SOUTHERN DEVELOPMENT CO. 'lJ. HOUSTON & T. C. RY. 00.
ceivers of all the property and effects of the Houston & Texas Central Railway Company, with power to manage, control, and exercise aU the franchises of the same, and to run, operate, and manage the railways of the said company; that thereafter the said receivers qualified and entered upon the discharge of their duties, and entered into full possession and control of the said property and effects, and since have operated and managed as such receivers the railways of said company; that in the operation and management of said railways it became and was necessary that said receivers should make use of banks and depositories on the line of the railway, and at Houston, where the general offices were located, to deposit, temporarily, the moneys received by them as revenues of said railways, and necessary for them to payout in the ordinary transaction of their business; and that accordingly said receivers, on March 5, 1885, petitioned the court for an order designating two banks or bankers in Houston as depositories of their funds, which petition was referred to the special master to investigate and report; and, accordingly, on the thirteenth of April, 1885, the special master reported that after an examination of the facts, and after consultation with the receivers, he advised that three banks in the city of Houston, to-wit, the City Bank of Houston, the First National Bank, and T. W. House, banker, be designated by the court as depositories of the moneys, funds, and securities of the receivers, which report was confirmed by order of court April 18, 1885 ; that prior to the said report and order the receivers, on the seventh of March, had opened an account with the City Bank of Houston, the cashier (respondent Weems) being then notified that the court had been applied to, to designate certain banks in which the receivers should keep accounts, from which time until the nineteenth of December the said receivers made various deposits of funds derived from the property in their hands, and drew checks against their deposits, which were paid; that the accounts opened by said City Bank of Houston were with Benjamin G. Clarke and Charles Dillingham, joint receivers of the Houston & Texas Central Railway, one account being a general account, relating to the general revenues derived from operating the railway, and another being a special account, relating to the proceeds of land sales collected by the receivers, under a consent decree in the case, made on the seventh of May, 1885, and another account for collections made by said bank for account of the receivers; that on the nineteenth of December the City Bank of Houston had on deposit, to the credit of said receivers, funds derived from general revenues of the railway, the sum of $27,742; funds derived from land sales, the sum of $4,466.72; and from collections, the sum of $6,392.94; making a total of $38,601.66; the sum of $1,234 of the amount of the general account was received by the said bank and its officers on the eighteenth day of December, from shipments made by the agents of the receivers through the express companies, and the
sum of $5,284.88 of the amount of the general account was received in like manner on the nineteenth of December; that on the nineteenth of December the officials of said bank refused to pay the checks drawn by the said receivers against the funds in said bank to their credit, and closed the doors of said bank, and in pursuance of arrangements made on the eighteenth of December, on a bill bronght by the president of said bank, (respondent Baker,) on his own behalf, and on behalf of the said bank and the Houston Insurance Company, against one Robert Cohen and one Robert Brewster, in the district court of Harris county, Texas, all the assets, moneys, and property of said bank wei'e turned over to the possession of the said district court for liquidation; and in said district court the cashier of the bank (respondent Weems) was appointed receiver, and as such put in possession of all the property and moneys of said bank, including the sums in said bank belonging to said receivers of the Houston & Texas Central Hailway, and deposited by them, particularly the sums deposited by them on the eighteenth and nineteenth of December. Thereafter the receivers made demand on the officials of said bank - to-wit, W. .R. Baker, president; B. F. Weems, cashier; Robert Brewster, director; and S. K. McIlhenny, director-for the return and payment of the said sums belonging to the said receivers as aforesaid, but the same was refused. It further appears that the charges of the receivers with regard to the execution of two deeds of trnst to secure the president and directors in preference to the general creditors of the bank, and the withholding of said deeds from record until just before the bank was closed, are substantially correct, although it appears that the indebtedness secured to President Baker was mostly of long standing, and the other indebtedness secured was for accommodation paper given by the directors to aid the bank in keeping its business going, by what President Baker in his petition to the state court termed "kite flying." There is no doubt that the bank has been long insolvent, and would long since have closed its doors but for the credit it received on account of its large holding of real estate; that the deeds of trust, and the preferenc6s therein given, were bound to be fatal to any further credit, as soon as publicly known; and it seems conclusive that the respondents knew of his condition, and of the certainty of failure,-certainly from the time they protected themselves at the expense of the people who had trusted in their honesty and financial management. On the hearing, the argument took a wide range; but the real inquiry in this proceeding may well be restricted to the simple question of the relations of the respondents to the court. Counsel for the receivers contend that the effect of the order of court designating the bank a·s one of the depositories of the receivers, and the acceptance by the bank of the receivers' deposits, was to make the bank, and its
SOUTHERN DEVELOPMENT CO. fl. HOUSTON &: T. O. BY. 00.
