On the same principle the holder of a check has sometimes been given a right against the bank on which the cheek was drawn.78a The common argument in favor of such a right is that a check is an equitable assignment of part of the fund in the bank.79 If it be granted that this is unsound, that a check is in its nature a general order to pay its amount not an assignment of a part of a particular deposit, the further argument remains that the bank has promised its depositor to pay the latter's checks and that the holder of a check may sue upon this promise. It may be urged that the bank in effect promises to pay such debtors of the depositor as the latter indicates, upon presentation of a check in proper form. No distinction can be made because the creditor to be paid is indefinite at the time the promise was made. Such is the fact in many cases of promises to discharge debts, and it is rightly regarded as imbeen transferred when the premise is made. Campbell v. Lacook, 40 Pa. 448; Robertson v. Reed, 47 Pa. 115; Ton-ens v. Campbell, 74 Pa. 470; Sweeney v. Houston, 243 Pa. 642, 90 Atl. 347, L. R. A. 1915 A. 779.
7620 N. Y. 268.
77 See, e. g., allowing the action, Fish v. First Nat. Bank, 157 Fed. 87, 84 C. C. A. 602; Leffier Co. v. Lane, 146 Ga. 741, 92 S. E. 214; Maxfield v. Schwarti, 43 Minn. 221, 45 N. W. 429; Lovcjoy v. Howe, 55 Minn. 353, 57 N. W. 57; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Shamp v. Meyer, 20 Neb. 223, 29 N. W. 379; Merri-man v. Social Mfg. Co., 12 R. I. 175; Spsjm v. Cochran, 63 Tex. 240; denying the action, Morgan v. Randolph-
Clowes Co., 73 Conn. 396, 47 Atl. 658, 61 L. R. A. 653; Ayres v. Gallup, 44 Mich. 13, 5 N. W. 1072.
78Oakeley v. Pasheller, 4 CL & F. 207; Sheppard v. Bridges, 137 Ga. 615, 74 S. E. 245. See also infra, Sec.1253.
78a Harrison v. Wright, 100 Ind. 515, 533; Hawley v. Exchange Bank, 97 Ia. 187, 66 N. W. 152; Harrison v. Simpson, 17 Kan. 608; Chanute Bank v. Crowell, 6 Kan. App. 633, 51 Pac. 576; Fonner v. Smith, 31 Neb. 107, 47 N. W. 632, 11 L. R. A. 528, 28 Am. St. Rep. 510. Conf. Ętna. Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82, 7 Am. Rep. 314. See also infra, Sec.Sec. 425, 1209, ad fin.
material;80 but the transaction when carefully considered seems to indicate an intent to make the bank an agent of the depositor, rather than an independent contractor even after a check is drawn. Thus the bank pays the first check presented, not the first check drawn, without inquiry whether more checks have been drawn than the balance available to meet them. The bank also obeys the order of its depositor to stop payment of a check.81