Opinion
No. 28328.
January 20, 1930.
1. BILLS AND NOTES. Cashier's check is subject to protest fees and interest, though injunction was issued to prohibit issuing bank from paying check.
Where a bank issues a cashier's check payable on demand, and it is presented and not paid, such check is subject to protest fees and interest, although an injunction may have been issued to prohibit the bank from paying the check.
2. BILLS AND NOTES. Injunction. Bank enjoined from paying its cashier's check should promptly pay money into court and implead parties, and, if it retains money pending litigation, is liable for interest and protest fees; bank enjoined from paying its cashier's check may recover damages suffered from party enjoining it.
In case a bank is enjoined from paying its cashier's check, it should promptly pay the money into court and implead the parties, and, if it does not do so, but retains the money pending the litigation, it is liable for interest and protest fees, but it may recover such damages as it has suffered from the party enjoining it.
APPEAL from circuit court of Coahoma county, Second district. HON. WM. A. ALCORN, JR., Judge.
Wilson, Gates Armstrong, of Memphis, Tenn., for appellant.
There is no statute or decision in Mississippi which holds that a bank enjoined from paying its own cashier's check must be forced to pay interest and protest fees for its enforced failure. There is no statute which expressly covers the subject and we submit no statute was intended to mean that such a bank should pay interest while the law prohibited it to pay its non-interest bearing but quick cash paper.
Cutrer Smith, of Clarksdale, for appellee.
It has been held that if principals are enjoined from paying over money in order to escape the payment of interest they should pay the money into court. If they do not do so they are liable.
Curd v. Letcher, 3 C.J. Marsh (Ky.) 443; Work v. Glaskins, 33 Miss. 539; Smith v. German Bank, 60 Miss. 69; Brahan v. Bank, 72 Miss. 266; Smith v. Godbold, 4 Stobh Eq. (S.C.) 186; Kenton Ins. Co. v. First National Bank, 93 Ky. 129, 19 S.W. 185; People v. Remington, 59 Hun. 307, 12 N.Y.S. 829.
A bill of exchange which has been duly presented and has been dishonored and duly protested bears interest from the date it should have been paid.
Section 2939, Hemingway's Code 1927; Bank of Gulfport v. Smith, 132 Miss. 63, 95 So. 785; Anderson v. Bank of Tupelo, 135 Miss. 351, 100 So. 179; Smythe v. Sanders, 136 Miss. 382, 101 So. 435; Section 2884, Hemingway's Code 1927; Section 2741, Hemingway's Code 1927.
Argued orally by Julian C. Wilson, for appellant, and by E.W. Smith, for appellee.
The Bank of Clarksdale issued its check to J.W. Cutrer, attorney for defendants, in a certain suit in Clarksdale, Mississippi, in the sum of eighteen thousand one hundred fifty-three dollars and forty cents. Cutrer assigned the cashier's check to the Planters' National Bank for value; but, after the assignment, and before presentation for payment, an injunction had been sued out against Bank of Clarksdale prohibiting the Bank of Clarksdale from paying the check to J.W. Cutrer. When the check was presented for payment, the injunction writ having been served, the Bank of Clarksdale refused to pay the check, and it was protested for nonpayment, and thereafter suit was filed in the circuit court against the Bank of Clarksdale by the Planters' National Bank for amount of the note, protest fees, and interest.
The Bank of Clarksdale did not pay the money into court, but set up as a defense to the proceeding the injunction suit sued out against it to prevent the payment. It appeared on the trial that, when the injunction was sued out after the check was issued by the Bank of Clarksdale, and before its presentation for payment, the Bank of Clarksdale sought to have the injunction dissolved, and on hearing it was dissolved, and an appeal allowed to this court with supersedeas.
The Bank of Clarksdale at no time paid the money into either the chancery court or the circuit court, nor was it paid to the Planters' National Bank until after final judgment in this case in the court below when the principal of the check was paid, but judgment for interest and protest fees was resisted, and a judgment allowing them is appealed from here, and constitutes the present appeal.
We are of the opinion that the judgment of the court below was correct. The cashier's check of the bank amounted to a contract to pay the money on demand, and, when it was not paid on demand, it was subject to protest and interest began to accrue on it, notwithstanding the fact that the bank had been enjoined by a third party from paying the check. We think the principles announced in Work v. Glaskins, 33 Miss. 539; Smith v. German Bank, 60 Miss. 69, and Brahan v. First National Bank of Clarksville, 72 Miss. 266, 16 So. 203, are applicable.
The Bank of Clarksdale should have paid the money into court and impleaded the parties, if it desired to escape interest and protest fees. Furthermore, the bank had the use of the money during the period between the presentation for payment and the rendition of the judgment, and, if it was injured or deprived by the injunction of any rights or privileges, or was damaged thereby, it had a right of action against the party enjoining it on the injunction bond for such damages. In other words, there was protection for the Bank of Clarksdale, but there was none for the Planters' National Bank, which bank was deprived of the use of its money during the period.
We think, therefore, the judgment of the court below is correct, and it will be affirmed.
Affirmed.