.tirpe of redemption should l;>egin anew, and the sUini(due be teckoned to that bf1ginning. ;'.' , Let there be another decree of foreclosure, with 15' days' ,redemption from the entry of the decree, and dismissing the cross.:bill, with costs.
(Olrcu£t OlYUlf't, D. V61'mont.January 14,
BANKS AND BANKING-SPECIAL DEPOSIT-WHEN TITLE PASSll:S;'
An insQlvent was cashier of a bank. to which he W8B' largely indebted. and put certain of his own securities in a package, and VIaced it with similar bUlldIes len with the bank as special aeposits for safe-keeping. It was insolvent's inten tion in this manner to pay certain drafts securing his indebtedness to the bank, and these drafts were entered on the books as paid, and 'he item of bondsol the bank was increased to the extent of the val\le of these securiUell.. ThesecuritfeiJ were not indorsed by insolvent; and the other officers of the bank had:Doknowledge of the transactions. Held, that no property in thesecurities was transferred to the bank.
In Equity.· For statement of facts of this case, see Witters v. SoWles, 82 Fed. Rep. 762. ahe8tfJr W. Witter3and Albert P ·. Or083, for orator. Willard Famngton and William. D. Wilson, for defendants.
WHEELER, J. This cause has now been heard upon testimony taken since the former hearing and decision. 32 Fed. Rep. 762,765. The new evidence as to the filing of the petition in insolvency is disposed of as in the other case, involving thl:l same question, between these parties. It now appears from all the evidence that the securities in question, which were ordinary notes and mortgages, were taken by the defendant Sowles, the insolvent, from among his own papers, and put, with the drafts taken from among the bills receivable of the bank of which he was ,cashier, into an envelope, and the package was put into a bundle of similar packages left as special deposits with the bank for safe-keeping, without the knowledge of any of the officers or employes of the bank; and the drafts were entered on the books of the bank as if paid, which less, ened his apparent indebtedness to the bank their amount, $10,000, and the item of bonds on the books of ,the bank was increased the same amount. This increase referred, in his mind, to this package containing these which amounted to about $9,800, and the drafts. When ·the receiver took possession of the. bank, he employed a person who had been engaged about the bank, and was familiar with its vault and safes and assets, to make an inventory of its assets. This package was not so situated as to appear to him or the receiver to belong to the bank, and he did not include its contents in the inventory. Afterwards they were
WITTERS V. SOWLES.
informed by ,thejnsolvent that they were intended to belong to the bank, and were put into a supplemental inventory. If what was done about them in the first place: transferred the property in tbemto the bank, the orator is entitled to hold them against the defendants the assignees; if not, the insolvency, and knowledge of it, of the insolvent, became so imminent, and the proceedings in insolvency against him so progressed, before their situation was changed, that the assignees are entitled to them. The intention of the insolvent and cashier to ,have them, become the property of the bank to payor secure the drafts, without attrliCting the attention of the other officers of the bank, is fully apWlrentj the question is whether what was done was sufficient to carry out the intention, and transfer the property in them. He was acting alone, and on both sidE'S of the transaction, so that there was no one to bind the delivery by acceptance. The drafts were not affected by what was done, as valid instruments, but remained in force as before. The bank, in effect, parted with nothing for these securities by anything that would bind it. The other officers or the receiver, when the transaction was discoyered, could have repudiated it, and stood upon the drafts as before. Had he used money, and placed it among the current funds of the bank, to go along in their volume, the money would seem unquestionably to become the money of the bank; but if he put that some'Ylit=!re else Within his own e4clusive knowledge and ,conti'ol, and only intending that it should become the property of the bank, seemingly, it would not. 'l'hese securities were not indorsed by him, but were merely placed 8lD;ong these special deposits. Neither the bank nor any of its officers had any right to overhaul or examine the contents of these special deposits. F08ter v. Bank, 17 Mass. 479. If this package was the insolvent's own, he would have the right to examine it as owner, and to do whatever, else he pleased with it; and the other officers would have no right to. it to· do anything with it at all. It was apparently his, and within his control, and without theirs. It was situated as if it was his special deposit; and the securitieshad not gone into the current of the bank's assets. He alone could not transfer them from his property to the bank's without distinguishing them from his own property as that of the bank. As the case stands now, upon the facts shown, turning upon that transaction, had by him alone, at that point of time, it does not appear that enough was then done to carry out his intention to tritnsfer the securUies to the bank. The entries on the books merely show, in part, his intention; they did not ,affect. the custody or control of the securities themselves. This is a matter of strict right between the assignees, representing the interests of one set of creditors, and the receiver, representing those of another set; and, as the case is made to appear in the light of the new evidence, the right to these securities falls on the side of the assignees. .S<>q:le of them appear to have been converted into money, and that and the others are in this receiver's hands. This money, and the securities not converted, must be decreed to the assignees. As the amount of the money does not appear, an account of it must be taken. The
questionofterms upon which the case was opened for new evidfmce was left to this hearing. It seems just that the defendants' should take no costs other than such as may be necessary on the accounting, and that the orator's costs to the re6pening of the case should be deducted from those, or from the money in his hands. Let a decree be entered that account be taken of the money collected upon these securities; and that the amount ,thereof, when ascertained, belongs, with the remainder of the securities and the Swanton Bank stock and Wright contract before decreed, to the defendants the assignees, to be paid and delivered by the orator to them, deducting his costs to the reopening of the case, and with necessar,}' costs of the ing to the defendants.
CRESCENT INS. Co.
w: D. North
(Jaroiina. November Term, 1887.)
An express warranty by one insured as to the circumstances of the insured property, binds him he pe mistaken in fact or willfully misrepresents, while representations not amounting to a warranty will protect insurers only if willfully erroneous, or grossly negligent, in character.1
Where a party shows the manner of keeping his account of stock and making his inventories, and he shows the amount of stock as appeared by these accounts, and testifies that he believes it to be correct, it is evidence on which the jury, if th,eybeUeve him, may tind the amount of such stock whicl1 has been destroye'd by fire. . ' '.' . A stipulation' in an insurance policy to give notiCe of loss. if any occurred, "forthwith/!': is satisfied by an immediate notice to a local agent, who transfers it in a short time to a general agent.
SAME-Loss-WAIVER OF PROOF.
Questions' as to the sufficiency of proof of loss by tire of insured property, were waived by the examination of the premises by the ,company's authorized agent. who investigated the loss, and refused to pay it. ' Market value, and not local or peculiar value, of property destroyed by tire, and which can be procured in the market. must control in estimating the loss. goods under false pretenses tends to im.
WITNESS-!MPEAOHMENT-OBTAINING' GOODS UNDER .FALSE PRETENSES.
Proof of a conviction for peach the veracity of a witness.
H. C. Janes and C. M. Jordan, for plaintiff. Burwell &- Walker and F. I. Osborne, for defendant.
Action by plaintiff, W. C. Fisher, on a policy of insurance. '
DICK, J., (chargingj1'ry.) The counsel, in their arguments to the court, have discussed certain questions of law that cannot be properly decided and applied irisettling the rights of the parties, until the questions of
lSee Insurance Co. v. Fisher. 80 Fed. Rep. 662.