I think the facts alleged placed Mrs. Mallett in the same position that she would have occupied if, on July 15, 1929, she had actually withdrawn the $13,647.14 and redeposited it on that date upon the express representations made by the officer of the bank. When an officer of a bank, knowing it to be insolvent, expressly represents to a depositor that the bank is in good financial condition and that the deposit will be perfectly safe, and thereby induces the making of a new deposit, or the continuation of a deposit which would otherwise have *Page 820 been withdrawn, the bank becomes the trustee ex maleficio of such funds, entitling the depositor to a preference. See 39 Cyc. 172, et seq.
ON REHEARING. Petition filed August 28, 1931 — Denied.