
    Bussing, et al. v. Thompson.
    The defendant, prosecuting the business of a banker, the plaintiffs, in November, 1855, employed him to act as their banker, receive their deposits, collect' their bills, etc., and credit them with the amount, agreeing- he might use the moneys and he agreeing to pay their drafts on him when presented, and interest on the balances at the rate of five per cent. They continued to act under this agreement, and on the 13th of August, 186Í, the plaintiffs remitted to the defendant a draft for $4000, payable the 25th, to be collected and passed to their credit, under this agreement. Defendant received it on the 15th, and collected it on the 25th, and used the money. On the 24th, he knew he was insolvent, and on the morning of the 26th, avowed his purpose to suspend, and did soon after the $4000 was collected.
    
      Held, that defendant did not receive the money in a fiduciary capacity. His failure after he received, and before the maturity of the draft, did not annul the agreement between him and plaintiff or convert him into a trustee.
    Also, that he did not convert the money to his own use “ wrongfully," within the meaning of that word, as used in the Code'; nor was he guilty, in judgment of law, of a fraud in using the money; nor was he guilty of a fraud in incurring the obligation to pay the $4000 to the plaintiffs.
    Therefore, also held, that the defendant could not be held to bail in an action to recover the $4000, he having failed to pay it, on a demand made subsequent to his failure. (Reported in 16 How. Pr. R. 97.)
    (At General Term,
    Jan., 1858.
    Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, J.J.)
     