The opinion was delayed until 1845, and was then delivered by
It appears from the report and documents, that during the years 1837 and 1838, Judith Makin deposited with the treasurer of the institution certain sums of money upon the terms and according to the regulations prescribed by it. The plaintiff proved his intermarriage with the person, who made the deposit, and that he had given notice of his intention to withdraw the money; and that at a subsequent
The defence presented was an inability to pay all the moneys deposited, arising out of losses by which the value of the assets had been reduced fifty per cent, or more, without any neglect or fault on the part of the institution, or of its officers. Whether this can be considered a legal defence, must depend upon the contract between the parties; which is to be ascertained from the charter of the institution, and from its by-laws and regulations prescribed for making deposits.
The third section of the charter contains these words. “ The principal of such deposit may be withdrawn at such reasonable times, and in such manner as the said society shall direct and appoint.” The fifteenth by-law recognizes the right of the person making the deposit to withdraw it, and prescribes the times and manner of doing it. It contains,' among others, these words. “ Money deposited shall only be drawn out by the depositor, or by some person by him legally authorized; but no person shall receive any part of the principal or interest without producing the original book, that such payments may be entered therein, unless the trustees shall otherwise determine. No money can be withdrawn except on the third Wednesdays of January, April, July, and October; and one week’s notice before the day of withdrawing must be given to the treasurer; and no sum less than ten dollars of the capital of any deposit shall be withdrawn, unless the whole sum deposited by such person shall be less than that amount.” The twenty-third by-law states, “ the act of making a deposit shall be considered a sufficient assent on the part of the depositors to the by-laws and regulations of the institution.” The fourteenth by-law is, “ All deposits shall be entered in the books of the corporation, and a duplicate shall be given to each depositor, in which the sum paid by him shall be entered, and which shall be his voucher and the evidence of his property in the institution.” The regulations or terms, upon which deposits are to be made, are found in the duplicate book given to the person, who has made the deposit. The following state
Among other arguments presented in the defence, the plaintiff was met by one in limine, that it was not intended, that a person, who had made a deposit, should be legally entitled to withdraw the money against the will of the institution. And that it had not given an unconditional assent, that it should be withdrawn on certain days at the pleasure of the depositor. This argument is so obviously at variance with the language of the charter, by-laws and regulations, already quoted, that it might be sufficient simply to refer to them. But as it seems to be derived by inference rather from the organization and design of the institution, than from the language alluded to, it may be useful to consider, whether these authorize any such conclusion. And whether such a construction would not be subversive of the design, and destructive of the objects, or some of them, intended to be accomplished. The declared designs as stated in the charter are, to enable the institution to receive “ any deposit or deposits of money, and to use and improve the same for the purposes, and according to the directions herein mentioned and provided.” And among the directions named in the charter are the following, “and the net income or profit thereof shall be by them applied and divided among persons making the said deposits, their executors, or
Another position taken in defence is, that the institution is to be considered as the trustee and the depositors as the cestui que trusts, and that the losses therefore fall upon them. That some or all of them must bear the losses, when the institution cannot pay all, is undoubtedly true. And so must those persons, who have claims against any other corporation, which is in a like condition. But that the institution is to be regarded as assuming merely the responsibilities, which attach to a common trustee, who takes the money of the person to bo bene-fitted, and invests it for him, and accounts to him by delivering to him the money, or what remains after deducting losses, or the property, in which it has been invested, with its increase, cannot be admitted. Such a trustee makes no engagement, and none is implied by law, beyond that of acting prudently and faithfully in preserving, investing, and restoring the property, or what may not be lost without his fault. Such a trustee could not present the motives necessary to induce a deposit in a savings institution. Nor carry into effect the purpose of enabling the class of persons intended to be benefited to have their money placed, where it might be preserved and increased, and yet be returned t.o them whenever wanted to meet unexpected and necessitous calls. To present the motives and to accomplish the design held out by the institution, it was necessary, that it should assume additional and more onerous and responsible duties, than attach to a common trustee. Accordingly it is found, that the institution had undertaken to act in a different manner; and to assume liabilities of a peculiar character, and suited to carry into effect its special purposes. It proposed to proceed, not upon the well known principles of
It was also asserted in argument, that the funds of the institution were to be considered as a partnership fund. And it was proposed to apply the law applicable to partnership property to regulate the rights of all interested. But the doctrines of that law can have no proper application to this case. There is no union of interests or of rights between the plaintiff and the corporation. On the contrary, they are separate and