Rhodes v. Stout.

plaintiffs, Sarah A. Rhodes, who died April 30, 1837; that said administratrix of Mahlon Kingman deceased, Susan Kingman, has wholly failed to discharge the duties of administratrix, and has made no payments to the heirs of said decedent, who are infants and sue by their next friend. Plaintiffs claim in this action to recover, upon said bond of said administratrix against defendant, their distributive share of said estate. It is shown in the petition that said Huff died July 21, 1863, in Dubuque; that defendant was duly qualified as executor, October 9, 1863, and that notice of his appointment was published November 9, 1863. The County Court of Dubuque county, by proper order dated November 11, 1866, authorized the prosecution of the suit in the District Court, and the petition was filed on that day.

To this petition defendant demurred, upon the grounds, first, that the petition discloses a cause of action in favor of the administrator of the estate of Sarah A. Rhodes, deceased, and not in favor of plaintiffs, her heirs; second, that a recovery is barred by reason of the fact that more than eighteen months had expired after the giving of the notice of the appointment of defendant as executor, and before the commencement of this suit. The demurrer was overruled, defendant excepting and refusing to plead over. Judgment for plaintiff in the sum of $1,200, and defendant appeals.

Shiras & Van Duzee for the appellant.

Beach & Gray for the appellees.

BECK, J.-It is insisted by defendant's counsel, that the suit cannot be maintained by plaintiffs; that Sarah ADMINISTRA- A. Rhodes, upon the death of Mahlon KingTOR: parties. man, became entitled to a distributive share of his estate, which, at her death, vested in her adminis

Roberts v. Austin Corbin & Co.

trator, who alone can recover the same for the use of her estate, to be expended in the payment of the debts thereof, and in case there should be no debts, to be distributed to her heirs. This view is undoubtedly correct. Without determining that the plaintiffs could, or could not, maintain the action, in case no administration has been granted upon the estate of their mother, or the time for granting letters of administration thereon, limited by the statute, has expired, or no debts against her estate in fact exists, or in case of the existence of other like facts, none of which are shown in the petition, we are clearly of the opinion that the plaintiffs, upon the case made by the petition, are not the proper parties to prosecute this suit in that capacity.

The other point made by the demurrer, namely, that the claim not having been filed in the County Court, nor suit thereon brought within eighteen months, is barred by section 2405 of the Revision, we will not undertake to rule. The cause must be reversed upon the ground above stated; an amendment of the petition may present this point in a different aspect, even if it will not obviate the necessity of its decision in this case.

Reversed.

26 315

78 431

26 315

79 276

ROBERTS, Assignee, v. AUSTIN CORBIN & Co. et al.

1. Bill of exchange: CHECKS. It seems, that a draft drawn by one banker upon another in a different State, having funds of the drawer on deposit, in favor of a third person as payee, is to be regarded simply as a banker's check, and not as a foreign bill of exchange.

2.

RIGHTS OF HOLDER: BANKRUPTCY OF DRAWER BEFORE ACCEPTANCE. The holder of such a check may maintain an action thereon, before acceptance, against the drawee thus having the funds of the drawer in his hands, and wrongfully refusing to pay the same; and the general assignment of the drawer for the benefit

Roberts v. Austin Corbin & Co.

of his creditors after drawing the check but before the same is presented, will not invest his assignee with the right to the money represented by the check nor affect the rights of the payee thereto.

Argu. 1. PROMISE OF ONE TO pay another. In cases of simple contracts, if one person makes a promise to another for the benefit of a third, the latter may maintain an action upon it.

Argu. 2. IMPLIED PROMISE. There is an implied promise on the part of the bank receiving deposits to pay out the same upon the checks of the depositor, and when the depositor indicates by his check the person to whom the money shall be paid, such implied promise enures to the person thus indicated.

WRIGHT, J., dissenting.

3. Assignment for the benefit of creditors: RIGHTS OF ASSIGNEE. The assigneee in a general assignment for the benefit of creditors, takes the property of his assignor subject to all the equities existing against it in favor of third parties. He merely stands in the shoes and succeeds only to the rights of his assignor.

