181 La. 335

#### In re LIQUIDATION OF HIBERNIA BANK & TRUST CO. (JONES COUNTY, Intervener).

No. 33127.

Supreme Court of Louisiana.

Nov. 26, 1934.

Rehearing Denied Feb. 4, 1935.

Dufour, St. Paul, Levy & Miceli, of New Orleans (Anna Judge Veters, of New Orleans, of counsel), for appellants.

Shannon & Sehauber, of Laurel, Miss., and Miller, Bloch & Martin, of-New Orleans, for intervener and appellee.

McCloskey & Benedict and Ivy G. Kittredge, all of New Orleans, amicus curl®.

O’NIELL, Chief Justice.

On the 20th of February, 1933, the board of supervisors of Jones county, Miss., sent a cheek for $7,932.30 to the Hibernia Bank & Trust Company, in New Orleans, to pay certain bonds and coupons, maturing on the 2d of March, 1933, and payable at the Hibernia Bank. The check was drawn by the Commercial National Bank & Trust Company, of Laurel, Miss., on the Whitney National Bank, in New Orleans, and was sent with a letter of instructions given by the Commercial National Bank *&*Trust Company to the Hibernia Bank *&*Trust Company, viz.:

> *577“"We hand you herewith our check in the amount of $7,932.30, to be used in the payment of bonds and coupons due at your bank on March 2, 1933, as follows:

> “Jones County, Mississippi, Supervisors

> “District #2, Bonds, Nos. 73 to 84, inclusive, for $500.00 each, $0,000.00

> “128 coupons @ $15.00 each, $1,920.00

> “Commission 3⁄8 of 1% on bonds, $7.50

> “Commission 1⁄4 of *1%*on coupons, $4.80

> “When the within mentioned bonds and coupons have been paid pleas forward to this bank properly cancelled in order that we may deliver same to the Board of Supervisors of Jones County, Mississippi.”

The cheek, with the letter of instructions, was received by the Hibernia Bank & Trust Company on the 24th of February, 1933, and the amount of the check, $7,932.30, was collected from the Whitney National Bank, through the New Orleans Clearing House, on the 24th of February, 1933. The Hibernia Bank & Trust Company, in order to have a record of the funds, and of the disbursements to be made, set up two accounts on the books of the bank; one account being styled “Jones County Bonds Payment Account,” and the other account being styled “Jones County 6% Road Bond Coupon Account.” The funds, of course, awaiting the maturity of the bonds and coupons and their presentation for payment, were not segregated from the other deposits in the Hibernia Bank, except by the bookkeeping entry, and formed a part of all of the deposits in the bank; so that the amount which was thus held by the Hibernia Bank & Trust Company to pay the bonds and coupons due on the 2d of March, 1933, was carried on the books of the bank as a part of the general deposit liability of the bank.

On the 2d of March, 1933, none of the bonds or coupons having been paid or presented for payment, the Hibernia Bank & Trust Company, becoming insolvent, was closed by an order of the Governor of Louisiana and by orders of the New Orleans Clearing House Association, and remained closed, under proclamations of the President and acts of the Congress of the United States. On the 20th of May, 1933, the State Bank Commissioner took charge of the bank and began the liquidation of its affairs under orders of the civil distriqi court for the parish of Orleans. Thereafter, the available dividend due to all depositors was, by an order of the civil district court, deposited in the Hibernia National Bank, which was organized as the successor to the Hibernia Bank & Trust Company, to the credit of the depositors, respectively. Ae-eordingly, the sum of $3,631.32 was deposited in the Hibernia National Bank to the credit of Jones county, Miss.; and the sum of $20.61 was paid out by the Hibernia National Bank, as a partial payment on the Jones county coupons. The board of supervisors of Jones county did not consent to being a depositor in the Hibernia National Bank, but promptly drew out the balance, $3,610.71, with reservation of the right to sue the liquidators of the Hibernia Bank & Trust Company for the balance of the proceeds of the check for $7,932.30.

