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of issue which would survive him, and his possession was only that of a tenant for life and not that of a freeholder of an estate of inheritance, which was necessary to the right of dower in his widow.
The decree will be reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed in this opinion.
Reversed and remanded, with directions.
(No. 12187.—Appellate Court reversed; superior court affirmed.) John A. McCORMICK, Plaintiff in Error, vs. JAMES S.
HOPKINS, Defendant in Error.
Opinion filed February 20, 1919. '1. BANKS,Supreme Court takes judicial notice that banks allow interest on time deposits. The Supreme Court will take judicial notice that many banks allow interest upon time deposits, and in some cases upon open checking accounts on the daily balances.
2. Same—what does not change a deposit into a loan. While a certificate of deposit not subject to check, payable at a future time and bearing interest, is, in effect, a promissory note and negotiable as such, these circumstances do not change the character of the transaction from a deposit to a loan, where the certificate is called on its face a time certificate of deposit, is in the usual form in which such certificates are issued by banks and is payable only upon demand at the bank and on the return of the certificate properly indorsed.
3. Same-what is included in the term "deposit." The word "deposit,” according to its commonly accepted meaning among bankers and the public, includes not only deposits payable on demand and subject to check but deposits not subject to check, for which certificates, whether interest-bearing or not, may be issued, payable on demand or on certain notice or at a fixed future time.
4. Same-bank is not bound to receive deposits. A bank is not bound to receive deposits from anyone but may choose those from whom it will accept deposits, and when it issues a certificate of deposit it enters into a contract with the depositor.
5. SAME-deposit may consist of bank's own certificate of deposit. A deposit may consist of the bank's own certificate of deposit, where the depositor surrenders the certificate at maturity, the bank makes the proper entries in its books and issues a new certificate showing the new contract of deposit.
6. Same-what evidence is admissible in a proceeding against surety company. Where deposits are made in the name of "John A. McCormick, Treas.," of funds of a sanitary district, in a proceeding, after the failure of the bank, to recover from the receiver of a surety corporation the amount of a bond issued by it to such person to secure deposits of funds of the sanitary district, evidence is admissible to show that the funds deposited were those of the district.
7. SAME—when liability of surety company on bond to secure deposits is not limited to checking account. Where a bond to secure the deposits in a bank of funds of a sanitary district says nothing as to the name, form or method in which deposits shall be made or withdrawn, except that the bank shall pay out the funds in accordance with the warrant, check or direction of the treasurer of the district and account for and pay over all funds received by it as such depository, the liability of a surety company on the bond is not restricted to a checking account but extends to time deposits.
8. SAME—when method of deposit by treasurer of sanitary district does not constitute embezzlement. A treasurer of a sanitary district is personally liable to the district for the safe keeping of its funds, and he does not commit embezzlement by depositing the funds of the district in a bank in his own name, followed by the word “Treas.,” even though the deposits are not immediately payable and draw interest, where the interest is accounted for to the sanitary district. (Estate of Ramsay v. Whitbeck, 183 Ill. 550, distinguished.)
WRIT OF ERROR to the Appellate Court for the First District;-heard in that court, on appeal from the Superior Court of Cook county; the Hon. DENIS E. SULLIVAN, Judge, presiding.
DEFREES, BUCKINGHAM & Eaton, (GEORGE T. BUCKINGHAM, MARQUIS EATON, and Don KENNETH JONES, of counsel,) for plaintiff in error.
A. J. HOPKINS, for defendant in error.
Mr. Justice Dunn delivered the opinion of the court:
The La Salle Street Trust and Savings Bank on June 2, 1914, executed a bond, with the Illinois Surety Company as surety, to John A. McCormick, treasurer of the Sani
tary District of Chicago, in the penalty of $25,000, subject to the following condition:
"The condition of the foregoing obligation is such, that whereas The La Salle Street Trust and Savings Bank has been designated by said obligee as depository of funds and moneys coming into his hands as such treasurer of said Sanitary District of Chicago; and whereas said obligee may from time to time deposit said funds and moneys with said The La Salle Street Trust and Savings Bank;
“Now, therefore, the condition of the foregoing obligation is such that if the said The La Salle Street Trust and Savings Bank shall well and faithfully perform and discharge its duties as such depository and pay out the funds and moneys so deposited with it, and each and every part thereof, in accordance with the warrant, check or direction of the said J. A. McCormick, as such treasurer, and shall account for and pay over all moneys received by it as such depository, then this obligation shall be null and void, otherwise to remain in full force and effect."
