Rice v. Webb

105 So. 854 | Miss. | 1925

^* Headnote 1. Banks and Banking, 7 C.J., Section 326; Trusts, 39 Cyc., p. 622. This is the second appearance of this lawsuit. The first decision is reported in 132 Miss. 668, 97 So. 419, under the style of Webb et al. v. Rice. The facts as the case then appeared are fully set out in that opinion. When the case was remanded to the court below, the appellant sought to file a supplemental or amended bill, setting up that the funds which were paid for the note involved in the suit before were paid out of the trust funds in her hands as administratrix of her deceased husband, and that she joined herself as administratrix of the estate of her deceased husband and as guardian of her minor children as parties in the supplemental and amended bill. On motion of the appellees this supplemental and amended bill was stricken from the files and an appeal granted to settle the principles of the case.

The bank is not made a party either to the original or to the supplemental and amended bill. The check given in payment of the note involved here, or, as the appellant contended, in the purchase of the note, also included something more than five thousand dollars in the purchase or the payment of another note given by the vendees of Givens, the maker of the note here involved. Although the check was given to the bank, drawn on the funds of the administratrix on deposit in the bank to her credit as such, the bill does not aver that this was a special deposit, nor that the funds were separated from the bank's funds, nor that the specific money so specifically deposited was paid to the appellee.

An ordinary deposit in a bank is a loan of the funds to the bank, and such funds so deposited become the property of the bank, and the relation of debtor and creditor exists between the bank and the depositor. The bank in this case did not transmit Mrs. Rice's check to Webb and Jennings, but cashed that check and sent its own check to appellees. There is no allegation in the bill that the appellees Webb and Jennings had actual notice of how the matter was handled, and we think there was a failure to allege in the supplemental bill all such facts as would give the appellant a right of action.

The judgment of the court below will therefore be affirmed.

Affirmed.