As between a check holder an the bank upon which such check is drawn, it is settled that, unless the check be accepted by the bank, an action cannot be maintained by the holder against the bank. Bank v. Millard, 10 Wall. 152; Bank v. Whitman, 94 U.S. 343.
It is also settled that a check drawn in the ordinary form does not, as between the maker and payee, constitute an equitable assignment pro tanto of an indebtedness owing by the bank upon which the check has been drawn, and that the mere giving and receipt of the check does not entitle the holder to priority over general creditors in a fund received from such bank by an assignee under a general assignment made by the debtor for the benefit of his creditors. Florence Min. Co. v. Brown, 124 U.S. 385, 8 Sup. Ct. 531; Bank v. Schuler, 120 U.S. 511, 7 Sup. Ct. 644.
That the owner of a chose in action or of property in the custody of another may assign a part of such rights, and that an assignment of this nature, if made, will be enforced in equity, is also settled doctrine of this court. Trist v. Child, 21 Wall. 441, 447; Peugh v. Porter, 112 U.S. 737, 742, 5 Sup. Ct. 361. For recent cases maintaining this principle and referring to the present state of the law on the subject in the various states, see James v. Newton, 142 Mass. 366, 8 N. E. 122; Bank v. McLoon, 73 Me. 498; and Lanigan's Adm'r v. Bradley & Currier Co., 50 N. J. Eq. 201, 24 Atl. 505.
While an equitable assignment or lien will not arise against a deposit account solely by reason of a check drawn against the same, yet the authorities establish that if, in the transaction connected with the delivery of the check, it was the understanding and agreement of the parties that an advance about to be made should be a charge on and be satisfied out of a specified fund, a court of equity will lend its aid to carry such agreement into effect as against the drawer of the check, mere volunteers, and parties charged with notice.
This is but an application of the general doctrine of equitable assignments or lines announced by this court in Ketchum v. St. Louis, 101 U.S. 306, where it was held, citing various authorities and text writers, that: 'A party may, by agreemtne, create a charge or claim in the nature of a lien on real as well as on personal property whereof he is the owner or in possession, which a court of equity will enforce against him, and volunteers or claimants under him with notice of the agreement.' It is immaterial, for the purposes of this case, to draw a line of distinction between equitable assignments and equitable liens or charges.
In Risley v. Bank, 83 N. Y. 318, two counts of a complaint were based upon a check drawn upon the defendant bank by a depositor, in favor of plaintiff, while the third count based the right to recover upon an alleged oral assignment of a part of an indebtedness owing by the bank to such depositor, to the amount of the check. The check in question was drawn May 20, 1861, by a bank in South Carolina upon a bank in New York. The trial court ruled that the plaintiff was not entitled to recover upon the causes of action founded upon the check and the verbal promise of payment, but that plaintiff was entitled to recover upon the third cause of action if the jury should find the facts to be as therein averred. A judgment upon a verdict in favor of plaintiff was affirmed, it being held (page 327), to quote the language of the court of appeals in the subsequent case of Coates v. Bank, 91 N. Y. 26, 'in substance, that when, in addition to the check, there was an oral agreement between the drawer and payee, by which the former, for a valuable consideration, agreed to assign so much of the indebtedness of the bank to him as was represented by the check, and the check was given to enable the payee to collect and recover the portion of the debt assigned, the agreement operated as an assignment, and was sufficient to vest in the payee a title to that portion of the debt.'