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(311 Il. 66, 142 N. E. 554.) versy about the fact as to what re- Dunn and Cartwright, JJ., disspondent's conduct was. This court senting: has frequently considered the suffi- The rules of the court prescribe ciency of the proof required to au- the qualifications of general and thorize disbarment. In People ex legal education and of character and rel. Deneen v. Matthews, 217 Ill. 94, general fitness requisite for admis75 N. E. 444, the court held disbar sion to the bar, and provide the ment was only justified upon clear method by which these shall be asand satisfactory proof. In People certained. The examination which ex rel. Burnap v. Harvey, 41 Ill. 277, must be sustained in the various subthe court said the proof must be jects presented is intended to ascerclear and free from doubt, not only tain the fitness of the applicant, by as to the act charged, but also as to reason of his mental training acthe motive. In People ex rel. Shụ- quired by study, and his legal knowlfeldt v. Barker, 56 Ill. 299, the court edge, to undertake the practice of said slight evidence would not war- law. The respondent is not engaged rant disbarment. An attorney is en- in the preparation of students for titled to practise his profession, and the bar, but for the bar examinashould not be denied the right to do tion, and this not by a study of the so "except. upon clear proof of wil- legal principles involved in the subful and corrupt professional miscon- jects on which the examination duct.” Many more of our decisions must be conducted, but by the memare to be found citing and approve orizing of answers furnished by the ing the cases above referred to. respondent to questions which he Practically all the disbarment cases has also furnished, with the statewe have examined charged conduct ment that he is furnishing a large of the attorney which was fraudu- proportion of the questions to be lent or dishonest. A few charged asked at the examination, together soliciting business as an attorney in with the answers. He advertises, a manner which was unprofessional systematically and extensively, his and tended to bring the bar into great success in thus enabling apcontempt. We have already referred plicants to pass the bar examination, to the fact that there was no con

and a considerable proportion of the nection between respondent's quiz applicants at each examination are classes and his practice of the pro- those who, under his tutoring, have fession, further than the fact of prepared to pass an examination by being a lawyer enabled him to se- the study of questions and answers, cure students for his courses. We of which a large proportion-posare unable to see the ethical differ- sibly a half-of the particular quesence between what respondent did, tions have been furnished to the apand substantially the same thing plicants in advance. This is a clear which it is generally understood is evasion of the rule, which contembeing practised by some colleges and plates an examination which will universities. This court said in not be merely a test of memory, but People v. Palmer, 61 Ill. 255, that it will test the mental training, reawas not its province to pass on the soning powers, knowledge of legal style of manners becoming to an principles, mental capacity, and genhonorable member of the profession. eral educational fitness of the appliWe are not to be understood as com- cant. The work of the respondent mending respondent's actions in interferes with such an examination conducting his quiz courses. After and makes the result depend largely careful consideration and delibera- upon the superficial acquaintance tion we only hold that in doing so with a subject which a good memory he was not guilty of unprofessional will enable the applicant thus exconduct of so serious a character as amined temporarily to retain and to justify the destruction of his display, and not upon any real professional life by disbarment. knowledge. It not only lowers the The rule is discharged.

educational standard for admission

to the bar, but also the moral stand- should be condemned instead of conard. The entrance of a lawyer upon donea, and he should be required to his profession ought not to be at- desist from it, and from giving tended with an evasion of the rule courses of the character of those providing for his admission.

which he does give in preparation The conduct of the respondent for the bar examinations.

ANNOTATION.

Conduct in respect of coaching law students as ground for disbarment.

The reported case (PEOPLE EX REL. the courts generally have made a disCHICAGO BAR Asso. V. BAKER, ante, tinction between acts and conduct as 737) is apparently one of first impres- an attorney and as a person, and unsion, an extensive search having re- less the attorney shows such a want vealed no other cases presenting a sim- of professional honesty as renders him ilar state of facts. Generally, as to unworthy of public confidence, or disbarment for misconduct outside of has such a bad character that he is an strictly professional relations, it is unsafe and unfit person to be intrusted said in 2 R. C. L. p. 1099: “It is gen- with the powers of the profession, he erally held that misconduct of an at- will not be disturbed." To the antorney, even though outside of his pro- notator it seems that the decision of fessional dealings, may be sufficient to the court in the reported case, to the justify his disbarment.

