28 Nat Bank v. Ward, 100 U. S. 195.

29McCornick v. Western Union Tel. Co., 79 Fed. R. 449.

30 The course of Illinois decisions is an excellent illustration of the fact that the disregard of a sound the courts of the state seem so firmly wedded to this proposition, untenable as it is, and confusing as it renders the law principle of law is, as Pope Pius IX said of the marriage of a priest, "an act which carries its own punishment with it." We have already-pointed out the absurd results of this rule in the instances mentioned in note 26 to Sec. 138, ante, and note 22 to Sec. 140, ante, as well as the monstrous situation of a bank in case of insolvency in note 2 to Sec. 139, ante. After the decision in Munn v. Burch, 25 III 35 (which Chief Justice Breese at 68 111. 401, calls Monroe v. Beach), the court was compelled to admit the right of the depositor to sua on the check even though it had been presented. Chicago Ins. Co. v. Stanford, 28 I11. 168 But the modification had to be at once made that the holder gained no right until he presented the check. Shaffner v. Edgerton, 13 Bradw. 132; Fourth Nat. Bank v. City Nat. Bank, 68 I1L 398. The check was called an equitable as-signment.yet suit upon it at la w was allowed Next it was said that the check must be payable in money, not exchange. Hogue v. Edwards, 9 Bradw. 148. This case displays almost a genius for being wrong. A check was given on a bank with a memorandum statement on it to show it was to obtain a draft. The check was paid by the issuance of a draft. The draft was never paid, and the holder of the check sued the bank. And it was held he could not recover. The check, of course, was accepted for so much money, and could be sued on anywhere by the holder. The only question was as to whether the issuance of a draft, never paid, was payment. Of course it was not payment. Indig v. Nat. City Bank, 80 N. Y. 100. The bank obtained just so much money without giving anything for it. The court intimates that the holder of the check could sue the drawee on the draft, but that is absurd, because it was never accepted. The draft was in fact a check on another bank, and the payment of that check was stopped or rather countermanded. The check was no less a check because drawn by one bank on another. State v. Vincent, 91 Mo. 662. Here the court recognize the right of the drawer to stop payment on the check as against the holder. A rehearing was had, and in 9 Bradw. 263, the court in a per curiam opinion, although its gross error had been pointed out to it, yet persisted in its error, and said that there was no privity between the holder of the check and the bank, although the bank had accepted the check. The court seemingly holds also that the payee of the check, called a draft, could not sue the person who issued it. A more iniquitous result cannot be conceived. Yet here we have the doctrine of the holder suing, absolutely annihilated for want of privity in the case of a check drawn by a bank. Next we find that the assignment of the check carries with it legal title to the drawer's deposit for the sum named in the check. Merchants' Nat. Bank v. Ritzinger, 20 Bradw. 27. In other words, the assignment of an equiof banking, that there is little hope of a change. "Ephraim is joined to idols; let him alone;" but a later saying of the table assignment gives the assignee an assignment at law. Then we are told that a demand of payment and acceptance by telegraph are not sufficient to give the holder the right to sue. Myers v. Union Nat. Bank, 27 I11 App. 254 Then a demand before banking hours is held sufficient to give the holder the right to sue. American Ex. Nat. Bank v. Chicago Nat. Bank, 27 I11. App. 538. Then we are told that the bank cannot set off its own debt against the depositor where a check has been presented. Fourth Nat. Bank v. City Nat. Bank, 68 111. 398; Niblack v. Park Nat. Bank, 169 111. 517. This is perhaps the worst result of the rule. A banker carrying a customer on his deposit may find the whole deposit wiped out by a check suddenly presented. This seems to be on the theory that title passes to the holder upon the drawing of the check, otherwise it oould not cut off the banker's setoff. But the court has abandoned this idea by holding emphatically, as it has, that there is no assignment until presentation of the check. But if this is so, the original demand of the holder of the check is ended, and the drawer ought to be released, because if there are funds the presentation is the same as an acceptance of the check. Yet Ridgely Bank v. Pat-ton, 109 111. 479, holds that the holder can sue and attach on his original claim, and yet sue the bank on the check. Even such a devotee of the new doctrine as Mr. Daniel scouts this absurd idea.

2 Daniel, Neg. Inst. (4th ed.), Sec. 1639. The court, with the courage of its convictions, originally held that acceptance or certification of the check cuts no figure; it does not release the drawer. Bickford v. First Nat. Bank, 42 I1L 238; Rounds v. Smith, 42 III 245; Brown v. Leckie, 43 I11. 497. The court's language was not confined to a check certified at the instance of the drawer. The theory was that, if the check was an assignment, acceptance was perfectly immaterial. But the court was compelled to recede from this position. It was impossible to leave a great commercial city like Chicago in such a condition. And Metropolitan Bank v. Jones, 137 111. 634, holds that acceptance by the bank releases the drawer. The court courageously undertakes to say the former rulings of the court are not in point because they were cases of certification to the drawer of the check; but it overlooked Wood v. Merch. Sav. Co., 41 111. 267, which was a certification of a note. The opinion in Metropolitan Bank v. Jones, supra, says no title passes to the holder by way of assignment until presentation. But the assignment is the assignment of what is equal to so much cash, and if the holder of the check gets title to the cash by presentation, what further is needed to give him title to the cash, so as to discharge the drawer? But then comes Bank of Antigo v. Union Trust Co., 149 I11 343, and says that the check is an assignment only as between the drawer prophet asserts, as a celebrated writer wittily observes, that Ephraim shall remain "a wild ass, alone by himself."

This farrago of warring decisions, rudis indigestaque moles, all results from an attempt to disrereleased his lien, and another trustee process is levied before his check is cashed, he loses his lien.5 The same result would follow if a check were paid before he presented his own check.