did set aside out of its cash then on hand a sum of money sufficient to pay the draft, and that sum of money is held as trustee of the plaintiff. This conclusion we think is consistent with sound reason. State National Bank v. First National Bank, 124 Ark. 531, 187 S. W. 673; Goodyear Tire & Rubber Co. v. Hannover National Bank, 109 Kan. 772, 204 Pac. 992, 21 A. L. R. 677.

[4] With respect to tracing the fund, the law is that where a trustee mingles his beneficiary's money with his own and then invades the common store, he will be presumed to have used his own money first, because the law presumes that a man does right rather than wrong. The sum remaining in the hands of the trustee will be deemed the money of the beneficiary as far as necessary to make up, if possible, the full amount due him. The rule is well stated in L. R. A. 1916C (note) at page 86 as follows:

charge its duty by remitting the cash col- I had the cash with which to pay it, as a lected to the Chicago Bank. Under the cir- matter of law it must follow that the bank cumstances, the collection and retention of the money by the Havre Bank created the relation of trustee and beneficiary between that bank and the plaintiff. State ex rel. Kelly v. Farmers' State Bank, 54 Mont. 515, 172 Pac. 130; 7 C. J. 617. If the collection of the draft augmented the assets of the bank, and if the plaintiff can trace the proceeds of the collection into the hands of the receiver, the plaintiff has a preferential right to those proceeds. As to this respective counsel agree. Defendant's counsel contends that by the collection of the draft in the manner in which it was done the assets of the bank were not augmented; he says there was a mere shifting of credits upon the bank's books. The stipulation is that the Ryan Havre Company had sufficient credit with the Havre Bank to meet the payment of the check. This means, if it means anything, that the drawer had on deposit with the bank sufficient funds to pay the amount of the check, and it must also mean that the bank was in funds to an amount sufficient to honor the check. Instead of transmitting the money, the bank sent on its cashier's check. The person who drew it, if the bank had not sufficient funds then on hand to cover it, and he knew that fact, made himself subject to prosecution under the provisions of section 11369, R. C. 1921. The court will indulge the presumption that the person who drew the check did not break the law. The pre-appeared that the balance left in the mingled sumption is the other way. Section 10606, subd. 1, R. C. 1921.

Many authorities support the view that where a collection is made by a bank which charges the amount collected to the account of the debtor who is a depositor in the bank, the assets of the bank are not augmented thereby; the theory being that this merely amounts to a shifting of the bank's liability. But the theory of these cases proceeds upon the hypothesis that the relation of debtor and creditor exists between the bank and the person for whom the collection is made. As we have seen, that relation did not exist between the Havre Bank and the plaintiff. Still referring to the foregoing theory, inap plicable in this case, it is admitted that the company could have presented the check at the paying teller's window, received the amount in cash, then have paid it to the receiving teller, and this would have been an augmentation of the bank's assets. No such idle ceremony is called for. It would seem that futility could not go much further. When the bank was in duty bound to collect the cash and to remit, but instead retained the cash, when remitting would have decreased its assets, it follows that by retaining the cash its assets were augmented.

As it was the duty of the bank to collect the cash due upon the draft, and as the bank

lett (1879) L. R. 13 Ch. Div. (Eng.) 696, 49 L. "Ever since the decision in Knatchbull v. HalJ. Ch. (N. S.) 415, 42 L. T. N. (N. S.) 421, 28 Week. Rep. 732, it has been the established rule in cases where a trustee has mingled with his own funds money held in trust, and then dipped into the common store and taken out and used a part, that, so long as a balance equal to the trust fund remains, it will be presumed that the money drawn out and used was the trustee's was the trust money. In cases where it has own money, and that the money left undrawn

store was less than the sum of money held in trust, the courts generally have presumed that the drawings out by the trustee began upon his own funds, and continued until they were exhausted, before he intrenched upon the trust money, and therefore, that whatever balance remained belonged wholly to the trust."

[5] In his well-written brief counsel for defendant says, correctly, that conceding the foregoing statement to be true the preference may not extend above the amount of the lowest balance on hand in the collecting bank between the time of making the collection and its enforced closing; this on the theory that, if the amount of cash in the bank at one time during the interval has reached a low figure and later a higher one, it is conclusive that some of the trust funds have been dissipated and funds deposited by others have come into the bank's possession, upon which the beneficiary may have no preference. Covey v. Cannon, 104 Ark. 550, 149 S. W. 514. So far as we are apprised by the record, the sum of $1,801.62 was the lowest amount of cash in the bank at any time after the collection was made. If the contrary is true, the facts were in the receiver's possession; but he did not disclose them.

