I agree that there was a question of fact as to whether this check was deposited under such circumstances that the title to the check passed to the defendant, and the plaintiff received credit therefor without qualification, andi that thereby the defendant became indebted to the plaintiff in the sum for which the credit Was given. The credit which is given upon such a deposit is necessarily subject to the condition that in case the check is not paid the bank can charge back to its depositor the amount of the check and thus cancel the credit.'
The check in controversy not having been paid, the bank had a right to charge back the check to the plaintiff and cancel the credit given at the time of the deposit, unless the certification of the check precluded the defendant bank from exercising that right. The evidence is undisputed that the defendant as soon as it received the check at once sent it to the bank upon which it was drawn and its messenger demanded the money from the bank. This was shortly before three o’clock, the close of banking hours. The bank upon which the check Was drawn refused to pay it in cash, but without request from ■ the messenger of the defendant bank certified it and handed it back to him. This was not a certification at the request of or for the benefit of the defendant. .The defendant, in attempting to collect the check, was bound to exercise vigilance, and I think would be responsible only for negligence, of which there was no proof. The messenger of the defendant bank at once called up the cashier of the bank on the telephone and said that the bank upon which the check was drawn had refused to honor it but had certified it and made it payable at *499another hank, and the messenger was instructed to take it at once to the bank at which it was payable and demand payment there. That, under the circumstances, was all that the defendant could do. The messenger went at once to the bank at which the check was made payable, but arriving there a few minutes after three, payment' was refused, and the next morning the bank upon which the check was drawn suspended.
The certification of a check only charges the depositary bank where that bank has accepted the certification in lieu of the collection of the money. That rule, as I understand it, does not apply where the depositary bank has endeavored to collect the check but the bank upon which it was drawn has refused to honor it. I do not see what other steps the defendant could have taken to collect this check than it did take. It accepted the certification only because the bank had refused to honor it, and it accepted it simply as a means of obtaining payment when no other method of obtaining such payment was open to it. If it had treated the check as dishonored, all that it could have done would be to protest it for non-payment, which would have been of no possible advantage to the plaintiff, as the bank upon which it was drawn suspended payment the next morning; and it might with force have then been claimed that if the defendant bank had accepted the certification it might have collected the check from the bank where it was made payable on that afternoon. There is not a particle of evidence that notice could have been given to the plaintiff of the dishonor of the check when it would have been of the slightest advantage to him.
Assuming that the defendant received this check on deposit and gave the plaintiff credit for it, it certainly cannot, as I view it, lose its right to charge back the check to the plaintiff if it was not paid, where it exercised due diligence to collect the check and only failed because of the insolvency of the bank upon which it was drawn.
. I think the undisputed evidence in this case shows that the defendant did everything that it could do to collect the check, and that the complaint was, therefore, properly dismissed.
Judgment reversed, new trial ordered, costs to appellant to abide event.