E. I. Tinkham & Co. v. Heyworth

Mr. Chief Justioe CatoN delivered the opinion of the Court. Were this action against an attorney, for not paying over money collected, we should not hesitate to hold that case would lie. W e think it is different in the case of a bank. Different duties and different' rights arise in the two cases. The bank receives no fee for its services, but only the use of the money until it shall be called for by the creditor, while the attorney is entitled to a direct reward, and has no right to use the money at all, but must pay it over to his client immediately, without demand. Money thus collected never becomes the attorney’s money; he has no right to make himself the debtor of the client by crediting him with the amount, while the bank may place the money in its vaults as its own, and credit the customer with the amount, and thereby become the debtor of the customer, the same as in case of an ordinary depositor, and this, whether the customer keeps an ■ordinary account with the bank or not. Such is the universal custom with banks, and if we may not take notice bf this custom, it was abundantly proved on this trial. When the money is thus credited by the bank, it assumes every responsibility for its safety, while this is not the case with an attorney. In many respects, the undertaking is very different in the two cases. When this money was collected and placed to the credit of the plaintiff, the only relation between the parties was that of debtor and creditor, and the form of the action should have conformed to that relation. We think an action as for a tort would not lie. The judgment must be reversed, and the cause remanded. Judgment reversed.