Riddle v. First Nat. Bank of Butler, 27 F. 503

27 F. 503 | U.S. Circuit Court for the District of Western Pennsylvania | 1886

Acheson, J.

1. That the instruments sued on are post-notes, within the prohibition of section 5183, Rev. St., is a proposition to which I cannot assent. They are mere certificates of deposit, of the usual form, issued in the ordinary course of banking business, and are not designed or adapted to circulate as money.

2. A certificate of deposit, payable to the order of the depositor on return of the certificate, is not due or suable until demand made and return of the certificate. McGough v. Jamison, 107 Pa. St. 336; Daniel, Neg. Inst. § 1707a. Hence it is plain that the statute of limitations had not commenced to run against any of the certificates in suit at the time of the appointment of the receiver of the defendant bank. It is, however, contended that immediately thereupon these certificates became payable, and the statute of limitations was set in motion against them. But upon what principle the appointment of a receiver should have that effect is not clear to me. By virtue of such appointment, indeed, all the assets of the bank pass to the receiver, but, in his hands, in behalf of all creditors having claims thereon then valid and in full life, these assets constitute a trust fund which the statute of limitations does not touch or affect, (Heckert’s Appeal, 24 Pa. St. 482;)’and then the bank itself is not dissolved by such appointment, but it remains answerable to creditors, and liable to suit as before, (Bank of Bethel v. Pahquioque Bank, 14 Wall. 383.) But, without further discussion of the point, it is sufficient to say that this suit is excluded from the operation of the statute of limitations by virtue of the Pennsylvania act of twenty-fifth April, 1850, which reads thus:

“The provisions of the act passed the twenty-seventh March, 1713, entitled' ‘An act for the limitation of actions,’ shall not hereafter extend to any suit against any corporation or body politic which may have suspended business, or made any transferor assignment in trust for creditors, or who may have, at the time and after the accruing of the cause of action, in any manner ceased from or suspended the ordinary business for which said corporation was created.” 2 Purd. 1067, pl. 24.

A corporation put in the hands of a receiver is clearly within the purview of this act. -

3. The settlement recited in the sixth finding of fact did not, in terms, embrace or concern the certificates in suit; nor were these certificates in anywise involved in any of the suits mentioned in the proposition of compromise. They were independent claims, held by the plaintiff against the bank, the validity of which had never been called in question by the bank or its receiver. Now, of a certainty, it was not the intention, either of the plaintiff or of the receiver, that this settlement should impair the certificates, or prejudice the rights of the plaintiff therein. On the contrary, the express understanding between these two was that these certificates should be treated as of the money value of $1,600, and to that extent used as cash in the stipulated payment. That arrangement was fair enough; but not having been previously communicated by the receiver to the comptroller of the currency, that official was not bound to sanction it. No doubt his refusal to do so was proper. The written proposition, the acceptance of which he had authorized, called for cash, and he was entirely right in insisting upon a strict compliance with its terms. But when the full cash payment was made, and the certificates were returned to the plaintiff, the latter was reinvested with all his original rights under the same. If the comptroller had been acting under a misapprehension as to the scope of the proposed compromise, it was, perhaps, open to him, when his attention was called to these certificates, to withdraw his consent altogether, and, upon a timely application to the court, a revocation of the order for the settlement might possibly have been obtained. But this course was not taken, and to the consummated settlement such effect must be given as is consistent with fair dealing. Now, by no just interpretation of the terms of the settlement can it be held to have extinguished or affected those certificates. Under the evidence and findings, it is not to be doubted that they are valid and subsisting claims.

4. The settlement is expressed to be in full of all claims of the bank against W. H. PI. Biddle. This would embrace his liability on the notes mentioned in the eighth finding, and such, undoubtedly, was the intention; so that, on this ground, the defense of set-off to certificate B fails, even if otherwise it could have prevailed as against the plaintiff.

5. While it is true that the plaintiff will be entitled to a dividend only upon the basis of the debt and interest as of the day when the business of the bank was suspended by order of the comptroller, (White v. Knox, 111 U. S. 784, S. C. 4 Sup. Ct. Rep. 686,) still the finding here must include interest to this date, (Id.)

Upon the facts found, I am of the opinion that the plaintiff is entitled to recover the amount of his claim; and, accordingly, the court finds in favor of the plaintiff the sum of $2,751.32. Let judgment for the plaintiff bo entered upon the finding of the court.

NOTE.

Where a receipt for money declares that the sum named therein is “ due on demand,” and is " especially deposited,” it is not a promissory note, but a certificate of deposit, and the statute of limitations will not begin to run until demand has been made. Smiley v. Fry, (N. Y.) 3 N. E. Rep. 186.

A right to sue a bank upon a general deposit does not accrue, nor the statute of limitations begin to run, until a demand of payment, unless the demand is in some way dispensed with. Branch v. Dawson, (Minn.) 23 N. W. Rep. 552.

Semble, the statute of limitations begins to run from the date of a certificate of deposit payable on demand. Tripp v. Curtenius, 36 Mich. 494.