| Conn. | Jul 15, 1829
The question arising upon the facts in this case, is, whether the plaintiff is entitled to the benefits of the assignment, as a creditor of the Eagle Bank, by reason of an ordinary or special deposite of money in the bank ? And here it is obvious to remark, that this assignment was not intended for the benefit of the plaintiff. The leading object of the assignors, was, to secure what was deemed by them to be a meritorious class of creditors ; such as had reposed a special trust and confidence in the bank. And it is very apparent, that the plaintiff could in no sense be considered, by them, as falling within this class of creditors. It is equally certain, that he did not regard his claim on the bank as growing out of a deposite of moneys therein. Every fact in the case precludes such an idea. Every proceeding on his part was of a decidedly hostile character. The object, in the first instance, was, obviously, to produce, what is called a run upon the bank. His refusal to accept the draft, to receive the money when tendered, and the following up that refusal, by a suit at law ; all exhibit him in the character of a hostile creditor only. Such was his attitude when the assignment in question was executed. If then, he be entitled to come in as a favoured creditor, upon this fund, contrary to the intentions of the assignors, and opposed to the character, which he had uniformly sustained, in relation to the bank, it must be by force of some technical magic in the term deposite. I do not think there is any such magic in the term. And although the plaintiff may have been, and doubtless was, a creditor of the bank; yet he was not
Was he a creditor by reason of a special deposite ? A special deposite of money in a bank, I understand to be, where moneys (as bills in packages, or specie in boxes, for example,) are entrusted to the bank, not to be used, but to be kept safely, and specifically returned. There was clearly no such de-posite. The bills were not left for safe-keeping ; nor were they to be returned specifically. The object was payment and the counting was merely incidental to this. The mingling of the bills with the redeemed circulation of the bank, cannot affect the principle. This, under the circumstances, might have been, and probably was, a tortious conversion, and trover might have been maintained.
It has, indeed, been urged, that the moment the money was delivered to be counted, it became a special deposite, and so remained when the assignment was executed. It is sufficient, in answer to this argument, to observe, that it requires us to affix a meaning to the term, special deposite, not sanctioned by usage ; and at the same time, by thus extending its meaning, to defeat the manifest intention of the parties to the instrument. This I do not think, we are at liberty to do.
Again: The charter of the Eagle Bank provides, that “ The debts of the corporation, whether by bill, bond, or note, shall not, at any time, exceed fifty per cent, over and above the total amount of capital stock actually paid in, and of the moneys deposited in the bank for safe-keeping.” Now, can it be contended, upon a sound construction of the charter, that the bank would have hada right to make this sum of 91,762 dollars, 41 cents, the basis of indebtedness to fifty per cent, beyond its amount ? This surely cannot be contended for. This, therefore, was not a special deposite.
And there is still less ground to contend, that the plaintiff was a creditor, by reason of an ordinary deposite of moneys in the bank. An ordinary bank deposite is where a voluntary credit is taken with a bank ; and for which no bank note, bill, or similar evidence of debt is given ; and for whie4 there exists a right to draw unconditionally. In every such case, a special trust and confidence is reposed in the bank. The assent of both parties is essential to such a deposite ; it carries no interest; and no action lies for it, until demand made and refusal. Now, every fact in the case before us, decidedly ne
The assignment was made pending a suit, brought by the plaintiff against the bank, and when both parties, in relation to each other, maintained the attitude of determined hostility. It is very clear, then, that on the 21st of September, when the deed of assignment Was made, the plaintiff was not a creditor, by reason of an ordinary deposite of moneys in the bank, unless he became such by the entry made on the books of the bank on the 31st of August preceding. That entry, surely, could not have the effect of changing the nature of the plaintiff’s demand. It was not made with that view. He never consented, that it should do so. On the contrary, he continues to prosecute his action, and eventually recovers judgment for the amount of his demand, with interest. Not having reaped the fruits of that judgment; he now asks to change his character from that of a hostile, to that of a favoured and confidential creditor ; and thus to be let in upon a fund, obviously never created for his benefit. This, in my opinion, cannot be done. I would, therefore, advise the superior court, that the plaintiff’s bill be dismissed with costs.
Bill to be dismissed.
See note to United Society v. Eagle Bank, ante, 476.