This suit, therefore, was brought by way of an intervention in the liquidation of the Hibernia Bank & Trust Company, by Jones county, Miss., claiming a lien on all of the property and assets of the bank, under the provisions of section 1 of Act No. 63 of 1926. The bank commissioner and his special agent and the liquidator, as defendants in the suit, denied that the case came within the provisions of the statute, and hence pleaded that Jones county, Miss., was merely a depositor in the Hibernia Bank & Trust Company, and as such was an ordinary creditor of the insolvent bank. The judge of the civil district court decided in favor of Jones county, Miss.; and the bank commissioner and his special agent and the liquidator have appealed from the decision.

The only question is whether the facts of the case bring it within the provisions of section 1 of Act No. 63 of 1926, viz.:

> .“That when any bank receives as agent (whether as agent of another.bank or of any person, firm or corporation) for collection and remittance or delivery to its principal and not for deposit any bill, note, check, order, draft, bond, receipt, bill of lading, or other evidence of indebtedness, or other instrument, and collects or realizes any money on the same, and has not deposited same to the credit of said principal, the principal shall have a privilege [lien] on all of the property and assets of said agent bank for the amount SO' collected or realized by said agent bank,” etc.

The contention of the appellants is that the check which Jones county, Miss., sent to the Hibernia Bank & Trust Company as agent was sent, not “for collection and remittance or delivery to its principal,” but for collection and deposit. In support of the argument it is shown that, during a period of seven years, similar remittances were made regularly, semiannually, by the board of supervisors of Jones county, Miss., to the I-Iibemia Bank & Trust Company, under similar instructions, to pay the bonds of the county, and the coupons *578thereon, which were maturing semiannually and were payable at the Hibernia Bank. And it is shown that, in every instance, the Hibernia Bank & Trust Company handled the proceeds of the check exactly as the proceeds were handled in this instance; that is, by depositing the proceeds in the Hibernia Bank, in a special account, from which the bonds and coupons were paid by the Hibernia Bank as the bonds and coupons matured and were presented by the bondholders. It appears also that, at the end of every one of these semiannual transactions, during the period of seven years, the board of supervisors of Jones county, Miss., received from the Hibernia Bank & Trust Company, and acknowledged receipt of, a statement showing how the funds were handled. It must be inferred, therefore, that when the board of supervisors of Jones county, Miss., sent the check for $7,932.30 to the Hibernia Bank & Trust Company, on the 20th of February, 1933, to pay the bonds and coupons maturing on the 2d of March, 1933, the board of supervisors did not intend that the bank should keep the proceeds of the check segregated from the funds belonging to the bank, as in an envelope, awaiting the maturity and presentation of the bonds and coupons which were to be paid. But thát inference would prevail even if there had never before been any such transaction between Jones county, Miss., and the Hibernia Bank & Trust Company; because it is never intended that a bank that receives as agent, and not for deposit but for collection and remittance or delivery, a draft, or a check drawn on another bank, is to keep the proceeds of the draft or check segregated, as in an envelope, until remitted or delivered. As we understand, a bank that collects qn item that is received for collection and remittance or delivery never segregates the proceeds of the collection, or remits or delivers the identical money that is collected, but remits its own check, or exchange on a bank at or near the place of remittance or delivery. If the sender of a cheek or draft to a bank for collection and remittance or delivery should require the proceeds of the cheek or draft to be segregated until remitted or delivered, or require the identical money collected to be remitted-or delivered, there would be no occasion to rely upon the protection afforded by such a statute as the act of 1926. If the proceeds of a check or draft collected by a bank as agent for the owner of the check or draft are so segregated by the agent as to be identified as the property of the principal, he needs no lien, and has no lien, on the property of the agent. Tropical Printing Co. v. Union Title Guarantee Co., 180 La. 702, 157 So. 534. The very purpose of the act of 1926 is to protect one whose check or draft is collected by a bank as agent, when the proceeds so collected are mingled with the money of the bank in violation of instructions to remit or deliver the proceeds, and when the proceeds, therefore, cannot be identified as the property of the owner of the check or draft The statute was enacted at the time when the case of Sabine Canal Co. v. Crowley Trust & Savings Bank, 164 *La.*33, 113 So. 754, was pending in the district court; and the language of the two sections of the statute applies so precisely and peculiarly, and respectively, to the two propositions of law that were presented in that case that it seems quite certain that the new law was prompted by the happenings in that case. Before the act of 1926 came into effect, one who sent a negotiable instrument to a bank merely for collection and remittance or delivery, and not for deposit, had no protection against the bank’s becoming insolvent and failing to remit or deliver the proceeds so. collected. The Legislature, evidently, deemed it unjust that one whose money was collected by a bank as his agent, and who had not consented to become a depositor in the bank, should suffer the loss of his money by its distribution among the depositors, or ordinary creditors of the bank, if the bank should become insolvent. The Legislature, therefore, drew the distinction between the fiduciary relation of principal and agent, and the relation of depositor and depositary, which is the relation merely of the ordinary creditor and debtor.

