Cook, J.,
delivered the opinion of the court.
Appellant was indicted and convicted for receiving a deposit of seventy dollars while he was acting as cashier of a bank he knew was insolvent, or had good reason to believe was insolvent, without informing the depositor of the bank’s financial condition. There is a controversy about the insolvency of the bank at the time of the alleged deposit, but, in considering the question as to whether or not appellant received a deposit in the sense of the statute the insolvency of the bank will be assumed.
On the evening of the 18th day of June, 1912, the father of appellant, a director of the bank, left his home in Jackson, and went to Newton, where the bank was located, for the purpose of consulting with his associate directors about the condition of the bank. It appears that there were then reasons to believe that the bank was not in a prosperous condition, and it was necessary for the direct tors to take some action looking to the future government of same, and no doubt, appellant’s father believed the bank would be liquidated. The directors of the bank were in session on the 19th and 20th of July, and on the latter date the decision to liquidate the bank was reached, and an order to this effect was entered on the minutes of the governing board.
In the meantime, on the 19th and 20th, the cashier (appellant) kept the doors open and received all deposits offered, but, upon the advice of his father, all deposits so received were kept separate from the funds of the bank; the identical money received from each depositor being pinned to the deposit slip and placed in a tin-box. \
After the appointment of a receiver the identical money received during the two days was returned to each depositor, except the deposit of seventy dollars upon which the [120]*120indictment was based. Tbe record shows that tbe depositor was notified by mail to call and tbe seventy dollars would be returned to him, but by some misadventure tbe depositor did not receive tbe notice, and tbe indictment naturally followed.
In short, pending tbe examination of tbe financial condition of the bant and tbe final action of tbe board of directors, tbe deposits were received in.tbe manner stated for tbe purpose of returning same should tbe directors decide to liquidate. Tbe depositors were not advised of this purpose of tbe bank, and, so far as they were concerned, tbe deposits were made and received in tbe ordinary way.
Two courses were open to tbe officers of tbe bank pending tbe decision of tbe directors; one to close tbe doors and refuse to receive deposits; tbe other tbe one pursued in tbe instant case. If deposits bad been declined, a run on tbe bank was reasonably certain, and this probably would have put this bank, or any other bank, in tbe bands of a receiver, solvent or insolvent. It is easily conceivable that a bank solvent in the legal sense would be wrecked by a refusal to receive deposits; confidence once weakened is difficult to revive.
Tbe question is, conceding that tbe cashier bad good reason to believe tbe bank was insolvent when Mr. Atkinson delivered bis money to tbe cashier: Did tbe cashier, under tbe facts of this case, “receive any deposit” in violation of tbe statute?
According to tbe undisputed intention and purpose of the cashier, tbe money received was not to become a deposit in case it was decided to liquidate. It was tbe undisclosed intention and purpose of tbe cashier to take tbe money conditionally. He never, in fact, received tbe money for tbe bank, and never mingled same with tbe bank’s funds, nor did be record tbe transaction upon the bank’s books. There seems to be no reason to doubt that appellant as cashier endeavored to protect tbe in[121]*121terest of the depositor should disaster come. In other words, the record leaves no room for doubt of the cashier’s intention to prevent any loss to individual depositors-during the two days the board of directors were diagnosing the sick bank.
Under a state of facts similar to the facts in the present case, construing a statute in all essentials the same-as ours, the supreme court of Pennsylvania, in Commonwealth v. Junkin, 170 Pa. 201, 32 Atl. 619, 31 L. R. A. 124, said: “Putting aside for the present the question, raised as to Junkin’s unanswerability criminally for the acts of his agent, assume that he had himself been in the-bank that day, had personally received this twenty dollars at the counter, and had put it in an envelope, marked with Bice’s name, to be returned to him in case the bank closed, and then did return to him the same twenty dollars, would that, within the meaning of the act, have been the receipt by a banker, knowing the bank to be insolvent, of money on deposit? The peril to and loss of the depositor’s money arises from the concealed insolvency of the bank; but if it never mingles with or forms part of the bank’s funds, which are assets for the payment of creditors generally, remains separate from all other funds, and is capable of absolute identification, so that it may be returned, and is actually returned, that does not constitute the criminal receipt of money as a bank deposit. The real deposit, whether on time or call, when passed over the counter, is thereafter the property of the bank absolutely. It is the intention of the depositor and the bank that the latter shall thereafter use it as its own by loaning it to others, and paying it out on checks drawn by others. The express or implied promise of the bank is that it will repay him, not that money, but that amount of money.. In the case we are supposing the intention of the banker is to hand back the identical money received, and that intention is manifested, not by what he says, but by what-he does, not only at the time, but [122]*122afterwards. This method of not receiving money on de-pocit by a banker knowing his insolvency, as demonstrated by the event here, is not an open, unequivocal observance of the law. He subjects himself to the peril of misconstruction of his real intention, and invites criminal accusation.' But, unwise as may be the conduct,' if no intention, in fact, existed to appropriate in aid of his insolvent bank the depositor’s money, and he did not,, in fact, so appropriate it, he is not a criminal. If such a transaction is not a deposit by a depositor, if there be no contract to which the minds of both, parties assentéd, then it is not within the terms of the act.”
