Alston v. State

• Decision Date: 25 June 1891
• Citation: 92 Ala. 124,9 So. 732
• Parties: ALSTON ET AL. v. STATE.
• Court: Alabama Supreme Court

9 So. 732

92 Ala. 124

ALSTON ET AL. v. STATE.

Supreme Court of Alabama

June 25, 1891

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Action by the state against A. H. Alston, judge of probate, and Amanda A. Ott, upon an official bond. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

Lawrence H. Lee and Peach & Evans, for appellants.

Wm. L. Martin, Atty. Gen., for the State.

WALKER J.

In such cases as the law prescribes a state or county license to engage in or carry on any business, or to do any act, the amount required for such license must be paid to the probate judge of the county in which it is proposed to engage in or carry on such business or to do such act. The money so paid for licenses being part of the revenue of the state or county, as the case may be, and received by the probate judge in his official capacity, he is prohibited, under criminal penalties, from knowingly converting or applying any of it to his own use, or to the use of any other person, or permitting another to use any of it; and he must, on the last day of each quarter, pay to the state treasurer the money received by him for such licenses belonging to the state, and to the county treasurer the money received by him for such licenses belonging to the county, less the amount of the commissions allowed to him by law. Code 1886, §§ 632, 633, 3803, 3805. The plain statutory requirements here referred to exert a controlling influence in the determination of the question presented in this case by the contention that the failure of the defendant Alston to pay to the state certain license money, which he collected, and with which he is chargeable as probate judge, should be excused on the ground that said license money has been lost by reason of the failure of a bank in which it had been deposited, at a time when said bank enjoyed the confidence and esteem of the business world, and of the embarrassment of which said Alston had no reason to know or suspect until after the failure was publicly announced. Can this excuse avail as a defense to the suit of the state to recover the amount of its license money so lost? This inquiry involves the question of right of the probate judge to make the deposit as he did. Alston, as probate judge, accepted payment of the license money in the check of the licensee, made payable "to county and state of Ala. or bearer." This check Alston presented to the bank, and had the amount thereof put to his credit on an account entered on the books of the bank with "A. H. Alston Judge of Probate, License Money." Deposits made with bankers are either general or special. In the case of a special deposit, the bank merely assumes the charge or custody of property, without authority to use it, and the depositor is entitled to receive back the identical money or thing deposited. In such case, the right of property remains in the depositor, and, if the deposit is of money, the bank may not mingle it with its own funds. The relation created is that of bailor and bailee, and not that of creditor and debtor. Boyden v. Bank, 65 N.C. 13; Dawson v Bank, 5 Ark. 297; Lowry v. Polk Co., 51 Iowa, 50; 2 Amer. & Eng. Enc. Law, 93; 1 Morse, Banks,§ 183 et seq. When a money deposit is made, it is to be regarded as a general deposit, unless there is evidence to show that it was the bank's duty, by agreement, express or clearly implied, to keep it separate and apart from its own funds, and to return that identical money to the depositor. Money received by a bank on general deposit becomes the property of the bank, and can be loaned or otherwise used by it, as other moneys belonging to it. The bank becomes the debtor of the depositor, and its obligation is satisfied by honoring the depositor's checks to the amount of his deposit. The depositor's claim is a mere chose in action for so much money. He becomes a creditor of the bank. Bank v. Millard, 10 Wall. 152; 2 Amer. & Eng. Enc. Law, 93, 94. The words, "judge of probate, license money," annexed to the name of the depositor, served to distinguish that particular account, and to keep it separate from other dealings he might have with the bank. Moneys deposited on an account kept in that form would be more readily traced, and the bank, perhaps, would be chargeable with notice of the source from which the depositor derived funds which he directed to be credited to him in that way. But the addition of the words referred to would not operate to change the character of the deposit from a general to a special one. There is nothing to indicate that the amount charged against itself by the bank on this account was kept separate or unmingled with its own property. The contrary appears. Manifestly, the bank did not...