Page:Federal Reporter, 1st Series, Volume 8.djvu/121

 OZBHAN SATINQS INSTITUTION V. ADAE. 107 �McGbaby, g. J. This case is submitted upon au agreed statement of facts, from which it appears : �(1) That on the sixteenth day of December, 1578, the flrm of C. F. Adae & Ce, bankers, at Cincinnati, Ohio, being indebted to their eorrespondents, H. L. Kewman & Co., at East St. Louis, Illinois, made and forwarded their certain bill of exchange, (or check,) of that date, on the Gennan Savings Insti- tution, a bank in St. Louis, for $1,072, to the order of said H. L. Newman & Co., the same being proceeds of a collection theretofore made by said Adae & Co. in the ordinary course of business between them and the said H. L. New- man & Co. �(2) The said bill of exchange, received by said ITewman & Co. on the nine- teenth day of December, 1878, and about noon of that day, was presented at the banking house of said German Savings Institution for payment, which was refused. �(3) On the eighteenth day of December, 1878, the said C. P. Adae & Co. became insolvent, and on that day, at Cincinnati, Ohio, made an assignment in writing of all their property to Augustus Bennett and Philip Henry Hart- man, in trust, for the beneflt of their creditors, which assignment and trust was on the same day accepted by said assignees. �(4) XJpon making said bill of exchange, December 16th aforesaid, said Adae & Co. charged themselves with the amount thereof in their general account with the German Savings Institution, �(5) On December 16th the amount on deposit with said German Savings Institution, to the credit of Adae & Co., was more than the sum of said bill of exchange ; and on December 18th, at the time of said assignment to Bcn- nett and Ilartman, the balance on deposit, as owing from it to and the prop- erty of said Adae & Co. on said general account, was $4,037.25. �(6) Notice of the assignment to Bennett and Hartman was received by the German Savings Institution on the nineteenth day of December, before the presentation for payment of said bill, and by reason thereof payment was refused. The German Savings Institution, by bill of interpleader, asks the direction of this court as to the proper disposition of said fund. Bennett and Hartman, as assignees, claim the entire fund under the assignment from Adae & Co. to them. Newraan & Co. clalm^a portion thereof under the bill of exchange exeeuted to them by said Adae & Co. on the sixteenth of December for $1,072. �The controversy is thus seen to involve the question whether the execution and delivery of the bill of exchange for $1,072 was in equity, in view of the facts above recited, an assignment pro tanto of the fund in question. It has been frequently decided that the holder of a check drawn on a bank caunot sue the bank for refusing pay- ment of it, in the absence of proof that it was accepted by the bank or charged against the drawer. Bank of Republic y. Millard, 10 Wall. 152j Marine Bank v. Fulton ^ank, 2 Wall. 252; Thompson v. Riggs, ��� �