Citations for Appellee.

Where a dividend was declared by the receiver in October, 1887, the plaintiff is entitled to interest on the amount of his dividend from the time it was declared.

IN EQUITY.

Decree in favor of the complainant. The defendant appealed. The case is stated in the opinion.

Mr. John W. Herron, for appellant, cited: White v. Knox, 111 U. S. 784; Vorce v. Rosenbery, 12 Nebraska, 448; Chariton Plough Co. v. Davidson, 16 Nebraska, 374; Aldrich v. Stockwell, 9 Allen, 45; Kyle v. Thompson, 11 Ohio St. 616; Tisen v. Hanford, 31 Ohio St. 193; Weber v. Orton, 91 Missouri, 677; Trust Co. v. National Bank, 101 U. S. 68; Pollard v. Vinton, 105 U. S. 7; Farmers' and Mechanics' Bank v. Butchers' Bank, 16 N. Y. 125; S. C. 69 Am. Dec. 678; Baxendale v. Bennett, 3 Q. B. D. 525; Stewart v. Lansing, 104 U. S. 505; Marion County v. Clark, 94 U. S. 278; Pearce v. Foote, 113 Illinois, 228; Coffman v. Young, 20 Ill. App. 76; Raymond v. Leavitt, 46 Michigan, 447 ; Brown v. Tarkington, 3 Wall. 377; Chapin v. Dake, 57 Illinois, 295; Third Nat. Bank v. Harrison, 3 McCrary, 316; Cunningham v. Third Nat. Bank of Augusta, 71 Georgia, 400; Dresser v. Missouri & Iowa Construction Co., 93 U. S. 92; Williams v. Smith, 2 Hill, 301; White v. Knox, 111 U. S. 784; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383; Chemical Bank v. Bailey, 12 Blatchford, 480.

Mr. C. B. Matthews and Mr. W. H. Swift, for appellee, cited: Munroe v. Bordier, 8 C. B. 861; Watson v. Russell, 3 B. & S. 34; South Boston Iron Co. v. Brown, 63 Maine, 139; Glascock v. Rand, 14 Missouri, 550; Horn v. Fuller, 6 New Hampshire, 511; St. Louis & San Francisco Railway Co. v. Johnston, 23 Blatchford, 489; S. C. 27 Fed. Rep. 243; Bank of Circleville v. Bank of Monroe, 33 Fed. Rep. 408; In re Bank of Madison, 5 Bissell, 515; Clark v. Merchants' Bank, 2 Comstock, 380; In re Franklin Bank, 1 Paige, 249; S. C. 19 Am. Dec. 413; Platt v. Beebe, 57 N. Y. 339; Metropolitan Bank v. Loyd, 90 N. Y. 530; Bank of the Republic v. Millard, 10 Wall. 152; Brooks v. Bigelow, 142 Mass. 6; Commercial Bank v. Mil

Opinion of the Court.

ler, 77 Alabama, 168; Flannery v. Coates, 80 Missouri, 444; In re Carew's Estate, 31 Beavan, 39; Ex parte Richdale, 19 Ch. D. 409; Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276; Long v. Straus, 107 Indiana, 94; Miller v. Austen, 13 How. 218; Curtis v. Leavitt, 15 N. Y. 9; Leavitt v. Palmer, 3 Comst. 19; S. C. 51 Am. Dec. 333; Barnes v. Ontario Bank, 19 N. Y. 152; Bank of Peru v. Farnsworth, 18 Illinois, 563; Laughlin v. Marshall, 19 Illinois, 390; Hunt v. Divine, 37 Illinois, 137; White v. Franklin Bank, 22 Pick. 181; Hart v. Life Association, 54 Alabama, 495; Kilgore v. Bulkley, 14 Connecticut, 362; Lindsey v. McClelland, 18 Wisconsin, 481; S. C. 86 Am. Dec. 786; Bank of Chillicothe v. Dodge, 8 Barb. 233; Poorman v. Mills, 35 California, 118; S. C. 95 Am. Dec. 90; Hazelton v. Union Bank, 32 Wisconsin, 34; Trip v. Cortenius, 36 Michigan, 494; Bean v. Briggs, 1 Iowa, 488; S. C. 63 Am. Dec. 464; Howe v. Hartness, 11 Ohio St. 449; S. C. 78 Am. Dec. 312; Cummings v. Gassett, 19 Vermont, 308; Hussey v. Winslow, 59 Maine, 170; Fleming v. Burge, 6 Alabama, 373; Blood v. Northrup, 1 Kansas, 28; Nelson v. First Nat. Bk. of Chicago, 48 Illinois, 36; S. C. 95 Am. Dec. 510; Grissler v. Powers, 81 N. Y. 57; Armstrong v.. Tyler, 11 Wheat. 258; Mc Blair v. Gibbes, 17 How. 232; Kinsman v. Parkhurst, 18 How. 289; Brooks v. Martin, 2 Wall. 70; Railroad Co. v. Durant, 95 U. S. 576.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

These are appeals by David Armstrong, receiver of the Fidelity National Bank of Cincinnati, Ohio, from decrees rendered against him by the Circuit Court of the United States for the Southern District of Ohio, in two suits in equity, brought against him in that court by the American Exchange National Bank of Chicago, Illinois. The first case will be referred to as No. 1110, and the second case as No 1111.

