Knobeloch v. Germania &c. Bank

Citations

• 43 S.C. 233
• 21 S.E. 13
• 1895 S.C. LEXIS 155

Syllabus

<p>1. Bank — Checks—Trust—Calendars.—-In action to hold a bank responsible for moneys drawn out by an executor on his check as executor, on funds to his credit as such, with knowledge by the bank that it was his purpose to misappropriate the amount of his withdrawal to his personal uses, the bank would be liable only by reason of its collusion with a breach of trust towards the cestuis que trust; and such issue being in chancery, the proper docket for the case was Calendar 2.</p> <p>2. Administrator De Bonis Non — Fraud op His Predecessor. — -An administrator de bonis non cum, testamento annexo cannot maintain an action to</p> <p>• invalidate a completed transaction between the executor, his predecessor in office, and a bank, even upon allegation of a fraudulent misuse of funds of the estate by such executor with the knowledge and collusion of the bank.</p> <p>3. Pleadings — Issues—Matter not Considered Below. — The court will not hold that plaintiff, by failing to object by demurrer or answer, had waived its right to question plaintiff’s legal capacity to sue, where the defendant had notified plaintiff in writing of its intention to demur orally to the complaint at the hearing, on the ground that it did not state facts sufficient to constitute a cause of action, and where the point here raised was not made nor considered on Circuit.</p> <p>4. Statutes — Rules op Court. — Can a rule of court contravene the rights secured to suitors by statute?</p>