposed by law upon a public oflicer or municipal corporation of keeping a structure in repair, it involves the exercise of a reasonable degree of watchfulness in ascertaining the condition of such structure from time to time, and that where this is omitted such officer or corporation is liable for damages resulting from a dilapidation of the structure which is an ordinary result of its use, and which would have been disclosed by an examination, and that no notice of the defect is necessary, in such a case, to fix the ability. There the damage complained of resulted from a defective sewer, and the City was under obligation to use reasonable diligence to keep it in repair; and it could not escape responsibility simply because it had no notice that the sewer was out of repair. Here it was the duty of the City to use reasonable diligence to keep this well and pump ir repair, and to guard against any dilapidation or danger resulting from use of the well; but as we have shown, there was no evidence which would justify a finding of culpable negligence as to the well on the part of the City. In Hunt v. New York, 109 N. Y. 134, 12 Cent. Rep. 60, the plaintiff was injured by an explosion at one of the man-holes of a steamheating company in one of the streets of the City of New York. He was defeated in his action for damages. Andrews, J., writing the opinion in this court, said: "The language of the cases expressing the measure of duty resting upon municipal corporations in respect to their streets, sewers, etc., has not always been carefully guarded; but the doctrine has been frequently reiterated in this court that there is no absolute guaranty of undertaking on the part of a municipal corporation that its streets or other constructions shall at all times, and under all circumstances, be in a safe and proper condition, and that its obligations and duty extend only to the exercise of reasonable care and vigilance... There must be willful misconduct or culpable neglect to create liability." Here there was no willful misconduct or culpable neglect on the part of the City as to this well. Trees, bridges and other wooden structures will necessarily decay, and become unsafe; and, where they may thus become dangerous to human life, the duty devolves upon the municipality to make tests and examinations, using reasonable diligence to ascertain whether they are safe or not. Vosper v. New York, 49 N. Y. Super. Ct. [17 Jones & S.] 296; Howard Co. v. Leg, 110 Ind. 479, 9 West. Rep. 212; Jones v. New Haven, 34 Conn. 13; Norristown v. Moyer, 67 Pa. 355. But this case is not analogous to those. Here there is no proof justifying the inference that the water of this well was constantly and inevitably exposed to impurities which would render it dangerous to buman life. On the contrary, the evidence shows that up to about the 1st of August its waters were wholesome, and free from dangerous impurities. This is not like the cases where a city creates or permits a nuisance, or turns a stream of mud or water upon the premises of private individuals. In such cases it is held responsible for the nuisance which it creates or permits, and for its wrongful acts. People v. Albany, 11 Wend. 539; Nevins v. Peoria, 41 Ill. 502; Shawneetown v. Mason, 82 Ill. 337. There was no proof in this case that the City in any way polluted or poisoned the water of this well, or permitted others to do so; and hence the cases of Rex v. Medley, 6 Car. & P. 292; Goldsmid v. Tunbridge Wells Imp. Comrs. L R. 1 Eq. 161; Charles v. Finchley Local Board, 48 L. T. N. S. 569; Brown v. İllius, 27 Conn. 84; Ballard v. Tomlinson, L. R. 29 Ch. Div. 115, are not in point. Without commenting upon or referring to other authorities found in the interesting and learned brief submitted on behalf of the ap pellant, it is sufficient to say that we have examined and considered all of them, and that we are not able to bring ourselves to the conclusion that there is any principle of law which, upon the facts appearing upon this case, imposes any liability upon the defendant for the dam ages claimed. The judgment of the General Term should therefore be affirmed, with costs. All concur. NEW YORK COURT OF APPEALS (2d Div.). A check is an appropriation or assignment of the specific money called for in the check. Stoller v. Coates, 4 West. Rep. 602, 88 Mo. 514. When deposited it becomes the property of the bank and is credited to the depositor. Brooks