Covert v. Rhodes. not a natural consequence, and would not have been anticipated, as a natural result, by persons of usual intelligence, in the exercise of ordinary care, no intent would be presumed, nor negligence imputed, and if damage ensued to persons having property on the streams below, by the washing of slack, etc., no liability would attach to those who made the deposits. And, in substance, the foregoing was given by the trial judge to the jury. The charge upon other questions presented is an accurate statement of the law of the case. An examination of the record fails to show any error therein. Bradbury, J., not sittiny. Judgment affirmed. COVERT v. RHODES. Bank check-Draft-When not an equitable assignment-Priority of assignment for benefit of creditors of drawer, made before presentation and acceptance of check or draft. 1. A bank check or draft for a part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn. 2. When, after the drawing of such check or draft, the drawer makes an assignment of all his property for the benefit of his creditors, and notice of the assignment is received by the drawee before the check or draft is presented for acceptance or payment, the title to the whole amount standing to the credit of the drawer at the time of the assignment, passes to the assignee for the equal benefit of all the creditors. The holder of the check or draft is not entitled to priority over the other creditors. (Decided January 13, 1891.) ERROR to the Circuit Court of Cuyahoga county. The case is sufficiently stated in the opinion. A. J. Marvin, for plaintiff in error. We hold that the doctrine laid down by the Circuit Court Covert v. Rhodes. of Coshocton county is the correct statement of the law, and in support of that doctrine, we call the attention of the court to the following authorities: Voorhees, Assignee, v. Haskett, 1 C. C. Rep. 1; Merchants' Bank v. The State Bank, 10 Wallace, 647; Bull v. The Bank of Kasson, 123 U. S. 105; Story on Eq. Jur., section 444; 1 Disney, 247; Daniel on Negotiable Instruments, section 23; Andrews et al. v. Blatchley et al., 110 U. S. 89; Gardner v. The National City Bank, 39 Ohio St. 600. This last case clearly establishes the doctrine that, as between the drawer and the payee, it was the intention that the draft should operate, and it did operate as an assignment of the funds in the hands of the drawee. This brings us again to the doctrine that the assignee takes no greater rights than his assignor had at the time of the assignee's appointment, and the assignee steps into the shoes of the assignor; but in this case the drawer steps into the shoes of the drawee.. If, between the payee and the drawer, this check acts or should operate as an equitable assignment of the funds in the hands of the drawee, or should afterwards come into the hands of the drawer, then it will also act as an equitable assignment of the funds which has now come into the hands of the assignee, for he stands in the shoes of the drawer of the check. So that we claim that under the decisions in Ohio, there is no controverting the doctrine that, as between the drawer and the payee, the drawing of the check is equivalent to an equitable assignment pro tanto of the funds in the hands of the drawee, and these funds have come within the jurisdiction of this court, and being now in the hands of the assignee are as much the property of the payee under that check as though they were in the hands of the drawer of the check. Taney v. Wilson, 16 Vroom, part 2, 282; Canty v. Latterman, 18 Cent., L. J. 30; Row v. Dawson, 1 Ves. Sr. 331; Rodrick v. Gandel, 1 De G. M. & G. 777; Letts v. Morris, 4 Sim. 607; Superintendent, etc., v. Heath, 15 N. J. Eq. 22; Story Equity Jurisprudence, vol. 2, sections 1043-4; Bower v. Hadden Blue Stone Co., 30 N. J. Eq. 171; Miller v. Hubbard, 4 Cranch, C. C. 451; King v. Gershine, 1 D. 150; Black v. Covert v. Rhodes. Zachaire, 3 How. 483; Wiggins v. McDonald, 18 Cal. 126; Moody v. Kyle, 34 Miss. 506; Dickey v. Hannon, 1 Cranch, C. C. 201; Gibson v. Cook, 20 Pick. 15; See 5 Cent. L. J. 19; 10 Cent. L. J. 94; 8 Bush, Ky., page 357; 18 Ky. Reports, 746; 26 Iowa, 315; 25 Ill. 35; 28 Ill. 168; 42 Ill. 238; 68 Ill. 399; 80 Ill. 212. The investigation of these authorities shows that the doctrine is well settled, that as between the drawer and payee the draft or check is an assignment, pro tanto, of the funds in the hands of the drawee, and that a court of equity will also support the rights of the payee to those funds whenever the parties can be so brought before the court that equity may be done in the premises. This is not an action brought against the Importers & Traders National Bank; if it was, the weight of authorities would be against the right of the holder of the check to maintain an action against that bank, but the funds that were appropriated by Crumb & Baslington and intended to be appropriated by them for the payment of this check, are now within the jurisdiction of this court, and as averred in the petition are in the hands of the assignee, and he is before the court, where the court looking at what is equitable and what is right between the parties can determine