In State v. Strait, 99 Minn. 327, 109. N. W. 598, the supreme court of Minnesota has’this to say: “It is. argued oh behalf of the state that it was immaterial what effort appellant may have made to prevent the deposits being made, so long as it did not, in fact, result in the actual return of the money to the depositorsthat what his intention may-have been was immaterial, and he was bound absolutely by the technical legal result of his cashier permitting the money to remain, in the bank and pass into the hands of the referee. Such is not our view of the law.” This court also quotes with approval Commonwealth v. Junkin, supra.
In the last analysis the question to be decided in the present case is about this: Was appellant a felon when he took Mr. Atkinson’s money, having good reason to believe that the bank was insolvent at the time, even though he intended to receive, and did, in fact, receive, the money as a special deposit, for the purpose of giving the directors an opportunity to ldll or cure the bank, and in the former event it was his purpose to restore the money to Mr. Atkinson?
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Cook, J.,
delivered the opinion of the court.
Appellant was indicted and convicted for receiving a deposit of seventy dollars while he was acting as cashier of a bank he knew was insolvent, or had good reason to believe was insolvent, without informing the depositor of the bank’s financial condition. There is a controversy about the insolvency of the bank at the time of the alleged deposit, but, in considering the question as to whether or not appellant received a deposit in the sense of the statute the insolvency of the bank will be assumed.
On the evening of the 18th day of June, 1912, the father of appellant, a director of the bank, left his home in Jackson, and went to Newton, where the bank was located, for the purpose of consulting with his associate directors about the condition of the bank. It appears that there were then reasons to believe that the bank was not in a prosperous condition, and it was necessary for the direct tors to take some action looking to the future government of same, and no doubt, appellant’s father believed the bank would be liquidated. The directors of the bank were in session on the 19th and 20th of July, and on the latter date the decision to liquidate the bank was reached, and an order to this effect was entered on the minutes of the governing board.
In the meantime, on the 19th and 20th, the cashier (appellant) kept the doors open and received all deposits offered, but, upon the advice of his father, all deposits so received were kept separate from the funds of the bank; the identical money received from each depositor being pinned to the deposit slip and placed in a tin-box. \
After the appointment of a receiver the identical money received during the two days was returned to each depositor, except the deposit of seventy dollars upon which the [120]*120indictment was based. Tbe record shows that tbe depositor was notified by mail to call and tbe seventy dollars would be returned to him, but by some misadventure tbe depositor did not receive tbe notice, and tbe indictment naturally followed.
In short, pending tbe examination of tbe financial condition of the bant and tbe final action of tbe board of directors, tbe deposits were received in.tbe manner stated for tbe purpose of returning same should tbe directors decide to liquidate. Tbe depositors were not advised of this purpose of tbe bank, and, so far as they were concerned, tbe deposits were made and received in tbe ordinary way.
Two courses were open to tbe officers of tbe bank pending tbe decision of tbe directors; one to close tbe doors and refuse to receive deposits; tbe other tbe one pursued in tbe instant case. If deposits bad been declined, a run on tbe bank was reasonably certain, and this probably would have put this bank, or any other bank, in tbe bands of a receiver, solvent or insolvent. It is easily conceivable that a bank solvent in the legal sense would be wrecked by a refusal to receive deposits; confidence once weakened is difficult to revive.
Tbe question is, conceding that tbe cashier bad good reason to believe tbe bank was insolvent when Mr. Atkinson delivered bis money to tbe cashier: Did tbe cashier, under tbe facts of this case, “receive any deposit” in violation of tbe statute?
