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# Trust Company Case
trust company that part of the securities giv-
en by it in exchange which was retained by
the insurance company, and has never come
into his hands. All that is required of him is
to do equity by returning those which have
come into his possession from the insur-
ance commissioner.
The fact that the amount of the securities
deposited by the insurance company in trust
for the benefit of policy holders exceeded
the minimum deposit required by statute is
not material. The excess was as fully bound
by the trust as the balance.
General Laws 1881, chapter 123 (General
Statutes 1894, sections 3,331 and seq.) au-
thorizes the business of insurance against
losses resulting from the insolvency of those
to whom goods are sold on credit.
The court had jurisdiction of the state
auditor as respects the control and disposi-
tion of this trust fund for the benefit of
policy holders, in which the state, as such,
has no interest. Former decisions as to
the control of the courts over the official acts
of executive officers of the state government,
distinguished.
Order affirmed on appeal of the trust com-
pany.
Order reversed on appeal of state auditor.
-Mitchell, J.
Eagle Roller Mill Company, respondent, vs.
G. C. Dillman et al., defendants, Hugh
McBain et al., appellants.
Action against the sureties on a bond given
by an agent to buy grain conditioned that he
would, on demand, deliver or account for all
grain purchased by him for his principal, and
pay over all moneys in his hands belonging to
him, the breach alleged being that he had
failed on demand to deliver or account for the
grain purchased by him or to pay over the
money in his hands furnished him by the
principal for the purpose of buying grain.
Held, that the fact that the principal, in the
conduct of the business, used, and furnished
for use of his agent, scales which had not
been tested and sealed as required by Gen.
St. 1894, sec. 2205, constituted no defense in
favor of the sureties.
The illegal act alleged (the use of unsealed
scales in weighing the grain) constituted no
link in the plaintiff's chain of title to the
grain or the money, or any part of his cause
of action. Neither was the plaintiff dependent
upon it for the purpose of establishing his
claim. Order affirmed.
-Mitchell, J.
A. W. Bradley and H. H. Hanford, co-part-
ners as Bradley & Hanford, appellants, vs.
Gilbert C. Thorne, receiver, etc., Intervenor,
respondent.
The "disclosure" of the garnishee is com-
petent in favor of a "claimant," and against
the plaintiff for the purpose of showing what
property had been impounded by the gar-
nishee proceedings, and thus identify it as
the same property to which the claimant is
asserting a right. Judgment affirmed.
-Mitchell, J.
J. C. Easton, appellant, vs. Edward P. Childs
et al., respondents.
Under Gen. St. 1894, sec. 5204, the filing of
the return of the sheriff is not a jurisdictional
prerequisite to the publication of the sum-
mons; overruling Corson vs. Shoemaker, 55
Minn., 386.
Under the statute the office of a return of
the sheriff that the defendant cannot be found
is not to authorize the publication, but to
support it after it is made, being prima facie
evidence that the case was one where service
by publication was authorized, to wit, where
the defendant could not be found in the state.
Order reversed.
-Mitchell, J.
Oluf Stendal, as administrator, etc., respond-
ent, vs. Allen P. Boyd, appellant.
In action for damages resulting from acts
of another, alleged to have been negligent,
the complaint is not demurrable as not stat-
ing a cause of action, unless the particular
acts alleged are such that they could not be
negligent under any evidence admissible un-
der the allegations of the pleading; follow-
ing Rolseth vs. Smith, 38 Minn., 14. Order
affirmed.
--Mitchell, J.
First National Bank of Waverly, Iowa, ap-
pellant, vs, W. D. Forsyth et al., respon-
dents.
An overdue and unpaid installment of in-
terest (known to the indorsee at the time of
purchase) dishonors negotiable paper and ren-
ders it subject, in the hands of the purchaser,
to existing defenses between the original
parties, the same as an overdue and unpaid
installment of principal; following First Na-
tional Bank vs. Scott County 14 Minn., 77.
Order affirmed.
-Mitchell, J.
State ex rel. Surety Trust Company, peti-
tioner, vs. Probate Court of Rock County,
Minn., et al., respondents.
Pursuant to the order directing the issu-
ing of a writ of certiorari to the probate
court a citation was served upon the opposite
party in interest to show cause why the action
of that court should not be reversed.
The relator prevailed.
Held that he was entitled to costs and dis-
bursements against the opposite party in in-
terest, although the writ was directed only
to the probate court.
-Mitchell, J.
The Board of County Commissioners of the
County of Redwood, appellant, vs. The
Citizens' Bank of Redwood Falls, defendant.
W. T. Donaldson et al., respondents.
A bank which had been depository of coun-
ty funds for one term about to expire and
which was indebted to the county for money
deposited with it during that term, was desig-
nated depository for a second term and gave
to the county a bond with sureties conditioned
that it would pay on demand all funds "which
shall be deposited in said bank pursuant to
said designation."
The account between the bank and the
county was kept in the form of an open cur-
rent account. During the second term, from
time to time, deposits were made to the
credit of the county and payments made gen-
erally to the county on its checks, the amount
of these payments during the second term
exceeding the amount of the deposits during
the same time but leaving a balance still
due the county when the bank failed during
the second term.
Held that the sureties were only liable for
money deposited during the second term for
which their bond was given.
But that the relation between the bank and
the county was that of debtor and creditor
and that the money deposited with the bank
became its property and all payments made
by it to the county were made with its own
funds; and having been paid generally on a
single continuous account the law will ap-
propriate them according to the general rule,
viz: the first item on the credit side to
discharge or reduce the first item on the debit
side; that the sureties have no right to have
the payments first applied to discharge the
debits created by deposits made during the
second term.
The case distinguished from those on of-
ficial bonds where the officer was merely
the custodian of public funds, which remained
the property of the public, and where he
used the public funds which came into his
custody during one term to discharge his
liability on account of an embezzlement com-
mitted by him during a previous term. Or-
der reversed.
-Mitchell, J.
Hans Olson, respondent, vs. The State Bank
et al., defendants. Willis H. Manley et al.,
appellants.
Held, following Dunn vs. State Bank, 59
Minn., 221:
First-That where the stockholders of a
banking corporation voted to increase its
stock (having authority to do so under the
articles of association) and part of such
stock was purchased by its president, who
was also city treasurer, and paid for with
city funds unlawfully used by him for that
purpose, and the stock then sold by him to
third parties, the stock was not ultra vires
and void, but at most only voidable.
Second-In view of the lapse of time after
the stock was issued before the bank failed;
the want of diligence on part of the holders
in not sooner discovering the insolvency of
the bank, the large amount of corporate in-
debtedness, still outstanding, which has been
incurred since the stock was issued, the hold-
ers of the stock have no right to rescind as
against creditors whose rights have become
vested by the insolvency of the bank. Order
affirmed.
-Mitchell, J.
# Griswold Will Contest