that right, and order the money to be paid over accordingly. We believe that in every case of a similar character the doctrine is now well established by authorities in the United States and England, that the doctrine declared by the supreme court in the 123 U. S. 111, and 10 Wallace, 647, and by 1 Ohio Circuit Court Report, is the true doctrine, and that this plaintiff under the circumstances is entitled to recover the entire amount of that check or draft from this assignee. Boynton, Hale & Horr, for defendant in error. The only question of law arising upon the record for the consideration of this court, is, as to the relative rights of the payee of the draft, and of the assignee under the statute for the benefit of creditors. We claim that the great weight of authority sustains the proposition that a check or draft drawn on a general fund does not operate as an assignment pro Covert v. Rhodes. tanto of that fund, as between the payee of the check or draft and the assignee for the benefit of creditors of the drawer. We will not burden the court with a citation of the very numerous cases which are found in the reports, bearing on this proposition. There are a few cases holding the contrary. Fogarties v. State Bank, 12 Rich. (S. C.) 518; The Union National Bank v. The Oceana County Bank, 80 Ill. 212; Roberts v. Austin, 26 Iowa, 315; and two or three other cases in Illinois. The only case among them which was decided upon a state of facts similar to that now under consideration, is that in the 26 Iowa, 315, which was decided by a divided court. On the other hand, the Supreme Court of the United States in the case of Laclede Bank v. Schuler, 120 U. S. 511, holds directly what we claim. To the same effect is Whitney v. Eliot National Bank, 137 Mass. 351; Dickinson v. Coates, 79 Mo. 251; s. c. 49; Chapman v. White, 6 N. Y. 412; Lord v. MeCaffrey, 49 Pa. St. 410; Moses v. Franklin Bank, 34 Md. 580; Bush v. Foote, 58 Miss. 5; Att'y General v. Life Ins. Co., 71 N. Y. 325. And in England, Hopkinson v. Forster, L. R. 19 Eq. Cas. 74; Foley v. Hill, 2 H. L. Cas. 28. These cases are decisive of the question involved, and show the judgment of the circuit court to be correct. The case of Gardiner v. The National City Bank, 39 Ohio St. 600, relied on by counsel on the other side, rests entirely on different facts. Indeed, Judge JOHNSON in delivering the opinion, clearly distinguished the case then under consideration, from cases like the present. WILLIAMS, J. The original action was brought in the Court of Common Pleas of Cuyahoga county, by John A. Covert, against J. H. Rhodes as assignee for the benefit of creditors of Crumb & Baslington. The substantial averments of the petition are, that Crumb & Baslington, a banking firm in the city of Cleveland, on the 22d day of June, 1887, drew their draft on The Importers & Traders National Bank of New York city, for the sum of one thousand dollars, payable to the order of the plaintiff. The amount then due Covert v. Rhodes. the firm from the drawee, exceeded that for which the draft was drawn. Through successive indorsements, the draft reached the National Bank of Commerce of New York city, on the 6th day of July, 1887, and was then presented by it for payment. In the meantime, on the 24th day of June,. 1887, Crumb & Baslington made an assignment of all their property to the defendant for the benefit of their creditors. Notice of the assignment having reached The Importers & Traders Bank prior to the presentation of the draft, payment was for that reason refused, and the whole amount standing to the credit of Crumb & Baslington was afterwards paid over to the defendant. The plaintiff sought by his action, to compel the defendant to pay him the amount of the draft. A general demurrer to the petition was sustained, and judgment rendered for the defendant. The affirmance of that judgment by the circuit court, is the matter of complaint here. Unless the draft, before presentation, constituted an equitable assignment of a part of the amount due Crumb & Baslington from the bank on which it was drawn, equal to the sum it called for, and thus vested the title thereto in the plaintiff, it is clear his action could not be maintained; for, if the unaccepted draft did not so operate, the title to the whole amount standing to the credit of Crumb & Baslington, with every right which their creditors could have asserted against it at the time the assignment was made to the defendant, vested by virtue of the assignment, in the assignee, for the equal benefit of all the creditors. Blandy v. Benedict, 42 Ohio St. 295. The practical question, then is, whether the unaccepted draft for a part only of the amount due the drawer, gave the payee or holder, priority over the other creditors of the drawer. We are of the opinion that it did not. Some cases and textwriters, we are aware, maintain with much earnestness, the position taken by the counsel for the plaintiff, that a draft or bank check for part of the amount due the drawer, is an equitable assignment pro tanto, giving the payee or holder, an equitable property in the fund, which may be pursued as long as it can be certainly identified, ex |