¶1(dissenting) :
¶2After reading the stipulation accompanying the pleadings in the Justice’s Court in this case, I have read the opinion of Mr. Justice Adams.
¶3The case made before the justice, apparently, would have justified a judgment in favor of the plaintiff for the sum of four dollars and sixteen cents upon the following theory: The plaintiff was the owner of the check and was also owner of the indebtedness for which it was given by assignment. The laches of her assignor in the non-presentment of the check within a reasonable time after the same was drawn, to wit, the 8th of April, 1893, caused a loss to the drawer of the check, to wit, Dye, deceased. What was that loss ? It was the .sum which he failed to obtain of the administrator of the banker’s estate. According to the statement made the banker’s estate paid 10.41 per cent, and to that extent Dye was not the loser when he received that sum from the administrator of the banker’s estate. Dye was the loser by reason of the laches of Mrs. Bettis, plaintiff’s assignor, of 89.59 per cent.
¶4It is said that the money was tendered and is now in the hands of Daniel E. Dye. It was the province of the defendant to have kept the tender good — produced the money in the Justice’s Court for the purpose of discharging the indebtedness. Having faded to do so, or the case failing to show that the tender was brought into court and kept good, why does not the plaintiff show a cause of action against the estate of Dye, the drawer of the check, for the sum of four dollars and sixteen cents? If such ought to have been the result in the Justice’s Court, to wit, a judgment in favor 'of the plaintiff for four dollars and' sixteen cents, then why is not the reversal made by the County Court right ?
¶5Entertaining, upon perusal of the case and the opinion, the foregoing views, I think the reversal of the justice’s judgment by the County Court may be sustained.
¶6Judgment of the County Court reversed, with costs, and the judgment of the Justice’s Court affirmed, with costs.