On June 11, 1914, the bank issued the following certificate: “Time Certificate of Deposit.—The La Salle Street Trust and Sav
ings Bank of Chicago.—No. 265.
CHICAGO, ILLINOIS, June 11, 1914. "John A. McCormick, Treas., has deposited with us fifty thousand .......... 00/100 dollars, payable to the order of himself in current funds on the 3d day of September, 1914, without grace, on the return of this certificate properly endorsed, interest from June 3, 1914.
Chas. G. Fox, E. STAPLETON, Teller.
Vice-President and Cashier. Not subject to check.”. On June 12, 1914, the bank ceased to do business and on the application of the Auditor of Public Accounts a receiver was appointed for it. When the certificate of deposit became due, demand of payment was made on the bank and its receiver and payment was refused. James S. Hopkins having been appointed receiver of the surety company under a bill for the dissolution of the corporation, an intervening petition was filed in that suit in the superior court of Cook county by McCormick, treasurer of the Sanitary District of Chicago, praying that his claim against the
La Salle Street Trust and Savings Bank be allowed and paid out of the assets of the surety company.
The answer of the receiver stated that it was represented to the surety company shortly before the execution of the bond that McCormick was about to receive from the Sanitary District of Chicago $75,000 in cash, which he proposed to deposit in the LaSalle Street Trust and Savings Bank on condition that the bank would execute to him depository bonds to that amount, and that said surety company and two other surety companies executed bonds identical in form and amount with the bonds set out in the petition; that said bonds were not to secure the petitioner against money that he had prior to their date received from the sanitary district or deposited in the bank, but were specifically worded so as to hold the several surety companies liable only for money received from the sanitary district by the petitioner subsequent to the execution of the bonds and for funds and money deposited in the bank subsequent to the execution of the bonds. The answer denied that the petitioner deposited in the bank on June 11, 1914, $50,000 in funds or money of the sanitary district, and averred that said $50,000 was represented by a certificate of deposit for that amount payable to the petitioner by the bank on June 4, 1914, and that instead of requiring the bank to pay the amount of said certificate, the petitioner, without the knowledge and consent of the surety company, gave further time to the bank to pay said $50,000, in consideration of his surrendering the old certificate of deposit then due and its cancellation; that the bank issued the certificate of deposit in controversy upon the surrender of the former certificate, and that the surety company was thereby released from any liability upon the bond. The answer insists that the instrument executed by the bank on June 11, 1914, was a promissory note given in renewal of previous notes for a loan made by McCormick to the bank a year before, evidenced by a similar certificate, which was renewed after three
months by another certificate of the same character. The answer further stated that McCormick, as treasurer of the sanitary district, entered into an agreement with the bank to receive three per cent interest, quarterly, on said $50,000, which he received without the knowledge of the surety company; that such agreement was in violation of section 81 of the Criminal Code, and that therefore the certificate of deposit is void.
On the hearing it was shown that the funds were those of the sanitary district. On June 3, 1913, an instrument called a time certificate of deposit, identical in every way with the certificate of June 11, 1914, except the date of issue and date of maturity, was issued. It was payable on September 3, 1913, when it was surrendered and canceled. A cashier's check for the interest, $375, was at the same time given to McCormick, which he accounted for to the sanitary district, and another identical certificate, except as to the date of issue and maturity, was issued. On December 3, 1913, March 3, 1914, and June 11, 1914, successively, the same thing occurred in regard to the certificate of September 3, 1913, and those successively issued. The superior court rendered a decree in favor of the petitioner, requiring the receiver of the surety company to pay the petitioner the amount of the bond in due course of administration. On appeal by the receiver the Appellate Court reversed the decree of the superior court and remanded the cause, with directions to disallow the claim. The petitioner sued out a writ of certiorari, and the record has been brought here for review.
The questions to be decided are whether the certificate of the bank of June 11, 1914, evidences a deposit of funds then made, and if so, whether it is within the condition of the bond.
The certificate is called, on its face, a time certificate of deposit. It is in the usual form in which such certificates of deposit are issued by banks. It is not subject to check,