Court Record; Second National Bank vs. R. Hemingray

COURT REPORT.

SUPERIOR COURT - GENERAL TERM.

Before Judges Storer, Hagans and Taft.

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SUIT ON A NOTE GROWING OUT OF THE ASSIGNMENT

OF B. HOMANS AND COMPANY.

The Second National Bank vs. R. Hemmingray [sic] Hemingray

The plaintiffs sue upon a note for $1,000, made by defendant to B. Homans, and indorsed to the plaintiffs. The defense sat up is that defendant, being the principal member of the firm of R. Hemmingray [sic] Hemingray & Co., the funds of that firm were allowed to accumulate with Homans, as banker of the firm, by way of collections, and it was agreed between Homans and Hemmingray [sic] Hemingray that this note, in connection with certain others for the payment of real estate in Covington, sold by Homans to defendant, should be paid out of the funds thus coming into the hands of Homans. One of the notes was paid in this manner. When the note sued on matured, defendant alleges he was ready to pay it out of said funds on deposit, but Homans not requiring it, the note was allowed to lie over for a few days. After its maturity, and before the assignment of Homans, and also before the notice of the transfer of the note to plaintiffs, the firm of Hemmingray [sic] Hemingray & Co, transferred all their funds, amounting to $11,475, then on deposit with Homans, to defendant. The defendant alleges that the money is still due and unpaid, and he prays that so much of the indebtedness of Homans to him as will pay the note sued on may be set off against it, and he be dismissed.

The plaintiffs demur generally.

Judge Hagans decided the demurrer overruling it, and requiring the defendant to answer.

Throop & Wright for plaintiffs; Headington & Jones, contra.

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