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 He had implicit faith in the integrity of it and its officials. He was transacting business with the bank as such, and not with the officials individually. In the transaction here under consideration he was deceived and defrauded; his money was invested in a worthless security. He was led to do this through the wrongful acts, misrepresentation, and deception of one of the principal officials of the bank. In such circumstances the bank should not be permitted to escape liability.

Though the facts were somewhat different in the case of Keith v. First National Bank, 36 N. D. 315, 162 N. W. 961, L. R. A. 1917E, 901, it was there held, in substance, that, where the officer of a bank transacts business with customers, which business the bank is authorized to do, or which is incidental to its ordinary and regular business, and in the course of the transactions violates the trust relations between the bank and the customer, the bank was liable for any damages thereby suffered by the customer.

The same principle is applicable to the case at bar, and, in reality, is the principle invoked in the main opinion.

FRED E. MERRICK, as Executor of the Will of William J. Morgridge, deceased, Respondent, v. RALPH WALDO PRESCOTT, et al., Defendants; RALPH WALDO PRESCOTT and WALLACE M. PRESCOTT, Appellants.

Statutory provisions-existence of will must be proved.

1. In this state a will cannot be proved as a lost or destroyed will unless the same is proved to have been in existence at the death of the testator, or is shown to have been fraudulently destroyed during his lifetime.

Wills-petition to prove will as destroyed document held insufficient.

2. In the instant case it is held that a will alleged to have been fradulently destroyed during the lifetime of the testator is not shown to have been so destroyed.