The People v. Small

150 N.E. 435, 319 Ill. 437

• Court: Illinois Supreme Court
• Decided: December 16, 1925
• Docket: No. 16660. — Decree affirmed.
• Status: Published

Opinions

Per Curiam:

This appeal is from a decree of the circuit court of Sangamon county ordering that Len Small and the other appellants jointly and severally account for all money received by or paid to Small, Edward C. Curtis and Verne S. Curtis, or either of them, as discount or interest on funds of the State of Illinois loaned by Small during his term as State treasurer through the Curtises or the Grant Park Bank to Armour & Co., Swift & Co. and other persons and corporations.

The bill of complaint filed November 26, 1921, after alleging the election of Len Small to the office of State treasurer in 1916 and his qualification and assumption of the duties of that office January 8, 1917, charges that Small, in combination with E. C. Curtis and V. S. Curtis, entered upon the execution of a plan by which large sums of money from the State treasury were to be used to their personal advantage and profit; that pursuant to said unlawful plan Small from time to time turned over to an alleged private banking institution, called “Grant Park Bank,” large sums of public moneys; that said public moneys were carried on the books of the State treasurer in an account called by Small “Safe Fund” for the purpose of concealing the fact that said public moneys were being used by Small and the Curtises for their private gain; that the public moneys so turned over by Small to the Curtises were used in the purchase of notes and other securities of Armour & Co., Swift & Co. and divers other persons and corporations; that Small and the Curtises collected from said persons and corporations, as interest and discounts on the notes so purchased, large sums of money, aggregating more than $1,000,000; that all of this sum is the property of the State of Illinois and that appellants are liable to account for the same; that Small has not paid into the State treasury any portion of the interest or discount collected from that part of the public moneys designated Safe Fund; that in neither of the two reports made by Small, as treasurer, of interest received by him on public moneys deposited in banks in the State is there an itemized statement of interest received; that such lump sum reports were made for the purpose of concealing the amount of money received through the Grant Park Bank transactions; that the account of public funds invested by Small through the Curtises was kept by Small personally in his private office above his bank in Kankakee, and that this private account book and certain records of the State treasurer’s office have been destroyed by Small for the purpose of concealing the amount of interest and discounts realized from the private use of said public moneys. It is further charged that the number, nature and complexity of the accounts involved in this litigation render appellee’s remedy at law wholly inadequate, and that it is without remedy except in a court of equity. The bill concludes with a prayer that an accounting may be had, that the amount of interest and profits realized from the use of said public moneys by Small and the Curtises may be determined, and that appellants be decreed to pay to appellee the amount that may be found due appellee upon such accounting.

Appellants filed demurrers, both general and special, in which, among other things, they charged that the act providing for the deposit of State moneys by the State treasurer and for the payment of interest on the same, and for an appropriation for the cost of the official bonds of the treasurer and his employees, approved March 7, 1908, is unconstitutional, and that equity is without jurisdiction to entertain this proceeding because complainant has an adequate remedy at law. The act was held void but all other causes- of demurrer were overruled. Thereupon Small filed a special and separate plea, averring that he had been in-dieted, tried and acquitted upon a charge of conspiracy on account of the identical matters and things set forth in the bill of complaint, and that appellee is now estopped by the verdict in the criminal case from again litigating material questions of fact by it decided. This plea in bar was held insufficient. On Small’s motion he was given leave to insert the substance of his plea in his answer. This was done and an exception to that part of the answer was sustained.

By his separate answer, which covers ninety pages of the record, Small admits his incumbenc)'- of the office of State treasurer for the two-year term beginning January 8, 1917, the duty of holding and safely keeping the public moneys of the State, and the duty to account for the principal and all the interest or other profit earned on said moneys. He denies the failure to make proper reports, the non-existence of the Grant Park Bank, the unlawful combination and confederacy with the Curtises, the use of public moneys to his personal advantage, the receipt of interest, fees or other profit derived from the use of public moneys for which he has not accounted to the State, the keeping of the books of the office of State treasurer so as to conceal the deposits in the Grant Park Bank, the destruction of records and books, and all other charges of wrongdoing. He alleges that he has accounted for all of the interest, discounts and profits received by him during his term as State treasurer for the use of public moneys deposited in the banks of the State; that the Grant Park Bank was a legitimate private bank owned by Edward C. Curtis and was doing a general banking business during the period here involved; that all moneys deposited in the Grant Park Bank were charged to an account called “Safe Account” in the treasurer’s office; that all such deposits were evidenced by certificates of deposit issued by the Grant Park Bank and were secured by collateral deposited with him by the owner of said bank; that the Grant Park Bank paid interest on the moneys deposited with it; that he has accounted to the State for all interest received on such account; that he has filed all reports required by law and has in all other respects fully discharged his duties and obligations as State treasurer. He charges that appellee has an adequate and complete remedy at law and that equity is without jurisdiction.

Appellant Etha G. Curtis, administratrix of the estate of Edward C. Curtis, deceased, neither admits nor denies most of the allegations of the bill but prays strict proof of all of them. She admits that Curtis died March 8, 1920, and that she was appointed administratrix of his estate by the county court of Kankakee county. She denies the unlawful confederacy and that appellee is entitled to an accounting against the estate of her intestate, and denies that there is a liability or any basis for an accounting. She charges that this demand of appellee is barred by statute for the reason that she filed an inventory of the estate, and that this action was not commenced within one year from the granting of letters of administration.

Verne S. Curtis filed a. plea reciting that certain criminal proceedings were pending against him arising out of the same transaction, and that he could not answer the bill for the reason that his answer might tend to incriminate him. This plea was sustained and an order entered that the same should stand as his answer to the bill.

The master to whom the cause was referred took and reported over 11,000 pages of evidence, consisting largely of records from the State treasurer’s office, of the five principal packers, (Armour & Co., Swift & Co., Morris & Co., Cudahy & Co. and Wilson & Co.,) of the Fort Dearborn National Bank, the Live Stock Exchange National Bank, the Grant Park Trust and Savings Bank, the First Trust and Savings Bank of Kankakee, and of divers other persons and banks. He recommended a decree in accordance with the prayer of the bill. Exceptions to the master’s report were filed and overruled and a decree entered finding that the court had jurisdiction of the subject matter and the parties; that Small, as State treasurer, and the Curtises, entered into a fraudulent scheme through and by which large sums of money belonging to the State of Illinois, in possession of Small as State treasurer, were invested through the Curtises for the private gain of said persons under the pretense of depositing public funds in the Grant Park Bank, which had no existence as a banking institution; that large sums of money were collected by the Curtises for the benefit of Small, and that Small and the Curtises jointly and severally became liable and obligated to pay over to the State of Illinois all such discounts, interest, profit and income paid to or received by them from the use of such public funds. The decree orders appellants to account for all such sums of money due the State of Illinois and again referred the cause to the master, with directions to take and state the account of appellants in accordance with the terms of the decree, upon the pleadings and all the testimony and exhibits in the master’s report, and upon such further proof as may be offered by any of the parties material and relevant to such accounting.

