Winter v. Drury

Winter v. Drury. Bills of Exchange. An ordinary MU of exchange, payable generally and absolutely, does not, of itself, give to the holder, either in law or equity, a lion upon the funds, of the creditor, in the hands of the debtor, until an acceptance by the latter. Appeal from the general terra of the Superior Court of the city of New York, where a decree had been made dismissing a bill in equity, with costs. (Memorandum of decision below, 3 Sandf. 263 n.) This was .a bill in equity, filed by John G. Winter against Samuel Drury and Richard Clarke, to recover from Drury a sum of $250, which he had received under the following circumstances: The plaintiff, a resident of Georgia, carried on, through an agent, the business of- exchange-broker, in New York. The defendant, Clarke, was a manufacturer of carpets, at Astoria, in Queens county, in this state; he was in.the habit of shipping his goods to Furness, Brinley & Co., of Philadelphia, auctioneers and commission merchants, for sale on his account. Prior to January 1846, the plaintiff had taken the drafts of Clarke upon Furness, Brinley & Co., and advanced him money thereon, which had been uniformly paid. At firstj in one or two instances, Clarke exhibited his authority to draw; in others, he represented the drafts to be drawn against the goods shipped by him to the drawees. On the -31st January 1846, about ten o’clock a. M., the plaintiff’s agent purchased of Clarke his draft on Furness, Brinley & Co. for $400, payable at sight, deducting the usual rate of exchange; and on the sanie day, forwarded it to Philadelphia, for collection. About one o’clock p. m. of the same day, Clarke made a general assignment to the defendant, Drury, in trust for the benefit of his creditors, and immediately left the country. At that time, Clarke' had in the hands of Furness, Brinley & Co. a balance of $250. The draft of $400 was not -accepted, and was duly protested; but the drawees, on the day on which it was presented, *sent Clarke an account, exhibiting a balance of $250 in his favor; for which sum, they, on the following day, forwarded him their check, payable to his order. The check was received by the defendant, Drury, who indorsed it as assignee, and received the money, and applied it to the payment of the debts of the assignor, before notice of the plaintiff’s claim. Neither the draft, nor the funds in the hands of Furness, Brinley & Co., were mentioned in the assignment. A few days after the receipt of the money, the plaintiff gave the assignee notice' that he claimed the fund by virtue of the $400 draft; and this suit was brought to enforce such claim. The cause was subsequently transferred by the supreme court, to the superior court of the city of New York, where a decree was made, dismissing the plaintiff’s bill, wTith costs; whereupon, he took this appeal. Comstock, for the appellant. Hoffman, for the respondent. [MAJORITY — *G-ardiner, J.] *G-ardiner, J. The draft in question was an ordinary hill of exchange, payable generally and absolutely. In Harris v. Clark (3 N. Y. 118), it was said, that a bill of exchange does not, of itself, give to the holder, either in law or equity, a lien upon the funds of the creditor in the hands of the debtor, until an acceptance by the latter. And in the still stronger case (3 N. Y. 243) of a draft drawn simultaneously with a consignment of cotton to a house in Scotland, the same doctrine was re-affirmed by this court. There is nothing in the case before us, to distinguish it, in principle, from those cited. The bill was not, in terms, drawn upon a particular fund, nor was the money of Clarke, in the hands of the drawees, alluded to, even in conversation, when the bill was discounted by the plaintiff. If the holder, by the receipt of the bill of exchange, for value, acquired, neither at law nor in equity, a lien upon the balance due to Clarke, and then remaining with the drawees, the drawer had the right to dispose of it, at his pleasure. If, intermediate the time of procuring the bill to be discounted, and its presentation to Furness, Brinley & Co., the drawer himself had obtained the two hundred and fifty dollars from his correspondents, the plaintiff could not have maintained an action against Clarke for the sum thus received. It was not the money of the holder, but of the drawer. (11 Paige 612.) The equities against the defendant, the assignee of Clarke for the benefit *of creditors, who obtained the money, in good faith, and without notice of the draft, are not stronger, certainly, than against the assignor. I think, the decision of the superior court was right, and that the judgment should be affirmed. Judgment affirmed. See, to the same effect, Chapman v. White, 6 N. Y. 412; Attorney-General v. Continental Life Insurance Co., 71 Ibid. 325; New York and Virginia State Stock Bank v. Gibson, 5 Duer 574; Fabars v. Welsh, 1 Clark (Pa.) 367.