which are not bills of exchange; and it will be found on a careful reading of the section referred to, and of the cases quoted in the notes, that the commentator is speaking of orders to pay over particular debts, and drafts on particular funds, and not of bills of exchange proper. The cases cited on the argument are of the same description excepting a few mere dicta. In Peyton v. Hallett, 1 Cai. 363, the point arose on an order by the plaintiff to pay White, a witness, a certain sum out of the money to be recovered in that suit. Cutts v. Perkins, 12 Mass. 206, was the case of a draft made by Abbott, the owner and master of a ship, payable out of certain freight and primage due him from the defendant. The draft was accepted and paid by the defendant. Afterwards the administrator of the drawer brought an action for the freight. The draft was held to be an assignment of Abbott's claim for the freight. Row v. Dawson, 1 Ves. 331, was the case of a draft made by Gibson, for certain sums payable out of certain moneys due him from the exchequer. In Yeates v. Groves, 1 Ves. jun. 281, the first observation of the lord chancellor in giving his opinion is, "the order was not a bill of exchange being payable out of a particular fund." Lett v. Morris, 4 Sim. 607, was the case of a draft payable out of moneys due on a building contract. In Weston v. Barker, 12 Johns. 276 [7 Am. Dec. 319], there was an assignment of certain policies of insurance in trust to hold the balance of money payable thereon, subject to the order of the assignor. The trust was accepted in writing, and the assignor ordered the trustee to account for the balance to the plaintiff. It was not the case of a bill of exchange. Clarke v. Adair, cited in Master v. Miller, 4 T. R. 343, was the draft by an officer on the agent of his regiment, payable out of the first money which should become due to him for arrears.

These cases establish the rule that a draft payable out of a particular fund operates as an assignment pro tanto to the drawee; that an accepted bill of exchange operates in the same way; but none of them go the extent of giving that effect to a bill not accepted. The only case I have been able to find, favoring a different doctrine, is that of Corser v. Craig, 1 Wash. C. C. 424, concerning which it is only necessary to say, that so far as it might affect the question now in hand, it is overruled by the case of Mandeville v. Welch, heretofore referred to; and the principle appears to be firmly established that a bill of exchange does not of itself give to the holder either at law or in equity a lien upon the funds of the creditor in the hands of the debtor,

until after acceptance by the latter. A different rule would be inconvenient and dangerous, because it would enable the creditor, by drawing bills, to entangle his debtor in litigation with a stranger (and not only with one, but with any number of strangers), in regard to the accounts and transactions between him and his creditor.

The authority on which the plaintiff's counsel mainly relied, upon the argument, was the case of Lawson v. Lawson, 1 P. Wms. 441. In that case the testator on his death-bed drew a bill upon his goldsmith to pay one thousand pounds to his wife, and declared in a note in his own handwriting on the bill that the money was to buy her mourning and to maintain her until her jointure should become due: See Tate v. Hilbert, 2 Ves. jun. 120. The master of the rolls held the gift valid as a donatio causa mortis, and to operate as an appointment; and he further said that being for mourning, it might operate like a direction given for his funeral, which ought to be observed, although not in his will. Lord Loughborough afterwards, in Tate v. Hilbert, 2 Ves. jun. 121, says that the decision in Lawson v. Lawson was right, but that the report in Peere Williams is inaccurate, and does not show the ratio decidendi; and that "taking the whole will together, it is an appointment of the money in the banker's hands to the extent of one thousand pounds for the particular purpose expressed in a written appointment, which is a purpose that necessarily supposes death. Therefore that case is perfectly well decided." The obscurity in regard to the true reason of the decision, is not perhaps entirely removed by the observations of Lord Loughborough. If by the word "appointment" is meant a direction which the executors were to carry into effect, then the paper was testamentary.

But the master of the rolls could not have regarded it in that light, for he did not require the paper to be proved in the ecclesiastical court. In this state it would be a palpable violation of the statute concerning wills, to hold the gift valid on the ground of its being testamentary in its nature. But if an appointment" meant an appropriation of the money to a specific purpose for the benefit of the wife, then it was in effect an assignment or transfer to her for that purpose, and that is the sense in which I understand the word to have been used. was so understood by Chancellor Walworth in Craig v. Craig, 3 Barb. Ch. 118. And yet Lord Loughborough, in Tate v. Hilbert, says, "But upon that decision, Lawson v. Lawson, I can

It

not say that in all events drawing a cash note upon a banker is an appointment of the money in his hands."