According to tbe undisputed intention and purpose of the cashier, tbe money received was not to become a deposit in case it was decided to liquidate. It was tbe undisclosed intention and purpose of tbe cashier to take tbe money conditionally. He never, in fact, received tbe money for tbe bank, and never mingled same with tbe bank’s funds, nor did be record tbe transaction upon the bank’s books. There seems to be no reason to doubt that appellant as cashier endeavored to protect tbe in[121]*121terest of the depositor should disaster come. In other words, the record leaves no room for doubt of the cashier’s intention to prevent any loss to individual depositors-during the two days the board of directors were diagnosing the sick bank.
Under a state of facts similar to the facts in the present case, construing a statute in all essentials the same-as ours, the supreme court of Pennsylvania, in Commonwealth v. Junkin, 170 Pa. 201, 32 Atl. 619, 31 L. R. A. 124, said: “Putting aside for the present the question, raised as to Junkin’s unanswerability criminally for the acts of his agent, assume that he had himself been in the-bank that day, had personally received this twenty dollars at the counter, and had put it in an envelope, marked with Bice’s name, to be returned to him in case the bank closed, and then did return to him the same twenty dollars, would that, within the meaning of the act, have been the receipt by a banker, knowing the bank to be insolvent, of money on deposit? The peril to and loss of the depositor’s money arises from the concealed insolvency of the bank; but if it never mingles with or forms part of the bank’s funds, which are assets for the payment of creditors generally, remains separate from all other funds, and is capable of absolute identification, so that it may be returned, and is actually returned, that does not constitute the criminal receipt of money as a bank deposit. The real deposit, whether on time or call, when passed over the counter, is thereafter the property of the bank absolutely. It is the intention of the depositor and the bank that the latter shall thereafter use it as its own by loaning it to others, and paying it out on checks drawn by others. The express or implied promise of the bank is that it will repay him, not that money, but that amount of money.. In the case we are supposing the intention of the banker is to hand back the identical money received, and that intention is manifested, not by what he says, but by what-he does, not only at the time, but [122]*122afterwards. This method of not receiving money on de-pocit by a banker knowing his insolvency, as demonstrated by the event here, is not an open, unequivocal observance of the law. He subjects himself to the peril of misconstruction of his real intention, and invites criminal accusation.' But, unwise as may be the conduct,' if no intention, in fact, existed to appropriate in aid of his insolvent bank the depositor’s money, and he did not,, in fact, so appropriate it, he is not a criminal. If such a transaction is not a deposit by a depositor, if there be no contract to which the minds of both, parties assentéd, then it is not within the terms of the act.”
In State v. Strait, 99 Minn. 327, 109. N. W. 598, the supreme court of Minnesota has’this to say: “It is. argued oh behalf of the state that it was immaterial what effort appellant may have made to prevent the deposits being made, so long as it did not, in fact, result in the actual return of the money to the depositorsthat what his intention may-have been was immaterial, and he was bound absolutely by the technical legal result of his cashier permitting the money to remain, in the bank and pass into the hands of the referee. Such is not our view of the law.” This court also quotes with approval Commonwealth v. Junkin, supra.
In the last analysis the question to be decided in the present case is about this: Was appellant a felon when he took Mr. Atkinson’s money, having good reason to believe that the bank was insolvent at the time, even though he intended to receive, and did, in fact, receive, the money as a special deposit, for the purpose of giving the directors an opportunity to ldll or cure the bank, and in the former event it was his purpose to restore the money to Mr. Atkinson?
There are many ways by which the creditors of a hopelessly insolvent bank may be made secure, and there are also many ways by which a bank unable to meet all legal -demands of creditors may be rejuvenated and put upon [123]*123its feet. It may have been, and probably was, the hope of the bank’s officers that some way would be found to continue the operation of this bank upon a basis of solvency, so far as creditors were concerned, but, whether this is true or not, it is manifest that the cashier acted in perfect good faith with the depositor, by so arranging matters as to insure the return of his money in any event.
The statute is a wise and just law for the protection of bank depositors, but to hold that appellant violated this statute when he did the very thing the statute was designed to accomplish would be a sacrifice of the spirit to the letter of the law.'
Mr. Atkinson has suffered no injury; the money' deposited by him never became án asset of the bank;, and •should have been returned to him. Michie, Banks 'and Banking, 406. .
Reversed, and judgment here discharging appellant.
Reversed.