v. Bigelow, 2 New Eng. Rep. 360, 142 Mass. 6. An instrument drawn upon a bank simply directing payment, to a party named, of a specified sum of money on deposit with the drawee, without designating a future day of payment, is a check. Bull v. First Nat. Bank, 123 U. S. 105 (31 L. ed. 97). It is the essential characteristic of a check that it is payable on demand. Harrison v. Nicollet Nat. Bank Minn.) 5 L. R. A. 746. Whether or not a check or draft on a bank be an equitable assignment of the fund, it cannot bind the fund in the hands of the bank until notice of the check or draft is given by presentation for payment or otherwise. Laclede Bank v. Schuler, 120 U. S. 511 (30 L. ed. 704). Until then other checks drawn afterward may be paid, or other assignments of the fund or part of it may secure priority by giving prior notice. Ibid. A check is not due until it is demanded, and is See also 9 L. R. A. 850. of which has been procured by fraud, who by mistake of both himself and the payee takes it with out the latter's indorsement, holds it subject to all defenses which the bank would have against it in the hands of the payee, even although he pays full value for it without notice of the fraud; and a subsequent indorsement made after the purchaser has received such notice will not render the check valid in his hands, at least in the absence of an express agreement to indorse made at the time of the transfer. 2. A bank is not estopped to deny its liability on a check which it has certified, even as against a bona fide holder for value who not treated as overdue merely because it has not been presented as early as it might have been. Bull v. First Nat. Bank, supra. It may be revoked by the drawer before presentment (Kuhn v. Warren Sav. Bank (Pa.) 9 Cent. Rep. 620, 20 W. N. C. 230), unless the bank on which it is drawn has accepted or certified it, or otherwise committed itself to its payment. Kahn v. Walton, 46 Ohio St. 195. So where the drawee bank has, before opportu nity of presentment, agreed with the holder, who advances the value thereon, to pay it, such drawee becomes in legal effect the acceptor of a bill of exchange, and as such primarily liable. Farmers & T. Bank v. Allen Co. Bank (Tenn.) 12 S. W. Rep. 545. The certificate of a bank that a check is good is equivalent to acceptance. Merchants Nat. Bank v. State Nat. Bank, 77 U. S. 10 Wall. 604 (19 L. ed. 1008). A draft for money drawn on a bank, payable at a day subsequent to its date and to the date of its issue, is not a "check," but is a "bill of exchange" and entitled to grace. Harrison v. Nicollet Nat. Bank, supra. A check given for money lost at a game of cards is by the laws of Ohio absolutely void, even in the hands of an indorsee though a bona fide holder. of the draft on Bingham & Co., accompanied by the bonds. The cashier of the Goshen National Bank, relying upon such representations, purchased upon the faith of the certification, where it has never been indorsed by the payee. 8. A bank whose certification of a check has been procured by fraud can-cashed the draft of $17,000, and placed the pronot maintain an action to recover possession thereof against one who has purchased bona fide and for value from the payee, but who took it without the latter's indorsement. (January 14, 1800.) ceeds to the credit of Brown, upon the books of the Bank. He gave Brown sight drafts on New York for $12,000, and certified a check drawn by Brown to his own order, dated November 26, 1884, for $5,000. On the morning of November 28, Brown called at the office of APPEAL by plaintiff from a judgment of William Bingham & Co., and stated that he the General Term of the Supreme Court, First Department, affirming a judgment en tered upon the report of a referee dismissing the complaint in an action to recover possession of a certain check. Affirmed. APPEAL by defendants from a judgment of He also had the New York drafts cashed, the General Term of the Supreme Court, First Department, affirming a judgment entered upon the report of a referee in favor of plaintiff in an action to recover the amount due upon a certain certified check. Reversed. Statement by Parker, J.: Appeals from judgments rendered by the General Term of the Supreme Court of the First Department, affirming judgments entered upon the reports of a reteree. On November 27, 1884, Benjamin D. Brown applied to the cashier of the Goshen National Bank, at