73 So. 286 | Miss. | 1916
We are of the opinion that the petition of appellees sufficiently states a case for relief. The bid charges that the Bank of Newton had on deposit in the First National Bank of Meridian sufficient funds to pay the sight exchange given appellees. These funds on deposit in Meridian went into the hands of the bank examiners as a p'art of the assets. The only reason why this paper of the Bank .of Newton was dishonored was because the institution had gone into the hands of a receiver and its property was in custodia legis. If the bank had not failed, this sight exchange would have been 'honored. By the bank’s failure and the consequent insolvency proceedings, appéllees are unable to collect the sight exchange given to them, and it seems clear to us the depositors’ checks — that is, the original checks issued by appellees upon their individual accounts — have never, in fact, been paid. The sight exchange held by appellees should either be paid in full or the parties should be placed in the same position they were in before their checks were issued and presented. There is no showing that the sight exchange given appellees was accepted as payment, and the burden of proof would be'upon the Bank of Newton, and consequently would here be upon the liquidators, to show that the sight exchange was, in fact accepted as payment. The case falls within the principle clearly announced by our court in Citizens’ Bank of Greenville v. Kretschmar, 91 Miss. 608, 44 So. 930. If either one of the appellees had deposited to his individual account in the Bank of Newton a worthless, check drawn by, or a draft drawn upon, a third party, there would be no question but that, under the general rule of good banking, the Bank of Newton would charge back such dishonored check or draft against the account, of appellee. We see no reason why the rule should not work both ways. It is the real indebtedness and not the apparent .credit upon the books of the bank that
Affirmed and remanded.