In re City National Bank

Mr. Chief Justice Fuller, after stating the case as above reported, delivered the opinion of the court. Application is now made for mandamus, and this is the. proper remedy, if the mandate of this court has been disregarded, but if not, the application for leave to file should be denied. We are of opinion that whether or not the proceeds of the cattle were received and retained by the bank under such circumstances as to render it liable to Hunter & Co. for interest on their pro rata share, was a matter which was necessarily so far left at large by our former decree that we cannot hold that the mandate was disregarded by the decree rendered thereunder by the Circuit Court. The Dawson note was held in trust for Hunter & Co. and the bank, payment to be worked out from the cattle through the agency of McCulloch, and when the bank terminated Mc-Culloch’s agency, took possession of the herd, and received the proceeds of the cattle from Ellis, it received the pro rata share of Hunter & Co. in trust for them, as the litigation [252] turned out, and nothing in the directions we gave prevented the Circuit Court from holding the bank to a liability to pay interest thereon if, in its judgment, it was justified in so doing by the facts disclosed on the hearing. Ellis was the agent of the bank and the money was kept and used by the bank, being carried on the books to the credit of the “ Dawson bond account,” subject to the determination of this suit. The language of the stipulation that, the amount collected was deposited by Ellis as a “ general deposit,” and used “ as other-general deposits,” “as other of its funds,” does not change the legal effect of the transaction so far as Hunter & Co. were concerned, who had nothing to do with the agreement of the bank to indemnify Dawson’s sureties on the replevin bond. The use of their part of the money under the circumstances may have induced the Circuit Court to arrive at the result complained of. We are not, however, called on to say whether the allowance of the interest was or was not correct, as the only question is whether that court disobeyed the mandate, which, we do not think it did. As to the costs, we are also clear that the action of the Circuit Court was not precluded by the former decision. Leave to file the petition must, therefore, be Denied.