The report of the case in Peere Williams is obscure in another respect. It does not show who was the plaintiff nor who were defendants. But it is to be gathered from Lord Loughborough's statement of the case, from the register's book, that the bill was filed by the executors against the wife and the banker. The object of the bill, therefore, must have been to restrain the banker from paying the money to the wife upon the draft. It was not therefore a bill by the wife to enforce the performance and completion of the gift, in which case the decision might well have been against the donee on the established principle that a court of equity will not lend its aid to give effect to an imperfect voluntary conveyance. But it was a suit for the purpose of stopping the payment by the banker of money in his hands which had been "appointed," appropriated, or assigned to the wife, and which was about to pass into her hands without the aid of any legal proceeding. In such a case a court of equity might justly refuse to interfere either for the purpose of restraining or of enforcing the completion of an imperfectly executed gift.

But assuming that the judgment in Lawson v. Lawson was founded on the principle that the draft in that case operated as an immediate assignment of so much of the testator's funds in the hands of his banker, and as a delivery of the money, the decision does not support the plaintiff's claim which, on the evidence in the case, appears to be founded on an unaccepted bill of exchange, and not on a check on a banker, as in the case last cited. The former instrument is clearly not an assignment of the fund in the hands of the drawee so as to create a lien upon it in favor of the holder; while a check on a bank is said in many cases to operate as a transfer from the time of its presentment or notice to the bank. There are plausible, if not solid, reasons for this distinction, arising out of the course of business and the mutual understanding between banks and their customers. The customer deposits his money in a bank for safe keeping, with the understanding that he may draw by checks in such sums, and at such times, as may suit his convenience. The bank or banker receives it on that condition, and undertakes to keep the amount and pay the money accordingly. Checks are used and treated as cash, and by the course of business they are paid by the bank or banker on whom they

are drawn, with the same punctuality and certainty as if the deposits were specifically the money of the customers. Checks are therefore practically equivalent to a transfer of so much of the fund deposited.

Bills of exchange on persons of other occupations are not always paid or expected to be paid with the same precision or punctuality. There may be more uncertainty with respect to the amount of funds in the hands of the drawee: the funds may not be in cash or convertible immediately into cash. Bills are usually drawn at longer time, and are frequently taken more on the general credit of the drawer, and with less certainty of acceptance and payment by the drawee, than checks on a bank or banker, where the credit is founded on actual cash in deposit. There is moreover no such obligation, on the part of debtors in general, as in the case of banks and bankers, to pay their debts in parcels, and in such sums, and at such times upon such drafts as may suit the convenience of their creditors.

But whether a bank check operates in favor of the holder as an assignment of the fund, so as to give him a remedy against the drawee, who refuses to accept or pay, is perhaps yet unsettled: See In the matter of Brown, a bankrupt, 2 Story, 516; Dykers v. The Leather Manuf. Bank, 11 Paige, 617. And it is not necessary to determine it with a view to the case under consideration. We have already seen that the plaintiff has no remedy, legal or equitable, upon his bill of exchange against the drawer: and that as against the representatives of the drawer it is without consideration.

Assuming, as we must in this case, that the draft is genuine, there is no doubt of the intention of Mr. Smith to give the money in question to his sister-and I come to a conclusion against her right with reluctance-a reluctance qualified, however, by the belief that the clear policy of the law is against the encouragement of gifts of this nature. They are essentially testamentary; they are to take effect only in case of the testator's death, and they are revocable during his life. The same considerations of prudence and caution which induced the legislature to require wills of personal estate to be executed, published, and attested with great formality, would seem to forbid these informal dispositions of property in expectation of death. The temptation to fraud and imposition in regard to these gifts is as powerful and as dangerous as in the case of wills, and yet has been left unchecked and unregulated by statute: and they ought not to be tolerated by the courts, unless they are attended

by all the requisites which the common law prescribes to give

them validity.