We are met at the threshold of this case with a challenge to the jurisdiction of equity. It may be stated ás a general rule that courts of equity will not entertain jurisdiction of suits for accounting where the law courts are competent to afford an adequate and ample remedy, (County of Cook v. Davis, 143 Ill. 151,) but where there is a clear right and there is no remedy at law, or where the remedy is not plain, adequate and complete and adapted to the particular exigency, equity will take jurisdiction. (Townsend v. Equitable Life Assurance Society, 263 Ill. 432; Story’s Eq. Pl.—6th ed.—sec. 473; Pomeroy’s Eq. Rem.—2d ed.—sec. 930.) The remedy at law which precludes relief in equity must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. (Fletcher’s Eq. Pl. sec. 208.) Jurisdiction of equity in matters of accounting does not depend upon the existence of a remedy at law but upon the adequacy and practicability of such remedy. (Miller v. Russell, 224 Ill. 68; Crown Coal and Tow Co. v. Thomas, 177 id. 534; Appeal of McMullin, 131 Pa. St. 370, 18 Atl. 1056.) No principle of equity jurisdiction is more generally recognized than its taking cognizance of matters which, though cognizable at law, are yet so involved with a complex account that a court of law is incompetent to adequately examine it. (Taff Vale Railway Co. v. Nixon, 1 H. L. C. 111, 1 E. R. C. 406; Ludlow v. Simond, 2 Caines’ Cas. 1, 2 Am. Dec. 291; Blodgett v. Foster, 114 Mich. 688, 72 N. W. 1000.) Where the accounts involved are so complicated that it would be difficult to present the various items to a jury in such a manner as to enable the jurors satisfactorily to determine the amount due, it is definitely settled that the case is one proper for a court of equity. (Ely v. King-Richardson Co. 265 Ill. 148; Kirby v. Lake Shore and Michigan Southern Railroad Co. 120 U. S. 130, 7 Sup. Ct. 430.) Where the purpose of the suit is to require a public official to account for moneys alleged to be wrongfully withheld from the public treasury, and the allegations of the bill that the accounts are complicated are supported by further allegations that public records necessary to a proper accounting have been lost, concealed or destroyed by such public official, there can be no doubt of the jurisdiction of a court of equity. In this case the loss, concealment or destruction of public records of the State treasurer’s office has made it necessary to examine the public records kept in other offices and the private records of many banks and corporations. There are in evidence in this case more than 1300 exhibits, consisting of ledger pages, journal pages, cash book sheets, draft requisitions, deposit slips, canceled notes, checks bearing endorsements of the payee and the banks through which they passed, records and files of the State treasurer’s office, and other kindred documents. They fill thirteen of the twenty-eight volumes, of the transcript of record. The number and complexity of accounts in this case clearly bring it within the jurisdiction of equity.

In July, 1921, Small was charged by indictment with conspiring with the Curtises to obtain from the State of Illinois, by false and fraudulent means, certain large sums of money. He was tried and acquitted of the charge of conspiracy, and it is contended by him that since both actions arose from the same transactions, appellee is by the verdict rendered in the criminal case estopped from again litigating the question whether a conspiracy existed between Small and the Curtises and whether the Grant Park Bank was in existence at the time Small was treasurer. There is no doubt about the general proposition that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction is deemed finally and conclusively settled in any subsequent litigation between the parties, where the same question or questions arise; (Chicago Title and Trust Co. v. National Storage Co. 260 Ill. 485; Markley v. People, 171 id. 260; Hanna v. Read, 102 id. 596;) but as a general rule this principle is not applicable where it is sought to use a judgment in a criminal prosecution to bar a subsequent civil suit arising from the same transaction. (Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778; State v. Bradneck, 69 Conn. 212, 37 Atl. 492; Micks v. Mason, 145 Mich. 212, 11 L. R. A.—n. s.—653; State v. Lewis, 164 Wis. 363, 159 N. W. 746; State v. Roach, 83 Kan. 606, 31 L. R. A.—n. s.—670.) As a foundation for the rule that a record of a judgment in a criminal case is inadmissible in a civil suit it has been pointed out that there is a dissimilarity in objects, issues, results, procedure, parties to the action, rules of evidence, weight of evidence, burden of proof and competency of witnesses. Ordinarily, a judgment of acquittal in a criminal case is not even admissible in evidence in a subsequent civil suit. (Corbley v. Wilson, 71 Ill. 209; State v. Corron, 73 N. H. 434, 62 Atl. 1044.) In harmony with these general principles of law is section 21 of division 2 of the Criminal Code, which provides: “Nothing in this act contained shall be so construed as to prevent the party injured from having and maintaining a civil action for all damages and losses that he may have sustained in consequence of the commission of any criminal offense herein provided for; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby.” This act is general in its terms and is as applicable where the State is the party injured as where an individual is the victim. This section means that the criminal prosecution and the civil action shall be wholly independent of each other and the result in one shall in no manner affect the result in the other. The criminal prosecution is for an entirely different purpose than the civil action, and reason and authority sustain our conclusion that the verdict of acquittal in the criminal case does not estop the People from prosecuting a civil suit to recover losses which the State has sustained. The chancellor properly sustained the exception to this part of the answer.

Appellant Etha G. Curtis contends that appellee’s right of action against her as administratrix is barred by section 70 of the Administration act, which provides that all demands not exhibited within one year from the granting of letters shall be forever barred unless the creditor shall find othei^ estate of the deceased not inventoried by the administrator, in which case his claim shall be paid pro rata out of such subsequently discovered estate. The act plainly states that failure to present within one year does not bar the claim, but limits the right to recover against the estate to property of the deceased not inventoried by his personal representative. (Waughop v. Bartlett, 165 Ill. 124; Peacock v. Haven, 22 id. 23.) In this case, as the claim was not filed within one year from the granting of letters of administration, the decree, if any is rendered on the final accounting, must be special, ordering payment out of assets of the E. C.. Curtis estate which have not been inventoried or accounted for by the administratrix.

Appellants contend that the act of 1908 providing for deposit of State moneys by the State treasurer and for payment of interest on the same contravenes several provisions of the constitution and is therefore void. There is no attempt in this proceeding to make any application of this statute which will prejudicially affect the interests of any of the appellants, and its validity or invalidity is therefore wholly immaterial to the issues of this case. (State of Texas v. Interstate Commerce Com. 258 U. S. 158, 42 Sup. Ct. 261.) A court will not, as a general rule, consider or determine the constitutionality of a statute unless a decision upon that point becomes necessary to effectually and properly dispose of the case at hand. (People v. Long, 297 Ill. 194; State v. State Board of Equalizers, 84 Fla. 592, 30 A. L. R. 362; Kimbley v. Adair, 32 Ida. 790, 189 Pac. 53; Sabre v. Rutland Railroad Co. 86 Vt. 347, 85 Atl. 693; Bedford v. Shilling, 4 S. & R. 401, 8 Am. Dec. 718.) The act in question was repealed in 1919. A decision of the constitutional questions presented would not in any way affect the decision of this case, so we decline to consider them.

The bill alleges and the decree finds that Small and the Curtises entered into an unlawful confederacy to use the public moneys for their private gain. In order to support this allegation and finding it is essential that the conspiracy be established by the evidence, but it is not necessary to prove that the co-conspirators came together and actually agreed, in terms, to pursue their common design by common means. If it is proven that the co-conspirators pursued by their acts the same object, often by the same means, one performing one part and another another part of the same, so as to complete it with a view of attainment of the same object, the natural deduction from this proof is that they were engaged in a conspiracy to effect that object. (People v. Lloyd, 304 Ill. 23; Musser v. State, 157 Ind. 423, 61 N. E. 1; State v. Caine, 134 Iowa, 147, 111 N. W. 443; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342; Roscoe on Crim. Evidence, *386.) A conspiracy may generally be inferred from circumstances. It is seldom that any one act, taken by itself, will establish a conspiracy, but when taken in connection with other acts it may appear clearly that the series of wrongful acts result from concerted and associated action. Considered separately the acts of a conspiracy are rarely of an unequivocally guilty character, and they can be properly estimated only when connected with all the surrounding circumstances. Where a conspiracy is once established, every act and declaration of each member in furtherance of the common design is in contemplation of law the act and declaration of all the members and is therefore original evidence against each of them. People v. Lloyd, supra; Lasher v. Littell, 202 Ill. 551; 2 Wigmore on Evidence,—2d ed.—sec. 1079; 2 Jones’ Com. on Evidence, sec. 254.