It is contended by the appellants that Jones county, Miss., is not entitled to the lien provided for by the act of 1926, because the proceeds of the check on the Whitney' National Bank were in fact deposited by the Hibernia Bank *&*Trust Company in its bank. The proceeds of the check were deposited by the Hibernia Bank & Trust Company, but not to the credit of Jones county, Miss. The proceeds were deposited to the credit of the two special accounts which were set up on the books of the Hibernia Bank & Trust Company, as a necessary bookkeeping entry, to have an account of the funds. The act of 1926 requires, as a condition on which the lien is granted, that the bank that has collected the money as agent “has not deposited same to the credit of said principal.” The money, in this instance, was not deposited to the credit of the principal, Jones county, Miss. Jones county, Miss., or the board of Supervisors of the county, could not have checked against the deposit, or drawn out the money. It is true that Jones county, Miss., might have *579withdrawn the fund by rescinding the mandate ; but, as long as the mandate continued, the Hibernia Bank & Trust Company held the money as the,agent for Jones county, Miss., and not as depositary for Jones county, Miss. The expression in the statute, “and has not deposited same to the credit of said principal,” has reference to a deposit in the name and to the credit of the principal, with his approval, either express or implied. It was so held in Hall, Inc., v. Farmers’ Trust & Savings Bank, 177 La. 659, 148 So. 909, 910. In that case, four sight drafts, with bills of lading attached, were deposited by Hall with the Farmers’ Trust & Savings Bank, in Lock-port, La. The drafts were entered by Hall on the ordinary deposit slips, printed and furnished by the bank. On the end of each slip was printed: “All checks and drafts, except on us, credited subject to final payment.” The four drafts deposited by Hall were drawn on parties residing away from Lockport; and before the proceeds of the drafts were received by the bank it failed and was taken over by the State Bank Commissioner. The court found, as a fact, from the conflicting testimony in the case, that, although the amount of the drafts was credited to Hall’s checking account, he was forbidden to draw checks against the amount of the drafts before receipt of the proceeds by the bank.- For that reason, and because of the stipulation on the deposit slips that the drafts were “credited subject to final payment,” it was held that Hall’s relation to the bank was the same as if the drafts had been placed in the bank for collection and remittance, and not for deposit. In so deciding, the court said:

> “The act, in making it a condition to the existence of the privilege that the proceeds of the instrument be not deposited by the bank to the credit of its principal, means that the money must not be deposited *unconditionally to the credit of the principal uñth his authority.”*(Italics ours.)

The money belonging to Jones county, Miss., was deposited only temporarily, and only as a necessary or convenient method- of carrying out the mandate to collect the check and to, apply the proceeds to the payment of the bonds.

 It is argued for the appellants that the stipulation in the statute, as a condition on which the lien shall exist, that the instrument which is sent to the bank for collection as agent for the sender must be sent “not for deposit,” is unqualified, and therefore does not mean necessarily or only that the instrument must be sent “not for deposit to the credit of the principal.” Hence it is argued that, as the board Of supervisors of Jones county, Miss., knew or must have known that the Hibernia Bank *&*Trust Company would not keep the proceeds Of the check segregated, but would deposit the proceeds into the bank’s coffers, to the credit of a special account, but as a part of all other deposits, Jones county, Miss., has no lien under the statute. But the expression in the first part of the statute, “and not for deposit,” is explained immediately by the further expression, “and has not deposited same to the credit of said principal.” There is no doubt that the expression first used, “and not for deposit,” is to be interpreted in connection with the expression which follows, “to the credit of said principal.” And the deposit which is referred to, as we said in the Hall Case, means a regular deposit to the credit of the principal’s checking account, and with, his consent or approveal, either express or implied. A bank that receives as agent an instrument for collection and remittance, and not for deposit, cannot deprive the sender of his lien, by depositing the proceeds of the instrument to the credit of the principal, and then failing and closing its doors before the principal has had an opportunity to approve of the deposit, and thereby to become an ordinary creditor of the bank.