In one respect the court erred. It should have given plaintiff a preferential right to the

(220 P.)

$1,801.62 only. As to the remainder of its claim it is a general creditor.

The cause is remanded to the district court, with directions to modify its judgment accordingly; each party to pay its or his own costs on this appeal. Modified.

COOPER, HOLLOWAY, GALEN, STARK, JJ., concur.

MEMORANDUM DECISIONS

violated the terms of said leave and escaped. It appears, therefore, that this case as to him should be, and the same is, dismissed, for the reason that he cannot be made to respond to any order or judgment of this court. The judgment of the trial court as to the plaintiff in error Joe Creason is affirmed, for the reason that there is competent evidence to support the verdict, and that no fundamental error appears and in the record, and that the record otherwise indicates that he was accorded a fair trial. DOYLE, J., concurs.

MATSON, P. J., absent and not participat

ing.

Application of H. B. LANE for Writ of Habeas Corpus. (No. A-4881.) (Criminal Court of Appeals of Oklahoma. Dec. 10, 1923.) Writ denied. C. F. Gowdy, of Nowata, for pe

ent.

Petition of Louis BAKER for Writ of Ha-titioner. The Attorney General, for respondbeas Corpus. (No. A-4892.) (Criminal Court of Appeals of Oklahoma. Dec. 26. 1923.) Cause Dismissed. Hall & Pickens and G. Arthur Holloway, all of Holdenville, for petitioner. The Attorney General, for respondent. PER CURIAM. This is a petition for writ of habeas corpus of Louis Baker to be admitted to bail pending an appeal from a judgment of the county court of Hughes county. A rule to show cause issued, and before the cause was submitted counsel of record in open court moved to dismiss the same. It is therefore ordered that said cause be, and is hereby dismissed.

FEARS et al. v. STATE. (No. A-4037.) (Criminal Court of Appeals of Oklahoma. July 23, 1923. Rehearing Denied Dec. 4, 1923.) Appeal from District Court, Tulsa County; Frank Mathews, Special Judge. Alvis Fears and Joe Creason were convicted of conjoint robbery, and they appeal. Dismissed as to Fears, and affirmed as to Creason. J. M. Springer, of Tulsa, for plaintiffs in error.

PER CURIAM. On October 13, 1923, petitioner, H. B. Lane, appealed to this court for a writ of habeas corpus, alleging that he was fined in the county jail of Nowata county, Oklaunlawfully deprived of his liberty and conhoma, by W. S. Gillespie, sheriff of said county. For cause for issuance of the writ petitioner alleged that he was charged with the unlawful manufacture of intoxicating liquors in the county court of Nowata county, with an appearance bond fixed in the sum of $1,500; that on the 6th day of October, 1923, the October term of said county court adjourned without trying this petitioner, although said petitioner was confined in jail at said time. Petitioner further alleges that said bond of $1,500 is excessive, and that he cannot make bond in such sum, and asks this court to reduce the bond to the sum of $500. Upon consideration of the petition, this court reached the conclusion that it was without jurisdiction to grant the relief prayed for, and the writ was refused, and the cause dismissed.

O. C. LOGAN v. STATE of Oklahoma. (No. A-4343.) (Criminal Court of Appeals of Oklahoma. Dec. 22, 1923.) Appeal from County Court, Pittsburg County; S. F. Brown, Judge. O. C. Logan was convicted of the offense of manufacturing intoxicating liquor, and appeals. Affirmed. Wilkinson & Hudson, of McAlester, for plaintiff in error. The Attorney General, for the State.

BESSEY, J. Alvis Fears and Joe Creason were charged with the crime of conjoint robbery, and by a verdict of a jury were found guilty as charged; the jury failing to assess the punishment. The court, in rendering judgment on the verdict, assessed the punishment of each at confinement for five years in the state reformatory at Granite. From this judgment they appeal. This cause was regularly submitted at the March, 1923, term of this court, and the attorney for plaintiffs in error appeared and argued the case orally. The court then made an order giving plaintiffs in error until April 1, 1923, to file briefs. The order of the court has not been complied with, and no briefs have been filed. An examination of the record discloses no fundamental errors and the evidence, although some of it is circumstantial and some of it conflicting, is suf-mitted on the 6th day of November, 1923. No ficient to sustain the verdict. Information before this court discloses that Alvis Fears is at this time a fugitive from justice; that in another case pending in this court, wherein he was convicted of murder and sentenced to the penitentiary, it appears that he was granted executive clemency in the form of a leave of absence from the penitentiary; and that he has