Saturday, April 21, 1917, Small ordered the clerks in the treasurer’s office to open on the “tickler,” or daily cash statement which showed the distribution of funds within the treasury, an additional account called “Safe Account.” He directed the assistant treasurer to issue a draft for $50,000 payable to the Grant Park Bank, to mail the draft to said bank at Grant Park, and to charge the amount of the draft to Safe Account. No record was kept in the treasurer’s office which showed that a deposit had been made in the Grant Park Bank or that any collateral had been deposited to secure it. The only record of this deposit was the private account kept by Small personally in his private safe in his private office above his bank in Kankakee. On the same day the Safe Account was initiated and the draft for $50,000 issued to the Grant Park Bank, some person whose identity is not revealed by this record opened an account called “Grant Park Bank” at the Grant Park Trust and Savings Bank and deposited $5000 to the credit of this account. On the same day some unidentified person withdrew $3000 from this account and opened an account called “Grant Park Bank” at the Fort Dearborn National Bank in Chicago. The State treasurer had a checking account at the Fort Dearborn National Bank, and on the same day Small ordered the $50,000 draft issued to the Grant Park Bank this checking account shows a debit of $50,000, indicating the presentation and payment of a check or draft for that amount on that day. The $50,000 sent to the Grant Park Bank from the State treasury was not deposited in either of the accounts bearing that name, but E. C. Curtis purchased with this treasurer’s draft a cashier’s check of the Fort Dearborn Bank for $50,000, payable to himself. He endorsed this to the Live Stock Exchange National Bank, and that bank delivered to him a note of Swift & Co. for $50,000. It discounted this note for 184 days at four and one-half per cent and gave the discount of $1150 to Curtis by cashier’s check, which he endorsed and deposited in an account known as “E. C. Curtis, Special,” in the Grant Park Trust and Savings Bank. Swift & Co.’s account at the Live Stock Exchange Bank was credited with $48,850 and the note which Curtis received was delivered to Small. While Curtis was arranging this loan with Swift & Co. he told its treasurer that he and his associates were in control of some twenty-odd banks throughout the State and that he was acting as the agent of these banks in making loans. On the same day V. S. Curtis ordered certain supplies printed for the Grant Park Bank, explaining to the printer that he and his brother were rejuvenating a private bank that had been dormant for several years, that it was being revived for a special purpose, and that they wanted the matter treated confidentially. He ordered a ledger, a rubber stamp, a few deposit slips, a few time certificates of deposit and a few demand certificates, and said he would not need any checks, drafts or other bank supplies, because the bank would not do a regular banking business. These transactions show concerted action on the part of Small and the Curtises and establish that they were by their acts pursuing the same object, one performing one part and another another part of the same so as to complete the plan with a view of attainment of the object.

While it is not essential to show the non-existence of the Grant Park Bank in order to sustain the decree requiring appellants to account to appellee, it becomes important in the consideration of the case to determine whether the Grant Park Bank was doing a legitimate banking business or whether it was a mere makeshift used by Small and the Curtises to defraud the State of interest due it on several million dollars of public money used to buy notes of the packers and other securities.

Between 1890 and 1898 Alonzo Curtis conducted at Grant Park, at first in his general store and later in a separate building, a private bank called the Grant Park Bank. In the latter year he and his sons, E. C. and V. S., organized the Grant Park National Bank, which took over all the business and assets of the Grant Park Bank and continued thereafter to conduct a general banking business in the building formerly occupied by the latter. In 1907 the National bank, with the savings department organized as an auxiliary to it, was changed into a State bank, known as the Grant Park Trust and Savings Bank. Five people testified that they had made deposits in the Grant Park Bank between 1898 and 1917, and three people testified that they had borrowed money from such a bank during the same period. This testimony, if given full credit, proves only that E. C. Curtis was doing business with a few relatives and business associates under the style “Grant Park Bank.” During this period Grant Park was a village of about 500 people, with twelve or fifteen business houses. Twenty-two people, who had lived and transacted business in Grant Park and that section of Kankakee county for many years and who were well acquainted with the Curtises, testified that the Grant Park Bank went out of existence in 1898 and that they had not heard of its doing any business since; that checks were generally used in the transaction of business in Grant Park, and that they had never since 1898 seen a check drawn on the. Grant Park Bank. While millions of dollars went out of the State treasury by drafts payable to the Grant Park Bank, not a single dollar was ever paid back into the treasury in its name or by its check or draft. None of the public moneys “deposited” with it were loaned in its name. None of the interest and discounts on the loans to the packers was paid by the packers to the Grant Park Bank. Small says that the Grant Park Bank was doing a general banking business in 1917 and 19x8, but he could not give the name of a single depositor except the State of Illinois. The Grant Park Bank had no place of business, no furniture or fixtures, no records or files. Small testified that he transacted his business with the Grant Park Bank wherever he met Edward C. Curtis; that sometimes it was in the Grant Park Trust and Savings Bank and sometimes in the office of the Curtis Trust Company, at Grant Park. Ole T. Olesen, one of Small’s appointees and one of the persons who testified that he borrowed some money from the Grant Park Bank in 1907, says the money was delivered to him by E. C. Curtis in Small’s office in Kankakee and that he re-paid the money to Curtis in the Lafayette Hotel, in Kankakee. Appellants did not produce any of the certificates which Small says were issued to him by the Grant Park Bank, nor did any person who claims to have borrowed money from this bank produce a canceled note or other record to substantiate his testimony. No useful purpose will be served by stating in detail the testimony with reference to the existence of the Grant Park Bank. It is established by the evidence in this record that the Grant Park Bank was a mere temporary expedient used by Small and the Curtises to conceal the transactions with the packers.

The manner in which the records were kept in the treasurer’s office in reference to the Safe Account, which was the money turned over to the individuals doing business as the Grant Park Bank, is a marked departure from the usual manner in which money was deposited in banks by the State treasurer. This system was inaugurated under the directions of Small on April 21, 1917. Prior to that time, when a bank desired to obtain a deposit of State money, securities were delivered to the treasurer and examined before any deposit was made; securities to be used as collateral for a deposit were never purchased with the proceeds of that deposit ; a certificate of deposit was delivered to the treasurer before the draft was issued transmitting the deposit; a certificate of deposit was never paid out of the proceeds of the collateral; the collateral was retained until the certificate of deposit was paid; the name of the bank issuing the certificate of deposit appeared in the record in the treasurer’s office showing the date and amount of certificates of deposit and the securities deposited as collateral; all the records of such certificates and securities were kept at the treasurer’s office at Springfield and the clerical work of keeping such records was performed by the clerks in the treasurer’s office; interest statements were mailed to each bank holding such deposits on the first of each month, and the interest payment was sent to the treasurer’s office at Springfield. During Small’s term between 200 and 300 banks in the State of Illinois had small deposits of State money under this usual and regular plan. The “deposits” made in the Grant Park Bank took a different course. The money from the treasury was sent to the Grant Park Bank by mailing a draft to it at Grant Park. This money was used by Curtis to buy securities. The certificates of deposit were issued, if at all, on the receipt of the deposit but before the delivery of collateral. Neither the collateral, nor a record of it, was kept in the treasurer’s office at Springfield. No interest statements were rendered and no interest was paid at the treasurer’s office. From two to six days before maturity of the securities alleged to have been deposited with Small as collateral for deposits in the Grant Park Bank they were surrendered to Curtis, collected by him, and Small directed whether the proceeds should be re-loaned or returned to the treasury. For instance, in item 4, analyzed in a subsequent paragraph, Small surrendered to E. C. Curtis an Armour note for $300,000, which he says he was holding as collateral to secure a deposit of $300,000 in the Grant Park Bank, six days before it was due, and for that six days the “deposit” was not secured. In item 5 all of the $300,000 “deposit” was unsecured for two days and half of it for four days. Two hundred fifty thousand dollars used in item 19 was held by Curtis from item 18 six days before it was loaned. Items 23 and 25, which are $500,000 Armour notes, were surrendered by Small at least four days before maturity, so that $1,000,000 of State money was in the hands of E. C. Curtis unsecured. And so in many other instances was Curtis in possession of thousands of dollars of public funds from the State treasury for several days and Small had no collateral to secure these “deposits.” The only record kept showing the number and amount of certificates issued and the collateral deposited was kept personally by Small at his private office at Kankakee. If any interest was paid into the State treasury upon any of the moneys represented by the Safe Account, which was often half the total sum in Small’s custody as State treasurer, there is no record or writing of any kind or character to show such payment. E. C. Curtis visited the treasurer’s office at least once a month, and often weekly, and walked inside the cashier’s cage and looked over the tickler, which was the only record in the office showing the Safe Account.

