. The counsel for the defendant in error — plaintiff below — insists .that the check of Simson, importing of itself a sufficient consideration, and being for the whole amount •of the money of the drawer on deposit in the bank, operated, as between the drawer and the payee, as an assignment to the latter of the money, or the drawer’s right to it; axxd as the drawex-, before giving the check, might have sustained an action against the bank for the amount, the payee, as assignee of the drawex-, may now maintain the action, under the Statute of 1863, authorizing the assigixee of a chose in action to sue in his own name. I do not think the question whether a •check can, in any case, operate as an assignment, by •.the drawer, of the money, or the drawer’s right to it, *290,to the ' payee, can properly arise in the present case. If a check can ever have this effect, it can only be in those cases when it has been given for a valuable consideration. Here the whole tendency of the evidence was to show there was no valuable consideration to support an assignment. The consideration implied by the giving of the check cannot aid the plaintiff. Upon any theory of the case, it was competent to inquire into the real consideration, and the plaintiff, without waiting for the consideration to be attacked by the defendant, himself introduced evidence to show what the consideration actually, was. The whole tendency of this evidence, as well as that introduced by the defendant, was to show that the drawing of the check, and placing it in the hands of the plaintiff, was understood and intended by the drawer and the plaintiff as a substitute for. a testamentary disposition of this money by the drawer, to avoid the expenses of administration on his estate, and that there was no pecuniary or valuable consideration. The arrangement was clearly not such as to constitute a valid will; and as an intended substitute for a testamentary disposition, it must have been understood as in its nature revocable by the drawer at anytime prior to his death. And if the plaintiff, by the arrangement, was to do any act with reference to the check, or the money, previous to Simson’s death — which the evidence does not fairly tend to show — it could only 'have been as the agent of Simson, and not as trustee, or in his own right as a party having an interest.
’ If, on the other hand, as we think the testimony clearly tends to show, he was only to act in the matter after the death of Simson, appropriating the money first to the payment of funeral expenses, and the balance to be paid to the family, or some member of 'it; then, unless the delivery of the check can be sustained *291as a donatio causa mortis, no interest whatever is vested in the plaintiff, and the trust intended never took effect; but the check, with the whole arrangement, was revoked by Simson’s death, and the bank, after notice of the death of Simson, and of the arrangement upon which the check was given, could not have paid the check to the plaintiff without the risk of'being again called upon to pay an administrator upon .the estate.
Did, then, the . execution and delivery of the check constitute a valid donatio causa mortis ? Without acceptance by the bank, or some special undertaking on its part, we do not think the bank could be held liable upon a check, as such, to the payee. There is no privity of contract between the payee and the drawee; and if the money is not paid upon the check, the drawee is only accountable to the drawer. The payee does not take an unaccepted check, relying upon the credit of the drawee, but that of the drawer. We do not, therefore, concur in the opinion expressed in Fogarties v. State Bank, and Ambler v. Same, 12 Rich., (S. Car.,) R., 518, holding the drawee of an unaccepted check, liable to a suit by the payee.
The, drawer, therefore, in the present case was the only party who could have been held liable to the plaintiff, if any; and we think no- mere contract, liability or obligation of the donor can be recognized as the proper subject of a gift causa mortis. — See Story's Eq. Jur., §607a, §607c; Meach v. Meach, 24 Vt., 598; Raymond v. Sellick, 10 Conn., 480; Holley v. Adams, 16 Vt., 206; Harris v. Clark, 3 Comst., 94; Tate v. Hilbert, 2 Ves., Jr., 111; Thompson v. Dorsey, 4 Md. Ch. Decis., 149; Dole v. Lincoln, 31 Me., 422.
We see, therefore, no ground, which the evidence in this case tends to establish, upon which the plaintiff below was entitled to recover.
The judgment of the Circuit Court must be reversed, *292with costs to the plaintiff in error, and a new trial awarded.
The other Justices concurred.