An attorney effect that it was not unprofessional may be guilty of disreputable prac- for a member of the bar to conduct tices and gross immoralities in his quiz classes to prepare law students private capacity, and without the pale who had completed the required course of the court, which render him unfit of study for their bar examination, is to associate with gentlemen, disqualify consonant with reason, and was in him for the faithful discharge of his effect a holding that the accused professional duties in or out of court, lawyer was not guilty of such a want and render him unworthy to minister of professional honesty as would in the forum of justice. When such a justify his disbarment. It will be obcase arises, from whatever acts or served, however, that the court makes causes, the cardinal condition of the the significant statement: We are attorney's admission to the bar—the not to be understood as commending possession of a good moral character respondent's actions in conducting his

is forfeited, and it becomes the quiz courses. After careful considerasolemn duty of the court, upon a due tion and deliberation we only hold presentment of the case, to revoke the that in doing so he was not guilty of authority given to the offending mem- unprofessional conduct of so serious ber as a symbol of legal fitness and a character as to justify the destrucmoral uprightness, lest it be exercised tion of his professional life by disbarfor evil or tarnished with shame. But ment."

R. P. D.

H. H. CABLE et al., Appts.,

V.
IOWA STATE SAVINGS BANK.

Iowa Supreme Court - September 28, 1923.

(- Iowa, 194 N. W. 957.) Trust — application of funds with notice of claim.

1. A cestui que trust may maintain a suit in equity against a bank for (- Iowa, - 194 N. W. 957.) funds deposited by the trustee, and applied by the bank to its own claim against the trustee with notice of the claim of the cestui que trust.

[See note on this question beginning on page 756.] Factor – title to property consigned mission house deposits the proceeds of tò.

sales and transmits the proceeds by 2. The title to property consigned to check, it will be charged with notice a commission merchant for sale re- that the only interest which it has in mains in the consignor, for whom the deposits from the proceeds of sales is proceeds are held in trust even though its commission and the expenses necthey are deposited in bank to the credit essary to the handling and disposition of the commission merchant.

of consignments. [See 11 R. C. L. 757; 2 R. C. L. Supp.

Bank - duty to pay checks of commis1318.]

sion merchant. Trust suit to establish funds de

9. A bank in which a commission posited in bank.

merchant deposits the proceeds of 3. The owner of funds placed in a

goods consigned to him, to be transbank by a commission merchant may mitted to the owners by check, is maintain a suit in equity against the charged with notice of the trust charbank to impress a trust upon any of acter of the funds and bound to pay the funds remaining on deposit, unless checks drawn by the merchant so long the bank has acquired an equitable as there are funds on deposit for that right thereto without notice of the

purpose. claims of the owner.

[See 3 R. C. L. 549; 1 R. C. L. Supp. [See 3 R. C. L. 552; 1 R. C. L. Supp. 851.] 853.]

Evidence

bank

judicial notice Bank – right to appropriate deposit

transaction. in satisfaction of indebtedness. 4. A bank may appropriate a gen

10. The court will not take judicial

notice of the time and order in which eral deposit of a debtor to the dis

checks are presented against a bank charge of a matured indebtedness. [See 3 R. C. L. 588; 1 R. C. L. Supp.

account and paid, or in which entries

were made in the books, nor that they 858; 4 R. C. L. Supp. 204.]

were in fact entered in strict order of Trust right to impress on bank de

payment.

1 posit. 5. A cestui que trust cannot recover

Bank state of account

time as trust funds deposited in bank by the

certained. trustee in his own name, and which,

11. In the absence of evidence tendwithout notice of the trust character,

ing to show that deposits and checks the bank has applied to a matured in

were entered in a bank account in the debtedness, surrendering to the trus

strict order in which they were made tee the evidence thereof.

and paid, the balance shown at the [See 3 R. C. L. 594; 1 R. C. L. Supp.

opening and closing of business will 860; 4 R. C. L. Supp. 205.]

be taken as the true state of the acBank

count. action by cestui que trust after withdrawal of funds.

presumption as to character of bal6. An action cannot be maintained ance. by a cestui que trust against the bank 12. Where a balance is shown in in which the trust fund was deposited, the bank account of a commission after it has been withdrawn by the merchant at the close of business on trustee in the usual course of busi- the day in which he deposited a ness.

trust fund, such balance will be pre- presumption as to withdrawals by sumed to consist of such fund. trustee.

