facts, was based upon an implied parol promise to pay. The verdict and judgment were for the plaintiff, and the defendant appeals. The two chief points relied upon by defendants below (appellant here) are: 1. That under our negotiable instrument law passed in 1897 (Sess. Laws 1897, p. 210), an action will not lie in favor of the holder of a check against the drawee unless and until the same is accepted or certified by the drawee, which acceptance or certification must be in writing; and 2. That if a parol acceptance or promise to pay is binding, no such promise was established by the evidence. 144 1. The courts of England and America have often held that, at the common law, though many of the rules and principles applicable to bills of exchange apply to bank checks, the two kinds of instruments are not identical. Regardless of the common-law rights of the parties under the facts of this case, we think there can be no doubt as to the correctness of appellant's leading contention that, under our negotiable instrument law, the drawee of a check is not liable to the holder unless and until he accepts or promises to pay the same, and such assent to his liability must be in writing. Section 126 of our act defines a bill of exchange as "an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer." Section 185 reads: "A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check." At the common law a bill of exchange payable on demand need not be presented for acceptance. Indeed, strictly speaking, there is no such thing as acceptance of a check in the ordinary sense of the term; yet by consent of the holder the drawee bank may enter into an engagement quite similar to that of acceptance by certifying the check to be good, instead of paying it: 2 Daniel on Negotiable Instruments, 4th ed., sec. 1601; sec. 143 of our act. A check is a species of bill of exchange, viz., that particular kind of a bill which is drawn on a bank and payable on demand. Under our act it need not be presented for acceptance unless it contains an express stipulation to that effect: Sec. 143. 145 Before the passage of our negotiable instrument law, this court had ruled, in accordance with the weight of authority, that a right of action does not exist in favor of the holder of a check against the drawee bank where there has been by the latter no acceptance or promise to pay: Colorado Nat. Bank v. Boettcher, 5 Colo. 185, 40 Am. Rep. 142, reaffirmed in Boettcher v. Colorado Nat. Bank, 15 Colo. 16, 24 Pac. 582. Our statute has expressly so enacted: Sec. 189. The same cases at least tacitly recognized the doctrine that such acceptance or implied promise might, in the absence of a statute to the contrary, be proved by parol testimony, but this doctrine is abrogated by our statute, as we proceed to show. According to this statute, though all bills of exchange are not checks, yet as a check is therein expressly said to be a bill of exchange drawn on a bank and payable on demand, every check is a bill-that is, it is a species of a bill. So that, though a check need not be presented for acceptance in order to render the parties thereto liable, still as the check itself does not operate as an assignment of any part of the fund to the credit of the drawer with the bank, and the drawee bank is not liable to the holder, unless and until it accepts or certifies the check (section 189), and as (section 185), except as in the act otherwise provided, all of its provisions applicable to a bill of exchange payable on demand apply to a check, and as no contrary provision for the acceptance of or promise to pay a check has been made, the provision applicable to a bill of exchange that acceptance or certification when made must be in writing applies also to a check. There being no pretense in this case that the promise to pay or certification or acceptance of the check sued upon was in writing, the holder was not entitled to sue the bank upon it. 146 There are distinctions between an action on a bill or check as an accepted bill and one founded on a breach of promise to accept: Boyce v. Edwards, 4 Pet. 111, 7 L. ed. 799; Henrietta Nat. Bank v. State Nat. Bank, 80 Tex. 648, 26 Am. St. Rep. 773, 16 S. W. 321. But we do not consider that such distinctions are important here. This action was based upon a parol promise to pay the check. Acceptance of a bill at common law and under our statute is merely the signification by the drawee of his assent to the order of the drawer. The legal meaning of an acceptance is that the acceptor engages to pay the instrument according to the tenor of his acceptance. In other words, it is a promise to pay: Sess. Laws 1897, secs. 62, 132; 1 Daniel on Negotiable Instruments, 4th ed., sec. 475. This action is one by a holder of a check against the drawee based upon a parol promise of the latter to pay, and it cannot be maintained. 2. It is well to observe that this is not an action to recover money lost by the fraud or wrongdoing of another, and if such were the cause of action pleaded, the evidence would not support it. The only claim made by plaintiff is that the information which the appellant gave in response to an inquiry was, in legal effect, a promise to pay the check when the same was presented for that purpose. There is no pretense that the information given was false; it is conceded that the answer to plaintiff's inquiry on which the promise rests was true; hence there is present here no element of an action ex delicto. In thus disposing of the case upon the ground that a promise such as is here relied upon must be in writing, we are relieved of the necessity of considering whether the mere oral statement by the drawee bank that a check drawn upon it is "good" or "all right" gives rise to an action in favor of one who parts with money upon the faith of it. 147 The judgment should be reversed and the cause remanded, with instructions to the trial court to dismiss the action. Chief Justice Gabbert and Mr. Justice Steele concur. There is no Such Thing as "Acceptance" of Checks, in the ordinary sense of the term: Metropolitan Nat. Bank v. Jones, 