No. 1110 was commenced on the 5th of November, 1887, by a petition, which was demurred to by the defendant. demurrer was overruled, the defendant answered the petition, and there was a replication to the answer. Then, by leave of

The

Opinion of the Court.

the court, a bill in equity was filed in place of the petition. The bill sets forth the following facts: The plaintiff is a corporation under the laws of the United States, doing a general banking business in Chicago, Illinois. The defendant is the receiver of the Fidelity National Bank of Cincinnati, Ohio, a corporation created under the laws of the United States, which did a general banking business in Cincinnati, Ohio. On the 15th of June, 1887, the plaintiff became the owner and holder of a draft drawn by the Fidelity Bank on the Chemical National Bank of the city of New York, a copy of which, with all credits and endorsements thereon, is as follows:

"$100,000.00.

"The Fidelity National Bank.

CINCINNATI, June 14, 1887. No. 16,412. "Pay to the order of American Exch'ge Nat. B'k, Chicago, one hundred thousand dollars.

"BENJ. E. HOPKINS,

"As. Cas. Cashier.

"To the Chemical National Bank, New York City."

Endorsed: "Without recourse. A. L. Dewar, cashier. Dep. acct. C. J. Kershaw & Co. C. J. Kershaw & Co. Pay American Exchange Nat. Bank, New York, account of American Exchange Nat. Bank of Chicago, 15 June, 1887. A. L. Dewar, cash."

At the time the draft was drawn, Benjamin E. Hopkins was the assistant cashier of the Fidelity Bank, and by its authority the signature, "Benjamin. E. Hopkins, As. Cas.," was used for the signature of that bank. Within a reasonable time. after the plaintiff became the owner of the draft, to wit, on June 17, 1887, it was presented to the drawee for payment, which was refused. It was protested for non-payment, and notice of the demand, refusal, and protest was forthwith given to the Fidelity Bank; and thereupon that bank became liable to the plaintiff in the sum of $100,000, with interest from June 17, 1887. After the draft was drawn and the plaintiff had become its owner, the Fidelity Bank, without the knowl

Opinion of the Court.

edge of the plaintiff, ordered the drawee not to pay the draft; and the drawee, in refusing to pay it, was acting in accordance with such instructions. On the 27th of June, 1887, the Comptroller of the Currency of the United States, acting under the statute, appointed the defendant receiver of the Fidelity Bank. On the 12th of July, 1887, a decree was rendered by the Circuit Court of the United States for the Western Division of the Southern District of Ohio, in a proceeding instituted by such Comptroller against the Fidelity Bank, adjudging that its franchises had been forfeited and declaring it to be dissolved. In September, 1887, the claim of the plaintiff was presented to the receiver in due form, but he rejected it.

The prayer of the bill is for a decree that such claim for $100,000, with interest from June 17, 1887, to June 27, 1887, is a valid claim against the estate in the hands of the defendant as receiver, and that he be directed to satisfy it by paying dividends upon it from the assets of the Fidelity Bank; and for general relief.

The defendant answered the petition, and, after the bill was filed, it was ordered that such answer stand for an answer to the bill, and that the replication which had been filed to it stand also.

The defence set up in the answer is that the plaintiff is not the owner of the draft; that it was signed by Hopkins, and came into the possession of the plaintiff, without any consideration paid for it by the plaintiff to the Fidelity Bank; and that that bank never received any consideration from any person for it, and is not indebted to the plaintiff on account of it.

It was admitted of record that the draft was presented to the drawee within the reasonable time allowed by law, that payment was refused, that it was protested for non-payment and that notice of demand, refusal, and protest was given in due time to the Fidelity Bank; and also that the defendant, on October 31, 1887, declared, and has paid, a dividend of 25 per cent on all claims against the Fidelity Bank and the receiver, approved or adjudicated as valid claims.

Opinion of the Court.

Besides cases Nos. 1110 and 1111, a third suit was brought, and testimony was taken in all three of them at the same time. It was stipulated of record that all depositions taken or to be taken in any one of the three cases might be read by either party in all of them.

After a hearing on pleadings and proofs, a decree was entered on the 3d of December, 1888, in No. 1110, setting forth that, on the 15th of June, 1887, the plaintiff became and had ever since been the owner of the draft in question; that it was duly presented to the drawee and payment refused, and the Fidelity Bank had due notice; that the claim was duly presented to the receiver and rejected; that it is a just and valid claim, and should have been allowed by him; that the plaintiff is a bona fide holder of the draft for a valuable consideration before maturity, without notice of any want of consideration, free from all equities or defences whatsoever; and directing the defendant to allow the claim as one for the full amount of $100,000 against the assets in his hands as receiver, to satisfy it by paying such dividends as had been made theretofore and as should be made thereafter from the assets of the Fidelity Bank in due course of administration, and to pay the dividend of 25 per cent already declared October 31, 1887, with interest from that date until the date of payment, and also the costs of the suit. From that decree the defendant has appealed.

No. 1111 was commenced by a petition filed on the 5th of November, 1887, which was demurred to and the demurrer was overruled. The defendant then answered the petition, a replication was filed to the answer, and then leave was granted to the plaintiff to file a bill in equity instead of the petition. That bill sets forth as follows, in addition to the same formal matters set forth in the bill in No. 1110: On the 14th of June, 1887, the Fidelity Bank issued a certificate of deposit, or letter of advice, addressed to the plaintiff, of which the following is a copy: