When a man makes a general deposit in a bank the relation that exists between the bank and him, as a depositor, has not been accurately defined. It is settled that the relation is one of debtor and creditor;1 so far all the courts agree. But a debtor, if he refuse to pay his creditor, can only be sued for the debt. A banker, however, can be sued not only for the debt, but he can be sued also for damages for refusing to pay the check which demanded the debt.2 What is the nature of this further obligation? It is not one of contract at common law, because the form of the action is an action on the case.3 The banker is sued for a violation of his duty, which was to pay his depositor's checks as long as he had sufficient funds rightfully credited to the depositor. But every duty owed has its correlative right in the person to whom the duty is owed. It is the nature of this right that is in question. Some courts have said it is a contract right arising out of the agreement made by the bank with its depositor.4 It is certainly not an express contract, because no such contract is ever made. It is not a contract implied as of fact, because the measure of damages is that of tort and not of contract, and because wilfulness and maliciousness are a part of the act; not actual malice necessarily, but the malice that is implied from the doing of a wrongful act.5 Therefore the dishonoring of the check is a tort. The closest analogous relations are the duties owed by a common carrier or an innkeeper. In those cases the law raises the duty on motives of public policy out of the relation. So in the case of a banker and his depositor the law raises the duty out of the relation. Historically, the deposit in .the bank is a bailment, belonging to the same general class as the carrier's and innkeeper's bailment. The relation of bailor and bailee imposes certain duties, a breach of which is redressed by a common-law action. Although the bailment has been in process of time changed to a debt, certain characteristic features of it have remained. There is a contract only in the sense of a quasi-contract.6 The contract is wholly ex lege; it is not the result of any agreement between the parties. It is true that in declaring on the carrier's duty in assumpsit a contract is pleaded, but that was merely the statement of the duty to charge an assumpsit. There was no consideration pleaded. Assumpsit was originally an action on the case, and the promise was considered important after the common-law pleaders had lost sight of this fact.7 The statement of the contract is now merely by way of inducement to show the relation out of which the law raises the duty. This is the form of pleading in case. So the ingredient of malice in the action for dishonoring a bank check and the allegation thereof in the declaration is merely a method of charging a failure of duty.8 It is wholly dispensed with in

1 Bank of Kentucky v. "Wister, 2 Pet, 324.

2 Mt. Sterling Bank v. Green, 99 Ky. 262.

3 First Nat Bank v. Shoemaker, 117 Pa. 94

4 Marzetti v. Williams, 1 Barn. &

Ad. 415. But Taunton, J., shows that it is a breach of duty.

5 Schaffner v. Ehrman, 139 111. 109. See the appellant's brief in this case in 15 L. R. A. 134, discussing this question, but only succeeding in "darkening counsel." The opinion does not help the matter.

6 See Keener on Quasi-Contract, 18, and the introduction to the present work. He makes the point that the duty enjoined is to act, which makes the carrier's duty guasi-con-tract. One case recognizes that the duty of a bank in case of a collection, which depends upon the same principle, is raised out of the relation, because where a contract to use proper steps in collecting is alleged it need not be proven if the relation is proven. Jagger v. German-American Bank, 53 Minn. 386.

7 See two articles on assumpsit by a very great authority in 2 Harvard Law Rev. 1, 53.

8 The failure to recognize this very palpable fact led the supreme court of Illinois in Schaffner v. Ehr-man, 139 111. 109, to call this suit one in slander. It is no more a slander than the refusal of any debtor to pay his debt is a slander upon the creditor. It merely happens that one of the elements of damage is loss of credit code pleading; it is simply a way of saying that the bank acted unlawfully in violating the duty which the law raised out of the relation. The duty owed by a bank is just as much the result of a custom as is the duty of a common carrier or an innkeeper. The old form of declaration against an innkeeper was on the common custom of the realm. The custom simply became recognized by the courts and thus became a rule of law. Suppose the duty had been originally created by a statute; there would then have been no question of its quasi-contractual character. Another test would be this: Suppose a state statute should abolish the duty of a bank to honor its customer's checks and leave the remedy simply one of debt.9 It certainly could do so; yet if the relation is one of contract it could not do so as to future deposits; but it could not abolish the debt of the bank to its depositor as to a future transaction. If a statute should declare that a deposit of money in a bank should not create a debt, the statute would be void. But if it should say that the bank should not be responsible for more than the debt on failure to honor a check, the statute would be good. The debt is a genuine contract, therefore, and the other part of the legal relation is not.10 It will be seen later that this question is not a mere academic one, but has an important bearing upon questions in banking law.