It is argued for the appellants that, in this instance, the instrument, which was sent to the Hibernia Bank & Trust Company for collection and remittance or delivery, as agent, was not intended for “remittance or delivery *to its principal,”*but was intended for remittance or delivery to the bondholders. Hence it is argued that that one of the stipulations of the statute is lacking. Our opinion, on the contrary, is that the expression means for remittance or delivery to the principal or order. It is true that statutes conferring a lien must be construed literally, not liberally; but that does not mean that such statutes shall be construed so literally and strictly according to their words as to deprive them of their application to cases which they are manifestly intended to apply to. It is not a liberal construction, but. only a reasonable construction, of this statute, to say that a remittance or delivery of a sum of money to a person designated by the owner to receive the money constitutes a remittance or delivery to the owner of the money.

It is argued, finally, for the appellants, that the act of 1926 was not intended to apply to a case like this, where the instrument was sent to the bank not merely for collection and remittance or delivery to the sender, but for the purpose of paying an obligation of the *580sender. ' It is trae that the main purpose of sending to the Hihernia Bank & Trust Company the check on the Whitney National Bank was not merely to collect the check, but to pay the bonds and coupons which were payable at the Hibernia Bank. That means that the authority of the Hibernia Bank & Trust Company; as agent for Jones county, Miss., extended further than to collect the check. But the agency or mandate' incuded the authority and duty to collect the check; and the fact that, the mandate went further, and included also the authority and duty to remit or deliver the proceeds to the bondholders, does not take the case out of the provisions of thé statute.

The judgment is affirmed.

HIGGINS, Justice

(dissenting).

My views are not in accord with the majority opinion.

In the agreed statement of facts it was stipulated:

> “(5) That if I-I. H. Chambliss and IX U. Maddox, officers of said Commercial National Bank & Trust Company were called to the .stand they would each testify that remittances for Jones County to cover prior maturities of this series of bonds to the Hibernia Bank & Trust Company were made in exactly the same way as this one, accompanied by letters similar to Exhibit ‘C,’ without any actual notice of the manner in which said Hibernia Bank & Trust Company handled the funds between the receipt thereof and payment of bonds and coupons.

> “That the Hibernia Bank & Trust Company sent to the Clerk of the Board of Supervisors of Jones County, Mississippi, statements as of March 1,1933, May 30,1932, and November 13, 1932, respectively, copies of which statements are attached hereto and will be offered and filed in evidence and marked Defendants ‘4,’ ‘5’ arid ‘6’ respectively; that said statements were receipted for by the Secretary of the Board of Supervisors, which said receipts are annexed hereto and will be offered and filed in evidence and marked Defendants ‘7,’ ‘8’ and ‘9,’ respectively; that the said three statements are samples and conform with similar statements rendered by the Hibernia Bank & Trust Company to the Board of Supervisors of Jones County, Mississippi, covering previous remittances by Jones County to the Hibernia Bank & Trust Company for the payment of bonds and coupons maturity at six months intervals prior thereto.

> “(6) That the funds received from Jones County for the payments of the bonds and coupons due March 2, 1933, as well as the funds received by the Hibernia Bank & Trust ’ Company for the payment of prior maturities of bonds and coupons of the same series, were not segregated by the Hibernia Bank & Trust Company, but were co-mingled with the general funds of the Hibernia Bank & Trust Company.