As a justification for the establishment of the Safe Account, Small points out that the heaviest receipts into the State treasury are from April 1 to August 1, when the taxes from the various counties are received, and that the disbursements are heaviest between September 1 and February 1, making it necessary to have a large part of the funds deposited so that they can be called into the treasury upon short notice. He testifies that E. C. Curtis, as president of the Grant Park Bank, agreed to accept as deposits the portion of the funds in the State treasury which would be subject to call and to place with the treasurer, as collateral, securities which were readily- marketable and which could be converted into cash on short notice. On this point the record shows that while E. C. Curtis was laying the foundation for the loans to the packers he told them that he was acting as the financial agent for a string of banks which he and his associates controlled, and that he pooled the funds of these banks and bought notes for large sums directly because he could loan the surplus of the several banks to better advantage than they themselves could, and because he could make more favorable terms to the borrowers by giving them advance notice if he found it necessary to have the loan paid when the note was due. That Small co-operated with Curtis in carrying out this arrangement is clearly shown by the fact that he advised Curtis whether the proceeds of a packer’s note were to be turned into the treasury or re-loaned when collected and that he delivered the notes to Curtis several days before they were due. The more important fact showing that the moneys deposited with the Grant Park Bank were not call moneys is, that in no instance during the two years was any of the $30,000,000 loaned to the packers called by the treasury before the note was due. Almost all the loans were discounted for a definite period, usually six months. The agreement made by E. C. Curtis with the packers that money would be available for definite periods and that the payment of the notes would not be demanded without due notice was carried out.

Before making an analysis of the transactions with the packers we present herewith a table showing in tabular form and chronological order all packers’ notes which appellee contends were purchased with funds from the State treasury, and a few smaller notes directly connected with these transactions:

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The first transaction was analyzed in reciting the occurrences of April 21, 1917. Six days later the second draft (item 2 in the tabulation) was issued to the Grant Park Bank and it was added to the Safe Account, making its total $300,000. On the day this addition of $250,000 was made to the Safe Account, E. C. Curtis purchased four cashier’s checks at the Fort Dearborn National Bank payable to himself and totaling $250,000, and the treasurer’s checking account at that bank was charged the amount of these checks. Curtis used the checks at the Live Stock Exchange National Bank to buy three notes due October 29, 1917, — Swift & Co. $50,000, discounted five per cent, Wilson & Co. $50,000, discounted four and one-half per cent, and Morris & Co. $50,000, discounted four and one-half per cent, — and one note of Armour & Co. for $100,000, due November 1, 1917, and discounted four and one-half per cent. The discounts on these four notes were paid to Curtis by four cashier’s checks for the respective amounts of the several discounts, and these checks were used to purchase a draft at the Grant Park Trust and Savings Bank, of which Curtis was president. When the Swift and Morris loans came due they were paid at the Live Stock Exchange and the next day a cashier’s check for $100,000 was delivered to Curtis. The Wilson note was paid and Curtis was given another cashier’s check for $50,000. These checks were endorsed by Curtis, and his endorsement is followed by the clearing house stamp of the Fort Dear-born. October 30, 1917, that bank issued a deposit slip depositing to the credit of the State treasurer two checks, one for $100,000 and the other for $50,000. The Armour note came due the following day and it was paid through the Live Stock Exchange. On the same day item 13 (a Swift note for $400,000) was paid and a cashier’s check payable to Curtis for $500,000 was issued. This check is endorsed by Curtis, and his endorsement is followed by the Fort Dearborn clearing house stamp. November 2 that bank issued a deposit slip showing the deposit of a check for $500,000 to the credit of the treasurer’s account. . The tickler in the treasurer’s office indicated a reduction in the Safe Account of $150,000 October 30 and one of $500,000 November 2 and corresponding increases in the treasurer’s account at the Fort Dearborn. None of these Live Stock Exchange checks were deposited to the account designated “Grant Park Bank” at the Fort Dearborn. If certificates of deposit were issued to Small at the time the drafts were issued by him to the Grant Park Bank there is no record to show that these certificates of deposit have been paid and canceled.

There is no item 3. Item 4 is a “deposit” of $300,000 in the Grant Park Bank. This went into an Armour note for $300,000, dated May 12, 1917, and due November 16, 1917. It was discounted at five per cent and the Live Stock Exchange issued to F.' C. Curtis its cashier’s check for $7833.33. This discount check is endorsed by Curtis and the Grant Park Trust and Savings Bank and cleared through the Continental and Commercial National Bank in Chicago. Six days before this Armour note became due it was delivered to the Live Stock Exchange, which sent it to the Continental and Commercial National for collection. The latter collected it on its due date, November 16, and credited the proceeds to the account of the Live Stock Exchange. The latter issued its cashier’s check to Curtis for $300,000, which check bears the endorsement of Curtis and the clearing house stamp of the Fort Dearborn. The Fort Dearborn credited the State treasurer’s account with the proceeds of this check and sent a duplicate deposit slip to the treasurer’s office at Springfield. There the tickler showed the Safe Account reduced $300,000 and the Fort Dearborn account increased a like amount. It will be- noted that this deposit of $300,000 made by the State treasurer did not pass through any account called “Grant Park Bank,” going out of the treasury or returning to it, nor is the discount check credited to any “Grant Park Bank” account.

Item 4-A shows a disposition of some of the discount received on item 4. As we have stated, this discount check for $7833.33 cleared at the Continental and "Commercial National May 15. This, together with a demand certificate for $272.22 surrendered at the Grant Park Trust and Savings, makes a total in Curtis’ hands of $8105.55. He deposited at the Grant Park Trust and Savings to his account called “Grant Park Bank” $793.05, leaving in his hands $7312.50. With this sum he purchased a draft of the Grant Park Trust and Savings on its account at the Continental and Commercial National, which was paid and charged against that account May 15. This sum ($7312.50) would exactly purchase a six-months note for $7500 at five per cent discount, and such a note would be due November 14, 1917, on which date the Live Stock Exchange collected that sum for Curtis and credited his account accordingly. On the same day it issued to him a cashier’s check for $7500, which he endorsed at the Grant Park Trust and Savings. November 15 the latter bank credited Curtis’ account called “Grant Park Bank” with $426.25 and issued its draft for $7073.75, which November 16 was charged against its account at the Continental and Commercial National. November 14, $19,600 was withdrawn from the account called “Grant Park Bank” at the Grant Park Trust and Savings. These two sums total $26,673.75, which would almost exactly purchase a note for $27,500 discounted at six per cent for 180 days. Such a note would be due May 13, 1918, and on that date Swift gave Curtis a check for $740.34, which would pay the discount on a note for $27,500 at seven per cent due September 29, 1918. Curtis deposited this check to the account called “Grant Park Bank” at the Grant Park Trust and Savings. A Swift note for $27,500 and another for $15,000 were paid September 30, 1918, and the proceeds ($42,500) credited to Curtis’ account at the Live Stock Exchange. This sum was paid to Curtis by a cashier’s check, which was deposited to the credit of the State treasurer’s account at the Fort Dear-born and the Safe Account at the office in Springfield was reduced $42,500. These transactions are shown in the foregoing table in lines 7, 40 57 and 76. It will be noted that this sum, made up in part, if not altogether, from discounts on packers’ notes, was not paid into the State treasury by the Grant Park Bank, and none of the accounts called “Grant Park Bank” reflect the transaction. This money paid into the treasury had not come out of it. It was not paid into the treasury as interest earned on State money but was put there as principal. This item of $42,500 is a part of the item of $328,950 mentioned in a subsequent paragraph.

