3 Gill 289 | Md. | 1845
delivered the opinion of this court.
Upon the case stated, there can be no doubt of the right of the plaintiff to recover, so far as regards any claimant who held the original levy. His rights would be within the very terms of the bond.
Such of the claimants as held due bills, will also be entitled to a judgment. They obtained equitable assignments of the
Some of these claimants, however, obtained drafts on the collector. These drafts, except, perhaps, No. 5, are bills of exchange, being payable on no contingency, and not out of any particular fund; and the payees could never recover on the original consideration against the drawers, without proving notice of non-payment of the acceptances which is not done. The payees, then, would have no remedy against the drawers without such proof, and their only remedy for the recovery of the sums due them, would be against the collector on his acceptances.
The holders of the levy could not sue, unless they could produce the acceptances, to show they were not outstanding in the hands of third parties. Indeed, this would be impossible for them to do, because the case stated shows, that these acceptances are outstanding in the hands of the payees.
In what condition would the collector be placed, if the original holders of the levy could sue him on the original consideration? Certainly the payees would have a right to sue and recover on the acceptances, and if so, he would be liable to a double recovery.
So far, therefore, as regards the claims arising on the drafts or bills of exchange, the drawer’s remedy on the original levy is gone. They cannot sue on such levy, because they have drawn bills which have been accepted, and which are now outstanding. The holders, therefore, of these acceptances could not sue in the name of the drawers: nor can the claimants, on tírese bills of exchange, sue as assignees. Even an accepted bill, unless drawn on a particular fund, does not operate to invest the payee with the character of an assignee of the fund. The case, in 5 Hill, 418, is decisive upon this point. See, also, Harrison vs. Williamson, 2 Edw. Rep., 430, where it is said, “a bill of exchange has not the effect of an assignment of the money for which it is drawn, in tire hands of the drawee, unless, perhaps, where it is drawn on a
Some of the claims are on orders in favor of individuals for portions, only, of the claim of the drawers, for which, levies had been made in their behalf. To make the securities liable in such cases, would sanction a principle most burthensome to securities, and would put it in the power of individuals, in whose behalf levies should be made, by creating numerous assignees of portions of such levies, to burthen the securities with costs, in case of a failure of the collector to pay, to which they would not be subjected, if there had been an entire assignment.
It will follow, from the above principles, that the following claims ought to be allowed, viz: Nos. 2 and 6. And the following claims rejected, Nos. 1, 3, 4, 5, 7 and 8; and we shall direct judgment to be entered accordingly, such being the judgment the county court ought to have entered.
judgment reversed, &c.