W. H. Tunnicliffe, as Liquidator of the Orlando Bank & Trust Company, an insolvent Florida banking corporation (Defendant below), Appellant, v. Barnabas F. Sears, (Complainant below), Appellee, 107 Fla. 669

Terrell, J. The bill of complaint in this cause was filed by appellee, as complainant and prays that a preferred claim be decreed in his favor and that certain funds held by the defendant, appellee here, be impressed with a trust for the payment of said claim. A motion to dismiss the bill was overruled, answer was filed, testimony was taken and on final hearing the prayer for relief was granted. This appeal is from that decree.

The pertinent facts out of which the sole question presented to us arose may be summarized as follows: The law firm o'f Dickinson and Dickinson of Orlando, Florida, bandied a real estate transaction for the appellee as counsel for a Mrs. Doolin of Jacksonville, Illinois, in which $2,480 was collected for Mrs. Doolin. Mr. O. P.

Dickinson carried this amount to the Orlando Bank and Trust Company, with whom he deposited it July 2, 1930, advising the teller and the president of the bank that he collected the money for the appellee, that he (Dickinson) had a small fee and other charges to be deducted from said deposit and that he was transmitting the balance of $2,123.75 to appellee by certified check. Dickinson forthwith drew his check for that amount and had it certified by the cashier of the bank in the presence of and to the knowledge of its president for the purpose of transmission and immediately forwarded it to appellee.

The bank closed. a few minutes after the deposit was made and the check was presented for payment in due course but was refused. The appellee filed his proof of claim with the appellant as Liquidator who refused to recognize it as other than a common claim. Under this state of facts was the decree of. the Chancellor adjudicating the claim to be preferred and subject to payment in full from the cash assets held by the bank at the time it closed correct?

Appellant contends that the money was placed in the bank to the account of Dickinson and Dickinson, that the bank did not contract for nor did it undertake to transmit the fund to appellee and that under such circumstances a debtor-creditor relation was created which was not changed by the mere certification of a check drawn by Dickinson against the fund.

When funds are held by an insolvent bank as agent, bailee, or trustee, and the assets of the bank are larger by that amount they constitute a preferential claim in the hands of the liquidator in favor of the owner and may be paid in full from the cash assets of the bank at the time it closed. Bryan vs. Cocoanut Grove Bank and Trust Company, 101 Fla. 947, 132 So. 481; Tinsley vs. Amos, 102 Fla. 1, 135 So. 397. The relation between the bank and the claimant of the fund is controlled by the intention of the bank and the depositor at the time of the deposit.

A check is certified when the cashier or teller writes across its face, over his signature, a statement that it is good when properly indorsed for the amount stated in the body of the cheek. It is drawn against funds of the drawer and is recognized by the officers of the bank as an appropriation of the amount specified to the payee named.

If the check in question had been drawn in the usual course and the certification implied nothing more than the face of the check indicated, then appellant’s contention would be convincing but when one deposits money in a bank and advises its officers that it is the property of another and that he is using the certified check merely as one of the bank’s facilities for transmitting the money to the owner, we think ’ the bank took the money for the purpose of its transmission and from the moment it was accepted it was so held and set apart for the purpose of paying the check when presented.

In other words, when a bank takes a deposit with instructions from the depositor that the deposit is for a specific purpose and no other, it partakes of the nature of a specific or special deposit and the relations between the bank and the depositor with reference thereto is that of principal and agent and title to the deposit remains in the depositor. Tinsley vs. Amos, 102 Fla. 1, 135 So. 397; Cochrane vs. Florida East Coast Ry., opinion filed December 19, 1932, 107 Fla. 431, 145 So. 217; In re: Citizens State Bank, 44 Idaho 33, 255 Pac. 300; Hall vs.

Sullivan, 123 Okla. 233, 253 Pac. 45; Central Bank & Trust Co, vs. Ritchie, 120 Wash. 160, 206 Pac. 926. The judgment below is therefore affirmed. Affirmed. Whitfield, Brown and Davis, J.J., concur. Buford, C.J., and Ellis, J., concur specially.