May 18, 1917, a treasurer’s draft for $300,000 was presented at the Fort Dearborn and by it paid and charged against the treasurer’s account. On the same day there was added to the Safe Account on the tickler at the treasurer’s office in Springfield the sum of $300,000. For the first time since it was opened, April 21, 1917, the account called “Grant Park Bank” at the Fort Dearborn shows a deposit. Three hundred thousand dollars was deposited in the account and a like amount immediately withdrawn to purchase a cashier’s check payable to E. C. Curtis. The treasurer’s draft did not go through any regular banking institution, as it would have done if a deposit had been made by the treasurer in an existing bank, but it was deposited directly to the account called “Grant Park Bank” in the Fort Dearborn. Instead of a Grant Park Bank check being used to purchase a packer’s note, a cashier’s check payable to Curtis was charged against the account called “Grant Park Bank” and was used by him at the Live Stock Exchange to buy a Wilson note for $50,000 due in 185 days at five per cent, a Swift note for $100,000 due in 185 days at five per cent, and an Armour note for $150,000 due November 20, 1917, at five per cent. The discount on the-three notes ($7708.33) was paid to Curtis. When the Wilson and Swift notes came due, on November 19, they were paid, and the proceeds ($150,000,) were credited to Curtis’ account at the Live Stock Exchange. Four days before the Armour note became due it was delivered to the Live Stock Exchange for collection and that bank transmitted it to the Continental and Commercial National, which collected it on its due date and credited the proceeds to the Live Stock Exchange, which in due course credited Curtis’ account with $150,000. November 21 a cashier’s check was issued by the Live Stock Exchange to Curtis for $300,000. This check was deposited at the Fort Dearborn to the credit of the State treasurer. A duplicate deposit slip was found in the treasurer’s office, which apparently was the method by which the Springfield office was advised when to increase or reduce the Safe Account. On the day this deposit was made the Safe Account was reduced $300,000, showing a return to the treasury of that amount. It will be remembered that this item of $300,000 went out of the State treasury May 18 into the account at the Fort Dearborn designated “Grant Park Bank,” but when it came back into the treasury it was not by draft or check of the Grant Park Bank, nor is it shown in any account called “Grant Park Bank.” If the Grant Park Bank issued a certificate of deposit for this sum there is no record or writing of any kind to show that such a certificate was issued, nor is there anything in this record to show that the certificate was paid and canceled.

Item 5-A, like item 4-A, relates not to money out of the State treasury but to circumstances showing the disposition of the discount on packers’ notes. The check of the Live Stock Exchange for $7708.33 to Curtis’ order for the discounts in item 5 cleared through the Continental and Commercial National on May 22. May 21 Curtis’ account called “Grant Park Bank” at the Grant Park Trust and Savings is charged $529.17, which added to the amount of the Live Stock Exchange check makes $8237.50, and the next day a draft of the Grant Park Trust and Savings on the Continental and Commercial National for that identical sum was presented and paid at the latter bank, which indicates that the Live Stock Exchange check was probably used by Curtis at the Grant Park Trust and Savings on May 21, the proceeds going into the draft. The draft for $8237.50, and another of the same date for $50 charged to the same account called “Grant Park Bank,” were used in Chicago by Curtis. The total ($8287.50) will exactly buy a six-months note for $8500 discounted at five per cent. On November 21, which is the date such a note would be due, the collection teller at the Live Stock Exchange collected for Curtis a note for $8500 and issued to him its cashier’s check, which cleared through the Continental and Commercial National. The disposition of the proceeds of this check can not be determined from this record. This transaction, like many others in the record, shows that the discount from the packers’ notes did not go to the Grant Park Bank as an institution, and when it was put into the account called “Grant Park Bank” it went out, sooner or later, into drafts of the Grant Park Trust and Savings. This item is considered further in a later paragraph as a part of the item of $328,950.

Item 6, shown in the foregoing tabulation in line 12, took substantially the same course as item 5. The transactions with respect to item 7, shown in the tabulation in lines 13 to 16, inclusive, are somewhat complicated. July 6, 1917, $300,000 from the State treasury bought a Swift note of $100,000, an Armour note of $150,000 and a Morris note of $50,000, and the discount on these notes went into the account called “Grant Park Bank” at the Grant Park Trust and Savings. A $30,000 note of Armour & Co. bought by Curtis with funds from his “special” account also becomes, involved in this item. On this day Small’s account as State treasurer at the Fort Dearborn is charged with the payment of a draft for $300,000, but the account there called “Grant Park Bank” was not disturbed nor was any cashier’s check issued to Curtis on this date. How Curtis conveyed the $300,000 from the Fort Dearborn to the Live Stock Exchange does not appear in the record, but the Live Stock Exchange books show that Curtis bought a Swift note for $100,000 discounted at five and one-fourth per cent for 185 days, and that there was credited to Curtis the $200,000 balance from the treasurer’s draft, together with the discount of $2697.91 and the $30,000 withdrawn from the account “E. C. Curtis, Special” at the Grant Park Trust and Savings. With this credit Curtis on July 7 purchased two Armour notes, — one for $150,000 and the other for $30,000, — and withdrew $4830, which was the total discount. Of this, $4025 was deposited in the account called “Grant Park Bank” at the Grant Park Trust and Savings. It appears that the balance of $805 was deposited in the E. C. Curtis special account. The $50,000 remaining to Curtis’ credit out of this $300,000 transaction was used at the Live Stock Exchange on July 9, three days after it was turned over by Small, to purchase a Morris note for $50,000 discounted at five and one-fourth per cent for 184 days, and the discount ($1341.67) was paid to Curtis. The account called “Grant Park Bank” in the Grant Park Trust and Savings was credited July 14 with $9077.77, made up of this check and another for $7736.10, representing discount received July 13 on item 8. The proceeds from the Morris note go into the Swift note shown in item 12-A. The Swift note for $100,000 and the Armour notes for $150,000 and $30,000 in this item came due January 7, 1918, and were paid at the Live Stock Exchange. A cashier’s check for $150,000 was issued to E. C. Curtis and bears his endorsement in the handwriting of V. S. Curtis and the clearing house stamp of the Port Dearborn. Small’s account at the Port Dearborn was credited with $150,000 and the Springfield office advised accordingly. The “Grant Park Bank” account at the Port Dearborn was undisturbed. On the same day Curtis purchased at the Live Stock Exchange a Swift note for $100,000 discounted at six per cent for 182 days, and the discount ($3033.33) was paid to Curtis and deposited by him to the account called “Grant Park Bank” at the Grant Park Trust and Savings. The $30,000 remaining was loaned to Armour, and the discount ($110) was paid to Curtis by cashier’s check, but what became of the proceeds of this check is not revealed by this record. It was not credited to the account called “Grant Park Bank” nor to “E. C. Curtis, Special.” The $100,000 Swift note and this $30,000 Armour note became due July 8, 1918, and were paid at the Live Stock Exchange. The cashier’s check for $130,000 payable to E. C. Curtis and bearing the endorsement “E. C. Curtis by V. S. Curtis” and the clearing house stamp, of the Fort Dearborn was deposited to Small’s account as State treasurer at the Fort Dearborn and a duplicate deposit slip sent to the Springfield office. The $30,000 which becomes mingled with the $300,000 from the State treasury is not identified as State money nor as interest on State money nor as money belonging to any account called “Grant Park Bank.” Notwithstanding this, the $30,000 is paid directly into the State treasury when a part of the $300,000 is returned. Later we shall show this $30,000 replaced principal “deposited” in the Grant Park Bank which was used in the transactions other than those with the packers.

