| Mass. | Apr 7, 1905

Barker, J.

The short answer to the plaintiff’s case is the finding that he has not sustained the burden of proving that the bank had reason to believe that Waterman was acting dishonestly. The bank was not a creditor of his, and the only deposit account he had with it was one to his personal credit. The bank had no other knowledge even that he held any trust than such as it might have inferred from the fact of the form of the check. Under those circumstances it cannot be ruled as matter of law that. for him to deposit to his personal account funds which he took as trustee was a dishonest act on his part, or that the circumstance that the check so deposited was one payable to his order as trustee gave the bank reason to believe that the depositor was acting dishonestly. The circumstances were much less significant than those under consideration in Ashton v. Atlantic Bank, 3 Allen, 217, and which there were held not to afford a sufficient presumption of knowledge that the trustee was acting in violation of duty to create a liability on the part of the bank. We could not reverse the decision of the justice who heard the present case without in effect overruling the case cited.

The plaintiff relies upon Duckett v. National Mechanics' Bank, 86 Md. 400" court="Md." date_filed="1897-12-01" href="https://app.midpage.ai/document/duckett-v-national-mechanics-bank-7900107?utm_source=webapp" opinion_id="7900107">86 Md. 400. So far as that case charges the defendant bank, it seems to us to do so upon the ground that the bank credited to the personal account of a depositor funds which it was ordered to credit to his account as trustee. In the same case the court refused to charge the bank with another check in fact belonging to the same trust, but which it was ordered to credit to the same person, without more. We do not read the case as holding that mere knowledge on the part of a bank that trust funds stand to the credit of a depositor’s personal account must charge the bank with knowledge that the depositor is acting dishonestly. *27Nor if it should be so read could we follow it. See Safe Deposit & Trust Co. v. Diamond National Bank, 194 Penn. St. 334.

Upon the report a decree should be entered dismissing the bill with costs.

So ordered.