delivered the opinion of the court.
Appellant asking to be discharged upon the record of the Superior Court in the cause wherein judgment was rendered against him, we are led at once to an examination of that record. In this, one of the three counts specifically charged that the plaintiff therein on the 8th day of June, 1893, deposited with appellant, who was then doing a general banking business in Chicago, two checks, one for $1,058.53 and one for $166.67, said checks being of the value of $1,225.60, of which the plaintiff was lawfully possessed as of his own property; and that the said appellant, doing business as aforesaid, accepted for deposit the said checks maliciously, intending then and there to cheat and defraud “the plaintiff herein,” and that on the 9th day of June the said appellant failed and suspended in business and made a voluntary assignment for the benefit of creditors.
To this count the appellant demurred, which demurrer being overruled, he filed a plea of the géneral issue, and the cause went to trial. At the trial there was submitted to the jury the following special interrogatory: “ Did the defendant have the fraudulent intent to receive and convert to his own use deposits in the bank at the time the checks in evidence were deposited by the plaintiff on the morning of June 18, 1897 ? ” To this the jury in their verdict replied, “ Tes.”
We have thus in the record a direct charge that appellant did, as a banker, receive on deposit two checks of the value of $1,225.66, maliciously intending then and there to cheat and defraud appellee; which charge being denied by appellant, the issue thus formed was submitted to a jury for a special answer thereon, and that having heard the evidence the jury found that appellant did have the fraudulent intent to receive and convert to his own use deposits in the bank at the time the said checks were deposited by the plaintiff.
It can therefore not be said that the jury may have found appellant guilty only upon the counts in trover; their special finding applies to the additional count charging malice, and applies to nothing else.
The statute provides for special findings by a jury upon material questions of fact, and also declares that when the special finding of fact is inconsistent with the general verdict the former shall control the latter and the court may render judgment accordingly. Sec. 58a and 58b, Chap. 110, Hurd’s R. S.
That proof in a civil case of the reception of deposits by a banker when insolvent, and one day before suspension, makes a prima fade case of fraud, was held by the Supreme Court in Trust and Savings Bank v. Manufacturer’s Bank, 150 Ill. 336-340.
Appellant urges that the special verdict was not in response to a material question.
In a case wherein a charge of fraudulent dealing in business matters is made, and the action is such that neither verdict nor judgment can be had except upon proof of fraud, whether the defendant did practice the fraud charged is a material question. Such was the case in the trial in which the special verdict against appellant was rendered.
Upon the additional count no verdict could be rendered against the defendant save upon proof of the fraudulent conduct charged in that count. The question specially answered was material and vital.
We do not think that it can be reasonably urged that the verdict is merely that appellant had an intention to fraudulently convert to his own use “ deposits,” and that appellant may not have intended to so use the deposit of appellee. Verdicts are not subject to hypercriticism. The declaration .charged an intent to defraud appellee.
The County Court properly refused to discharge appellant, and its action in that regard is affirmed.