Page:Federal Reporter, 1st Series, Volume 8.djvu/122

 ■108 FBDBBAIi BEPOBTBB. �5 Wall. 663; Rosenthall v. Mastin Bank, 21 Alb. Law J. 28, and cases cited. �If, therefore, this were an action by a check-holder against the bank upon the cheok, there could be no recovery. But such is not the case. This is a bill of interpleader in equity, by which the plain- tiff, a bank holding the fund in question, declares its readiness and ■willingness to pay as the court may order, and the controversy is as to the equities of the other parties who are adversary claimants of the fund. The rule which protects a bank from being harassed by suits brought by cheok-holders has no application to a case of this character. We are at liberty, therefore, to inquire, which of the claimants here has the better right in equity to the fund in question ? There are undoubtedly numerous respectable authorities which sus- tain the doctrine that the execution of a cheek in the ordinary form, not describing any particular fund, does not operate as an assign- ment, equitable or otherwise, of funds of the drawer in the hands of the drawee. Attorney General v. Insurance Co. 71 N. Y. 325, and cases there cited; Randolph v. Canhy, 2 N. B. E. 296. �But, on the contrary, it was held by this court in Walker v. Siegel, 2 Cent. Law Jour. 508, that the rule thus broadly stated seems to apply only to cases at law, and that "such an order, as soon as notice is given to the drawee, works an assignment in equity;" and this view is well sustained by authority. Boberts v. Austin, 26 lowa, 315 ; Forgarties v. State Bank, 12 Eich. L. Eep. (S. C.) 518 ; Munn v. Burch, 25 111. 35, 1 Daniell, Neg. Inst. p. 20, § 23 ; Willard's Equity Jur. (Potter's Ed.) 464. �There is certainly no good ground for holding that a check or a draft, drawn upon a fund in bank, is not an equitable assignment aa between the drawer and payee; and in a case where there is no con- troversy as to the rights of the bank or drawee, it does not lie in the mouth of the drawer, or his assignee, to say that such an instrument is not an equitable assignment. If it were conceded that, as a gen- erai rule, a check drawn upon a part of a fund in bank will not of itself operate as an assignment pro tanto, it is very olear to my mind that this is a case which a court of equity might well regard as an exception to any such general rule. As already suggested, the holder of the fund has corne voluntarUy into a court of equity, bringing the fund with him, and, disclainiing all interest in it, asks the court to dispose of it, as between the check-holder and the assignee, according to equity. It is a case, too, in which it appears that in equity the ��� �