9 Illinois, Kentucky, Nebraska, South Carolina, and perhaps Texas, hold the rule. Missouri and Iowa have repudiated it. Louisiana has decisions both ways. See Sec. 147, post

10 Bank of Antigo v. Union Trust Co., 149 Il1. 343. It is rather singular that Mr. Justice Shope in this case should have written himself down as believing that the payee is the drawee of a check. The bank is the drawee.

11 Shaffner v. Edgerton, 13 Bradw. 132; Lester v. Given, 8 Bush, 357. The case of Met Nat. Bank v.

Jones, 137 111. 634, 643, expressly says that the assignment does not take place until presentment. So Daniel, Neg. Inst. (4th ed.), sec. 1639.

12 The bank has the right to appropriate the deposit on its own claim before presentment. National Bank v. Blumensweig, 46 111. App. 297.

13 Tramell v. Farmers' Nat. Bank, 11 Ky. Law R. 900. Except as to a bona fide holder, which means one who took it from the payee. Union Nat. Bank v. Oceana Co. Bank, 80 111. 212; Marine Co. v. Stanford, 28

I11. 168; Bickford v. First Nat Bank, 42 I1L 238; Brown v. Leckie, 43 111. 497.

14Munn v. Birch, 25 I1L 35.

15 Gardner v. Nat City Bank, 39 Ohio St 600.

16 Bank of Antigo v. Union Trust Co., 149 I1L 343, and cases cited therein.

17 Merchants' Nat Bank v. Ritz-inger, 20 Bradw. 27.

18 Thompson v. Bank of Brit No. Am., 82 N. Y. 8. Numerous cases could be cited to this proposition.

19 Ridgeley Bank v. Patton, 109111. 479. Daniel, Neg. Inst. (4th ed.), sec. 1639, says this, of course, would not be allowed. He seems not to have known of this case, if he edited that edition personally.

20 Brown v. Leckie, 43 III 497, 501, recognizes this rule, and says the checks are not payment but the means of payment. That the holder is the agent of the drawer which precludes him from having the absolute titla See the place last cited. This is said even as to certified checks, and the same rule is held as to certificates of deposit. Leake v. Brown, 43 111. 372.

21 Tramell v. Farmers' Nat Bank, 11 Ky. Law R. 900; and see note 13, ante, to this section. Insolvency revokes it before presentation. National Bank v. City Nat Bank, 68 111. 398

22 Coates v. Preston, 105 111. 470. It does not pass title to any part of the deposit. Pabst Brew. Co. v. Reeves, 42 111. App. 154.

23 Metrop. Bank v. Jones, 137 111. 634; Ridgeley Bank v. Patton, 109 I11. 479.

24 Miller v. Bledsoe, 2 I1L 530; Stone v. Pratt, 25 111. 25. This last case was decided ten pages away from Munn v. Birch, 25 I11. 35, which held the check to be an equitable assignment. If the check was an order as an equitable assignment, it conferred no right until presented. Such is the law as to every other assignment, and nowhere is the law more clearly held than in Illinois. See Moore v. Gravelot, 3 Bradw. 442; Creigh-ton v. Hyde Park, 6 Bradw. 272.

25 Laclede Bank v. Schuler, 120 U. S. 511,and the cases cited therein. Compare Moore v. Gravelot, 3 Bradw. 442; Creighton v. Hyde Park, 6 Bradw. 272, which recognize this rule as to orders upon a fund, and those cases seem to be undisputed authority in Illinois.

26 The law unquestionably is in Illinois that as against a bona fide holder of a check the bank cannot refuse payment of the check. Nib-lack v. Park Nat. Bank, 169 111. 517, and the cases cited in note 13, supra. This is the most astonishing result of this weird rule that the holder can sue the bank. Even if the check were a bill of exchange before acceptance, a bona fide holder has no rights against the drawee. Yet here is the Illinois court reverting to the rule that a check is an assignment, holding that as against the bank the check is an assignment before presentation, while it has held over and over again that it is not an assignment until it has been presented, and not even then if the depositor has not the full amount of the check. Then it is held that there is no duty upon the bank to reserve from future payments enough to pay an unpresented check. Gilliam v. Merchants' Nat. Bank, 70 I11. App. 592. Then the court reverts to its former idea of assignment by the giving of the check, and holds that the check cannot be countermanded before presentation against a bona fide holder, so that the bank can refuse to pay. Gage Hotel Co. v. Union Nat Bank, 171 III 531. These cases are another instance of the great confusion caused by this rule. See for further illustrations note 30 to Sec. 147, and note 22 to Sec. 140.

States courts, which in a matter of general commercial law would not follow the state decisions, a bank would not be justified in paying, after notice of the depositor's death, any check but a certified or accepted one. For if the bank in either case pays the check, the personal representative may, after demand, sue the bank. At law the bank would have no defense, although in equity it would, no doubt, be subrogated to the payee's original claim.