money." This allegation thus far uses the words of the statute. But such allegation is clearly insufficient.

In Batchelor v. U. S., 156 U. S. 426-429, 15 Sup. Ct. 446, 447, 39 L. Ed. 478, it was held:

"By the settled rules of criminal pleading, and by the previous decisions of this court, the words 'willfully misapplies,' having no settled technical meaning (such as the word ‘embezzle' has in the statutes, or the words 'steal, take, and carry away' have at common law), do not, of themselves, fully and clearly set forth every element necessary to constitute the offense intended to be punished; but they must be supplemented by further averments, showing how the misapplication was made, and that it was an unlawful one. Without such averments there is no sufficient description of the exact offense with which the defendant is charged, so as to enable him to defend himself against it, or to plead an acquittal or conviction in bar of a future prosecution for the same cause. United States v. Britton, 107 U. S. 655, 661, 669, 2 Sup. Ct. 512, 27 L. Ed. 520; United States v. Northway, 120 U. S. 327, 332, 334, 7 Sup. Ct. 580, 30 L. Ed. 664; Evans v. United States, 153 U. S. 584, 587, 588, 14 Sup. Ct. 934, 38 L. Ed. 830."

In Evans v. U. S., 153 U. S. 584-587, 14 Sup. Ct. 934, 38 L. Ed. 830, the court said:

"A rule of criminal pleading, which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 7 Pet. 138, 8 L. Ed. 636, that an indictment for a statutory misdemeanor is sufficient, if the offense be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U. S. 611, 612, 26 L. Ed. 1135, 'fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.' The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. "The fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the Legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135."

In Cochran and another v. U. S., 157 U. S. 286-290, 15 Sup. Ct. 628, 630, 39 L. Ed. 704, the court said:

"But the true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."

In view of the authorities it is perfectly evident that an indictment must be so clear and precise in its allegations and description. of the crime charged that the defendant may not only know what he is called upon to meet on the trial, but be able to show by the record itself that is, the indictment and judgment of acquittal or conviction, in case another indictment is found against him—that his prior acquittal or conviction is a bar to his prosecution under a second indictment.

Clearly this indictment, to be valid, must allege the tendering of a written instrument. Such written instrument must be an obligation for the payment of money. The indictment says that an ob

ligation for the payment of money was tendered, and it further says that this obligation for the payment of money consisted of the personal check of George E. Green, drawn on the Knickerbocker Trust Company in favor of George W. Beavers for a certain sum of money. The date of this check is not given, nor does the indictment give or purport to give the substance of the language used in the check. Here the gravamen of the charge is the tendering of the check, and this general description, without giving the date of the instrument or the substance of the language contained therein, is clearly insufficient to protect the defendant in case of a subsequent indictment for the same offense, or to show that the check was in fact an obligation for the payment of money.

In U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819, the court held: "An indictment under section 3266 of the Revised Statutes [U. S. Comp. St. 1901, p. 2119], charging the defendant with causing or procuring some other person to use a still, boiler, or other vessel, for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States, is bad, unless it states the name of such other person, or avers that the same is unknown. An averment that such use was in a certain building and on certain premises where vinegar was manufactured and produced' is not sufficient, as it does not state that vinegar was manufactured or produced there at the time the still and other vessels were used for the purpose of distilling."

It will be further noted that this indictment fails to state, even by fair inference, that this alleged check was drawn either upon a bank or persons doing a banking business. It is not stated that the Knickerbocker Trust Company was either a corporation or an organized company. In short, the existence of the drawee of the check referred to is not alleged. If we were at liberty to presume in a criminal indictment that this "company" on which the check is stated to have been drawn had existence, still it is not alleged either that it was authorized to do or was doing a banking business. It is not alleged that Green had money on deposit or credit with such company. An order to pay money, in the form of a check, is not a check in the legal meaning of the word, unless drawn on a bank or bankers. See cases, etc., hereinafter cited. Is it to be presumed that this is the only check of this general description given at any time by Green payable to George W. Beavers? Is Green to be prepared on the trial to show the facts and circumstances attending the making of every check of this general description drawn by him? Is he not entitled to such a description of the alleged check by date and contents as will enable him to say whether or not he ever drew or had in his possession such a paper? Neither the loss nor destruction of the writing alleged to be a check is alleged, and, as it was drawn on a trust company (if that company has existence and it was paid), the presumption is it is in its possession and obtainable. In any event no reason for not giving a more detailed description is stated. Full descriptions of written instruments have not been required when the grand jury has said the further description or contents was to it unknown. See Rosencrans v. U. S., 165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708.

