is large enough to justify the appointment of a guardian, a guardian should be appointed. A male is an infant until 21 years of age. In some States a female becomes of age, at least for some purposes, at 18.

60. An insane person is not generally capable of entering into a binding contract. The question is whether the party has sufficient mind to know the meaning of the contract he is entering into. If not he can avoid the contract. The deposit of money by a person of unsound mind, where the bank does not know that he is of unsound mind, would establish the relation of bank and depositor. If, without having notice of his condition, the bank paid money from his account on his orders, the bank would be discharged. After a bank has learned that it has the deposit of a person non compos mentis, it should not pay except upon the order of a committee or guardian appointed to take charge of the incompetent's property. If the party has been declared insane by a competent court, or a committee or guardian has been appointed, the bank is presumed to have notice of his insanity. See Sec. 179. But as the bank usually performs the functions of a depositary without compensation, it will usually be discharged when it performs the duty ordinarily required of it, in paying on orders of a depositor without notice of his insanity.

61. A contract entered into by one who is under the influence of liquor is not binding upon him if he was so drunk that he did not know what he was doing. As orders by the depositor must be promptly paid by the bank when presented, and the bank oftentimes pays them to persons other than the depositor himself, it is obvious that the bank would run a great risk in paying checks of a depositor who is known to indulge too freely in intoxicants if it were held liable to pay again or credit back the amount upon a showing that the drawer of the

check was drunk when he signed the check. Of course such customers are undesirable. But where a contract is made by one who is insane or so drunk that he does not know what he is doing and is as good as insane, he can avoid the contract on his part. However, the signing of a check is not in itself the making of a contract with the bank. It is an order upon the bank pursuant to a contract already made. The bank has agreed to honor orders signed by the depositor. Therefore, where the bank does not know the circumstances under which the order was signed it should be discharged upon payment of such order. When the depositor signs and delivers a check to the bank himself the bank can at least see his condition; but where the depositor delivers the check to a third party the making of a contract is attempted between the depositor and the said third party. If the one to whom the check is delivered knows the condition of the drawer, he knows that he has no power to make a contract by delivering a check, and when he takes the check to the bank or negotiates it, he commits a fraud. Now the question is does he commit a fraud upon the depositor or upon the bank or the one to whom he negotiates the check? If drunk, the depositor has made it possible for the fraud to be committed and he should stand the loss, or if innocent, and the payee of the check has imposed upon the drawer by taking advantage of his insanity or by making him drunk, the wrong still has been done to the drawer first. His contract with the payee, who has wronged him, is voidable and he can recover (if such a thing is possible) what the payee obtains under the check; but surely, where the bank knows nothing of the circumstances attending the making of the check, it would seem that the contract which the bank entered into when it received the deposit justifies it in paying any orders the appearance or presentation of

which do not raise suspicion, where it has no other notice. Reed v. Mattapan Deposit & Trust Co., 84 N. E., 469 (Mass.).

62. Where Payable-The deposit is payable on demand during business hours, at the bank, unless some other agreement has been made with reference to its payment.

63. Form of Order to Pay-If the depositor verbally orders the bank to pay, or to transfer to some other account, his deposit or any part, and the bank carries out the instruction, the bank will be discharged and the depositor will be bound. Whitsett v. Peoples Nat. Bank of Warrensburg, 119 S. W., 999. It is the custom, however, to require that the order for payment be in the form of a check drawn upon the bank, or that a receipt or some other written instrument be given to evidence the payment by the bank. And the bank can and should insist upon some written evidence being given. If the depositor orders the payment verbally the bank is under no obligation to the party to whom it was ordered to pay.

64. As we have noted before, while it is a general principle of law that the debtor must seek the creditor, the bank need not hunt up the depositor; its contract is to pay the deposit on demand at the bank.

As it is the universal custom of banks to pay out the depositor's money on checks, the laws relating to checks, their form, and the rights and obligations attached to them will now be considered.

CHAPTER V.

CHECKS.

65. What is There has been much discussion and diversity of opinion as to whether a check is an order merely or whether it is a bill of exchange; whether it is an assignment of the depositor's funds or not, etc. The Negotiable Instruments Law, which has now become law in most of the States defines a check: "A check is a bill of exchange drawn upon a bank, payable on demand." When A gives to B a check reading:

"A B C Bank" (Drawee)

"Washington, D. C., Feb. 1, 1910.

"Pay to the order of B (Payee) (or B or order) $1,000

One Thousand (and charge to account of)

Dollars

A (Drawer) Depositor."

This is the same as if A handed to B a writing as follows: "There is in the hands of A B C Bank one thousand dollars belonging to me, which A B C Bank will pay to you, or to any one you order A B C Bank to pay it to, upon prompt presentation of this paper, and if the bank does not so pay to you or any one to whom you endorse this check, I will pay the same." The law reads into the check substantially these words. The one to whom the check is made payable (B) can transfer it to another by simply endorsing it (i. e., writing his name upon it, usually on the back). And so it may be passed along from one to another. If the check is payable to B

or order, or to the order of B, and B endorses it by simply writing his name, this is an endorsement in blank and the check can then be transferred by the one to whom B endorsed it without any additional endorsement. And where a check is payable to "Bearer," or to "A or bearer," it can be transferred without endorsement. Where payable to bearer, or payable to order and endorsed by the payee, no further endorsement is required in law to transfer title, but the bank is not buying the check when presented for payment. It is paying the order, and the custom is to require the holder to endorse it, and the bank should require the one to whom it pays to endorse, as this is evidence in the nature of a receipt for the payment. In can not be insisted upon, however.

Where payable simply to the drawer and presented by himself no endorsement on back is necessary. The depositor's order to pay must be honored and when surrendered is evidence of payment.

66. Drawing the Check-Care should be taken in drawing a check. It should be properly dated. There should be no blank space left before or after the written statement of the amount or before or after the figures indicating the amount. The drawer should begin writing the amount at the extreme left end of the line, so that there may be no opportunity to fill in additional words. The figures should be accurately made and in such a clear manner that they cannot be easily changed. If the bank makes a mistake in paying a check, or pays a forged check, or an amount in excess of what the check was drawn for, the bank must stand the loss. But while the depositor is not called upon to insure the bank against his checks being forged or raised, he should use such care in preparing his checks as will at least not make it easy for one getting possession of the check to commit a fraud on the bank. And if the depositor is negligent