137 Ill. 634, 31 Am. St. Rep. 403. The parol acceptance of bills is considered in the not to Walker v. Lide, 44 Am. Dec. 252; and the defenses available to an acceptor of negotiable paper are considered in the note to Credit Co. v. Machine Co., 1 Am. St. Rep. 135. An Unaccepted Check or Draft in the usual form does not, according to many authorities, amount to an assignment of any part of the drawer's deposit, and therefore the refusal of the drawee bank to pay the paper does not give the holder a cause of action against it. Other authorities, however, take a different view: Clark v. Toronto Bank, 72 Kan. 1, 115 Am. St. Rep. 173; Loan and Sav. Bank v. Farmers' etc. Bank, 74 S. C. 210, 114 Am. St. Rep. 991; Turner v. Hot Springs Nat. Bank, 18 S. Dak. 498, 112 Am. St. Rep. 804; Pullen v. Placer County Bank, 138 Cal. 169, 94 Am. St. Rep. 19, and cases eited in the cross-reference note thereto; note to J. M. James Co. v. Bank, 80 Am. St. Rep. 870-875. NATIONAL BANK OF COMMERCE v. APPEL CLOTHING COMPANY. [35 Colo. 149, 83 Pac. 965.] CREDITORS' BILLS-Life Insurance-Pleading. In a proceeding by creditor's bill to subject a policy of life insurance payable to a beneficiary on the death of the insured, but in which he has a surrender value to the payment of such creditor's claim, he must, to maintain his bill, make a case, both by his pleadings and proof, that would entitle him to subject property of his debtor not reachable, on execution, to the payment of his debt. (p. 187.) CREDITORS' BILLS-Life Insurance-Pleading.—In a proceeding by creditor's bill to subject a policy of life insurance, payable to a beneficiary on the death of the insured, but in which he has a surrender value, to the payment of his debt, a complaint not alleging that the insured was insolvent at the time the policy issued or was assigned to the beneficiary, nor that the indebtedness sought to be enforced existed at the time the policy issued, nor that the policy was taken out or assigned with a view to the creation of future obligations, nor that there was any fraud either on the part of the insured or the beneficiary, is insufficient to entitle the plaintiff to equitable relief. (p. 187.) CREDITORS' BILLS-Life Insurance.-A proceeding by creditor's bill to subject a life insurance policy in which a beneficiary has an interest and the insured a surrender value to the payment of his debts must be governed by the same rules that prevail in credtor's suits against other kinds of property, and before a court of equity is authorized to compel the surrender of such policy and the application of the proceeds to the payment of such debts, it must be alleged and proved that debts existed at the time of the issuing or the assignment of the policy to the beneficiary, or that it was issued or assigned with a view of contracting future indebtedness. (p. 187.) H. S. Silverstein and T. J. O'Donnell, for the appellant. D. V. Burns, M. B. Carpenter, Talbot, Denison & Wadley and Muller & Summerfield, for the appellees. 151 GABBERT, C. J. Counsel for plaintiff say that this action is in the nature of a creditor's bill. Their theory upon which they claim this action can be maintained is that where a debtor takes out a policy of life insurance upon his own life by the terms of which, should he survive a certain definite period, the company undertakes to pay him a certain sum of money, with the contingency that upon the death of the insured during this period the company will in that event pay certain sums of money to a beneficiary named in the policy or by assignment, and where such policy by its terms has a value which the insured can obtain by surrender of the policy without the consent of the beneficiary, that such a policy is an asset of the insured which can be reached by his creditors. In other words, they claim that what he, himself, may do under such a policy a court of equity will compel him to do for the benefit of his creditors. This suit being in the nature of a creditor's bill, the elements necessary to maintain it must be present. Conceding, 152 but not deciding, that the contention of counsel for plaintiff is correct in the abstract, a case must be made both in the complaint and by proof which would entitle a creditor to subject the property of his debtor not reachable on execution to the payment of his debts. There is no averment in the complaint to the effect that when these policies were issued or the assignments thereof made to the beneficiaries that the insured, who are now the judgment debtors, were insolvent, or that the indebtedness which forms the basis of the judgment existed at either of these times or that the insured were indebted to other parties or that the policies were taken out or assigned to the beneficiaries with a view to the creation of future obligations. In short, there is no averment of fraud whatever on the part either of the insured or the beneficiaries. The fact that the property sought to be subjected to the payment of the debts of the insured is represented by life insurance policies in which beneficiaries have an interest does not change the rules with respect to creditors' suits. They must necessarily be the same, without regard to the character of the property of the debtor which it is sought to reach. Before a court of equity is authorized to cancel a voluntary conveyance or transfer of property on the ground of fraud upon creditors it must be alleged and proved that debts existed at the time the conveyance or transfer was made, or that the conveyance or transfer was made with a view to the contracting of future obligations: Emery v. Yount, 7 Colo. 107, 1 Pac. 686; Sexton v. Wheaton, 8 Wheat. 229, 5 L. ed. 603; Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614. The beneficiaries obtained their respective interests before the judgment in favor of plaintiff was rendered. Whether these interests be subject to revocation by the insured is immaterial. The beneficiaries cannot be devested of their interests except 153 by the acts of the insured. As the policies. now stand, the money which the beneficiaries would receive in |