> “(7) That the holders of bonds and coupons of the said series of Jones County which matures March 2, 1933 and at six months intervals prior thereto, did not present their bonds and coupons for payment promptly on the maturity date and did not present their bonds and coupons for payment all at the same time, as the said bonds and coupons were not all held by the same parties; and that the manner in which the said account was handled by the Hibernia Bank & Trust Company and the dates on which maturing bonds and coupons were paid is evidenced by the ledger sheets of the Hibernia Bank & Trust Company whieh are attached hereto and which may be offered and filed in evidence and marked Defendant TO’ and TT respectively ; it is being agreed by and between counsel for plaintiff and defendant that the said sheets are samples of similar ledger sheets of the Hibernia Bank & Trust Company covering bonds and coupons maturing at previous dates.”

> “(9) That Jones County, Mississippi had no ‘Checking Account’ .with the Hibernia Bank & Trust Company, but that there was set up on the books of the Hibernia Bank & Trust Company a ‘Jones County Bonds Payment Account,’ as well as another account known as ‘Jones County 3% Road Bond Coupon Account’ and that in said Bonds Payment Account and in said Coupon Account funds sent by Jones County for the payment of Bonds and Coupons were entered by the Hibernia Bank & Trust Company as shown by the ledger sheets hereinabove referred to and marked for identification Exhibits Defendant ‘B,’ ‘3’ and TO’ and ‘11,’ respectively, and that when said bonds and coupons were paid •by Hibernia Bank & Trust Company that said accounts were debited with the amounts and the dates of the said payments.

> “(10) That the sum of seven thousand nine hundred twenty and 00/100 ($7,920.00) dollars sent to the Hibernia Bank & Trust Company by Jones County in the form of the check referred to in paragraph four of the stipulations was entered in the books of the Hibernia Bank & Trust Company as follows, to-wit: six thousand and no/10O ($6,000.09) dollars in ‘Jones County, Bonds Payment Account’ ua-*581der date of February 24, 1933, the said six thousand and no/100 ($6,000.00) dollars being entered in the column headed ‘Credits’ with the entry ‘By deposit to pay bonds due 3/2/33’ with the balance of said funds, to-wit, the sum of one thousand nine hundred twenty and no/100 ($1,920.00) dollars being entered in the ‘Jones County, Mississippi Coupon Account’ under date of February 24, 1933, in the column headed ‘Credits’ with the entry ‘Deposit’ under the heading ‘Coupon Ño. 34, maturity March 2, 1933,’ all of which will more fully appear from the photostats of the-ledger accounts. * * 3⁄8 ”

One of the statements sent by the Hihernia Bank & Trust Company to the board of supervisors of Jones county, and the acknowledgment thereof, are as follows:

> “Hibernia Bank & Trust Company

> “New Orleans, La., 5/31/32

> “Mr. U. Y. Busby, Chancery Clerk,

> “Jones County, Miss.

> 1 “Laurel, Miss.

> “No. 3905.

> “Following is a statement of your Supervisors Cist. #2 6% Bonds coupon account, as of close of business 5/30/32, together with cancelled coupons as evidenced by said statement.

> “Please verify the correctness of this statement, and return the attached receipt properly signed.

> 

> “(Acknowledgment) No. 3905.

> “IMPORTANT — SIGN AND RETURN THIS RECEIPT.

> “Received from the Hibernia Bank & Trust Company, cancelled coupons aggregating $6,-510.00, as evidenced by statement rendered at close of business 5/30/32.

> “Jones County, Miss.

> “By W. L. Busby, Clerk,

> “By Chas. T. Walters, D. O.”

It is the uniform jurisprudence of this state that statutes conferring a privilege must be strictly construed and cannot be extended by implication or analogy.

In the case of Boylan’s Detective A. & P. Police v. Arthur A. Brown & Co., 157 La. 325, 102 So. 417, 419, it was held:

> “No considerations of equity can enter into the determination of the right of privilege. If the law does not grant the privilege, the court is powerless to do so. The rule is too familiar to need citation of authority that privileges are never allowed, except when expressly granted, and only by virtue of compliance with the legal requisites essential to their creation and existence.”

