Page:Federal Reporter, 1st Series, Volume 2.djvu/545

 538 FEDERAL REPORTER �against the sureties, it was a breach of trust on the part of Pottle to put the moneys which he received from accruing business after the execution of the bond on deposit in his own name, and then to direct his remittances to be applied in satisfaction of his former indebtedness, and that the defend- ant Company was cognizant of this course of dealing on Pot- tle's part, and adopted and ratified it. �The testimony in the case is not voluminous, and, in my opinion, fails to meet the point upon -which the case must turn, and which it is essential to establish to give complain- ants the relief they ask. The bond was wholly prospective in its terms and operation. It was intended only to secure the payment by Pottle to the insurance company of such moneys as he should thereafter receive as agent for the Com- pany. Of this there can be no doubt. Neither can there be doubt that if there was a conspiracy or actual agreement be- tween the company and Pottle, made or existing at the time the bond was executed, by virtue of which the bond should be obtained and the moneys thereafter received by Pottle as agent should be applied upon prior defalcations, and if such a conspiracy or agreement were carried out, and not dis- covered by complainants until after the trial of the action at law, complainants would be in position to ask the interposi- tion of a court of equity for their relief. But the testimony fails to show such a state of case, and indeed, upon the argu- ment, the learned counsel for complainants was not under- stood to insist that such conspiracy or actual agreement was proved. �The facts seem to be that, during his agency, and up to the time of giving the bond, Pottle deposited the moneys of the company, as fast as coUected, in the bank where he kept his account, to his own credit, and that he made remittances by his Personal check on his banker. He was, both before and after the execution of the bond, agent for other insurance companies, and ail moneys received by him as such agent were, as it would appear, mingled in a common fund, and deposited and remitted in manner before indicated. After giving the bond he made collections, deposits and remit- ����