The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1894-01-17


against
The Bank Of Greenwood Defendant, Appellant
Points and Authorities Nj. II. DeBruhl. Attor-
ncy Defendant.
Statement of Facts Relied by Appel
This action is on check in the plaintiff by Jer
vey Greenwood January 1892 brief folio
1t drawn pay debt due by Jervey Co. TO pantH
brief folio 49, The check presented to defendant Bank on
January and protested for want of payment on the ground
mo funds" Brief foos and g. At the time this check was
presented Jervey Co. owed the Bank s. 600 drafts over
drawn fios g. 32 Jervey Co. at that time also owed the
Bank several thousand dollars past due notes. making the
total Indebtedness ssOO folio 3d. The Bank opened
accounts their books general account and
entered Jervey co., and the other "Jervey Co. c. A." The
&C. intended cotton account folio g. Jervey Co., in
both accounts were the same folio g. The accounts
kept merely and not to change the liability OF
parties at ALL foio Two accounts Banks books
On Jervey Co.'S book at their Office only foos 49, &c. All
money deposited the Bank the of Jervy Co., all
checks drawn their checks and all the business done by
them through that Bank erve Co.'s business foios H. To-
Plaintiffs testimony showed that when the check drawn
ervey Co., $16 to the credit of their account folio ~
ervey Co. had drawn another check between the draw
ing and its presentation for payment folos TO- To-
1t was not ovepus check ios 90 2 Sparkman could not
testify that Jervey had money enough to their credit
pay check when presented.
That could not there 16l in Bank Sh or 9TH Jan
IA. Ihere
general account when the check was folio 49,
The amount supposed to be $ the book keeper hav
ing made mistake addition oos Al and A. Jervey
Co. were nsovent and consulting their attorneys and made
an assignment on January os o. 49, The Bank had
been trying get money from Jervey Co. to cover their in
debedness but could not foos 49, Mr. Greene told Mr. W.
MCGOWAN there enough there to pay the
that Jervey Co. owed the Bank 81 and he did not feel like
ought pay it, folio A. This was after check had been pro-
tested, Al.
Exceptions L and 5.
These executions relate to the refusal defendants motion to
dismiss the complaint, and motion for a non-sult
The holder bank check cannot sue the bank for refusing
payment the proof accepted by the Bank
charged against the drawer.
Bank v. Miard, 10 Wallace l52.
Bank v. Shuler, 12O U. S. 5l1.
Bank v. Whitman, 81 U. S. 3l3-i7
Am and Eng Enc. of Law, vol page 226 and note q
Hawes V. Blackwell, 12 S. E. Rep. 245-6
In Bank " Mard above ced page 156 the Court
1t conceded that the depoor bring assumps for the
breach of contract honor his cheeks and the holder mas
similar right then anomaly presented of right of action
upon PROMISE for the thing existing in two distinct
persons time On principle there be no oun-
daton action the part of the holder unless there s
pvy contract between him and the Bank How can there
be such prvty the Bank duty and under
the holder The holder takes the check on the
credit the drawer in the belief that he has funds to meet it,
no the Bank be said to be connected with the
Transaction If true that there prvity of con-
bankee and the hodee when the check
gven would be obliged to pay the check although
the drawer before presented had counternanded it, and
although other checks drawn after it issued but before
demanded had exhausted the funds OF the
" depositor If then, the Bank did not contract
with holdee of the check at the time it given
said that duty to the holder until the
" check is presented and accepted?"
right deposito chose in action and his check does
not transfer the debt give lien upon to third person
without the assent of the depostary
10 Wallace, page 157.
An ordinary check drawn general deposit account not
an assignment. Morse on Banks, vol. z Sec OIL a
check neither legal equitable assignment as between
and payee foundation for action by
the holder against the Bank.
Morse on Banks vol. 9 sec. 493.
The case of Fogarties Stman The State Bank II Ric
5 holds that the checkhoder sue the Bank but the
attention respectfully called the dissenting op-
on page 531, presenting the correct view.
The motion for a non suit should been granted