First Nat. Bank of Monmouth v. Dunbar

• Decision Date: 13 November 1886
• Citation: 118 Ill. 625,9 N.E. 186
• Parties: FIRST NAT. BANK OF MONMOUTH v. DUNBAR, Adm'r.
• Court: Illinois Supreme Court

118 Ill. 625

9 N.E. 186

FIRST NAT. BANK OF MONMOUTH

v.DUNBAR, Adm'r.

Supreme Court of Illinois.

November 13, 1886.

Error to appellate court, First district.

Action for negligence and for conversion of bonds. Judgment for plaintiff below. Defendant brings error.

Grier & Dryden and Kirkpatrick & Alexander, for plaintiff in error.

Mathews & Peacock and McKenzie & Calkins, for defendant in error.

SCHOLFIELD, J.

We have had some difficulty in ascertaining the precise questions intended to be presented upon this record to this court, since there has been no oral argument of the case, and counsel have simply refiled here their printed arguments used in the appellate court, in which questions of law and fact are, to some extent, intermingled. We have, however, carefully gone over the entire record, and considered all of the questions except those of fact discussed in the appellate court, and we are unable to perceive any reason justifying a reversal of the judgment of that court.

The declaration contains three counts,-two in case for negligence, and the third for trover and conversion.

The facts which the evidence tends to establish, and which the judgment of the appellate court requires us to assume are established, are, briefly, that on the seventeenth of March, 1882, Solomon Byers employed B. T. O. Hubbard, defendant's cashier, to purchase for him four Roseville township railroad aid bonds of $1,000 each; Hubbard purchased the bonds, and paid for them from the proceeds of a check drawn by Byers on the defendant; that, on the same day, Byers made a special deposit of these bonds with the defendant; that Hubbard, having embezzled funds from the defendant while acting as cashier, subsequently, and while still acting as defendant's cashier, without the knowledge or consent of Byers, in order to conceal, in part, the fact or extent of his embezzlement, took these bonds from their place of special deposit in the bank, and put them with the assets, including other like bonds of the defendant, and thereafter reported them to the defendant as so much of its assets; that the defendant afterwards became insolvent, and its assets, and also these bonds, were taken charge of by a bank examiner on the eighth of April, 1884; and that the defendant has since been demanded by Byers to deliver the bonds to him, and has refused.

The appellate court, in its opinion filed on affirming the judgment of the circuit court, held--

‘(1) That the circuit court did not err in holding that the evidence sustained the verdict.

‘(2) That the circuit court did not err in holding that, in order to sustain the action, a demand should have been made for the delivery of the bonds before the bank examiner took possession of them; that if the special deposit was wrongfully transferred by the bank or its cashier, and put with the funds of the bank, and reported and treated by the bank as a part of its assets, then this was a conversion, and no demand and refusal was necessary to sustain trover; but that, if the bonds should be regarded as still a special deposit notwithstanding such transfer, yet the bank, although it had failed, and its property was in the hands of the federal authorities, had the right, and it was its duty, under section 5228 of the Revised Statutes of the United States, to deliver special deposits.

‘(3) The court did not err in overruling the objections to the questions put by plaintiff to the witness B. T. O. Hubbard on his direct examination; that the objections were general, and it does not appear that they were placed upon the ground that the questions were leading, and, in any view, that the trial court, in the examination of witnesses, has a large discretion as to the form of the...