Goshen, N. Y., to cash a sight draft for $17,000, drawn by him upon the firm of William Bingham & Co. of New York, ac companied by a quantity of the bonds of the West Point Manufacturing Company, of the face value of $17.000. Brown represented that he had negotiated a sale of these bonds at their face value with William Bingham & Co.; that they had directed him to draw upon them at sight for $17.000, the draft to be accompanied by the bonds, and that the draft would be paid upon presentation. Such representations were absolutely false. The bonds had no market value. Brown was a bankrupt, and had no funds in the Bank, except such as resulted from the credit given him upon the faith Checks and bills of exchange, whether accepted or not by the drawee, do not generally operate as equitable assignments, even when funds have been placed in the drawee's hands to meet their payment (Kuhn v. Warren Sav. Bank (Pa.) 9 Cent. Rep: 622; Lynch v. First Nat. Bank, 9 Cent. Rep. 565, 107 N. Y. 179; Florence Min. Co. v. Brown, 124 U. S. 385, 31 L. ed. 424; Harris v. Clark, 3 N. Y. 93; Marine & F. Ins. Bank v. Jauncey, 3 Sandf. 257; Luff v. Pope, 5 Hill, 413; Pope v. Luff, 7 Hill, 577; Phillips v. Stagg, 2 Edw. Ch. 108; Sands v. Matthews, 27 Ala. 399; First Nat. Bank v. Dubuque S. W. R. Co. 52 Iowa, 378; Jones v. Pacific Wood, L. & F. Co. 13 Nev. 359; Kimball v. Donald, 20 Mo. 577; Hopkins v. Beebe, 26 Pa. 85; Greenfield's Estate, 24 Pa. 232; Mandeville v. Welch, 18 U. S. 5 Wheat. 277, L. ed. 87; 3 Pom. Eq. Jur. 295), unless made so by specific agreement. Cowperthwaite v. Sheffield, 3 N. Y. 243; Lowery v. Steward, 25 N. Y. 239; Harwood v. Tucker, 18 Ill. 544. wanted to get some currency. Mr. Bingham passed the check to the firm's cashier, directing him to give Brown currency for the amount. The cashier gave him a check drawn on the Corn Exchange Bank for $5,000. Brown had the check cashed at the Corn Exchange Bank. amounting to $12,000, which he had obtained from the Goshen National Bank. After procuring the checks and drafts to be cashed, he fled to Canada, where he remained at the time of the trial of these actions. When Bingham & Co. took from Brown the check certified by the Goshen National Bank, it was not indorsed. The referee found that, "at the time of the transfer of the said certified check by Brown to the plaintiffs, it was intended both by Brown and the plaintiffs that said certified check should be indorsed by Brown, and it was supposed by both parties that he had so indorsed it; and if the plaintiffs had known that it was not indorsed, they would not have paid the consideration therefor." He further found "that Brown made no statement to the defendants, or either of them, at the time of the transfer of the check, that such check was indorsed;" and "prior to the commencement of the action of replevin, the defendants never requested Brown to indorse said check.” While Bingham & Co. beld the check in question unindorsed, a demand for its return to the Bank, accompanied by a full explanation of the circumstances under which the certification was obtained, was made upon Bingham & Co. in behalf of the Bank; and, upon their refusal to return it, an action to recover its possession If drawn on a specific fund, a bill of exchange may operate as an equitable assignment of the fund. Kahnweiler v. Anderson, 78 N. C. 133. A check not accepted or certified by the cashier does not create a lien on money, which the holder can enforce against the bank. Florence Mining Co v. Brown, 124 U. S. 385 (31 L. ed. 424). It cannot bind the fund in the hands of the bank until notice of the check or draft is given by presentation for payment or otherwise. Laclede Bank v. Schuler, 120 U. S. 511 (30 L. ed. 704). be paid, or other assignments of the fund or part Until then, other checks drawn afterward may of it may secure priority by giving prior notice. lbid. Acceptance of forged paper. Where one accepts forgel paper purporting to be his own, and pays it to a bolder for value, he cannot recall the payment. Cooke v. United States, 91 U. S. 389 (23 L. ed. 237). Where a bill of exchange is placed in circulation by the drawer with the forged indorsement of the payee upon it, and the drawee accepts and pays it to a bona fide holder, he cannot, after the discovery of the forgery, recover of such holder. The insolvency of the drawer is immaterial. Hortsman v. Henshaw, 52 U. S. 11 How. 177 (13 L. ed. 653). |