The Corvallis gazette. [volume] (Corvallis, Or.) 1862-1899, 1894-03-23
BENTtN AGAIN VICTORIOUS.
The Court Holds that Mon
eys Deposited with the
Jobs aEeTrust Funds.

1t Will be remembered IfaG some Llhle i'Eo
Benton county; brought suit against j. r.
Brysou as Assignee of the iusolvent estate o!
Hamilton job & Co. The complaint alleged
among other things, that NJ. z. Burnett,
while acting as treasurer of said county had
at various times maize deposits the bank
of Hamilton, Dob & Co, for safe keeping.
and that a balance sggregating the sum OF
$ll ,057. 66 was in the hands of the bank at
time the assignment was made. This money
was turned oyer to the assignee last June.
The plaintiff asked for a decree declaring
that the said sum Of money Sc the property
of plaintif. and that Hamilton, Job Co,
and ]. r. Bryson assignee, to be mere
trustees of such fund for the benefit of plain
tiff, and that ont of the first moneys realized
or collected edt of the bank sassets the
said sum shenld be paid over to plaintiff.
This was demerred to on the ground that
the moneys deposited by County Treasurer
Burnett were general deposits, and subject
to check, and that the defendant was liable
to Burnett individually, and not to the
county. N his answer the defendant al.
ieges that claims and demands have been
made updn him, ineluding that of plaintiff ag-
\gregating the sum of $40, O0O.n0, upon the
round that claimants were entitled to he
paid in full and that their claims were en-
titled to. a. priority ,ofspayment over the
other general creditors and further alleged
that it would be unjust and inequitabie to
the other creditors to allow such priority Of
payment or to allow plaintiff. if any Of sail
SlI, ,O57. SIS should be held to be a trust fund,
to receive more. than it's proportion of the
amount Of cash that was turned over to de-
fendant at theltims of the assignment, which
amounted to Sll, 1851. This answer was
demurred to by the .Rlaintif and after argu-
ment of counsel, it was taken under advise
ment by the eeaFt, who sustained the de-
murrer tosif~tixe of the defendants sepa-
rate answers.
Defendant then asked the court for leave
to file an amended answer, which request
ives granted. !. The frst defense set up by
defendant ws- that On May Ist there was a
balance to the credit of NJ. P. Burnett, as
treasurer, of $Gl8 03. Between that date
and the 10th sfsy ofsJune he deposited $780,
OOO and between, these same dates drew
against theaccount in the sum Of S26, $50. II,
leaving balance on June 10. of $ll, ,057 Sc.
When this s'accognt was, opened the deposits
were not rnade as Special deposits, nor was
it contemplated or agreed that the identical
moneys should be returned. but were re
f,1f al
subject to check, similar and akin to depos-
its made by other customers of the bank.
These deposits fwere mingled with the other
fnnds. That the board of regents of the
state agricultural college commenced a suit
IN this court against the defendant herein
asking for sdeeres directing him TO pay
them out of.thb first moneys received the
sum of $L8.5l2 3S. the mount of their
claim against said bank. About the same
matter was set up in their complaint with
regard to trust funds and wrongiully ming
ling the same with the general funds of the
bank That the deposits made between
May lst and june 10th, were not used i'll
making lospser eri4eestmcats, but were paid
out in tie regular course of business and
upon the indebtedness of the bank The
funds deposited by Burnett ecoall not be
traced intosthe hands OF the defendant.
That BfrHett fled his ;clHim along with
other creditofs-o of the Hamilton, Job and
Co., and no claim was ever made upon the
defendant for or.on behalf of plaintiff;' that
any of said sum was trust funds of the
eharacteSaIlsselja-th complaint until long
after the presentation of his claim aud Just
prior to the ifffstitution of this suit Fol
two years prior toptlie assignment of Ham
ilton, Job & Co. it was well known il
been in the habit of 'depositing large por-
tion OF the county funds with the bank
Notwithstanding; this fact no objections wer
made to thisshy any of the officers or agent
of the county, bht ffiey gave their consent
That the fupIs claimed by plaintiff are no
capable of. .sideptifcation. That as til
county treasurer, said Burnett gave bon'
in the sum OF so, 600, with suretics as pro
viled by law, and is still in full force an
effect. 9Est -p9sintilf has remedy agains
counted for, but no,suit or action has bee
instituted for. this Sparpose.- That it wou
be inequitable to allow plaintiff to enforc
its claim for any portion thereof over an
above sueh roportion as it would be en-
titled to EeteiSe as n,equal creditor, with
out first proceeding to exhaust its remed
therefoEs sngainst. said bond and agans
which hA,nd. the creditors of Hamilton. 10
& Co. have no remedy. All four of tn
separate answers were demurred to by tn
plaintiff and argued by counsel at the las
sitting of the circuit court. On Monda
last the !. order sY sustaining the demurrer wa
filed.
Section II. 7.l72 ofHour statsse makes it
criminal offe4ss, punishable by imprison
ment in the penitentiary pot less than on
year nor more than Is years and by a lin
equal to twice the amount of trust fund