Willetts, President of the Am. Ex. Bank, agt. Finlay and others, &c.

plaintiff against them, and the other suits, in which they are plaintiffs against him.

Their answer to it is—and it seems to me conclusive-that they do elect to go on with their suits, and that he elects to go on with his; that they elect to make their own defence to his suit, and he elects to make his own defence to theirs. They control the litigation in the form of actions on the notes, and he in the form of an action against the notes. Why should they elect rather than he? If it be double vexation-which I admit the law does not allow-the charge lies as much at his door as at theirs. It is not a case of election. The plaintiff, however, may take an order, if he sees fit, allowing him to pay the principal, interest, and costs, in the actions on the notes, without prejudice to his rights, as they may finally be determined on the appeal in this action.

SUPREME COURT.

WILLIAM J. FINLAY agt. THE AMERICAN EXCHANGE BANK.

BLISS & HUBBARD agt. THE SAME.

WORTHINGTON agt. THE SAME and others.

WILLETTS, President of the American Exchange Bank, agt. FINLAY and others.

The Commercial Bank of Toledo, Ohio, on the 27th Nov., 1854, suspended payment, and gave notice thereof on the same day to the American Exchange Bank, New-York. It had a balance to its credit in the latter bank, on that day, of over $4,000; which grew out of the business relations between them, as exchange banks, for several years previous-each paid interest on the balances against it, and each paid as drawn for.

Held, that the drawing of sight drafts, or checks, of the Commercial Bank of

Toledo, in favor of the plaintiffs, did not operate in law, any assignment to

Willetts, President of the Am. Ex. Bank, agt. Finlay and others, &c.

the holders, either legal or equitable, of any funds in the hands of the American Exchange Bank.

ers.

The presentation of such paper to the American Exchange Bank, after it had received notice of the suspension of the Commercial Bank, imposed no obligation upon the former bank to pay the paper, as between that bank and the holdIt was not liable to the plaintiff or the holders of the paper. To enable the court to take jurisdiction in an interpleader suit for a particular fund, so as to settle the equities between all the parties, the amount of the fund must be ascertained with sufficient certainty to enable it to be brought into court; unless the parties can agree to fix the amount.

Where there is a fund due to an insolvent bank, and the holder, a bank, brings an interpleader suit against the respective claimants, the proper parties to such suit are, the receiver of the insolvent bank, the attaching creditors, and the sheriff who has attached for them; but not the bill-holders or check-holders of such bank; because the latter have no lien upon the fund, either as assignees in equity or otherwise.

In the sense of an implied agreement between the drawer of a check and the holder, that the drawer will not withdraw his funds, but leave them in the banker's hands to meet the check, the drawing of the check is to be regarded as an appropriation of the funds, but in no other sense.

And this operates no assignment of such moneys, nor an appropriation of them in fact, in the sense which would give the holder a lien, either legal or equitable upon the fund.

Where the fund goes to the receiver in another state, the bill-holders will be retained as parties; and after it has been adjudged which of the interpleading parties is entitled to priority, the bill-holders may ask that their several claims be paid out of the fund as against the receiver, and before the receiver shall take the fund from the court.

New-York Special Term, July, 1855.

THE first three suits were brought against the American Exchange Bank for payment of sight drafts, or bank checks, of the Commercial Bank of Toledo, Ohio, which the respective plaintiffs held.

The last suit was brought by the American Exchange Bank, against the several plaintiffs as an interpleader suit.

The following facts were found by the court, viz. :

The plaintiffs held the paper which is set forth in their respective complaints, and it was presented to the American Exchange Bank for payment, at the time and in the manner averred in said complaints respectively: payment was refused, for which these suits were brought.

Willetts, President of the Am. Ex. Bank, agt. Finlay and others, &c.

At the time of presentation, the American Exchange Bank had an account with the Commercial Bank of Toledo, and had in its hands, of the Toledo bank funds, about $10,800. The Toledo bank held, also for collection, about $14,000 of paper, part of which belonged to the American Exchange Bank, and a part to its customers, which had been remitted by the American Exchange Bank to the Toledo bank for collection.

On the 27th of November, 1854, the Toledo bank suspended. payment, and the American Exchange Bank received a friendly notice of such suspension the same day, by telegraph. After such notice, it refused to pay the Toledo bank drafts, including those in question. A subsequent balance struck by the American Exchange Bank, in March, 1855, showed that the American Exchange Bank, upon adjustment of balances as the accounts stood on the 27th of November, 1854, was indebted to the Toledo bank in over $4,000.

