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The Law of Bank Collections

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The Law of Bank Collections KF QtnrnpU Slam ^rlynnl Sjibratg Cornell University Library KF 1024.S46 The law of bank collections, 3 1924 018 849 756 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018849756 THE LAW OF BANK COLLECTIONS BY ARTHUR W. SEL0VER, B. A., LL. M., Author of Treatise on the Negotiable Instruments Laws, etc. ST. PAUL, MINN. KEEFE-DAVIDSON LAW BOOK CO. 1901. "6 7^7^7 COPYKIGHT, 1901. BY AKTHUE W. SELOVER. "Webb Poblishing Co. Press, St. Paui.. 1952 PREFACE. It has been the aim of the author to make this work an accurate and exhaustive treatise on the law of bank collections, and with that end in view, he has endeavored to consult and incorporate all the decisions on this im- portant branch of banking law. It is believed that the importance of the subject justifies the labor required to follow out such a mode of treatment, and it is hoped that the result is a book which shall be of practical service to both lawyer and banker. The treatment which the subject of bank collections has received heretofore in general works on banks an<l banking is incomplete and inadequate in many resjjects. A great deal of the law on the subject is comparatively new, and necessitates, in some cases, a modification or a complete change of old rules and principles. Special care has been taken to determine and state the true relation between the collecting bank and its customer, for many of the difficulties encountered in this branch of the law are traceable to a misconcep- tion of the relation between the parties. Great care has also been taken to analyze and explain the conflicting decisions on the question of the liability of the collecting bank for the defaults of notaries and correspondent banks. To do this properly, it was neces- sary to set forth the gist of the decisions of the various jurisdictions seriatim, and to compare them somewhat at length. While there is little hope that the irrecon- cilable conflict on this point can be settled by anything short of a uniform statute covering the matter, the resume given will at least serve to show the strong and weak points of each side of the controversy. Another question which has received careful and en- larged treatment in this book is , that of the right to follow the proceeds of a collection as a trust fund. The modern rules of equity as administered in England and the United States have been applied in determining the existence of this right under varying circumstances. A separate chapter has been given to the considera- tion of the rights and liabilities growing out of the col- lection of forged or altered paper. Throughout the work, the author has endeavored to state the governing rules of law definitely and con- cisely. The rules given are based on the authorities cited thereto, and not on the ipse dixit of the author, though the author has not refrained from drawing from the decisions what he believes to be logically legitimate conclusions. For the benefit of bankers and lawyers who do not have access to large law libraries, many of the decisions have been fully analyzed in the text, and numerous pertinent quotations have been made from them. For the benefit of this class, also, the author has added to the citations from the official reports, parallel citations from other legal publications. With these observations, this work is respectfully sub- mitted to the public, in the hope that its demerits may be viewed with charity, and that its merits, if any, may be used to advantage. A. W. S. Minneapolis, Minnesota, May 10, 1901. TABLE OF CONTENTS. CHAPTER I. THE RELATION AND ITS INCIDENTS. (A) In General. Pag-e. § 1. Introductory statement 2 2. Collecting bank as bailee 3 3. Collecting bank as agent 6 4. Collecting bank as trustee 8 5. Relation when paper is payable at bank 9 6. What law governs relation 11 7. Consideration for undertaking to collect 13 8. Inception of relation in general 15 9. Estoppel of bank 16 10. Effect of custom and usage 17 (B) Title to Paper and Special Property Rights of Banks. § 11. As a general rule, title remains in depositor 19 12. Title does not pass to bank insolvent when paper was received 21 13. Title to paper received and treated as cash passes to the bank 21 14. Presumptions 23 15. Effect of credit in advance of collection—Cancellation of credit on dishonor of paper 25 16. Credit of checks drawn on collecting bank 28 17. Title as affected by form of indorsement 29 18. Blank indorsement passes title 32 19. Parol evidence 34 20. Bank discounting paper