| N.H. | Dec 15, 1861
It is claimed that the plaintiffs are entitled to a pro rata share of the money raised by the assessment, which was applied to the payment of other debts exclusively, on the ground that the directors were trustees, as well of the individual members having claims against the company, as of the company itself. The applicability of the rule is denied, because the claims thus paid were of earlier date than those of the plaintiffs, and, therefore, ought to be first paid.
We find the rule recognized in this State, on this subject, in the case of Colby v. Copp, 35 N. H. 434. “ The general rule clearly should be, that when an agent or trustee receives money generally, and he holds claims of different persons, to each of whom he is under the same obligations, he should apply the money ratably to the discharge of all the claims; and this obligation would be in no Avay affected by the circumstance that, if the debts were all his OAvn, he would have the undoubted right to apply the money to either of them, at his election. Every agent and trustee who has claims of his own, must be regarded as agent for himself and others, and bound to give his diligence and care equally to all the claims in his hands, and, consequently, to apply all moneys paid to him, without an appropriation by the debtor, to the payment of all claims in his
This principle seems to ns justly applicable to this case. The defendants were such agents and trustees, bound to apply the funds, raised by the assessment for the general purpose of discharging the debts and liabilities- of the insurance company, to the payment of all such debts ratably, and in just proportion to the amount of those claims.
The debts due were, in their origin, all of one class; that is, debts accruing upon the adjustment of losses upon policies. And, within the rule of equity in such cases, it does not seem to us that any sound distinction can be established in favor of the other claimants, on the ground assumed by the defendants that these claims are of earlier date than the plaintiffs’. The assessment was laid equally for the payment of all the debts, without reference to date; and we are unable to perceive tbat the debt contracted yesterday is not as much due in law and equity as that contracted a year earlier. Neither does it seem to us that the fact that the directors had become personally responsible for the debts which have been paid, furnishes any ground for preferring those debts. The rule is a just one, that an agent is bound to apply the same diligence to obtain payment of debts in his care that he does to recover his own ; and sound policy seems to require that the managers of corporations should be held strictly to this rule, that, when the corporations become embarrassed or insolvent, the directors may not apply the assets to exonerate themselves and leave the other creditors without remedy.
Upon this principle we are of opinion that the complain ants, are entitled to a decree for their ratable proportion of the money collected upon the assessment of October, 1857, against the defendants, who were directors of the company.