JEWETT, C. J., and GARDINER and HOYT, JJ., concurred.

CADY, SHANKLAND, and STRONG, JJ., were for reversal.
Judgment affirmed.

GIFTS CAUSA MORTIS, VALIDITY OF, IN GENERAL: See Holley v. Adams, 42 Am. Dec. 508, and note referring to prior cases in this series: Brown v. Brown, 46 Id. 328. That the policy of the law is against such gifts is a point to which the principal case is cited in Delmotte v. Taylor, 1 Redf. 423; Kenney v. Public Administrator, 2 Bradf. 321. But if such a gift is perfected by delivery during the donor's life, it is good: Williams v. Fitch, 18 N. Y. 548, citing the principal case. See also cases cited post, under "Delivery." GIFTS OF NOTES AND OTHER CHOSES IN ACTION CAUSA MORTIS: See Bradley v. Hunt, 23 Am. Dec. 597, and the note thereto, discussing this subject; Grover v. Grover, 35 Id. 319; Brown v. Brown, 46 Id. 328, and citations in the notes thereto. That the note of a third person may be so given, see Fulton v. Fulton, 48 Barb. 592, and Penfield v. Thayer, 2 E. D. Smith, 309, citing the principal case.

GIFT OF DONOR'S OWN NOTE NOT VALID AS DONATIO CAUSA MORTIS: See Holley v. Adams, 42 Am. Dec. 508, and note. The same doctrine is laid down, citing the principal case, in Penfield v. Thayer, 2 E. D. Smith, 309; Howland v. Fort Edward Paper Mill Co., 8 How. Pr. 511; Whitaker v. Whitaker, 52 N. Y. 373. In Brock v. Barnes, 40 Barb. 531, it is held, upon the same principle, that an instrument giving an annuity is not a valid gift. DELIVERY IS ESSENTIAL TO VALIDITY OF GIFT CAUSA MORTIS or inter vivos. See on this point, and also as to what is a sufficient delivery, Noble v. Smith, 3 Am. Dec. 399; Bullock v. Tinnen, 6 Id. 562; Reid v. Colcock, 9 Id. 729; McDowell v. Murdock, Id. 684; Blake v. Jones, 21 Id. 530; Priester v. Priester, 23 Id. 191; Bradley v. Hunt, Id. 597; Gilmore v. Whitesides, 31 Id. 563; Hall v. Howard's Adm'rs, 33 Id. 115; Borneman v. Sidlinger, Id. 627; Sims v. Sims, Id. 293; In re Campbell's Estate, 47 Id. 503. That such delivery is necessary to consummate a gift, whatever may be the subject or nature or purpose of it, is held, citing the principal case, in Geary v. Page, 9 Busw. 298; Hunter v. Hunter, 19 Barb. 636; Allen v. Cowan, 28 Id. 101; Brink v. Gould, 7 Lans. 427; Phelps' Ex'r v. Pond, 23 N. Y. 78; Basket v. Hassell, 107 U. S. 612. A mere promise to give is not enough: Geary v. Page, 9 Bosw. 298; Phelps' Ex'r v. Pond, 23 N. Y. 78. This is the ground upon which a gift of the donor's own note can never be valid. It is the gift of a mere promise. The thing given must be placed absolutely in the donee's control: Curry v. Powers, 70 N. Y. 215. But a written assignment is not essential whether the thing given is a chose in action or not: Pierce v. Boston Savings Bank, 129 Mass. 431; especially in the case of a gift causa mortis: Johnson v. Spies, 5 Hun, 470. A gift of a depositor's bank-book without an assignment is a good gift of the deposit: Pierce v. Boston Savings Bank, 129 Mass. 431. That an assignment is not essential, see also Grover v. Grover, 35 Am. Dec. 319; Brown v. Brown, 46 Id. 328. And generally, whatever is sufficient to place the thing or fund given under the donee's control, so that nothing further is necessary on the part of the donor to give possession, is enough: Fulton v. Fulton, 48 Barb. 592. An assignment of bank stock, reserving the right to