This balance grew out of the business relations between the two banks, which had existed for several years prior to the 27th of November, 1854, by which the American Exchange Bank became agent of the Toledo bank, to collect its eastern paper, and the Toledo bank became agent of the American Exchange bank, to collect its western paper. Each one also further acting for the other, as in the regular course of their business was required.

The practice was, for each to collect, and carry the collections to the credit of the other, and to pay as drawn for. The American Exchange Bank paid four per cent. interest on balances due by it to the Toledo bank, and charged the currentrate, not exceeding seven per cent., on balances due from the Toledo bank to the American Exchange Bank.

These suits were all commenced within a few weeks after the dishonor of the paper.

The above are the facts as found by the court.

The following is held to be the law, as applicable to the facts, viz.:

First. The drawing of the paper in favor of the plaintiffs did not operate, in law, any assignment to the holders, either legal

Willetts, President of the Am. Ex. Eank, agt. Finlay and others, &c,

or equitable, of any funds in the hands of the American Exchange Bank.

Second. The presentation of such paper to the American Exchange Bank imposed no obligation upon such bank to pay the paper, as between the bank and the holders.

Third. The American Exchange Bank is not liable to the plaintiffs by reason of any of the facts above set forth.

Fourth. The several actions above named are to be dismissed, but without costs to either party.

for motion. opposed.

COWLES, Justice. This bill has not all the essential features of a bill of interpleader; for the amount of the fund is not ascertained with sufficient certainty to enable it now to be brought into court, and allow the plaintiff to be discharged from the further proceedings in the suit.

But with the understanding which was entered into in that respect on the trial, the amount of the fund can be hereafter settled; and the bill is thus so far in the nature of an interpleader suit that the court can take jurisdiction of the case, and settle the equities between all of the parties.

The parties will, if they can agree, fix upon the amount of the fund; if not, a balance must be struck, under the order of the court, to be hereafter made; and the balance so struck will be regarded as the fund subject to the decree, and to be disposed of by it.

The next question is, who are proper parties to interplead for this fund?

The receivers, as respecting the Toledo bank, are clearly proper parties; because in the event of there being no other claimants, they are entitled to the whole.

The attaching creditors, and the sheriff who has attached for them, are also proper parties; for by their attachment they have acquired a right to, and interest in those funds, unless some party has a superior and better right.

Willetts, President of the Am. Ex. Bank, agt. Finlay and others, &c.

They are, therefore, to be decreed to interplead for this fund. The other parties, the bill-holders, or, as they term themselves, the check-holders, also claim to have a lien upon this fund, as assignees in equity of the same, under and by virtue of their checks.

It has often been said by the elementary writers, and the same language is used by judges in many of the reported cases, that a bank check is an appropriation by the drawer of so much of his funds in the hands of his banker as is necessary to pay the check, and that there it should remain until the check is paid. (Cruger agt. Armstrong, 3 John. R. 5; 3 Kent's Com. 104, n., 7th ed.; Domic agt. Kyle, 1 Kelly, 304; Matter of Brown, 2 Story's Rep. 502; Story on Prom. Notes, § 489; Bayles on Bills, 3d Am. ed. 79, note.)

But I have looked in vain through the books for a single case where, in a suit by the holder against the drawee, it has been held that the holder had a right of action against the drawee for non-payment of the check; nor can I find any adjudication which leads to the inference, that the appropriation of funds so spoken of raises anything like privity of contract between the holder and drawee.

The theory, as respects a check, undoubtedly is, and such should be the fact, that it is drawn on a banker, against a fund of the drawer actually in the banker's hands, and which the banker is supposed to stand ready to pay on presentation of the check. When that is the case, the drawer, by the mere act of drawing the check, if he is honest, does devote so much of his funds in the hands of his banker to the holder, and cannot, without a breach of good faith, withdraw them.

The authorities hold that his contract with the holder is, that the banker will pay on presentation, and if he does not, then the drawer himself will.

In the sense of an implied agreement between the drawer and holder, that the drawer will not withdraw his funds, but leave them in the banker's hands to meet the check, I readily subscribe to the doctrine, that the drawing of the check is to be