Trust - presumption as to replace7. Where trust funds are deposited ment of trust funds. in the private account of the trustee, 13. Where a commission merchant withdrawals by him will be presumed has withdrawn from his bank account to be of his own funds.

a portion of the funds representing [See 26 R. C. L. 1357.)

the sale of goods consigned to him, Notice to bank of interest of com- it cannot be presumed that funds submission house.

sequently deposited were intended to 8. Where a bank knows that a com- replace them, where the only funds

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available to him were the proceeds of of funds of other persons, subsequentconsignments by other persons.

ly deposited by the commission mer[See 26 R. C. L. 1358. See also

chant, to the indebtedness due from note in 26 A.L.R. 12.]

the merchant to it. On Rehearing.

right to balance of deposit.

15. As against the bank in which Bank — application of fund to claim commission merchant deposited right of stranger to reach.

funds belonging to his correspondent, 14. A consignor whose funds were which were subsequently dissipated, deposited by the commission merchant the correspondent is entitled to any in bank to his own account, and used balance in the merchant's account to pay other obligations, has no stand- which is not claimed by a creditor ing to test the application by the bank having a superior title.

a

APPEAL by plaintiffs from a decree of the District Court for Woodbury County (Newby, J.) dismissing an action brought to impress a trust upon funds alleged to have been deposited in the defendant bank by a certain company as agents of plaintiff to its own credit. Modified.

The facts are stated in the opinion of the court.
Mr. E. E. Wagner, for appellants: Theodore Hamm Brewing Co. v.

Defendant was not in any wise Flagstad, 182 Iowa, 826, 166 N. W. 289. prejudiced or induced to change its It is only when the depositor and situation to its detriment by reason of debtor stand in an identical relation the deposit of the fund to the com- to the bank that the bank, under any mission company's account, and there circumstances, is entitled to offset the are no equitable considerations under indebtedness against the deposit. which plaintiffs are estopped to claim International Bank v. Jones, 119 Ill. the fund as their property, or under 407, 59 Am. Rep. 807, 9 N. E. 885; which the defendant was, in equity or Adams v. First Nat. Bank, 113 N. C. good conscience, entitled to a prior 332, 23 L.R.A. 111, 18 S. E. 513. right thereto.

When the Ward Company deposited Wunderlich v. Merchants Nat. Bank, additional funds on the 7th, knowing 109 Minn. 468, 27 L.R.A.(N.S.) 811, its check for plaintiff's money was un134 Am. St. Rep. 788, 124 N. W. 223, paid, it is presumed to have made the 18 Ann. Cas. 212; Shotwell v. Sioux additional deposit for the purpose of Falls v. Bank, 34 S. D. 109, L.R.A. making good its balance to take care 1915A, 715, 147 N. W. 288; Boyle v. of plaintiff's check, and their equitaNorthwestern Nat. Bank, 125 Wis. 498, ble title to the fund immediately at1 L.R.A.(N.S.) 1:10, 110 Am. St. Rep. tached to the whole deposit. 844, 103 N. W. 1123, 104 N. W. 917; Hungerford v. Curtis, 43 R. I. 124, 12 Platts v. Metropolitan Nat. Bank, 130 A.L.R. 1040, 110 Atl. 650; Central Nat. Minn. 219, 153 N. W. 514; Wilson v. Bank v. Connecticut Mut. L. Ins. Co. Smith, 3 How. 763, 11 L. ed. 820; Cen- 104 U. S. 54, 26 L. ed. 693; Garst v. tral Nat. Bank v. Connecticut Mut. L. Canfield, 44 R. I. 220, 116 Atl. 432; Ins. Co. 104 U. S. 54, 26 L. ed. 693; Theodore Hamm Brewing Co. v. FlagUnion Stock Yards Nat. Bank v. Gil

stad, supra. lespie, 137 U. S. 411, 34 L. ed. 724, 11 Messrs. Shull, Stilwill, Shull, & Sup. Ct. Rep. 118.

