The phrase "she undertook to withdraw her entire savings account from the bank and was in the act of withdrawing the same," as used in the opinion and alleged in the bill, must be interpreted in the light of the rules and regulations imposed by the bank governing savings accounts and which were printed in the savings account book. When Mrs. Mallett therefore undertook to withdraw her entire savings account the bank was open for paying checks, she presented to the proper officer or employee of the bank her check for the amount she desired to be paid to her and at the time produced her pass book or savings account book, that she had a right to control the deposits made by her in the Savings Department and "was in the act of withdrawing" the deposit when the deception of the bank official, constituting the fraud in the case, was perpetrated upon her. There was no denial of the validity of her check, nor of the bank's duty to immediately honor it. In fact the circumstances in which the deception was perpetrated constituted an acceptance by the bank of the written demand for the money as evidenced by the check and pass book, even if there was not an actual placing of the legal tender upon the window ledge in front of and under the hands of Mrs. Mallett. The check was accepted and in law the relation of debtor and creditor ceased.
If there had been a bank robbery at that time and the money swept into the bag of the brigand, Mrs. Mallett would have been the loser so far as the bank was concerned. Her cause of action would have been against the thief who with force and through intimidation and fear took her money. But it was as effectually taken from her by the deceit and fraud of one who, though not armed with a pistol or deadly weapon, just as effectually swept the money from the possession of Mrs. Mallett into the vaults *Page 819 of the institution which by fraud, deceit and abuse of confidence took it from her.
In these circumstances to speak of continuing the relation of debtor and creditor is mere "learned talk" in which substance is sacrificed to form and dishonesty and fraud prevails over innocence, right and justice. The relation of creditor and debtor ceased when Mrs. Mallett presented her check accompanied by the pass-book to the proper employee or officer at the proper place and was employed in the act of withdrawing her money. Then up comes the person with evil and vicious purpose, in this case, according to the statement of facts, a bank official with fraudulent and deceitful words and promises and not a robber with a pistol and takes in the name of the bank Mrs. Mallett's money back into the possession of the bank.
I am of the opinion that in such circumstances the transaction did not renew an old but established a new relation between Mrs. Mallett and the bank in which the latter became a trustee of the money which Mrs. Mallett allowed it to take again into its possession under the influence of the deceit which it practiced upon her.
The order sustaining a demurrer to the bill was erroneous on that phase of the case, as well as it involved the $8150.00 which the bank afterwards refused to pay on Mrs. Mallett's check.