has title 35 21. When title of bank revests in depositor 37 22. Special interest of bank as bailee 37 23. Lien of bank and right to set-off 39 TABLE OF CONTENTS. ; CHAPTER II. AUTHORITY OF COLLECTING BANK IN GENERAL. Page. 24. Bank has implied power to make collections 44 25. National bank 45 26. General scope and limitations 46 27. Special Instructions as to mode of collection 47 28. Authority of bank to sue in its own name 48 29. For possession of paper 51 30. As real party in interest 52 31. Termination of authority to collect 53 32. • Insolvency of bank 54 33. Revocation of authority by owner of paper 54 34. Renunciation by bank 55 CHAPTER III. DUTIES AND LIABILITIES OF COLLECTING BANK IN GENERAL. 35. Degree of care required of bank 59 36. Contractual limitation of liability 60 37. Representation of bank by cashier 62 38. Defaults of depositor—Bank not liable 63 39. Liability for loss of paper—Negligence presumed from loss 64 40. Failure to make inquiry and give notice within rea- sonable time 66 41. Surrender of bills of lading accompanying drafts for price of goods 67 42. Application of deposits to payment of depositor's paper held for collection 71 43. Check or draft not an assignment of fund 76 44. Time and manner of receiving payment 78 45. Extensions and renewals 79 46. Medium of payment—As general rule, bank can take money only 80 47. Checks on other banks 82 48. Claims against collecting bank—Certificates of de- posit 85' 49. Same—Checks on collecting bank '. .. 86 50. Collecting bank also a creditor of obligor—Cannot ob- tain preference—Exceptions 86 TABLE OF CONTENTS. xi Paga. 51. Collection of interest 90 52. Liability of collecting bank for depreciation 91 53. Liability of collecting banlc as general indorser 92 54. Duties as to paper sent to a correspondent—Forwarding instructions and information 94 55. Fraud and mistake 95 56. Negligence a question of fact—Province of court and jury 95 57. Waiver of negligence of collecting bank 97 CHAPTER VI. TAKING STEPS NECESSARY TO CHARGE PARTIES TO PAPER. § 58. General rules 101 59. Bank is a "holder" for purposes of collection 102 60. Presentment for acceptance 103 61. Excuses for failure to present for acceptance 105 62. Bank liable for taking acceptance not according to tenor of bill 106 63. Presentment for payment 107 64. Time of maturity and days of grace 108 65. Paper payable at bank Ill 66. Checks 112 67. Effect, of custom 114 68. Protest 115 69. Excuses and defenses 116 70. Notice of dishonor 117 71. What indorsers entitled to notice from bank 120 72. Owner may sue bank without first suing indorser 121 73. Enforcement of paper taken in payment 122 74. Return of dishonored paper 123 75.' Effect of custom 125 76. Ratification and waiver of negligence of bank 126 CHAPTER V. EMPLOYMENT OF AGENTS AND CORRESPONDENTS, AND LIABILITY FOR THEIR DEFAULTS. (A) In General. § 77. Bank must use reasonable care in selection of agents and correspondents 132 . xii TABLE OF CONTENTS. Pa^e. § 78. Drawee or obligor not a suitable agent or correspondent. 133 79. Effect of custom 138 80. Contracts and dealings between banks in general 140 81. Employment of notaries, and liability for their acts and defaults 141 82. Notary an officer or employe of bank 143 83. Notary a public officer ^ 144 84. Employment of agents other than notaries and banks and liability for their defaults 146 (B) Liability of Initial Bank for Default of Corres- pondent. § 85. In general 148 86. England 149 87. Federal courts of the United States 149 88. New York 151 89. New Jersey 153 90. Ohio 153 91. Georgia 154 92. Michigan 154 93. Minnesota ; 156 94. Montana 157 95. North Dakota 157 96. South Dakota 158 97. Colorado 159 98. Texas 159 99. Massachusetts 160 100. Connecticut 161 101. Pennsylvania 162 102. Maryland 164 103. North Carolina 164 104. Indiana 165 105. Illinois 166 106. Wisconsin 167 107. Iowa 167 108. Kansas : 168 109. Nebraska 169 110. Missouri 170 111. Kentucky 170 112. Tennessee 171 113. Alabama 172 114. Mississippi 173 TABLE OF CONTENTS. xiii Page. 115. Louisiana 173 116. Conclusions from the decisions 174 117. Effect of special agreements 177 118. Effect of custom 177 119. Effect of insolvency of correspondent 178 120. Liability of correspondent bank to initial bank 179 CHAPTEE VI. COMPLETION OP COLLECTION AND REMITTANCE OP PROCEEDS. 121. Collection complete on receipt of money and entry of absolute credit—Change of bank's status from bailee to debtor 182 122. Collection not complete on mere credit in advance of collection 184 123. Exceptions from estoppel or particular course of dealing 186 124.
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