Cook v. Elliott , 73 F.2d 916 ( 1934 )

NORTHCOTT, Circuit Judge

(dissenting).

I cannot concur in the above opinion because I have reached the conclusion that, when the deposit was made by the treasurer of Williamsburg county in the branch bank, it was a lawful deposit. Such a deposit created the relationship' of debtor and creditor, and, while it was the duty of the bank to transfer to its trust department sufficient security to cover the deposit, the fact that the duty was not performed by the bank did not affect the relation that existed, that of debtor and creditor.

The deposit was made in a branch bank, and the presumption is that the security to secure it would have to be given by the bank at its principal place of business, and the fact that the bank failed before this was done, in due course, does not create a trust enforceable against the funds in the hands of the receivers. It is evident that the giving of the security would, of necessity, follow the deposit, and that this could not be done before the deposit.

There were no circumstances surrounding the deposit that would create ■ a trust ex maleficio.