rehearing">

ON REHEARING.

HUSTON, C. J.,

— A rehearing is asked in this ease principally upon the ground that the respondent had no opportunity of presenting any evidence in the court below. It seems to us, this claim comes a little late. The record shows that when the *332case was called for trial the respondent was placed on the stand by plaintiff, and testified as follows:

“I am the receiver in the cause of First National Bank of Pocatello v. C. Bunting & Co., Bankers, and have been since February 15, 1897, and prior to that time had been, an employee in the bank of C. Bunting & Co. Have charge of the books of that bank. C. Bunting was state treasurer of Idaho prior to the beginning of the term of office of George H. Storer, the present treasurer. In January, 1897, Bunting, as treasurer, turned over to Storer, as his successor, the office of state treasurer. Part of the state money was on deposit in the Capital State Bank of Boise City, and part in the Bank of C. Bunting & Co., Black foot. The books of C. Bunting & Co., bankers, show that there was deposited to the credit of George H. Storer, as state treasurer, on January 6, 1897, the sum of $32,702.58, and that afterward there was deposited by said treasurer the sum of $8,477.27, and that there was paid out upon the checks of the treasurer and for stale warrants all of said amounts except the sum of $12,683.93, shown by the books to be due, but which has been reduced by reason of certain interest amounts paid out, and not determined at the time the bank was closed, but which I have, as receiver, since ascertained to be the sum of $11,022.38.

“The account of C. Bunting, as state treasurer for 1897, as shown by the book of original entries, in which said account was kept, is as follows:

*333

“The account of George H. Storer, as state treasurer, as shown by said book, is as follows:

“ (To the introduction of said accounts as evidence the defense objected on the grounds that it was incompetent, immaterial, and irrelevant. Objection overruled, and exception taken.)

“The book from which these accounts are taken is the general ledger of the bank, which is a book of original entries, and the only book of the bank which shows accounts. The entry on the Storer account of $32,702.50 represents that part of the fund which was on deposit in the bank at Blaekfoot, turned over by C. Bunting to Storer at the time Bunting turned over the office of state treasurer. This sum was turned over by means of a check drawn by C. Bunting, state treasurer, on C. Bunting & Co., bankers, and payable to George H. Storer, treas*334urer. The other entries in the Storer account represent checks turned into the bank by Storer. It was the custom in the bank to credit the checks received, when they were considered good, at the time of their receipt. There is nothing in the bank to show any of these' cheeks were dishonored, and, as a matter-of fact, they were all paid.”

The testimony of the respondent was the only oral proof offered in the case, and, together with the exhibits produced by him, constitute all the evidence in the record. After the evidence was closed, the respondent moved for a nonsuit, which was granted.

How can the respondent claim that he had no opportunity to-present any evidence? While respondent was upon the stand he was subjected to a very rigid cross-examination by his own attorney, during, which, in answer to certain interrogatories propounded to him, he stated, in substance: That on the sixth day of January, 1891, the amount of money in the bank of C. Bunting & Co. was about $11,000; that, up to a short time before-failure, the daily balance averaged about $10,000. The contention of respondent is that there never was anjr money deposited by Storer; that he only deposited checks. These checks were-under the provisions of section 6911 of the Revised Statutes' of Idaho, “public moneys,” and as such were deposited by the treasurer, Storer, in the bank of C. Bunting & Co., and were so received by said bank, and were made available by the treasurer in paying the indebtedness of the state; $41,410.04 was so deposited by the treasurer, and of this amount, according to the testimony of respondent, all but $11,022.38 was checked out by the treasurer, and yet counsel contends that no m-oney was ever deposited. This contention seems to us a non sequitur. The law made the checks of Bunting or anyone else in the hands of the treasurer “public moneys.” As such they were deposited by the treasurer, and were checked against by him in paying liabilities of the state, and all such cheeks were paid. Respondent appears to lay considerable stress upon the fact that the-average daily balances in the bank from January 6th to the time of the failure were only about $10,000. While not as com versant with the details of the banking business as the learned *335judge of tbe district court, or tbe learned counsel, it seems to us tbat tbe daily balances, as shown by the books of the bank, could hardly be accepted as conclusive of the amount of daily deposits. A bank may receive $100,000 to-day on deposit and through collections, and may on the same day, by' loans and otherwise, disburse $105,000. Its daily balance in such case would be the same as the day before, less $5,000; but would that be indicative, even, much less conclusive, of the amount of deposits received or of business done on that day? We have examined with much care the case of Beard v. Independent Dist., 31 C. C. A. 562, 88 Fed. 375. That case arose under statutes entirely unlike those of this state. In that case the court says (page 377) : “The question for decision is, what rule should be followed by a receiver of a national bank in distributing the assets of the bank, which have come into his hands under the provisions of the laws of the United States, in cases wherein it appears that trust funds have been received by the bank in the course of its business?” Such is not the question in this case. The bank of C. Bunting & Co. was not a national bank. The assets of that bank did not come into the hands of the respondent as receiver under any law of the United States. The court in the case in Beard v. Independent Dist., 31 C. C. A. 562, 88 Fed. 375, seems to hold tbat the real point at issue in that case was, were the funds of the bank augmented by the addition thereto of the trust funds? We do not see how such a question could be raised under the proofs in this ease.

We are unable to see that any different result could be reached in this ease from further argument. In fact, the question in this case does not seem to be so much one of fact as the application of the law to facts about which there is no contention. Counsel for respondent contends that the deposit of the checks by Storer was not a deposit of money such as would create a trust fund on the part of the state. With this contention we cannot agree without abrogating the provisions of our statutes. The plaintiff would, we think, have been entitled, on motion, to a judgment on the pleadings in this case. The depositing of the checks by Storer is admitted by the answer, and, said cheeks being “public moneys” in the hands of said Storer, and, *336being by him deposited as “public moneys” in the bank of C. Bunting & Co., we are unable to see what there is to be urged against a judgment for plaintiff upon the pleadings. Behearing denied.

Quarles, J., concurs.

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