Bank of the Republic v. Millard
IN error to the Supreme Court of the District of Columbia, the case being this:
Millard, a captain in the military service of the United States, was, in 1865, on leaving the service, a creditor of the government for $859, arrears of pay as captain. In settlement of this account the proper paymaster of the army drew and issued a check for that sum upon The National Bank of the Republic, a depositary of public moneys and financial agent of the United States, for the custody, transfer, and disbursement of the government funds, having funds for the payment of the check.
The bank, as testimony tended to show, had once paid the check on a forged indorsement of Millard's name. Ascertaining and exposing the forgery, and recovering possession of the check, Millard now presented the same, demanding payment to himself. This payment the bank refused to make. Thereupon he sued it, declaring on a special count on the transaction, and also on a general count for money had and received by the bank to his use.
On the trial the bank requested the court to charge, 'that unless the jury were satisfied from the evidence that it accepted the check in favor of the plaintiff, or his assignees, or promised to pay the same to the plaintiff, or his assignees, he was not entitled to recover.' But the court refused so to charge, and verdict and judgment having gone against the bank, it brought the case here on error; the questions here argued and considered being: 1st. The general one,-whether the holder of a bank check could sue the bank for refusing payment in the absence of proof that it was accepted by the bank or charged against the drawer. 2d. If not, whether the fact existing in this particular case, that the check was on a National bank (a public depositary of the government funds) by an officer of the government, in favor of a public creditor, varied the general rule.
Mr. Edwin L. Stanton, in support of the judgment below:
1. It may be admitted that the holder of a bill of exchange might not be able to sue without acceptance or a promise of it; but no argument from analogy can hence be made against such right in the holder of a common check drawn against funds confessedly existing on deposit.
A bill of exchange is, prim a facie, a single transaction between the drawer and the drawee; the latter does not hold himself out as the custodian and disburser of the former's money. He may not be a debtor to him at all. And even if he has money belonging to him, though an order to pay over the exact sum would, on notice, operate as an equitable assignment, yet he is under no obligation to pay it out in fragments, nor to several persons. Hence, in the case of a bill of exchange, a necessity may arise for the drawee's acceptance. It is recognition by him of the drawer's competence to give the direction expressed by the bill.
But bank checks are drawn on common repositories where many persons agree to keep their cash, to be always and immediately ready at their call or subject to their directions, in any amount, to any and every payee. Such checks, therefore, require no acceptance. In point of fact, none is ever given or thought of being asked for in regard to them. No custom is more prevalent, none more practically affects the dealings of men, than the usage and regular course of business out of which arise an understanding and expectation that a check, upon presentment for payment (if the drawer has the money on deposit to meet it), transfers to the holder the title to the money it calls for, and will at once be paid. Upon the strength and convenience of this usage and understanding, checks pass from hand to hand like cash, and are used in most payments and settlements between individuals and between banks.
The right of the holder to sue without acceptance has been sustained in Illinois, in Munn v. Burch;  in South Carolina in two cases,  as also in Louisiana.  And this right rests upon what is said by this court in Mandeville v. Welch,  that 'an obligation to accept may be fairly implied from the custom of trade or the course of business between the parties as part of their contract.'
2. But this plaintiff, an officer of the government, had a special and indeed a statutory right. The National Bank of the Republic was not a bank holding the deposits of a common customer and transacting ordinary banking business. It was a financial agent of the United States; a depositary and disburser of its funds; directly and completely the representative of the government, because the government can only act through its proper agent. The plaintiff was a creditor of the United States. The money for his payment was appropriated by law; his demand was admitted and definitely ascertained and payable in money. The bank, as agent of the government, held the sum set apart for his payment. It held it therefore to his use, payable on his proper demand, which was the presentment of this check. By statute, the refusal of such an agent to obey such an order and promptly pay such a check is, upon trial of an indictment, prim a facie evidence of embezzlement. Claiming credit for payment without having made payment is conversion of the amount, punishable by fine and imprisonment. 
Messrs. Bradley and Cox, contra.
Mr. Justice DAVIS delivered the opinion of the court.
^1 25 Illinois, 35; see also Chicago Marine Insurance Co. v. Stanford, 28 Id. 168.
^2 Fogarties v. State Bank and Ambler v. State Bank, 12 Richardson's Law, 518.
^3 Vanbibber v. Louisiana Bank, 14 Louisiana Annual, 481.
^4 5 Wheaton, 286; and see Carnegie v. Morrison, 2 Metcalf, 381; Weston v. Barker, 12 Johnson, 276; Russell v. Wiggin, 2 Story, 237; Brewer v. Dyer, 7 Cushing, 337; 3 Kent, 105, note A; Beawes' Lex Mercatoria, 371.
^5 Act of Feb. 25, 1863, 12 Stat. at Large, 668; Act of June 3, 1864, 13 Id. 99; Act of Aug. 6, 1846, 9 Id. 59; McCulloch v. Maryland, 4 Wheaton, 316; Osborn v. U.S. Bank, 9 Id. 738; Kennedy v. Gibson, 8 Wallace, 498.