We have analyzed all of the items shown by the detailed tabulation hereinbefore set out and find each transaction took substantially the same course as those outlined above, but we shall not further extend this opinion by setting out the details. This tabulation shows that through the device called the “Grant Park Bank” the Curtises, with the co-operation of Small, withdrew from the State treasury and invested in packers’ notes $16,448,500, and that the investments and re-investments amounted to more than $30,-000,000 during Small’s term. The treasurer’s drafts, totaling $16,883,500, were drawn in Springfield by one of the clerks in the treasurer’s office pursuant to instructions from Small. Each draft was drawn on the Fort Dearborn payable to “Grant Park Bank” and sent to Grant Park by mail. E. C. Curtis received the draft so sent, and the same day he and Small would go to Chicago and Curtis would buy a packer’s note or notes with the money and deliver the same to Small. None of such drafts issued during Small’s term are in evidence. All canceled drafts and the draft registers for Small’s term are missing from the treasurer’s office. Except in two instances (items 4 and 7) drafts payable to “Grant Park Bank” purchased cashier’s checks of the Fort Dearborn payable to E. C. Curtis. Eight treasurer’s drafts amounting to $2,450,000 purchased directly Fort Dearborn checks, and these, together with the two drafts totaling $600,000, (items 4 and 7,) were not run through the account at the Fort Dearborn called “Grant Park Bank.” All the rest, totaling $13,833,500, were first deposited to the account called “Grant Park Bank” and a check immediately drawn against it, which directly paid for the Port Dear-born checks to Curtis. It is evident the later items were run through the “Grant Park Bank” account to conceal the fact that public funds from the State treasury were being used to purchase packers’ notes. Of the $16,883,500 withdrawn from the State treasurer’s account, $16,448,500 was taken to the Live Stock Exchange, where it purchased packers’ notes, and of the balance $50,000 was used by Curtis at the National City Company in Chicago, $50,000 purchased drafts of the Grant Park Trust and Savings, $100,-000 purchased American Thread Company bonds, $60,000 purchased Armour debentures, and appellee contends that the remaining $175,000 went into the purchase of stock of the Ridgely National Bank of Springfield. Of the part loaned to the packers, appellee’s evidence tends to show $100,000 (proceeds of the Wilson note shown in line 51 of the tabulation) was used in the purchase of the Ridgely National stock, leaving $16,348,500 out in packers’ notes. Of this amount $6,700,000 was returned to the treasury during Small’s term directly from the proceeds of the collection of packers’ notes, leaving at the end of Small’s term $9,648,500 of principal outstanding in packers’ notes. This, with the small Armour note ($31,500) shown in line 50, and the small Swift note ($20,000) shown in line 47, which did not represent principal directly from the treasurer’s account but which went into the treasurer’s account through a Swift note, (item 41, shown in line 94 of the tabulation,) makes the total shown in the Safe Account at the end of Small’s term $9,700,000.

In the preceding paragraph we have seen that $535,000 withdrawn from the State treasury was used to purchase divers securities other than packers’ notes. The question now before us being merely whether there is a liability to account, it is not necessary to lengthen this opinion by a discussion of the details of the transactions involving the Armour debentures, the American Thread bonds, the Ridgely National stock, and the other items involved in this sum. All of the $535,000 is traced back into the treasurer’s account in connection with the transactions with the packers, and substantially all, if not all, of it was replaced by discounts collected from the packers. The tabulation shows that during Small’s term as treasurer more than $1,000,000 in discounts was collected from the packers as a result of loans directly from the State treasury. During 19x7 and the early part of 1918 most of the discount checks were made payable directly to E. C. Curtis and were deposited to the credit of the account called “Grant Park Bank” at the Grant Park Trust and Savings, or bought drafts of that bank which were used by Curtis to purchase other securities. All Cudahy discount checks were payable to the Grant Park Trust and Savings. No discount check was ever made payable to the Grant Park Bank and none of the packers ever heard of such a bank being connected with these transactions. From April, 1918, to the end of Small’s term, the discounts paid by the packers were generally paid by notes made to come due at the same time as the principal notes, and the proceeds of these discount notes were paid directly into the State treasury. In this way $328,950 was returned to the treasury to replace principal during November and December, 1918, and January, 1919. From July to November, 1918, most of the discount collected in cash was used to buy demand certificates at the Grant Park Trust and Savings. Since the canceled certificates and the certificate register of that bank were lost, concealed or destroyed, and therefore not produced, nothing is known as to where or to whom this money, amounting to $145,856.47, ultimately went, except that a portion of it was used to buy drafts, which were deposited to the treasurer’s account at the Fort Dearborn to replace principal used in the purchase of the securities, other than packers’ notes, heretofore mentioned. There is $124,055.46 collected as discount during the last six months of Small’s term which the evidence does not trace from the person collecting it. During the last three days of Small’s term $214,050 collected as discount was deposited to Small’s account as treasurer at the Fort Dearborn. There is traced into the State treasury a total of $842,000, which corresponds in amount to principal used in transactions other than those with the packers. None of this amount was money from the treasury nor was any of it paid into the treasury as interest. These transactions are important in the consideration of the question whether the State’s money was used for private investment pursuant to an understanding between Small and the Curtises.

We have shown that Small established the Safe Account on April 21, 1917, with an initial charge of $50,000 to it. This account was used by Small to show the total of public funds represented by packers’ notes and other special items of private investment noted in preceding paragraphs. During the last six months of Small’s term substantially half of the total in the State treasury was represented by the Safe Account. July 31, 1918, there was in the treasury $26,268,688.71, and of this amount $13,908,500 was in the Safe Account. This was the largest amount of State money “on deposit in the Grant Park Bank” at any one time, and at that time the record shows it had no other depositor. We have also shown that the accounts called “Grant Park Bank” at the Grant Park Trust and Savings and the Fort Dearborn were opened April 21, 1917. An examination of the account called “Grant Park Bank” at the Fort Dear-born shows that, excluding $250.18 interest paid upon the daily balance, this balance remained at $3000 from the time the account was opened until it was closed, April 5, 1921, yet $25,336,750.18 passed through this account. All of this money except the original deposit of $3000 and the $250.18 interest, was money from the State treasury. No other fund went into this account. None of the money collected as discount was deposited to the credit of this account, and only $112,434.75 out of more than $1,000,000 collected from the packers as interest during Small’s term was deposited to the credit of the account called “Grant Park Bank” at the Grant Park Trust and Savings. No deposit was made in the latter account after September 26, 1918,— four days before Small got his first order from the State auditor to receive into the treasury interest collected. The initial deposit was made by some unknown person April 21, 1917, and the same or some other unknown person withdrew the balance of $2000 April 4, 1921. At no place in this record is there a document of any character showing a payment on account of interest or anything else by the Grant Park Bank to the State treasurer. Small says it paid him some interest but he does not state any amount, nor does he produce any evidence of any character to corroborate his statement. That the accounts called “Grant Park Bank” were used by Small and the Curtises to conceal their transactions with the packers is established beyond all reasonable doubt.

In addition to the funds represented by the Safe Account, Small had $3,000,000 on deposit during his term at a private bank in Jacksonville. Small says he had an agreement with this bank respecting interest, but it is not shown what, if any, interest was paid by this bank for the deposit, or, if Small received interest on this deposit, what part, if any, he paid into the State treasury. In addition to the Safe Account and the account with the bank at Jacksonville, which accounts often represented more than half the money in the State treasury, Small had deposits with more than 200 banks throughout the State, with which he had definite agreements as to interest to be paid to the State. These banks, though the deposits were small and .some of them active, paid interest varying from two to three per cent on monthly balances by sending drafts to the treasurer’s office at Springfield. It is reasonable to assume that the Jacksonville bank did not pay less on its $3,000,000 steady account. Instead of receiving the money paid as interest into the State treasury, as the law specifically directs shall be done, Small diverted this to an account called “Len Small, Special” in the First Trust and Savings Bank at Kankakee. The first official notice the auditor had that any interest had been received was about twenty-one months after Small went into office, when the first interest payment was made. When Small secured from the auditor on September 30, 1918, the order to receive $306,424.33, he did not itemize his remittance nor in any respect show from whom or when the interest was collected. No money actually changed hands in this transaction, but Small simply charged himself, as treasurer, with this sum and squared the treasurer’s books by adding $307,000 to the Safe Account, showing a deposit of that amount in the Grant Park Bank. This is a part of the $842,000 mentioned in a preceding paragraph. The next' time Small made a payment of interest into the State treasury was April 23, 1920, sixteen months after the expiration of his term of office. On that day Sterling, who succeeded Small as treasurer, obtained an order from the auditor to receive $143,585.83 interest collected by Small. On the same day Sterling transmitted to the Fort Dearborn for deposit in his treasurer’s account a First Trust and Savings Bank of Kankakee draft on the Corn Exchange National Bank for $73,585.79 and three drafts of the Grant Park Trust and Savings on the Continental and Commercial National for $30,000, $15,000 and $25,000, respectively. These drafts were used by Small in making his second interest payment. Neither of his payments of interest into the State treasury was made from the “Len Small, Special” account, which is the one in which he deposited the amounts received as interest from the legitimate banks. The record of this “Len Small, Special” account kept in Small’s bank was not produced on demand of appellee.