In the case of Ittman et al. v. Kracke & Flanders Co., 12 La. App. 672, 127 So. 106, 107, it was held:

> “In order to establish a lien and privilege * * * the defendant in rule must be able to invoke some pertinent and applicable codal or statutory provision creating such a lien or privilege.”

In the case of Dodd v. Horan (La. App.) 121 So. 323 (syllabus) it was held:

> “Under Civ. Code art. 3185, privileges are stricti juris, are not created by covenant, and can be allowed only in eases where they are expressly granted by statute or Code.”

See, also, Red River Coast Co. v. Pierce Petroleum Corp., 165 La. 565, 115 So. 752.

An analysis of the provisions of the statute (Act No. 63 of 1926) shows that three things must concur before the statute is applicable:

> (1)The holder or owner of the check, draft, note, etc., must send it to the "bank as agent, for collection and remittance or delivery to the principal.

> (2) There must be an actual collection or realizing by the bank, as agent, of the proceeds represented by the check, draft, note, etc.

> (3) There must also be an agreement, expressed or implied, that the cheek, draft, or note, etc., was received for collection and remittance or delivery and not for deposit.

The word “deposit,” as used in the act, is not synonymous with “checking account.” It is a general term and it obviously covers or includes not only- checking accounts and savings accounts, but also any kind of an account where a special deposit is made. In short, it is immaterial what kind of a deposit the owner and forwarder of the paper impliedly or *582expressly authorizes the bank *to make,*for if he does authorize the making of a deposit of the proceeds of the check, etc., the act under its express provisions has no application to the transaction. Of course, the making of any kind of deposit requires a bookkeeping entry.

The letter accompanying the check involved in this litigation did not expressly state whether or not the proceeds realized from the collection of the check were to be deposited. In short, the letter was silent on that subject. In the absence of expressed directions to. the bank relative depositing the funds realized from the check, we must look to the intentions of the parties, which must be gathered and determined from the facts surrounding the transaction. S. E. Hall, Inc., v. Farmers’ Trust & Savings Bank of Lockport, 177 La. 659, .148 So. 909.

The fact that the bonds and coupons were owned-by various parties and the cheek was for a lump sum, which covered all of the bonds and coupons maturing on March 2d, makes it obvious that intervener authorized the bank to convert the check into cash. This was done on February 24,1933, and the bonds did not mature nor did the coupons become due until March 2, 1933. In the meantime, what was the bank to do with the funds? Keep them in species,, or make a deposit of them for a special purpose? It could hardly be said that intervener intended that the money was to be kept segregated and each bond and coupon holder be paid from that particular fund. If such had been the intention of the intervener, it would have so instructed the bank in the letter accompanying the check. The officers of the bank adopted the reasonable and business-like method of depositing the money for the purpose of payment. From this deposit, the respective amounts due the owners of the bonds and coupons who presented them on March 2d, and those presenting them tardily, could be paid. If there was any doubt that intervener contemplated a deposit for the purpose of payment, that doubt is eliminated by intervener’s conduct in acknowledging receipt of the semiannual statements, which showed that the money was deposited in a special account for the purpose of paying the bonds and coupons, without protest, or complaint, or request that the funds be segregated. Intervener’s silence under the circumstances amounted to approval, acquiescence, and consent to the method employed by the bank in depositing the funds. This is especially true, as the account had been running since February 28, 1927, and in the agreed statement of facts it is stipulated that the method of handling the semiannual maturities,, as far as remittance of the check, depositing the proceeds thereof, and payment of the coupons and bonds are concerned, was identical. The mere fact that the two officials of the Commercial National Bank & Trust Company, of'Laurel, Miss., if produced as witnesses, would testify that, while all these transactions were handled exactly in the Same way, they had no actual knowledge of the method adopted by the Hibernia Bank in handling the proceeds of the check, is immaterial, because the intervener for whom the bank officials at Laurel, Miss., acted as agent, had actual knowledge from the various statements received that the proceeds of the cheeks had been deposited in a special account in the Hibernia Bank, as a medium of payment of the coupons and bonds.

