Law is in force, it has been held that a signature made under circumstances similar to those stated in the preceding paragraph was a signature made without authority, and therefore "wholly inoperative," under the law. Tolman v. American National Bank, 22 R. I., 462.

g. But where the check is delivered to the person intended, though under a different name, and he forges the name and transfers it to a bona fide holder, the bank would not be liable, as the mistake should be laid to the drawer.

Attention is called to the holdings in the states where the Negotiable Instruments Law is in force, as the decisions under this law in one state are likely to be followed in other states (though not necessarily so) to bring about the uniformity which the Negotiable Instruments Law was meant to effect.

CHAPTER VIII.

RIGHTS OF THIRD PARTIES AND INCIDENTS OF DEPOSITS.

147. Attachment and Garnishment.-When B owes A a debt, if A sues and gets judgment against B, B's property is subject to attachment for payment of the judgment. In some states an attachment may be had in any case before judgment; and in most states it can be had before judgment against the property of one who is not a resident of the state, or who is about to take his goods out of the state, or leave the state, to defraud creditors. By attachment the property is usually placed in possession or under control of the sheriff, marshal or other officer, until the judgment is rendered, when the property is sold and judgment paid out of the proceeds, and in case of money, out of the fund attached, unless judgment is for the defendant, B.

Now, if Bank C owes B, or has property belonging to B, A can attach this debt or property in C's hands. This attachment of property in possession of a third party is called garnishment. The bank would be the garnishee. If B has a deposit in bank C, which is actually B's, or for which the bank is indebted to B, A can have the deposit attached, whether it be a credit balance, special deposit, or money on general deposit which B has borrowed, so long as it is B's money as between B and the bank. If it is B's money, though standing in the name of X, it can be attached for B's debt, if A can prove that it is really B's. Des Moines Cotton Mills Co. v. Cooper, 93 Iowa, 654. The bank must hold all funds actually belonging

to B, even though they may stand in another's name at the time service of the attachment is made, and in some states any subsequently received, until the attachment is discharged. It must not pay any checks after service of the attachment, even though the checks were drawn before service (Banking Co. v. So. Pac. Co. [Cal.], 71 Pac., 93), except in those states where the drawing of a check is an assignment of the money to the payee of the check. 148. Where Check Certified.—Where the bank has certified a check before the attachment, which check has been delivered to the holder, as the amount of the certified check has been set aside, the bank now being debtor to the holder of the check, this amount can not be attached. Of course, the one who attaches secures a lien only on that which the depositor himself could have taken; and where B deposits in his name money belonging really to X, the money cannot be attached as B's. The question is, is it B's property? If so, it can be attached for B's debt. If X's it can be attached as X's.

149. Items for Collection.-If A deposits items for collection, the amount represented by such items can not be attached until they are collected-until A would have an absolute right against the bank for the amount. The fact that he may have the privilege of drawing checks against credit given would not give him an absolute right to do it.

150. Money Assigned.-We have noted that a check is not an assignment of the fund. It is merely an order to the bank to pay, and until paid the money does not become the property of the payee of the check. But the depositor can part with his interest in the fund by transferring it by an assignment instead of by check. And where he does so, the assignee having the superior equity in the fund, it can not be attached as property of the assignor, the depositor.

It should also be noted here that in some states, even where a check for a part of a deposit has not been regarded as an assignment, a check for the entire balance has been regarded as an assignment. The reason for the distinction is not very satisfactory, but as the Negotiable Instruments Law provides that a check shall not operate as an assignment of "any part" of the fund, it is probable that the courts in those states where the distinction was formerly made will wipe out the distinction, even though to some the words "any part" may seem ambiguous. The act having been passed to bring about a uniformity in the law, this end will be facilitated by holding that no check is an assignment.

151. Particular Fund.-It has been held that where a check is drawn against a particular fund, as in payment for wages, out of money set apart for that purpose, the check is an assignment, and the holder is entitled to take the money rather than an assignee for the benefit of creditors. This works no hardship on anyone, as the wage-earners are usually entitled to preference over other creditors, and an order drawn against a particular fund is not a negotiable check. Neg. Ins. Law.

152. Presumed to Belong to One in Whose Name Deposited. If a deposit stands in the name of A, and the bank has no notice that it is not A's, the bank cannot be held liable for paying the money on attachment for A's debt.

153. Property in Bank Subject to.-Property of a national bank, and in some states that of a state bank, cannot be attached for a debt of the bank, no matter in whose hands. Pacific Nat'l Bank v. Mixter, 124 U. S., 721; Van Reed v. Bank, 198 U. S., 554, and a state court cannot issue an injunction against a national bank before final judgment. Nat'l Bank v Mixter. But the property which the bank holds, belonging to another (not such

bank or national bank) can be attached in the hands of the bank for the debt of the depositor or creditor of the bank. Earle v. Pennsylvania, 178 U. S., 449, and see page 456.

154. Is a Check Payment.-If A owes B and gives B a check for the amount of the debt, this is not a payment of the debt until the check is paid, i. e., the original debt can be sued on if the check for any reason is not paid, unless it is the intention of the parties that the debt should be extinguished by the check. Of course, if the one who receives the check is negligent in presenting it for payment, the loss is his. See Sec. 89. And it is payment if taken for a debt by the bank on which drawn.

But, while a check is not an assignment, and even though the check is not an absolute payment of the debt to B until the check is paid, when A delivers to B a check for his debt, it is so far considered payment that A can not be garnished by creditors of B.

155. Statutes of Limitations.-Where A owes B, B should be diligent in enforcing his rights against A. If he let the debt run on for years, both B and A may forget the circumstances connected with the incurring of the debt. If either should die after the debt has been due for some years it would be difficult for the estate to prove or disprove, respectively, the debt. For this reason statutes are enacted to prevent litigation founded on claims so old that there might be questions as to their origin or validity and difficulty in establishing just claims where they exist. These statutes are termed Statutes of Limitations. They generally provide that after a certain time subsequent to the date on which the right accrues, no suit can be brought. The creditor still has his right against the debtor, but the law will not allow him to enforce the right. His remedy is gone. This is the substance of the statutes, though in some states it has been held that the