Whatever uncertainty appears in this record is due to the loss, concealment or destruction of records having to do with the transactions in connection with the public funds represented by the Safe Account and the Small and Curtis special accounts. There are missing from the treasurer’s office at Springfield the following: (1) The tickler or daily cash statement showing distribution of funds within the treasury; (2) the ledger containing a permanent record of all certificates of deposit in legitimate banks throughout the State, showing when and how much interest was paid and containing a description of the collateral pledged to secure each deposit; (3) the interest ledger, showing in detail the interest collected from legitimate banks and transmitted to Small at Kankakee; (4) the draft register, showing in detail all transfers of money from the treasurer’s checking accounts; and (5) all canceled drafts, including the drafts payable to the Grant Park Bank. Employees of the treasurer’s office testify that it was customary to send such records to the treasurer at the close of his term, and that the records in question were placed in a box shortly after Small’s term ended and the box was taken from the treasurer’s office. Presumably it was sent to Small, but he denies having received it. Small kept many records pertaining to transactions in the treasurer’s office at his private office in Kankakee. Principal among these was the Safe Account ledger prepared by Small personally, in which he says he kept an account of every certificate of deposit and every piece of collateral turned over to him by the Grant Park Bank. There was also sent to him remittance letters transmitting all checks and drafts received at the Springfield office from banks paying interest on deposits, memoranda showing changes as they occurred in deposits in the legitimate banks, and daily copies of the tickler. He must also have kept some record of interest received from the Jacksonville bank and the Grant Park Bank, because they did not pay interest directly to the office in Springfield and he admits he had a private arrangement with these two banks concerning interest. He must also have had in his office duplicate deposit slips, monthly statements, canceled checks and check stubs showing his transactions in the “Len Small, Special” account. He admits that he destroyed these records, kept in his private office, shortly after his term as State treasurer closed, his explanation being that he had made full settlement and that he was not in the habit of preserving old records. It is significant that these records were destroyed many months before he made his last lump sum interest settlement, April 23, 1920. Small, as examiner of securities under Sterling, had special charge of the Grant Park Bank transactions and kept a Safe Account ledger at his private office, which would have shown the state of the account of the Grant Park Bank at the end of Small’s term, but that disappeared before this hearing was concluded. At the First Trust and Savings Bank in Kankakee, of which Small was and is president, all the bank records pertaining to the “Len Small, Special” account, the “Len Small, Treasurer” account, and the “Len Small” account are missing from the store-room of the bank. The rule of the bank, according to the testimony of its officers, was to keep the ledger sheets of customers, and they knew of no other sheets than those pertaining to Small’s three accounts that were missing. At the Grant Park Trust and Savings Bank, which was and is controlled by the Curtises, pertinent records, including the draft register and demand certificate register, are missing. This draft register is important, because it would show the payee or payees of the many drafts purchased there with funds from the account called “Grant Park Bank” and with the cashier’s checks issued to Curtis in payment of discount on packer’s notes. It will be remembered that all of the discount collected from Cudahy was paid directly to the Grant Park Trust and Savings, but its cashier could not locate any records showing any of these payments or what became of the funds. No records of any kind or character of the Grant Park Bank were produced. Small says that this was a bona fide bank, and that it transacted its business in the rooms of the Grant Park Trust and Savings Bank and of the Curtis Trust Company. The secretary of the Curtis Trust Company says that it was a bona fide bank but that it did not transact any business at the trust company offices, and that he understood it did transact its business at the Grant Park Trust and Savings. The cashier of the latter says the Grant Park Bank was a bona fide bank but that all of its business was transacted at the Curtis Trust Company. Those directly interested in this bank could not locate it or anything connected with it. Notwithstanding this, they were certain it existed and was actively engaged in the banking business. April 21, 1917, V. S. Curtis purchased, among other things, a ledger for this Grant Park Bank, but that ledger is also missing. No witness was produced who ever saw this ledger after the printer delivered it or any other book in which the accounts of the Grant Park Bank were kept, notwithstanding this bank had on deposit millions of dollars of State money during the two years covered by Small’s term. Nineteen certificates of deposit of the Grant Park Bank turned over in 1921 by Small and V. S. Curtis to Miller, who succeeded Sterling as treasurer, were signed by V. S. Curtis and one by E. C. Curtis. The body of each certificate was in other handwriting, and it must be assumed that the person who wrote the body of these documents knew something about the inner working of the Grant Park Bank, but that person, who is, of course, known to appellants, was not produced. In view of all these facts, the maxim “Omnia prcesumunhcr contra spoliatorem” is properly applied to this case. (Hudson v. Hudson, 287 Ill. 286; 1 Wigmore on Evidence,—2d ed.— sec. 291.) When a party fails or refuses to produce books and papers shown to be in his possession or under his control, his opponent may give secondary proof of their contents or establish his case by circumstantial evidence, and if such secondary or circumstantial evidence is imperfect, vague and uncertain as to dates, sums, etc., every intendment and presumption shall be against the party who might remove all doubt by producing the better evidence. Nofftz v. Nofftz, 290 Ill. 36; Rector v. Rector, 3 Gilm. 105.

Many of the conclusions we have reached are deductions from admitted facts and authenticated records. Appellants contend that these deductions are not justified. Small’s testimony supports the denials and allegations of his answer. He denies emphatically that he engaged in a conspiracy with the Curtises or anyone else to defraud the State of Illinois of interest earned on deposits, that he directed books at the treasurer’s office to be kept so as to conceal these deposits, that he concealed or destroyed any of the missing documents, and that he has failed to account for any money due the State. He says that he has fully performed each and every obligation to the State and that he has paid over to the State every cent of money collected by him as interest on deposits of public funds. He denies that State money was used to buy the stock of the Ridgely National Bank, and the Armour debentures, American Thread bonds and other similar securities traced into his hands.

Appellants contend that a proper foundation was not laid for the admission of the records of the National City Company, and we think this objection must be sustained. The foundation for the admission of these records was laid by the testimony of William H. Smith, employed by the company since January 3, 1921, but in no way connected with it in 1917 or 1918. He identified exhibits 1390 to 1403 as files of the company, but there was no witness employed by the company in. 1918 who supplemented his testimony by stating that these records were kept in due course of business and that they were correctly kept. In order to render an account book admissible, it is essential that proof as satisfactory as the transactions are under the circumstances reasonably susceptible of, shall be given that the entries made are correctly recorded. (Chisholm v. Beaman Machine Co. 160 Ill. 101; House v. Beak, 141 id. 290.) Before a record can be admitted there must be proof by one who knows that it was made in the usual course of business, in accordance with a uniform practice to make them, when the transaction occurred, and to record the transaction precisely as it occurred. (State Bank of Pike v. Brown, 165 N. Y. 216, 59 N. E. 1, 53 L. R. A. 513.) Where the record is made in due course of business and according to methods proven accurate by many years’ test it is competent. (Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. City of Chicago, 242 Ill. 178; Chicago and Northwestern Railway Co. v. Ingersoll, 65 id. 399.) Where the testimony of a witness who made the entries is not available, it is competent to establish the authenticity of the books by other evidence. As Prof. Wigmore in his treatise on evidence, after discussing cases within the exception where it is impossible to produce the witness who actually made the record, says (vol. 3,—2d ed.—sec. 1530) : “The ordinary conditions of mercantile and industrial life in some offices do in fact constantly present just such a case of practical impossibility. Suppose an offer of books representing transactions during several months in a large establishment. In the first place, the employees have in many cases changed and the former ones cannot be found; in the next place, it cannot always be ascertained accurately which employee was concerned in each one of the transactions represented by the hundreds of entries; in the third place, even if they could be ascertained, the production of the scores of employees to attend court and identify in tedious succession the detailed items of transactions would interrupt and derange the work of the establishment, and the evidence would be obtained at a cost practically prohibitory; and finally, the memory of such persons, when summoned, would usually afford little real aid. If unavailability or impossibility is the general principle that controls, is not this a real case of unavailability ? Having regard to the fact of mercantile and industrial life, it cannot be doubted that it is. In such a case it should be sufficient if the books were verified on the stand by a supervising officer who knew them to be the books of regular entries kept in that establishment.” This exception to the hearsay rule is fully supported by the authorities. (Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. City of Chicago, supra; French v. Virginian Railway Co. 121 Va. 383, 93 S. E. 585; Delaney v. Framingham Gas, Fuel and Power Co. 202 Mass. 359, 88 N. E. 773; Continental Nat. Bank v. First Nat. Bank, 108 Tenn. 374, 68 S. W. 497; Fielder v. Collier, 13 Ga. 496.) The cashier, whose function it is to oversee all transactions and test each through all its stages, is the person most competent to produce the books of a bank and vouch for their accuracy. In a large bank little could be accomplished by calling the book-keeper who made the entry. At most he could only testify that the entry made by him is a true entry of the transaction reported to him by others. In a large bank each transaction passes through the hands of several, and often many, persons. A deposit, for instance, goes into the hands of the receiving teller, thence into the hands of a journal clerk and thence to a book-keeper, who makes the final entry which stands as the statement between the bank and the depositor. This transaction may have gone through the hands of a dozen persons, and the last one only records what has come to him through so many hands and probably knows nothing of the actual transaction. The business of this great commercial country is transacted on records kept in the usual course of business and vouched for by the supervising officer, and such evidence ought to be competent in a court of justice. Modern authority sustains this view. (Continental Nat. Bank v. First Nat. Bank, supra; Cooke v. People, 231 Ill. 9; Field Bros. v. Commercial Nat. Bank, (Tex.) 240 S. W. 908, 24 A. L. R. 904.) In determining what is the best evidence of a transaction, regard must be had to the nature of the business and the method of its conduct. The records of the National City Company are not essential to this hearing, and if they become material on the hearing before the master, appellee will probably not experience any difficulty in producing witnesses to meet the requirements necessary to their admission. In laying the foundation for the admission of the records of the Fort Dearborn National Bank and the Live Stock Exchange National Bank, appellee met all the requirements hereinbefore stated and fully established the competency of these records by the testimony of officers in charge of them.

