Page:Federal Reporter, 1st Series, Volume 2.djvu/542

Hecox and others v. The Citizens' Ins. Co. of St. Louis and another, U. S. Marshal.

(Circuit Court, N. D. Illinois. ———, 1880.)

Surety—Insurance Agent—Application of Moneys Remitted—Restraining Enforcement of Judgment.—An insurance agent, by requirement of the company for which he was acting, gave a bond for the faithful performance of his duties, and an accounting of moneys received. At the time of giving such bond he was delinquent to said company on account of past transactions. Such agent afterwards made remittances to the company, directing that they be applied upon past transactions. A judgment at law having been recovered against the sureties on the bond, a bill was filed by them to restrain its enforcement, claiming that the remittances made were from current business, after the bond was given, and should be applied upon such account. Held, that to entitle complainants to the relief prayed, it must appear that the moneys remitted were in fact from current business, and that the company had knowledge of that fact when it received and applied the money on account of former transactions, as directed, and proof not sufficiently showing this, the bill should be dismissed.

Mr. Kales, for complainants.

Mr. Whiton, for defendants.

Dyer, D. J. On the sixth day of April, 1877, and for several years prior thereto, one Pottle was the agent at Chicago of the defendant insurance company, whose principal place of business was at St. Louis, in the state of Missouri. On the day mentioned, by requirement of the defendant company, Pottle executed a bond in the sum of $6,000, conditioned that as the agent of the insurance company, authorized to receive sums of money for premiums, payment of losses, salvages and collections, he would pay over such moneys correctly, and in every way faithfully perform his duties as agent, in compliance with the instructions of the company, through its proper officers. Complainants in the present bill, Hecox and Briggs, joined in the execution of this bond as sureties for Pottle.

In 1878 the insurance company sued complainants, impleaded with Pottle in this court upon said bond in a plea of debt, and recovered judgment against complainants for the sum of $5,000. At the time of the execution of this bond