Ohio St. 66, 27 N. E. 94, and Hopkinson v. Forster, L. R. 19 Eq. 74, where it was said by the master of the rolls: "You can have no charge in equity without an intent to charge": Shand v. Du Boisson, L. R. 18 Eq. 283; Thompson v. Simpson, L. R. 5 Ch. 659; Citizens' Bank v. First Nat. Bank of New Orleans, L. R. 6 H. L. 352.

It was held in Bullard v. Randall, 1 Gray, 605, 61 Am. Dec. 433, that a check for a part of the drawer's funds in a bank constitutes no assignment of that part of such funds, until presented for payment and accepted by the bank, although verbally assented to by the cashier when absent from the bank; and in that case the bank, summoned as trustee of Randall, was compelled to account to Randall as between him and the payee of the check. In Sands v. Matthews, 27 Ala. 399, it was held that the drawee of a bill of exchange before acceptance was liable to garnishment: See, also, National Com. Bank v. Miller, 77 Ala. 168, 54 Am. Rep. 50; and Mayer v. Chattahoochee Bank, 51 Ga. 325. In O'Connor v. Mechanics' Bank, 124 N. Y. 224, 26 N. E. 816, it was decided that an ordinary uncertified check upon a general bank account is neither a legal nor an equitable assignment of any part of the sum standing to the 192 credit of the depositor, and confers no right upon the payee which he can enforce against the bank; and further, that such a check is simply an order which may be countermanded and payment forbidden by the drawer at any time before it is actually cashed. In this case the proceedings were at law by a receiver, appointed supplementary to execution, to recover a sum of money deposited with defendant, and alleged to belong to the judgment debtor. The principle already stated, as to the effect of a check, was reaffirmed on the authority of the courts of that and other states, and the cases were quite fully reviewed. In Duncan v. Berlin, 60 N. Y. 151, it was held that where the balance due a depositor in a bank is levied on by virtue of an attachment against the depositor, the bank is not authorized to deduct an outstanding check given by the depositor to a third person which had not prior to the levy of attachment been presented and accepted. In treating the question, Church, C. J., said: "A check upon a bank does not operate as an assignment of the money deposited, specified in it. . . . . The drawee owes no duty to the holder until the check is presented and accepted." In Loyd v. McCaffrey, 46 Pa. St. 410, Strong, J., said: "It cannot be main

tained that Taylor's check in favor of Wilson, without more, amounted to an equitable appropriation of the funds in the hands of the bankers to whom the check was addressed. To Inake an order or draft an equitable assignment, it must designate the fund upon which it is drawn [citing cases]. It was payable out of any fund the drawer might have had in the hands. of Loyd & Blandy, at the time of the presentation. And it was not completed until the attachment was laid." The question was very fully considered in Jones v. Pacific Wood etc. Co., 13 Nev. 359, 39 Am. Rep. 308, Leonard, J., delivering the opinion, and the conclusion was reached that an order in the form of an inland bill of exchange, not upon any particular fund, is not, before an acceptance, an assignment, and does not create any lien in favor of the holder upon funds of the drawer in the hands of the drawee. Similar decisions might be multiplied. Mr. Drake devotes much space to the question. He says: "It is not, however, every order which may be drawn on a party having moneys of, or indebted to, the 193 drawer which will operate an assignment of the money or debt. A bill of exchange, for instance, is not an assignment of the fund on which it is drawn, or any part thereof, until accepted by the drawee. It is well settled that where an order is drawn on either a general or a particular fund, for a part only, it does not amount to an assignment of that part, unless the drawee consent to the appropriation by an acceptance of the draft; or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the parties as a part of the contract": Drake on Attachment, sec. 611. See, also, Randolph on Commercial Paper, secs. 589, 644, 1664. He says: "The weight of authority, both in England and in the United States, .... holds that a check is not an assignment of the fund drawn against, and will not, before acceptance, implied or express, support an action by the holder against the bank": Randolph on Commercial Paper, sec. 644.

... •

Without pursuing the inquiry further, we conclude, guided by principle as well as by weight of authority, that the court erred in directing the bank to pay the Virgin & Co. and Sheafor checks to the holder.

2. Respondent makes the point that the variance in the name of Welsh is fatal to the writ (citing Rood on Garnishment, sec. 266, and Freeman on Executions, sec. 42). The finding of

the court clearly established the identity of the person named, and the rule idem sonans would seem to apply. See Galliano v. Kilfoy, 94 Cal. 86, 29 Pac. 416; People v. Fick, 89 Cal. 144, 26 Pac. 759; People v. James, 110 Cal. 155, 42 Pac. 479.

3. It is also contended that no authority is given the United States marshal to serve execution under United States laws by way of attaching debts due or owing to the plaintiff in an action in the United States courts. It is said that here a defendant in an action where he has obtained judgment seeks to attach a debt due to the plaintiff in such suit, and it is claimed that the attachment law of the state is made for the benefit of the plaintiff who brings the action and not for the benefit of the defendant in the action. There is nothing in the point. "The party in whose favor a judgment is given may. have a writ of execution," etc. (Code Civ. Proc., sec. 681), "and the goods, chattels, moneys," etc., of the 194 judgment debtor "may be seized and held under attachment," etc.: Code Civ. Proc., secs. 541, 688.

