M7GIN.NIS v. FARRELLY. 35
otherwise · substantially equivalent to cash, and to remove from all parties
the temptation to evade its requirements in this respect."
In Durant v. Abenclroth, 69 N. Y. 148, where such a statute was
under consideration by the court of appeals, the court said:
"The statute peremptorily requires an affidavit that the capital has been
actually paid in cash. * * * The object of this provision is to secure cer-
tainty, and to prevent equivocal transactions in the formation of these part-
nerships. Nothing but cash satislies its requirements. No engagement or
security, however good, can be substituted even temporarily."
In Van Ingen v. Whitman,62 N. Y. 513, it was held that a contri-
bution in credits or in any other thing except cash, however convert-
ible at the time into money, is not a compliance with the statute.
It would hardly be contended that the delivery of a check by the
special partner, payable at a future day, would meet the require-
ments of the statute. It is urged, however, that the delivery of a
check payable at sight is equivalent to an appropriation of a cash
fund to the capital of the partnership, and is therefore a substantial
compliance with the statute. If, instead of handing over the money,
the special partner should deposit the amount of his contribution in
a bank to the credit of the firm, or with a third person so as to part
with all control over it by himself exclusively, and enable the general
partners to appropriate it, it might well be urged that this would be
a sufficient compliance with the statute. A sum may be deemed to
be paid or contributed in cash when the money is placed within the
absolute control of the person who is. to receive it, although not
within his manual custody. But where a check is drawn for the ben-
efit of the payee upon a bank in which the drawer has a deposit, and
is delivered to the payee, the latter does not acquire even an equita-
ble lien upon the fund in bank. The relations between a banker and
depositor to whose credit money is placed, is the ordinary relation of
debtor and creditor, and has been universally so regarded since the
question was elaborately discussed and decided in the house of lords
in the case of Foley v. Hill, 2 H. L. Cas. 28. It is equally well set-
tled that an assignment of a part of a debt will not bind the cred-
itor either in equity or at law, nor deprive him of the right to pay the
whole to the assignor after notice that part has been transferred to
the assignee, (Mandeville v. Welch, 5 Wheat. 277; Gibson v. Cooke,
20 Pick. 15; Hopkins v. Beebe, 26 Pa. St. 85; Gibson v. Finley, 4 Md.
Ch. 75;) and because the right of the depositor against a bank is
merely that of a creditor, and an assignment of part of the deposit is
not an equitable assignment of any interest in the fund, a bill of ex- l
change or check, before acceptance, does not operate as a transfer of
the funds of the drawer in the hands of the drawee, nor create any
' lien thereon. Chapman v.' White, 6 N. Y. 412. The holder of a bank-
check cannot sue the bank for refusing payment in the absence of ‘
proof that it was accepted by the bank or charged against the drawer.