officers, officers of the court, and therefore directly responsible to the court for misappropriation of the moneys deposited by the receivers . under the order of court. The adjudged cases on this point brought to the attention of the court are unsatisfactory. The statement in Rapalje on Contempts (section 15) that "a private corporation, made the depository of the funds of the court, is an officer of the court, within the power of the court to punish by contempt process for misconduct, is supported by a dictum of the supreme court of Illinois in the case of In re Western Marine If Fire Ins. Co., 38 Ill. 289, in which case it is said:
"1Vhen a court makes an order appointing a particular person a depositary of the court funds, and such person, knowing of such order, accepts the deposit, he unquestionably becomes pro hac vice an otlicer of the court. The court may order him to refund the money, and if he fails to do so, without showing some valid reason, may proceed against him as for a contempt. The same rule would apply to a corporation, and if its officers, having control of its fnnds, and haviny the means of payment belonging to the corpora-lion in their hands, should refuse to pay, they too might be proceeded against as for a contempt."
It will be noticed by the foregoing that officials of a corporation delinquent as a depository are to be held as in case of contempt, when they have control of its funds, and have the means of payment belonging to the corporation in their hands. Counsel for receivers have also cited Cartwright's Case, 114 Mass. 230, which was a case where a receiver had appropriated the funds confided to him to his own use, and where there was no doubt about the official relation. In the present case I think that it is somewhat doubtful whether the funds, deposited by the complaining receivers with the City Bank of Houston under the aforesaid order of court, were strictly court funds, or could be considered as moneys paid into court. By the orwere auders appointing them, the complainants, as joint thorized and directed to carryon and operate the railways and propertyof the Houston & Texas Central Railway Company; and such carrying on and operating contemplated and required the handling, receiving, and paying out of money, the payment and collection of bills, and the transaction of such financial business as would require the medium of and accommodation of banks. In the transaction of this business, moneys were not deposited as special funds to be drawn out on order of the court, but were deposited, generally, to the credit of the receivers, and to be handled and used by the bank, like the deposits of its other patrons, in a banking, loan, and discount business. And it may be further noticed that the respondents have not the possession of the funds of the bank, nor means in their hands belonging to the bank, the possession of respondent Weems, as reo ceiver, being that of the district court of Harris county. So that if we take the law to be as broad as declared by the supreme court of Illinois, in the Western MM'ine et Fire Ins. Case, it is not broad enough
to meet the necessities of this case; for if it is conceded that the City Bank of Honston, by designation of the court and by acceptance, became an officer of the conrt, and that the funds deposited the.rein were court funds, and that therefore the bank is liable for misconduct in misappropriating such funds, as in case of contempt, there is neither reason nor authority for considering that each servant or agent of the bank also became pro hac vice an officer of the court, and therefore amenable to the court, as in case of contempt, for misconduct in dealing with the bank funds. The conduct of the respondents, as officials of the Houston City Bank, and as trustees of the property and funds of the said bank, in securing themselves at the expense of the creditors and patrons of the bank with deedi of trust on the property which really gave credit to the bank, and in holding the bank out as solvent so as to draw in confiding depositors to furnish the means for the bank to continue "kite flying," was reprehensible; and no doubt, when proved in a proper case, will fix the personal liability of these respondents for all the losses resulting from their faithless management of the said bank; and the conduct of the respondents in taking the moneys of the receivers of the Houston & 'l'exas Central Railway Company after the papers were made out to throw' the bank in liquidation, and in turning the said moneys into the assets of an insolvent bank, (already destituted by them, to save themselves,) was still more reprehensible. '1'his conduct, although reprehensible, and not at all in keeping with the good character of respondents as attempted to be shown in the evidence of this case, I am not prepared to hold can be treated as in contempt of this court. The rule for contempt herein is discharged; but an order is laid upon the receivers of the Houston & Texas Central Railway Company to institute such legal proceedings as may be necessary to make said respondents individually and collectively liable for all the fun'ds wi-ongfully obtained from and withheld from said receivers. The costs of these proceedings for contempt will be taxed and paid in the main suit.