4. Practice: CHANGE OF ORDER IN SUPREME COURT. Where a case has been reversed and remanded to the District Court, the Supreme Court will not revoke such order and enter judgment there on the motion of the party claiming to be entitled thereto, when not made until several months after such order and not until after the time in which the other party might have filed a petition for a rehearing has expired.

5.

In analogy to the rule applied to the District Court, the entries and orders made at a previous term of the Supreme Court should bo altered or changed only to correct an evident mistake.

Appeal from Dubuque District Court.

WEDNESDAY, January 27.

HENRY MARKELL had for some years been engaged in business at Dubuque, as a banker, under the name of H. Markell & Co. He kept an account with Austin Corbin & Co., bankers in New York city, upon whom he was in the daily practice of drawing drafts and selling them to his customers and others in the usual way of business.

During the latter part of December, 1867, and the first part of January, 1868, he thus sold to Glover & Smock, Aultmann, Miller & Co., and the other interve

Roberts v. Austin Corbin & Co.

nors herein, certain checks or bank drafts upon Austin Corbin & Co. for various sums, the same being fully set forth and described in the transcript. These drafts were duly presented to Austin Corbin & Co. within a reasonable and proper time, and payment thereof demanded. In the meantime, Austin Corbin & Co. had received notice by telegraph that Markell had made an assignment for the benefit of creditors to T. C. Roberts, the plaintiff herein, and being uncertain what their duty was in the premises, they refused to pay the drafts as presented, until the rights of the respective parties should be settled by the decision of a proper tribunal. They had at this time to the credit of H. Markell & Co., the sum of $3,322.12. The assignment to plaintiff was made on the evening of January 6, 1868, and a copy thereof, with the the schedule attached, is set forth in full in the transcript.

As Austin Corbin & Co. persisted in their refusal to pay either the draftholders or the assignee until the rights of the parties had been settled by an appeal to the courts, an agreement was entered into, whereby the funds were placed in the hands of the Merchants' National bank of Dubuque, as agent for Austin Corbin & Co., and this suit was instituted for the purpose of settling the question at issue. The case was tried before the court, without a jury, and after hearing the evidence and argument of counsel, the court, in writing, found as follows, upon the questions of law and fact, to wit:

"Trial in this case had before the court without jury. From the evidence, and stipulation, and agreements of the parties, the court finds the following facts:

"1. Henry Markell carried on business at the city of Dubuque, in the State of Iowa, as a banker, under the name and style of H. Markell & Co., before and during the year 1867, and up to the time of the assignment to T. C. Roberts, the plaintiff, as hereinafter stated.

Roberts v. Austin Corbin & Co.

"2. The defendants, Austin Corbin & Co., are a firm of bankers doing business in the city of New York, in the State of New York, during the same time, and Henry Markell kept a deposit account with said New York firm in his business name, and was in the habit of drawing his checks to his customers on the defendants, against such deposit account.

"3. That the intervenors, Glover & Smock, M. S. Robison and others, were customers of the said Henry Markell at Dubuque, and kept their bank accounts at his banking house, and in the course of their business, respectively bought of the said Henry Markell, in the usual manner of depositors at his banking house, the checks upon which they respectively claim in their pleadings, which were issued to them in the name of H. Markell & Co. The drafts to the intervenors and others, so drawn, in the aggregate, amount to $5,881.82, all of which were so bought and drawn at various dates between the 9th day of December, 1867, and the sixth day of January, 1868, inclusive.

"4. That, on the 6th day of January, 1868, the said Henry Markell made, executed and delivered to the plaintiff, T. C. Roberts, a general assignment of all his property and effects as well those in the name of H. Markell & Co., as those in the name of Henry Markell, for the benefit of his creditors, and on the morning of the 7th day of January, 1868, the plaintiff, T. C. Roberts, notified the defendants at New York, by telegraphic despatch, of the fact of such assignment, which notice was duly received by them.

"5. That none of the checks so as aforesaid sold to the intervenors, and now claimed upon by them respectively, were presented for payment to the defendants at their banking house in New York, until after the execution and delivery of said general assignment to the plaintiff, and notice thereof to the defendants as aforesaid.