Elgin v. Gross-Kelly & Co.

Citations

• 20 N.M. 450

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Where money has been paid under mistake as to a material fact to one not entitled thereto and who cannot in good conscience receive and retain it, the law raises an implied promise on his part to refund it, and an action will lie to recover it hack.</p> <p>P. 455</p> <p>2. The provision of the negotiable instruments statute that a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank is a declaration of the rule that as against a drawee bank, a check is not an assignment of the fund. But, as against the drawer, the giving of a check for value on an ordinary bank deposit should be considered an assignment of the fund pro tanto.</p> <p>P. 456</p> <p>3. To the extent that a bank check works an assignment • pro tanto of a fund on deposit, the death of the depositor will not revoke the authority of the bank to pay the check, which has been given for a valuable consideration, and is therefore coupled with an interest.</p> <p>P. 456</p> <p>4. In the absence of evidence to that effect, the Supreme Court cannot take judicial notice that a case before the court had connection with one formerly decided by it.</p> <p>P. 464</p>