US SUPREME COURT DECISIONS

The question whether, upon all the facts specially found by the circuit court when a trial by jury has been waived, the plaintiff has the legal right to recover is not one which can be brought to this Court by a certificate of division of opinion.

This was an action of assumpsit brought by a corporation of Missouri against a national bank established in Illinois to recover the amount of certain checks drawn on the bank in favor of the corporation. Plea, non assumpsit. A jury was duly waived, and the circuit court, held by two judges, found and stated in detail certain facts, which may be summed up as follows:

About March 1, 1873, the bank was appointed depository for the United States District Court for the Southern District of Illinois and was informed of the appointment. Shortly afterwards, the clerk of that court began to deposit with the bank funds belonging in the registry of the court, and by his direction the bank opened an account with the court. These deposits were at first made to the credit of the particular case chanrobles.com-red

Page 122 U. S. 22

to which the funds belonged by name and number, but subsequently, by the clerk's direction, the name was dropped and only the number was entered on the ticket accompanying each deposit, as well as in the books of the bank and in the clerk's deposit book, the bank understanding that the numbers referred to the cases in the court.

During the years 1879, 1880, and 1881, case No. 2105 was pending on the bankruptcy side of the court, and deposits of moneys realized from the estate of H. Sandford & Co. and belonging in that case, amounting to $38,300, were so made and entered.

In May, 1881, four checks, for $2,653.41 in all, drawn by the clerk and countersigned by the judge of the district court and in the form adopted by the court in its dealings with the bank, were given by the clerk to the plaintiff for dividends on its claims proved in case No. 2105, and were afterwards presented to the bank and refused payment, and on July 8, 1881, were protested for nonpayment.

The funds belonging to case No. 2105 that had been deposited with the bank would have been more than sufficient to pay these and all other checks drawn in that case, but the account of the court had been overdrawn to the amount of $43.13, by the bank's having paid checks in the usual form, including many checks drawn in cases, as indicated by the numbers, in which no deposit had ever been made. The bank always treated the account as an entirety, and paid out of it all the checks drawn against it until the deposits were exhausted.

The bank never was furnished with a copy of Rule 28 in bankruptcy, and had no actual knowledge of that rule. The clerk never presented to the court the account and vouchers required by Rev.Stat. § 98, and never made or was required to make the monthly report provided for in that rule.

The two judges certified to this Court that upon these facts they were "opposed in opinion as to the legal right of the plaintiff to recover on the checks in controversy." The presiding justice being of opinion that the law of the case was with the plaintiff, judgment was entered accordingly in the circuit court, and the defendant sued out this writ of error. chanrobles.com-red

Page 122 U. S. 23