Page:Federal Reporter, 1st Series, Volume 8.djvu/557

FISST NAT. BANK OP CINCINNATI V. COATBS. 543 �which will be enforced. I think, if the Metropolitan National Bank had held the money, and had it to-day, it could be sued just as Mr. Coates can be. But the fund bas been transferred to Mr. Coates, and be is now the bolder of the fund, and the court can get hold of Mr. Coates and subject him to liability. It is my opinion that, after notice to the Metropolitan National Bank, it was bound to hold that money to answer these drafts. At all events, as the case stands, this assigriee took the fund transferred to bim subject to the right which had been established by the draffc on its presentation. I am not sure, however, that the Metropolitan National Bank could have been held liable, beoause I believe, on refleotion, they had notice of the assignment before they had notice of the drafts, and it is notice to the holder of the fund which fixes the liability of the holder; .and in that, perhaps, I was in error. I believe Mr. Coates notified them by telegrapb of the assignment of the bank to bim before the drafts were protested. That being the case, the Metropolitan National Bank was not liable. That is an immaterial consideration, however, as the fund remains the same. The pbilosophy of it is that this fund baving been appropria-ted by these checks, duly presented, did not pass by the assignment; that the fund on which they were drawn, to that extent, did not pass by the assignment as the general property of the bank into the hands of Coates, but when be got it be held it subject to the lien established on it. The resuit of that is that these drafts are each of them an appropriation of that much of the fund, and the complainants are entitled to recover the amount of them, less the amounts . received by them in dividends from the assignee. Nor does the fact that they were presented to the assignee for allowance, and by him allowed as general demands against the estate, and that the complainants received dividends from him on Buch allowance, constitute an election by them of a remedy wbich wUl bar a recovery here. The remedies are not inconsistent. �There is no evidence that the assignee will ever be called on to account for an excess of the fund. He can at any time file big bill requiring everybody to corne witb their claims for amounts unpaid. ��� �