4. The notice of garnishment was addressed to the DonohoeKelly Company, instead of the Donohoe-Kelly Banking Company, and it is claimed that for this reason the notice is void. There is no pretense that the notice was not served on the right party-i. e., "the person owing such debts" (Code Civ. Proc., sec. 542, subd. 5)-and the levy was made as required by law: Code Civ. Proc., sec. 681 et seq. No question is made that the corporation intended to be reached was the DonohoeKelly Banking Company: Civ. Code, sec. 357. The point is not well taken.

On the facts as found, judgment should have been as prayed for in the cross-complaint of the Southern Pacific Company and John H. Shine, United States marshal, and it is recommended that the judgment as entered be modified so as to conform to this opinion. The costs of appeal should be taxed against defendant Willey.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment is modified, with directions to enter judgment in accordance with the prayer of the cross-complaint and as in the opinion suggested. Van Dyke, J., Harrison, J., Garoutte, J.

The Authorities are Conflicting as to whether a check operates as assignment pro tanto of the fund on deposit: See Pullen v. Placer

County Bank, 138 Cal. 169, 71 Pac. 83, ante, p. 19, and cases cited in the cross-reference note thereto. In accordance with the doctrine of the principal case, it is held in Commercial Bank v. Chilbery, 14 Wash. 247, 53 Am. St. Rep. 873, 44 Pac. 264, that a check is subject to a garnishment served after its delivery and before payment or acceptance. But in Dillman v. Carlin, 105 Wis. 14, 76 Am. St. Rep. 902, 80 N. W. 932, it is decided that if a bank is garnished in a suit against the drawer before a check is presented, the payee is entitled to the fund as against the garnishing creditor.

HEISEN v. SMITH.

[138 Cal. 216, 71 Pac. 180.]

GUARDIAN-Citation on.-The Delay of the Clerk in issuing a citation on a guardian until after the order for publication is made, does not affect the validity of the proceedings, provided it is issued before the publication is commenced. (p. 40.)

GUARDIAN.—A Citation after a ward has become of age directing the guardian to make a "report" will be construed as requiring the rendition of a final account. (p. 40.)

CITATION-Publication of.-The Omission of the Word "seal" in the copy of a citation published is not material; all that is required is that the presence of the seal on the original shall be sufficiently indicated. (pp. 40, 41.)

SUNDAY.-The Publication on Sunday of a citation gives the court jurisdiction. It is not the transaction of "judicial business" forbidden by statute on Sunday or holidays. (p. 41.)

ASSIGNMENT.-In Equity the assignment of a demand entitles the assignee to every remedy, lien, or security that could have been used, or made available, by the assignor as a means of indemnity or payment. (p. 41.)

JUDGMENT.—The Assignment by a Ward of a judgment against her guardian carries with it the assignor's right of action on the guardian's bond. (p. 41.)

A. A. De Ligne, for the appellant.

Devlin & Devlin and H. C. Ross, for the respondents.

217 The COURT. This is a suit by the assignee of Margaretta Z. Smith against the defendant Smith, her former guardian, and the sureties on his bond, to recover the sum of $166, adjudged to be due her from the guardian on a settlement of his account. The citation on the guardian to account was served by publication, as in the case of Trumpler v. Cotton, 109 Cal. 250, 255, 41 Pac. 1033, and it is claimed was insufficient to give the court jurisdiction. The jurisdiction of the court is attacked on several grounds, which will be considered seriatim.

1. The order of publication, made August 18, 1896, after reciting that a citation previously issued had not been, and could not be, personally served, and that time did not remain to make publication before return day, directs "that the citation [theretofore] issued be vacated and set aside," and that a new citation issue "returnable November 27, 1896"; and that "the service of said citation be made. . . . by publication" as directed. The citation issued under this order-which is in the same terms as the original except as to the return day -is dated August 19th, the following day, which is the defect complained of. We can see no objection to this mode of procedure, nor do we think the validity of the proceedings can be affected by the delay of the clerk in issuing the citation, provided it be issued before the publication be commenced. The case is different from that of a summons, where, as held in People v. Huber, 20 Cal. 82, the issue of the summons is essential to give the court jurisdiction. For under the law, as it then stood, until the summons was issued 218 there was no action pending: Practice Act, sec. 22. There are also other differences between the cases. The issue of a summons does not depend upon the order of the court, whose "only power is to order the summons, which has already issued, to be served in a special manner." But in probate or guardianship proceedings the citation itself issues only on the order of the court. Also in this case a citation had already been issued, and the new citation was but the same in terms as the old, except as to the change of the return day. It is therefore in substance simply an amendment of the original citation, and is to be so regarded.

2. It is next objected that the guardian was cited only to make a report of his administration, and that the citation did not require of him to file a final account. But the term "report," in the connection in which it is used, if not precisely equivalent to "account," includes it, and the citation, therefore, cannot be otherwise construed than as requiring the rendition of an account, which, from the fact that the ward had become age, could be only a final account.

of

3. The omission of the word "seal" in copy of the citation published is not material. From the nature of things, the seal itself cannot be copied in a printed publication, and hence all that is required is that its presence on the original should be be sufficiently indicated. This is usually done by writing the