Objection is made to the admission of the bills-payable registers of Armour & Co. and of Swift & Co., but we do not consider it necessary for the purposes of this hearing to consider this objection. Taking into consideration the usual course in dealing with the packers, there is abundant evidence in the records of the Live Stock Exchange National Bank to trace the several items. If it becomes necessary, in stating the account before the master, to introduce these records, the testimony now in the record can undoubtedly be sufficiently supplemented to meet the rules stated. There is in this record abundant competent evidence to sustain the decree, and no useful purpose can be served by discussing in detail the many objections to the competency of evidence made by appellants.

It is contended by appellants that the orders of the Auditor of Public Accounts authorizing Small to receive into the treasury the amount of interest reported September 30, 1918, and April 23, 1920, establish the correctness of Small’s report of the amount of interest earned and due the State during his term as State treasurer and are conclusive in the absence of fraud or mistake. The first of these auditor’s orders reads:

“Auditor of Public Accounts, State of Illinois,

Springfield, Sept. 30, ipi8.

No. 940. $306,424.33.

“Receive of Len Small, State Treasurer, Three Hundred Six Thousand Four Hundred Twenty-Four and 33-100 Dollars, amount of interest on public funds Jan. 8th, 1917, to Sept. 30th, 1918.

Andrew Russel, Auditor of Public Accounts.

To the State Treasurer of the State of Illinois.”

The second order is the same, except that it is dated April 23, 1920, and the amount stated is $143,585.79. Whether the Auditor of Public Accounts has the authority to audit the interest accounts of the State treasurer, or whether it is his duty to require an itemized list of interest payments before issuing his order to receive the same into the State treasury, are questions wholly immaterial to the issues in this suit. Whatever the authority or duty of the Auditor of Public Accounts, there is nothing in this record to suggest, much less show, that he audited the interest accounts of Small. The auditor’s orders shown in this record constitute evidence that he authorized the receipt into the State treasury of the amounts of money stated, but it is not evidence of the amount of money due the State on account of interest payable by persons with whom State funds were deposited or of the amount of money received by the State treasurer on account of interest upon public money in his custody. Section 8 of the State Treasurer’s act provides: “All persons paying money into the State treasury shall first obtain from the auditor an order, directing the treasurer to receive the same. * * * When moneys are sent tó the treasury, by express or otherwise, it shall be the treasurer’s duty to obtain the auditor’s order, hereinbefore required, before receipting therefor.” The two orders on which appellants base their contention were issued as a pretended compliance with this section of the statute. The requirement that no money shall be received into the State treasury except upon the order of the auditor, and that the treasurer’s receipt for money so received shall be presented to the auditor for countersigning and a duplicate of the receipt left with him, is for the purpose of providing a complete record in the hands of the Auditor of Public Accounts of all money in the State treasury. The orders in the record do not state that the moneys which the treasurer is ordered to receive are in full settlement of the State’s claim for interest on deposits of State moneys, nor is there in the order the slightest suggestion that an audit of the State’s account with the treasurer has been made. It is unnecessary to follow appellants' through their discussion of the origin of the office of Auditor of Public Accounts and of the powers and duties of such officer under the constitution of this State. A discussion of these questions would throw no light on the issues here involved. Where, as in this case, there is no evidence showing a settlement of the State’s claim for interest earned on public moneys in the custody of the State treasurer, no presumption of settlement can arise from the mere fact that the auditor has authorized the treasurer to receive into the State treasury a certain amount of money paid as interest on deposited public funds.

Some objection is made to the form of the decree holding appellants jointly and severally liable to account, but this objection is without merit. Where a liability arises from an intentional wrongful act of several parties conspiring together, each is liable for all resultant damage. A conspiracy by which several wrongfully obtain the money or property of another and misappropriate it is not to be distinguished in the joint and several liability of each from a trespass in which all are alike guilty and jointly and severally liable for the damage sustained. (Farwell v. Great Western Telegraph Co. 161 Ill. 522.) This case being clearly within the field of equity, equity should grant compíete relief, though its decree may establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority. Drum v. Drum, 251 Ill. 232; Kelly v. Galbraith, 186 id. 593; Stickney v. Goudy, 132 id. 213.

It is finally contended that criminal acts are charged in the bill in this suit, and that the rule that such charges must be proven beyond a reasonable doubt before a decree can be entered against the party so charged' is applicable. We shall not lengthen this opinion by discussing this question. Whether this court will again apply to civil actions the rule of evidence applicable to criminal cases merely because the pleadings charge and the proof shows that the loss or damages arose out of a criminal act (see Rost v. Noble & Co. 316 Ill. 357,) need not be decided in this case, for the reason that whatever rule is applied, the evidence in this record shows, beyond all reasonable doubt, a liability to account. Proof of the fact that a public official having custody of public funds loaned these funds to others with a secret arrangement respecting the payment of interest and that in reporting interest collected he did not reveal the source of the payments, without more, would be sufficient to justify an order to account.

Where a treasurer or other public official has the custody of public funds and such funds earn interest, he is required by the settled law of this State to turn such interest into the public treasury as soon as it is received by him. (County of Lake v. Westerfield, 273 Ill. 124; Hughes v. People, 82 id. 78.) This is now, and has always been, the law in this State without regard to a statute on the subject. This liability to account for profits made on public funds is the same whether the interest or discount is paid to the officer directly as such, or whether it comes to him indirectly as a partner or stockholder in a bank where public funds are deposited. (Whitney v. Peddicord, 63 Ill. 249.) Where it is established that a public official having public funds in his custody deals with the trust money in his own name, directly or indirectly, every presumption is indulged against the trustee and he is held to a strict accountability for the conversion. White v. Sherman, 168 Ill. 589.

From the careful examination of this record which the public interests involved and the importance of the results which follow our decision demand, we are convinced that the chancellor would not have been justified, under the evidence, in entering any decree other than the one directing appellants to account to appellee. The decree of the circuit court is therefore affirmed.

Decree affirmed.