Cash deposited witll a bank as a general deposit ceases to be the property of the depositor, and becomes the propert.y of t.he bank, creating at. once the relationship of debt.or and creditor. Balbach v. Frelinghuysen, 15 Fed. Rep. 675. And so, where one leaves mouey with another for safe-keeping. with the understanding, not that the identical lIIoney shall be returned t.o him, but a like sum, it is not a bailment or special deposit, but a general deposit in the nature of a loan. Shoemaker v. Hinze, (Wis.) 10 N. W. Rep. 86. Upon a special deposit a bank is merely a bailee, and is bound according to the terms of the special depOSIt j but on a general deposit by a clerk of the court, without special agreement, the money becomes the property of the bank, and the depositor has no longer any claim on that money; his claim is on the bank for a like alllount of money. McLain v. Wallace, (Ind.) 5 N. E. Rep. 911.
JtIB W. UNITED STATES.
V. UNITED STA.TES.
(Circuit Oourt, lJ. Oregon. May 1, 1886.)
ALASXA-"INDIAN COUNTRY. It
Alaska is not "Indian country" in the sense in which that phrase fa used In the intercourse act of 1834 and the Revised Statutes.
SAME-JURISDICTION OF DISTRICT COURT THEREIN.
The district court of Alaska has jurisdiction, under sections 5339 and 5341 of the Revised Statutes, to try and punish any inhabitant of the district for the crime of murder or manslaughter committed by the killing of any human being therein; but the law of Oregon defining the crime of murder or manslaughter, and prescribing the punishment therefor, is not in force in Alaska.
CRIMINAL LAW-ERRONEOUS SENTENCE.
The plaintiff in error, being convicted of manslaughter, was sentenced to punishment therefor under the law of Oregon, instead of the act of 1875, (18 St. 473.) whereby his imprisonment was authorized for 20 days in excess of the punishment allowed by said act. Held, that the judgment was erroneous, and the same was reversed, with direction to have the plaintiff in error sentenced according to law.
JURY PRESUMED TO HAVE BEEN LEGALI,Y SELECTED AND DRAWN.
It appeared from the record that when the case was called for trial a jury came, who were duly impaneled and sworn. Held, that, in the absence of anything to the contrary, the presumption is that the jury were selected and drawn according to law.
SAME-SELECTION AND QUALIFICATION OF JURORS IN ALASKA.
Jurors to serve in the district court of Alaska must be selected in the manner provided in section 2 of the act of June 30, 1879, (21 St. 43,) and have the qualifications prescribed by the law of Oregon. In the trial of a criminal action involving corporal punishment. the record should show that the defendant was present; but it is sufficient if his presence may be inferred from the whole record, without being explicitly stated at every stage of the procedure.
CRIMINAL LAW-TRIAL-PRESENCE OF THE DEFENDANT.
Error to District Court of Alaska. S. Frank, for plaintiff in error. Lewis L. McArthur, for defendant in error.
DEADY, J. This is a writ of error to the district court of Alaska, sitting at Sitka. The writ was allowed by the circuit judge, pursuant to section 7 of the act of May 7, 1884, concerning "a civil government for Alaska," (23 St. 24,) which provides:
"Writs of error in criminal cases shall issue to the said district court from the United I:;tates circuit court for the district of Ort'gon, in the cases provided in chapter 176 of the Laws of 1879; and the jurisdiction thereby conferred on the circuit court is hereby given to the circuit court of Oregon."
The of 1879" here referred to is the act of March 3 of that year, (20 St. 354,) which gives the circuit court for each judicial district jnrisdiction of writs of error in criminal cases tried before the district court, where the sentence is imprisonment or fine not exceeding $300. It appears from the record that on May 28, 1885, the plaintiff in error, Charles Kie, was indicted by a grand jury of the district court