Page:Harvard Law Review Volume 9.djvu/568

540 HARVARD LAW REVIEW, VARD Law Review, 233. Among the States which apply this rule there are some, including New York itself^ which hold that a promise by a bank to its depositor that it will pay the depositor's debts to third persons (check-holders) will not support an action by the check-holders against the bank. It is hard to see how the cases can be reconciled on any principle, but as there is no common law principle at the bottom of the rule in Lawrence v. Fox, the inconsistency may presumably be treated as a determination on the part of those courts to narrow the scope of the rule, and not to apply it where the third party is merely one of an un- determined class of the promisee's creditors, instead of being a single creditor definitely named by the contracting parties. The New York court in yEtjia Bank v. Fonrth Bank (46 N. Y. 82, 87) endeavored to distinguish the cases as follows: "Lawrence v. Fox was upon an express promise to pay a sum of money, received by the de- fendant from a debtor of the plaintiff, to the plaintiff; and the promise was the consideration upon which, and upon which alone, he received the money. . . . Here the defendant was a debtor upon a general banker's account ; there was no special loan on an express promise to pay the plaintiff." In New Jersey this inconsistency exists {Hnyler's Executors v. Atwoody 26 N. J. Eq. 504; Creveling v. Bioonisbury Bank^ 46 N. J. Law, 255) ; and in Pennsylvania also {Merriman v. Moore, 90 Pa. St. 78; First Bank v. Shoemaker, 117 Pa. St. 94) ; but in the latter State they allow a suit if the check is for the whole amount of the deposit {Saylor v. Bushong, 100 Pa. St. 23), on the theory that such a check is an assignment of the funds in the bank, — an objectionable doctrine, it would seem, when it is remembered that a bank, instead of holding any specific funds of the depositor, is merely his debtor, and that a check is an order to pay, in the nature of an unaccepted bill of exchange. In Maryland and Michigan, states which follow Lawrence v. Fox, the courts seem to deny the right of a check-holder to sue the bank, although the point does not appear to have been directly adjudicated. {O'Neal V. School Commissioners, 27 Md. 227 ; Moses v. Franklin Bank, 34 Md. 574 ; Crawford Y, Edwards^ t^t, Mich. 354 ; Brennan v. Merchafits^ Bank, 62 Mich. 343.) Perhaps the most interesting example of this inconsistency is in Colorado. In Lehow v. Simonton (3 Colo. 346), a third party, to whom the money was by the contract to be paid, was allowed to sue on the contract; but in Boettcher v. Colorado Bank (15 Colo. 16), a suit by a check-holder against the bank was decided in favor of the bank ; one judge, however, feeling himself bound by Lehow v. Simontony dissented, on the ground that the cases were indistinguishable. A number of authorities on this point are cited in a recent and care- fully considered case in Ohio {Cincifinati H. 6^ D. R. R. Co. v. Metro- politan. Banky 42 N. E. Rep. 700), which holds that the check-holder has no right of action against the bank for refusal to pay the check. Conversion by a Pledgee. — Two recent cases, Waring v. Gaskill, 22 S. E. Rep. 659 (Ga.), and Richardson v. Askby^ 7,^ S. W. Rep. 8o5 (Mo.), are authority for the proposition that where a pledgee tortiously sells his pledge, or repledges it for a greater sum than the debt for which it is security, the pledgor has an immediate right to bring an action in trover without tendering the amount of his indebtedness. What little law