PER CURIAM. Plaintiff in error, O. C. Logan, was convicted in the county court of Pittsburg county of the offense of manufacturing intoxicating liquor, and punishment fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $50. Judgment was rendered on the 24th day of March, 1922, and the appeal lodged in this court on the 20th day of May, 1922. The cause was finally sub

brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time it was submitted. Rule 9 of this court provides: "When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial

error appears, will affirm the judgment." After | and sentenced to imprisonment in the penitenan examination of the pleadings, the instruc- tiary for life, alleging that his imprisonment is tions of the court, and the judgment and sen- illegal by reason of a certain pardon issued and tence, the court finds that no prejudicial error granted unto the said Ed Warren on the 14th occurred sufficient to authorize a reversal of day of September, 1923. When the petition this judgment, and the same is therefore af- was presented to the court, counsel for petifirmed. tioner filed motion to dismiss the case, which motion is sustained, and cause dismissed.

(220 P.)

Marguerite WAINWRIGHT v. J. W. LAN- | general interest, and anything we might say GELAAR and wife. (No. 18077.) (Supreme would be valueless as a guide or precedent in Court of Washington. Dec. 7, 1923.) Depart- the future, we are constrained to say only that, ment 1. Appeal from Superior Court, King after reading and considering the evidence ofCounty; Otis W. Brinker, Judge. Longfellow fered, we are convinced that appellant failed & Fitzpatrick, of Seattle, for appellants. Ja- to prove any cause of action. The judgment cob Kalina, of Seattle, for respondent. appealed from is therefore affirmed.

MAIN, C. J., and HOLCOMB, PARKER, and MACKINTOSH, JJ., concur.

PER CURIAM. In this action for damages for breach of a contract to build a fireplace and chimney, respondent recovered a judgment for $530. The respondent's claim is that the appellant guaranteed that the fireplace would not smoke. The trial court found that such a guaranty had been made, and our examination of the facts does not warrant us in saying that they preponderate against that finding. The trial court, however, was in error in awarding judgment in the amount it did, for the judgment should not have exceeded the contract price of $150, and is modified to that amount. for respondent.

E. T. YOUNG v. SEATTLE & LAKE

In re Estate of Nellie BRADFIELD, Deceased. Olof BRADFIELD, Executor, Appellant, v. George N. LATUS, Respondent. (Supreme Court of Montana. April 3, 1923.) No. 5,291. Appeal from District Court, Stillwater County; Albert P. Stark, Judge. P. R. Heily, of Columbus, for appellant. Jos. R. Wine, of Helena,

PER CURIAM. It appearing that the attempted appeal herein is not from a judgment or order of the lower court and the court there

WASHINGTON WATERWAY CO., etc., et al. fore not having jurisdiction of the matter, re(No. 18094.) (Supreme Court of Washington. spondent's motion to dismiss the appeal is Dec. 7, 1923.) Department 1. Appeal from granted. See, also, 221 Pac. — Superior Court, King County; Otis W. Brinker, Judge. Ben S. Sawyer and R. F. Dotsch, both of Olympia, for appellant. Donworth, Todd & Higgins, of Seattle, for respondents. TOLMAN, J. This is one of those cases in which we must either detail a great number of charges as alleged in appellant's complaint, set forth the substance of the testimony offered to support them, and then draw the conclusion that the evidence wholly fails to prove the charges made, or content ourselves by saying that the questions involved are of fact only, and that we agree with the results reached by the trial court upon the facts. Since there is nothing which can be discussed that will be of

FIRST NAT. BANK OF THREE FORKS, Respondent, v. Phillip MOCKEL, Appellant. (Supreme Court of Montana. March 22, 1923.) No. 5,098. Appeal from District Court, Fergus County; Wm. L. Ford, Judge. Frank W. Mettler, of Helena, and Frank T. Hooks, of Townsend, for appellant. E. A. Peterson, of Bozeman, and Charles A. Hills, of Three Forks, for respondent.

PER CURIAM. The appeal in the aboveentitled action is dismissed on stipulation of counsel.

END OF CASES IN VOL. 220