Coming, then, to the question, was this check (assuming that it was a check drawn on a bank or banker, and that it contained a

date, and directed the payment by such bank of the sum of money specified, and was signed by Green, and that it contained no other words either enlarging or restricting its meaning or legal effect) an obligation for the payment of money? it is worthy of note that, as it was the check of Green, made payable to Beavers, and tendered for an illegal and corrupt purpose, and was not delivered to the payee and indorsed and presented to and accepted by the bank, same was not property, or a thing of value, or enforceable by Beavers or any one. Green could have stopped payment at any time. it was not accepted by the trust company and hence was not enforceable against it. See United States v. Driggs (C. C.) 125 Fed. 520; Merchants' Bank v. State Bank, 10 Wall. 604, 19 L. Ed. 1008; Bull v. Bank of Kasson, 123 U. S. 111, 8 Sup. Ct. 62, 31 L. Ed. 97; Florence Mining Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531, 31 L. Ed. 424; Fourth Street Bank v. Yardley, 165 U. S. 634, 17 Sup. Ct. 439, 41 L. Ed. 855. See, also, Negotiable Instrument Law N. Y. (Laws 1897, p. 756, c. 612) § 325. Nor did it constitute an equitable assignment of the fund on which drawn, if there was a fund. See same authorities.

A "check" is defined to be:

"A writen order or request, addressed to a bank or persons carrying on the banking business, and drawn upon them by a party having money in their hands, requesting them to pay on presentment, to a person therein named or to bearer, a named sum of money." 1 Bouv. Law Dict, 225.

Also:

"A written order or request, addressed to a bank or banker, directing the drawee to pay a specified sum, either to the bearer, or to the payee named, or his order." 1 Abb. Law Dict. 214.

Also:

"A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment at all events of a certain sum of money to a certain person therein named, or to him, or his order, or to bearer, and payable instantly on demand." 2 Daniel on Negotiable Instruments (4th Ed.) § 1566; 5 Am. & Eng. Enc. of Law (2d Ed.) 1029.

The giving of a check is a representation by the drawer that he has money on deposit with the drawee subject to his order. The law implies a consideration for the check, and also implies a promise on the part of the drawer to pay the amount of the check in case it is not paid or accepted by the bank or banker on which drawn. The giving of the check is a written admission by the drawer that he owes the amount of money specified therein to the payee, and the order or check is a mode of paying an admitted indebtedness due by directing a bank or banker who has the debtor's funds to apply such funds in satisfaction of the debt. The giving of the check is not the creation of an obligation, but the admission of the existence of an obligation to pay a certain sum of money. It creates no additional obligation or liability on the part of the drawer, but it furnishes written evidence of the debt and directs payment by another. If payable to bearer, or to the order of the payee, it is negotiable, and passes by delivery or indorsement, as the case may be. The check imposes no obligation upon the drawee to pay the same, at

least as between the drawee and payee. If the bank refuses to pay the check, having funds with which to pay the same, the payee cannot maintain an action either at law or in equity against such bank, unless the bank has accepted the check. Acceptance by the bank, in the absence of fraud, is equivalent to payment, and such acceptance discharges the drawer, the principal debtor, and the bank on which drawn then becomes the principal debtor. The legal consequence of giving a check upon a bank or banker is to furnish written evidence of the obligation of the drawer to pay the sum of money therein specified to the payee or indorsee thereof, if payable to order and properly indorsed, or to the bearer, if payable to bearer, in case the bank or banker on which drawn refuses to pay same on demand. The payee of a check, including the bearer, when made payable to bearer and delivered, accepts the same in payment (the law presumes) of a debt, and when such check is either accepted or paid, which is the same thing, by the drawee, the liability of the drawer is discharged. If not accepted or paid, the debt remains, and the holder of the check has the written admission of the drawer that he owes so much money and that it is due. A check does not contain a promise to pay in case the drawee fails to honor it. The payce of the check on its delivery becomes the acknowledged creditor of the drawer, and if such check is payable to bearer, or to his order, and the check is properly indorsed, the holder then becomes the creditor of the drawer. The giving of a check does not operate as an assignment pro tanto of the funds in bank belonging to the drawer of the check. If the holder of the check unreasonably delays to present the same for payment, and the bank or banker on which same is drawn fails, the drawer is discharged. These principles are well recognized: A check is neither a draft nor a bill of exchange, although it has many of the features of a bill of exchange and some of the features of a draft. Bull v. Bank of Kasson, 123 U. S. 110, 111, 8 Sup. Ct. 62, 31 L. Ed. 97; M. Bank v. State Bank, 10 Wall. 604, 19 L. Ed. 1008. It is not a bond or a promissory note. It is not a contract, for it contains no promise by the drawer to any person. The law implies, however, from the giving, both the representation and the promise above specified.

