The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-04-09

holder any right to recover the
amount from the receivers.
Drafts aggregating $5,3s2.e4, were
purchased on Dec. q by Mannheimer
Brothers, by check on their account IN
the Bank Of Minnesota. They are not
entitled to any relief on this account
The gold deposited on Dec. q and
all of 1t came into the fund in the
hands Of the receivers, and consequent
ly. the claimants have sufficiently
identified their property.
As 10 currency, the claimants have
failed to show that their money is part
of the fund. They have called to their
aid familiar rule of equity, which
holds that when a trustee mingles
trust funds with his own and pays
from the common mass, he is pre-
sumed to pay out his own money and
not the trust money. If this rule be
applied, it fails to aid the claimants,
for at least $20, 1893 of the fund of $27,-
692 were trust moneys, and it is fair
to say, from the evidence, that every
dollar in the bank on the morning of
| the 22nd was trust money. There GER
! tainly is no presumption as between the
| different cestuis que trust. But the
presumption should not be applied In
insolvency cases. The claimants are
attacking a fund, which, if it does not
| belong to them, belongs to the general
| creditors.
| The court declines to apply any
other presumption to aid the claimants
The burden of proof is upon them and
their rights must be determined from
the evidence. They have failed to trace
| the currency, deposited by them, into
| the hands Of the receivers.
1t may have been paid out before sus-
pension on the 22nd, and the greater part
| of it was undoubtedly so paid out To
| allow the claimants to recover by CIV
ing them the benefit of presumptions
of law or equity, which supply the
! place of evidence or destroy the force
! of it. would be unjust to the general
! creditors
1t would be, In effect, giving a prefer
ence to the claimants on account of
| the nature of their claims. There is
| nothing in the insolvent law justifying
| it."
GERMANIA BANK
! In the matter of the assignment of
1 the Germania bank, Judge Bunn's de-
! cision and memorandum are as follows:
| In the matter of the assignment of the
! Germania bank:
! First-Checks and drafts deposited on or
! prior to Jan. 2, which were paid through the
+ clearing house. AS to these items, appica-
lions will be denied.
! Second-Checks and drafts desposted on
! Jan. 2, proceeds of which came into the hands
! Of the assignee. Proceeds of such checks and
J drafts will be returned to depositors in cases
! where this has not already been done. Checks
I and drafts on other banks which came into
hands of assignee and have not been cashed,
| will be returned to depositors.
! Third-Checks drawn on the Germania bank.
1 No orders will be made in this proceeding for
the return of these checks. Applications for
/ payment Of cash on account Of these checks
! denied.
! Fourth-Certifcates of deposit renewed. AID
!
! count denied
! Fifth-Cash deposits. All application for the
return of cash deposited on Jan. will be
! denied.
Judge Bum, in his memorandum, says:
The receiving teller had on hand in cash
at the opening of business on the End OF
positors during the day 81, 1916 in cash. He
paid out during the day $2,O72.94. He turned
! over TO the assignee 6,59960
The paying teller had on hand in cash on
in cash deposits during the day 81, AGO. He
paid out in cash during the day $42,269 and
turned over to the assignee, 81, 422.06.
In regard to cash deposits made with the
receiving teller, it is clear that some portion
/ of them came into the hands of the assignee
for the teller paid out over the counter but
/ $2,07294, while the cash deposited with him
as a whole amounted TIC 81, 1856. So 1t is en-
tirely clear that $2,71S.62 of the cash de-
posted Jan. 2 came into the hands of the
assignee But claimant has shown that
the cash deposited by him, or any part OF 1t
was not part of the money paid out by the
: teller. Applying the rule that each claimant
must trace his money into the fund in the
hands of the assignee, I feel compelled to find
that not having done this, the claimants can
recover nothing from the fund.
AS to cash deposited with the paying teller,
! amounting to 81, 400, it is not only not traced
into the fund that came to the assignee, but
Z the evidence goes to show that the identical
! money deposited was paid out by the teller
before the banl closed. The claim of Fred
I Zimmerman, who deposited 81 900 in currency
at about II O'Clock with the paying teller taxi
ing certificate Of deposit for the amount, Is
a particularly hard one; the evidence is that
the very bills he deposited were paid out
over the counter few moments later.
ALLEMANNIA BANK.
In the matter of the receivership Of
the Allemannia bank the decision and
memorandum are as follows:
In the matter Of the receivership OF the
| Allemannia bank.
orders prepared in accordance with the fol-
lowing views will be signed upon presenta-
ton:
First-Checks and drafts on other banks
deposited January and turned over to
superintendent of banks or receiver, or pro-
ceedS of which came into hands of receiver.
Such checks and drafts. or the proceeds
thereof will be ordered returned TO deposit
ors. Contra. as to checks, proceeds of which
did not come to receiver.
Second-Checks drawn on the Allemannia
bank. No cash will be ordered paid to de-
pOstors on account Of such checks. No or
ders for the return of such checks to depos-
| itors will be made in this proceeding. Re-
ceiver will return such checks TO either de-
posftor or drawer upon agreement between
| the parties, but in default of such agree
ment, will exercise their own judgment, or
await the further order of the court made
| upon proper application.
! Third-Cash deposits. No orders for the
return Of cash deposited on January will
be made.
Judge Bum, in a memorandum, remarks
! The memorandum filed in the Bank of Min
nesota cases gives my reasons for the forego-
ing decisions on the different classes of items
involved in the applications. The situation as
to Identification Of cash deposits is as follows
/ The bank had but one teller, as de from the
had hand in cash at the opening of bust
ness on January 4 the sum of IS 564. "a. He
received from depositors before the bank sus-
pended So, S2506 a total of $12, 3S9.70. The
money deposited was mingled with the cash
/ on hand. Out of this mass he paid out to
depositors before the bank closed about
81 800 leaving less than IS O00 which was
turned over to the superintendent of banks.
| trace into the hands of the receiver the cash
deposited by him. it is clear that the applica-
lions for the return of cash deposits must ce
denied.
The note teller had on hand in cash on the
opening OF business, $302. 03. He received in
cash for cashiers check purchased by Sen
! ator Sweningsen the sum of $3.50 in currency
and $237.92 from the sale of drafts making a
total fund Of 81, 1895. He paid out to de-
/ positors all of this money except the sum of
ceivers. The currency deposited by Swening-
| sen was mingled with the other cash in the
note teller's cage 1t is, of course clear that
! this money cannot be traced into the hands of
| the receivers. Over half Of it was certainly
paid out before +he bank suspended and there
is no evidence that ii was not all so paid out