Wadden, for appellees: Although the proceeds of this ship

Claimant must trace the funds, and ment of stock were deposited with other funds in the commission company's

when it ailirmatively appears that the account and were wrongfully inter

funds are gone there can be no remingled with other funds, which were

covery. drawn out of the bank, it is presumed

Boyle v. Northwestern Nat. Bank, that the commission company checked

125 Wis. 498, 1 L.R.A.(N.S.) 1110, 110 out its own funds first, and the bal- Am. St. Rep. 844, 103 N. W. 1123, 104 ance remaining in the fund now N. W. 917; Garst v. Canfield, 44 R. I. sought by plaintiffs is and should be 220, 116 Atl. 482; Central Nat. Bank v. impressed with a trust in favor of the Connecticut Mut. L. Ins. Co. 104 U. S. plaintiffs as against the defendant 54, 26 L. ed. 693. bank.

On or

(- Iowa, , 194 N. W. 957.) Per Curiam:

close of business on July 7 the bank The material facts are not in dis- charged the account of the Ward pute, and, briefly summarized, are Commission Company with $4,substantially as follows:

897.41, the amount due on the notes, about July 3, 1920, appellants con- and issued a cashier's check to itsigned forty-six head of steers to self for $2,338.03, the balance then the Ward Commission Company, a remaining in the account. The corporation located and engaged in cashier's check was still held by apthe live stock commission business at pellee at the time of the trial. Sioux City, Iowa, for sale upon the It is not claimed by appellee that market, with directions to remit the the beneficial owner of a fund denet proceeds derived therefrom to

posited in a bank by a factor or comthe Hudson State Bank of Hudson, mission merchant to his own credit South Dakota, the point at which may not maintain an action in equity the shipment originated. The steers against the bank to impress a trust were sold to one Birmingham for $7,- on such fund, and to recover the 561.25, who gave his check for that same from the bank, if it has acamount to the Ward Commission quired no equitable right thereto Company, payable to its order. The without notice of the claim of such Ward Commission Company, on July beneficial owner, or that, if any por6, deposited the check in the ap- tion of the proceeds of the sale of pellee bank to the credit of its gen- the steers in question is now in the eral account. On July 3 the Com- possession of the appellee bank, apmission Company drew a check, pay- pellants are not entitled to a decree able to the Hudson State Bank, for in their favor for whatever amount $7,452.11, the proceeds of the sale, the evidence shows remains therein; less commissions, yardage, and but it is contended by appellee that freight, and forwarded the same by the Birmingham check was received mail to the payee as directed by ap- by it and credited to the general acpellants. July 4 was Sunday, and count of the Ward Commission ComMonday was observed as a legal holi- pany, without knowledge or notice day. The check of the Ward Com- of appellant's claim thereto or ownmission Company, which was re- ership thereof, and that same was ceived by the Hudson State Bank in fully paid out and dissipated on July due course of mail, was presented 6 upon checks drawn by the Ward to appellee on July 7 for payment. Commission Company, and prePayment was refused by the bank sented for payment and paid in the upon the ground that there were not usual course of business, and that if, sufficient funds in the bank to the

upon any theory, any portion of credit of the drawer to pay the same. such deposit was in the possession The books of appellee on said date of the bank on July 7, and applied showed a tentative balance of some- by it to the payment of the indebtthing in excess of $10,000, but it is edness of either W. M. Ward or the claimed by the bank that the balance Ward Commission Company, it was was made up-in large part, at least so applied in good faith, for a val--of checks that had been deposited uable consideration, and without in the bank by the Ward Commis- notice of any claim or right of apsion Company and sent out for col

pellants thereto, and that, therelection, but which had not yet been fore, the bank is not liable. paid. W. M. Ward, the president of The law is well settled that the the Ward Commission Company, was title to property consigned to a facindebted to appellee upon a note for tor or commission merchant for sale $3,000, upon which there was a bal- remains in the consignor, and that ance due of $2,500, and the Ward such factor or com

Factor-title to Commission Company was indebted mission merchant property conto the bank upon a note for $4,000, holds the proceeds signed to. upon which there was a balance due derived from the sale of such propof $2,313.67. Sometime before the erty in a fiduciary or trust capacity,

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