In the instant case the deposit was made for a special purpose and intervener had the right to withdraw the money from the bank at any time before it was paid by simply ordering the bank to return the money, because the principal can revoke the authority of his agent before the agent performs the act authorized. Staten Island, etc., Club v. Farmers’ Loan & Trust Co., 41 App. Div. 321, 58 N. Y. S. 460.

It is clear that the- statute does not create in favor of a special depositor a lien and privilege on the assets of the bank, to secure the deposit in the event the bank fails to carry out the purpose for which the special deposit was made, or return the money to the depositor.

If a person makes a special deposit of cash with a bank for the purpose of liquidating future maturing obligations, and the bank fails to pay out the money in accordance with the agreement of deposit, or to return the money to the depositor, the act does not give the depositor a lien and privilege on the assets of the bank. Practically speaking that is exactly what was done in the instant case. Intervener never sent the cheek for the purpose of collection, remittance, or delivery, but for the purpose of furnishing cash to be deposited and from which deposit the future maturing obligations, i. e., the bonds and coupons, were to be paid. The check was merely incidental to the main purpose of the transaction, i. e., furnishing cash to be deposited to pay the maturing bonds and coupons. While it is true that as between the bank and the depositor an injustice has been done, it must be remembered that this is really a eon-*583test between other innocent creditors and depositors and the intervener, a special depositor. The Legislature having confined the lien and privilege in favor of the owner of the check, note, draft, etc., and the proceeds thereof in the usual collection, remittance, and delivery banking transaction and not having extended it to a remittance for deposit for the purpose of payment, intervener has no lien.

Having concluded that the intervener contemplated when remitting the cheek accompanied by the letter that the funds realized from the check would be deposited in an account as a medium of payment, and having also acquiesced in this procedure and method of handling the money by the bank as a result of actual knowledge imparted to. it through the semiannual statements furnished intervener by the bank, it follows that Act No. 63 of 1926 has no application to this ease, because the statute does not apply to cases where the funds are deposited with the expressed or implied consent of the depositor.

Now, since the bank, as agent for intervener, permitted the proceeds of the check to be commingled with the bank’s general funds, so that it is impossible to trace or identify the res, intervener must assert its claim in the liquidation proceedings as an ordinary creditor. Tropical Printing Co., Inc., v. Union Title Guarantee Co., Inc., 180 La. 702, 157 So. 534, decided October 2, 1934, and authorities therein cited.

In the case of Gulley v. Wisdom, 69 F.(2d) 495, decided by the United States Circuit Court of Appeals for the Fifth Circuit, the court said:

> “Claimant to establish preferential lien against assets of insolvent bank has burden to show what he deposited and to trace it, receiver not being required to prove where the money in his hands came from.”

In the case of Wisdom v. Keen, 69 F.(2d) 349 — United States Circuit Court of Appeals, Fifth Circuit, where the bank agreed to hold $1,200 in cash, in escrow, to be delivered, not paid — the court said:

> “This is another of the multiplying cases in which the ratable distribution to all creditors of the assets of a failed national bank under 12 USCA § 194 is sought to be disturbed by the assertion of a lien upon them because of a commingled trust fund. * * *

> “The obligation was perfect to segregate and hold the cash. Equity if dealing with the bank alone might well consider that it had done what it should have done and might well hold it to the consequences. American National Bank v. Miller, 229 U. S. 517, 33 S. Ct. 883, 57 L. Ed. .1310. But in dealing with the distribution of the assets of an insolvent national' bank and with the requirement of ratable dividends to all claimants a more stringent adherence to what was actually done is proper. Here the bank agreed to segregate a trust res but never did it. By their mutual intent the bank’s relation to Keen was that of a trustee rather than a debtor, but there is still no. identifiable trust res traceable as such, *but only a liability for a breach of trust in failing to create the res. This liability, absent a statutory priority or lion, has no higher dignity than orbher general liabilities. As*1⁄8 *every general creditor the bank has failed, to do what it ought to have done and what it promised to do. The federal statute puts all suoh claimants on an equality. * * **(Italics ours.)

See, also, Pottorff v. Key (C. C. A.) 67 F.(2d) 833; Careaba v. McNair (C. C. A.) 68 F.(2d) 795.

For the reasons assigned, I respectfully dissent.'