129 Ga. 126 | Ga. | 1907
(After stating the facts.)
The Supreme Court of Maryland held that a bank, which credited a check to the individual account of a named person, when the check itself stated that it was for “deposit to the credit of” the person named, with the word “trustee” added to his name, was liable for participating in the breach of trust in case of loss ensuing to the trust estate by reason of his drawing out the fund by cheeks on his personal account. In the case referred to, the court said: “To deposit to the credit of Henry "W. Clagett, trustee, was an explicit notification to the bank that Clagett was not the actual owner of the money. It was an equally explicit instruction to the bank not to place the fund to the credit of Clagett’s personal account. . . Knowing that the money was not Clagett’s, but that it was payable to him, and to be deposited to
. Much stronger is the reason for holding, in the case at bar, that the bank participated in the breach of trust than in the case of Duckett v. Nat. Bank, supra. It was agreed in this latter case, in behalf of the bank, that if the bank had obeyed the direction given to it and had opened an account with Clagett (the depositor) as trustee, still Clagett could have withdrawn the funds on checks appropriately signed, and could then have misapplied the money without involving the bank. But in the case at bar, Tindall, the receiver, could not by checks, however appropriately signed by himself, unless thej>' were also countersigned bjr the judge, have withdrawn the funds. Such were the express terms of the order or decree. The defendants knew the provisions made in the decree as to the manner in which checks, ’except checks for expenses, should be signed. They knew that they were depositories of trust funds, for the safeguarding of which extraordinary care and caution was being exercised by the court. We do not know by the use of what terms 'of direction, in a decree or order for the deposit of funds in a designated bank, more emphatic notification could have been given this defendant that payment upon any check, not countersigned as prescribed in this order, would amount to an aiding of a trustee in the misapplication of the funds. By the improper withdrawal of the funds, Tindall was clearly guilty of a breach of trust. The bank had knowledge of this breach of trust, knowing as it did the express terms upon which Tindall might check out the money, — terms which, so far,, as affect the sum now sued for, were plainly violated. And having the knowledge that a breach of trust was -being committed, by payment of the checks improperly drawn and not counter
In the present case, the first of the unauthorized payments by the bank upon the receiver’s checks was made on the 30th day of January, 1894, and the last was made on the 33rd day of January, 1899; and this action' was instituted on the 39th day of July, 1904. It is clear, therefore, that the creditors could not enforce this demand against the bank; and if they could not, the plaintiff, who was subrogated to their rights, could not. This being true, and these facts appearing on the face of the petition, the demurrer sotting up the bar of the statute of limitations should havd been sustained, and the court erred in overruling it.
Judgment reversed.