The record-union., 1891-02-09

O.aoSs, III lue SdHle cast, on WIN VI eiIoI
q32 q. S. Rep, p. AID. These cases hold
that a police officer, such as the
assignor of the appellant, never
had any claim on the fund involved
here, except upon the happening of GER
tain contingencies, mentioned in the Act
of the Legislature of California, to which
we have just adverted; under which Act
alone could any right have vested in
the plaintiff or his assignor.
The voluminous and argumentative pc
tltion filed herein does not, in our opinion,
state such facts as bring the appellant
within any of the contingencies of the
statute which he invokes, and we there
fore advise that the judgment be affirmed.
We concur: FooTE, C.
HAYNE, c.,
BELCHER, G.
THE COURT,
For the reasons given in the foregoing
opinion the judgment is affirmed.
Filled January 81, 1901
Appeal from Superior Court, San
Francisoo-J. G.. Mcguire, Judge.
For appellant, George B. Merrill, of
counsel, T. Bergin.
For respondent, f. G. Newlands.
DEPARTMENT TWO.
T. P. MoLENNAN, Admins
traitor, Appellant,
VS.. No. 1884.
THE BANK OF CALIFORNIA,
Respondent.
This action was brought by Donald
McLennan, now deceased, and was tried,
judgment entered and notice of intention
to move for new trial served and filed
administrator, the present plaintiff, was
substituted, and new trial refused.
From the order made in the premises
the plaintiff appeals.
The action is to recover of the defend
ant, banking corporation, the sum of
alleged in the complaint that on the 9th
day of November, 1869, the Mission and
Pacific Woolen Mills consolidated, cor
poration, made, executed, and duly
indorsed and delivered to the plaintiff a
certain promissory note for ten thousand
dollars. (Trans., fols. and ~ That
upon the receipt of that note, the plaintiff
deposited it with the defendant, to be
collected in due course of banking busi-
ness. That the note and certain accrued
interest thereon was paid by the max er
of the note to the defendant on the 26th
day of April, 1870. That afterwards, on
the 26th of August, 1875, the defendant
ment, etc., and refused to pay the plaintiff
the money collected by it for him.
The defense was that the note was
never received by the bank from the
plaintiff for collection but was given by
the plaintiff into the hands Of w. G.
Ralston to be collected and the proceeds
used by him for his own benefit, and that
in accordance with this, the money was
collected by the bank at the request of
Ralston, placed to his credit, and paid out
to him on his checks drawn against his
account as a depositor with the bank
The statute of limitations was set up,
and also certain demands against the
plaintiff held by the bank, were pleaded
by way of set of, to an amount exceeding
the claim of the plaintiff. The court found
in favor of the defendant: "That the
plaintiff never deposited the said note of
November 81, 1869, with the defendant
to be collected; that the plaintiff never
deposited said note of Novem Der q, 1859.
with the defendant" CTR. folios 50, 5I.)
1t further held that the plaintiffs cause
of action, if it had been otherwise good
against the bank, which it was not, was
not barred, but that the cause of action by
the plaintiff on its counter demands
against the defendant, was barred by the
statute of limitations So that upon the
findings as made judgment was rendered
against the defendant for costs.
The first ground urged for q reversal of
the order denying new trial is, that the
court did not give its decision and file it
with the clerk, wtthin thirty days after the
cause was submitted for decision under
Section 632 Of the Code of Civil Procedure.
The provision of the statue in question
is directory merely. Broad VS.. Murray,
a Cal. 22S; McQuillan VS.. Donahue, 49
Cal: 157; Hayne on New Trials and Ap-
peals, Sec. 23S, note 49,
The main ground, as it seems, urged by
the appellant for the reversal of the order
is, that the trial court misconstrued the
evidence given in the cause, and that
the findings against the plaintiff are
not in accord with such evidence
if properly and legally considered.
The only oral evidence in the case in
troduced by the plaintiff to sustain the
contention that the note was placed in
the hands of Mr.. Ralston, the then cashier
of the Bank of California, for collection
by the bank, the proceeds to be placed
therein TO the credit of the plaintiff, was
the testimony of Donald McLennan and
the witness Tibbey, the latter having been
at one time an employe of the bank, but
was not at the time he testified. Mr..
Ralston, the only other person who might
have testified as to the exact nature of the
transaction by which he took the note
from McLennan for collection, was dead
at the time of the trial. So that whether he
took it as cashier of the bank, or in his in
dlvldual capacity must rest mainly. if not
entirely, upon whether the emphatic and
positive statements made by McLennan
and Iibbey ought to have been given full
credit by the trial court.
Inc note, winch 1t is claimed that
Ralston collected and had the proceeds
placed to his credit in the bank, and drew
it out by check and used it for his own pri-
vate purposes, was made in renewal of
second note, which last had been in the
hands of Tibbey, friend of McLennan's,
to be collected by Tibbey, for McLennan.
When it became due, Tibbey placed it in
another bank for collection, and Colonel
Fry, the president of the mill corporation,
the maker of the note WAS not ready n
pay 1t, and told Mr.. Ralston, who was
largely interested in the corporation, of
the fact of the inability of the corpo-
ration at that time to meet the note,
and that Tibbey had it for collection.
Ralston was, as appears abundantly in
the record, man and friend in whom
McLennan had the utmost confidence. at
whose instance the latter had several
times given his name on various notes.
and had at Ralston's personal request
loaned at one time $4,000 to the mill
corporation. In fact it would appear as
if McLennan on account of the conf
dence he had in Ralston, and his inti-
mate personal and business relations
with him as shown by McLennan's evil
dence, if he had been requested to do it,
would at any time have intrusted or
loaned to Ralston, either his name, credit
or money.
Under these existing personal relations
between Ralston and McLennan, Mr..
Ralston inquired of Tibbey about this
second note. He was informed that the
note was held in confidence as agent by