The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-04
NCONVILLE CASE
Will Be TRIED
SUPREME COURT AFFIRMED
JUDGE PoLLocK's RULING IN
CASE OF M'coNVlLLE's SUR
ETY. AGAINST BUFFALO BANK
TRIAL NEXT.

The case of the Northern Trust Co.
vs.. the First National bank of Buffalo,
an outgrowth of the McConville ase
two years ago., will now be tried in
the district court on its merits ac-
cording to the decision just handed
down by the supreme court which at
firmed Judge Pollock's ruling on the
case more than a year ago.
The Northern Trust Co., as surety
for the d~efaulting county treasurer,
brought suit against the Buffalo bank,
which institution was the payee of a
number of county checks drawn by
the treasurer for the payment of per-
sonal accounts. TIL plaintiff in the
action RENTED to the county the full
amount Of the shortage n then pro-
ceeded to bile all moneys paid to
private parties for personal accounts
out Of county funds.
According to the law, it is contend
ed that the payee Is liable for the
acceptance Of checks signed Cass
county, per the treasurer.
Among the defendants claims is
that the county should have sued for
the recovery of the checks instead of
the ~treasurer's surety. AS the trust
company RENTED the amount of the
defalcation to the county, it is suing
in place of the county. Twenty six
such checks were given the defendant
in this name A number of others
were issued to local concerns, some
of which have been paid, the plain
tiff claims.
Judge Pollock ruled that the plain
tiff could bring suit against the de-
PENDANT for the recovery of the amount
of the checks. An appeal was made
to the supreme court affirming the
Fargo ~jurist's ruling. The case will
now be brought to trial on its merits.
Following is the syllabus by the SUI
preme court:
The Northern Trust Co, a corpora
ton. respondent, VIZ. the First Ma
tional bank of Buffalo, appellant.
One NJ was treasurer of Cass Coun-
ty during the years 19o7-10, inclusive,
and the plaintiff furnished his Off
Cial bond. Cass county claimed a
shortage and sued and recovered judg-
ment against this plaintiff for some
thing over $1,000 defalcation. During
the years 1S07-S-9, said NJ paid to
personal debt to defendant. Said pay
ments were made by means of twenty
six checks upon the funds of Cass
county, said checks being signed Cass
county, N. D., per NJ, treasurer. After
the trust company had paid the defal-
cation, it brought this suit against
the defendant to said sums.
| DtLGLAhdiI 0CilAuAS " the COutDIdlIL.
l. The complaint alleges thai the
said treasurer paid to defendant the
said moneys of Cass county upon his
private account and that the defend
ant knew, or ought to have known,
Of the ownership of the funds. The
complaint further alleges that Cass
county recovered judgment against the
plaintiff for a shortage of over ST.
900. Held, that the allegations rela-
1 tiyo M fhn uitit nv GtaCc county -or
tanned to the subject Of the subroga-
ton of plaintiff to Cass county's inter
est in the funds. The fact that a
judgment was obtained against the
surety company for a shortage In MS
account will not be binding upon this
defendant, who was not a party to
the suit, but this plaintiff will have
to prove the TACT of the shortage up
on the present trial.
2. Defendant claims that there Is
no allegation that the wrongful pay
ments made by the treasurer oCca.
stoned the shortage In his accounts
Held, that the above allegations nee.
essarly imply a shortage and thai the
same was occasioned by the wrong.
full payments of Cass county's money
to defendant.
3. Defendant claims that the com
plant does not allege that the pay
ments were unlawfully made. Held
that the allegation tha the said M
paid and the defendant received the
funds of CaBs county Upon the private
debt of the said NJ, sufficiently al.
leges an unlawful use of the funds.
4. Defendant contends that Cass
county should have sued and recov-
cred from the bank the funds in
question before resorting to the bond
of the trust company. Held, thai
Cass county was under no obligation
to pursue this remedy before resort.
ing to this bond; that section 6119
r. c.. 1905, controls and that the plain.
tiff is subrogated to all the rights Of
Cass county.
5. The fact that defendant receiv.
ed twenty-six checks drawn in the
name of Cass county, was sufficient
notice to the payee of the checks tha
the moneys belonged to Cass county
and not to M.
Held, that the demurrer of the de-
PENDANT was properly overruled.
(Syllabus by the court.)
Appeal from the district court o.
Cass county, Pollock, J..
Opinion of the our by Burke, ]
Affirmed. p g...
Ball, Watson, Young & Lawrenc,
and Pollock e. Pollock for defendan
and appellant.
Pierce, Tennesou & Cupler for plain,
tiff and respondent.