Is a check such as is described in this indictment an obligation or an undertaking for the payment of money, within the meaning of section 5451 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3680]? April 30, 1790, Congress passed an act to punish the bribery of a judge (Act April 30, 1790, c. 9, 1 Stat. 117), and used this language (see section 5449, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3679]):

"Every person who directly or indirectly gives any sum of money or other bribe, present or reward or any promise, contract, obligation or security for the payment or delivery of any money, present or reward, or any other thing shall be fined. * of value, to obtain

"

February 26, 1853, what is now embodied in section 5450 of the Revised Statutes [U. S. Comp. St. 1901, p. 3680], was enacted to punish bribery of members of Congress, and in March, 1863, what is now embodied in section 5451 of the Revised Statutes was en

acted to punish the bribery of any United States officers. In each of these sections we find mention of contract, undertaking, obligation, and security for the payment of money. These were cominonlaw terms and expressions. It has been held, and is undoubtedly the law, that, where common-law phrases are used in an indictment or information, such phrases must have the common-law interpretation. Chapman v. People, 39 Mich. 357-359; In re Richter (D. C.) 100 Fed. 295-297. See, also, U. S. v. Royall, 3 Cranch, C. C. 618, Fed. Cas. No. 16,201.

"Obligation" is defined as follows:

"The term 'obligation', also signifies an instrument or writing by which the contract is witnessed. And in another sense an obligation is said to be a bond containing a penalty, with a condition annexed for the payment of money, performance of covenants, or the like. It differs from a bill, which is generally without a penalty or condition, though it may be obligatory."

"In its general and most extensive sense 'obligation' is synonymous with 'duty.' In a more technical meaning it is a tie which binds us to pay or do something agreeably to the laws and customs of the country in which the obligation is made." 2 Bouvier's Law Dictionary, 254.

Bouvier also says that:

"A single obligation is one without any penalty, as where I simply promise to pay you one hundred dollars."

Also:

"A several obligation is one by which one individual, or, if there be more, several individuals, bind themselves separately to perform the engagement.”

Also:

"A joint obligation is one by which several obligors promise to the obligee to perform the obligation."

Wharton's Law Dictionary defines an obligation thus:

"An act which binds a person to some performance; also a bond containing a penalty with a condition annexed for paying of money at a certain time, or for the performance of a covenant," etc.

Abbott's Law Dictionary, vol. 2, p. 193, defines an obligation thus:

"In a general sense a binding; a legal recognition of a person's engagement or undertaking; an enforceable duty assumed or imposed. In a stricter sense, and much more common in practical jurisprudence, a sealed instrument containing an engagement or promise. It includes bonds and other writings similarly enforceable, but not having the form and all the characteristic incidents of bonds."

In Strong v. Wheaton, 38 Barb. 616, it was held that in a statute the word "obligation" should not be given its popular signification, but its legal meaning, viz.:

"Obligation means a bond or other writing in the nature of a bond, such as statutes merchant and staple, recognizances, etc."

In Crandall v. Bryan, 15 How. Prac. 48, it was said:

"Obligation is sometimes used as equivalent to legal liability or legal duty." In Rippon's Ex'rs v. Townsend's Ex'rs, 1 Bay, 445, it was held: "The words 'bonds or other obligations,' in a statute, do not include promissory notes."