NEWBERRY v. TROWBRIDGE. be inferred from any circumstances which fairly authorize the inference as one of fact. The charge of the Court in reference to the part payment entirely ignored this question of knowledge, and took it from the jury. We think the Court properly refused to charge, as requested by defendants' counsel, "That if the note had been sold, and the legal title to the same, since the commencement of this suit, and before this trial, passed from the plaintiffs and vested in Cornelius O'Flynn, and by him transferred to Mrs. O'Flynn, the plaintiff's could not recover. The legal title to the note appears to have been in the plaintiffs when the suit was commenced, and this being negotiable paper, we see no good reason why the suit might not be prosecuted by them for the benefit of the subsequent owner, or by such owner in the names of these plaintiffs, so long as the proceedings are in good faith, and the defendants are thereby deprived of no just defence. - Austin Austin v. Burchard, 31 Vt., 589; Guernsey v. Burns, 25 Wend., 411; Bradford v. Buckname, 3 Fair., (12 Me.,) 15; 2 Pars. on B. & N., 437 to 443. The judgment must be reversed, with costs, and a new trial awarded. COOLEY J. concurred. CAMPBELL J. did not sit in this case, having been counsel therein. MARTIN Ch. J. dissented. 13 MICH.-8. THE SECOND NATIONAL BANK. WILLIAMS. The Second National Bank of Detroit v. Theodore Williams. Check unaccepted, not an assignment. Where one in extremis drew his check upon the bank, with directions to the payee to defray the funeral expenses of the drawer out of it, and to pay the balance to his heirs, and the check was not accepted by the bank at the death of the drawer, it was held that the check did not operate as an assignment of the fund, and that the bank was not liable upon it to the payee. Donatio causa mortis. - No mere contract, liability or obligation of the donor can be the subject of a gift causa mortis; and, therefore, an unaccepted bank check, which, if not paid, merely creates a liability on the part of the drawer, is not valid as a gift by him causa mortis. Error to Wayne Circuit. Heard Muy 5 and 6. Decided May 13. Assumpsit. In addition to the common counts, the declaration contained a special count, setting forth a deposit with the defendant below of $600 by one John B. Simson, a check drawn by him in favor of the plaintiff upon the defendant for that amount, and that said check was an assignment of said sum to the plaintiff, the consequent liability of the defendant, its promise to pay and a breach thereof. Trial by jury. On the trial, the plaintiff put in evidence the bank book of John B. Simson, which was admitted to be correct; whereby it appeared that said Simson deposited with the defendant, on the 7th day of September, 1864, the sum of $600, and that the same had not been drawn out. The plaintiff then introduced as a witness Charles Simson, who testified that he was a son of said John B. Simson, and on being shown a check in the words and figures following, viz.: "No. STAMP THE SECOND NATIONAL BANK v. WILLIAMS. DETROIT, Oct. 11, 1864. SECOND NATIONAL BANK OF DETROIT. Pay to Theodore Williams, or order, six hundred dollars. his $600. JOHN B. + SIMSON. Witnesses, Eugene D. Webber, Charles Simson." Indorsed, "Theo. Williams." Testified that he was one of the witnesses to said check; that said check was signed and executed on Thursday or Friday, and that his father died on the Sunday following; that on the 11th day of October, 1864, his father was in very poor health, and did not expect to live; that he saw the paper signed, did not see it drawn; that his father tried to sign it, but was too weak to do so; that plaintiff then wrote his father's name, and his father made his mark; that his father was possessed of his mind, and knew what he was about; that witness did not know what the object of making the check was. Alfred Griffith was then introduced as a witness, on behalf of plaintiff, and testified that he was a son-inlaw of John B. Simson; that said Simson was very low between the time of drawing the check and his death; that witness asked said Simson if he had drawn the check, and said Simson replied he had; that said Simson was clear in his mind, and appeared to know what he was about, and to understand the matter well. The witness further explained the object in giving the check, as follows: Mr. Simson expected to die; he had confidence in the plaintiff, and drew the check for $600, being all, or nearly all, his property, with the understanding that the plaintiff should draw the money, pay the funeral expenses, and pay the rest over to Simson's family, and thus save the expense of an administration on the estate. THE SECOND NATIONAL BANK v. WILLIAMS. Andrew McLellan was then introduced as a witness on behalf of plaintiff, and testified that he was teller in V. J. Scott's banking office; that plaintiff left said check at their office for collection; that witness presented said. check on the 14th day of October, 1864, at defendant's counter for payment, and payment was refused on the ground that defendants were not satisfied of the genuineness of the signature of said John B. Simson, and that said check was thereupon returned to plaintiff. The indorsement of the check was admitted to be in the hand-writing of plaintiff. The plaintiff then offered to read said check in evidence, to which defendants objected, but the Court overruled the objection, and permitted it to be read to the jury. And thereupon the plaintiff rested. The defendants then introduced as a witness C. M. Davison, who testified that he was defendants' cashier; that said check was presented for payment at defendants' counter, by V. J. Scott's teller, and payment was refused, on the ground that the defendants were not satisfied of the genuineness of the signature of said John B. Simson; that plaintiff presented said check for payment, and witness told him that he would let one of the defendants' clerks go with plaintiff to Simson's residence, and if said Simson would say that said check was all right, defendant would pay it; that plaintiff assented to said arrangement, and said he would call in again in a few moments; that plaintiff did not call in again, as he had agreed to; that witness afterwards saw said plaintiff, and asked him why he had not called in again, and that plaintiff replied that he had concluded not to do so; that he should have to sue; that afterwards, and after the death of said John B. Simson, the plaintiff and a daughter of said John B. Simson came to the bank with said check, and requested payment of it, and one of them- the witness could not remember which said that said John B. Simson wished THE SECOND NATIONAL BANK V. WILLIAMS. to give the money to said daughter, and had made the check payable to plaintiff for the purpose of having him get the money and paying it to her, and that this was done to save the expense and trouble of making a will, and of having administration upon his estate; and that the money was needed to pay funeral expenses; that witness replied he would be willing to pay it if he was satisfied of the genuineness of the signature of John B. Simson, but unless he was, he had no authority to pay it; but if plaintiff would give a bond of indemnity to the bank, the bank would pay the check; plaintiff refused to do so, and the check was not paid. And thereupon the Court charged the jury that upon the law of the case, there being no dispute as to the facts, the plaintiff was entitled to recover as assignee of the $600 deposited with defendants. To this charge the defendants excepted. The defendants' counsel then requested the Court to charge the jury that the drawing of said check by said Simson, payable to the order of said plaintiff, did not, without being accepted by the bank, operate as an assignment of the money deposited by said John B. Simson with defendants; which charge the Court refused to give, and defendants excepted. The defendants further asked the Court to charge the jury that there was no sufficient consideration for drawing the check to enable the plaintiff to sustain the action. The Court refused SO to charge, and the defendants excepted. And the jury returned a verdict for plaintiff for $605, being the $600 and interest. 68 Jerome & Swift, for plaintiff in error: The verdict of the jury, under the charge of the Court below, can only be sustained on the ground of an assignment by way of gift inter vivos, or as a donatio |