Bank Com'rs v. N.H. Banking Co.

• Citation: 74 N.H. 292,67 A. 583
• Parties: BANK COM'RS v. NEW HAMPSHIRE BANKING CO.
• Decision Date: 29 June 1907
• Court: Supreme Court of New Hampshire

67 A. 583

74 N.H. 292

BANK COM'RS

v. NEW HAMPSHIRE BANKING CO.

Supreme Court of New Hampshire. Hillsborough.

June 29, 1907.

Proceeding by the bank commissioners against the New Hampshire Banking Company for distribution of the funds of the bank in the hands of a receiver. A decree was entered in favor of general depositors for interest on deferred dividends after the commencement of liquidation proceedings, subject to exception by the depositors to the guaranty fund claiming the same interest Exception overruled.

The defendant bank began business in 1880, and received special deposits, constituting a guaranty fund under the charter (Laws 1879, p. 419, c. 131), to the amount of $125,00. Under vote of the trustees, general depositors were entitled to 3 1/2 per cent. per annum as interest upon their deposits in 1897, and that rate had been paid for several years prior thereto. April 29, 1897, the trustees, with the concurrence of the bank commissioners, voted that the corporation go into liquidation, and that the 3 1/2 per cent. interest promised depositors for the year ending April 30, 1897, be credited to the depositors' accounts and paid out on or after May 1, 1897. April 29, 1897, the clerk of the corporation sent notice to the general depositors that the 3% per cent. interest promised for the year ending April 30, 1897, would be paid May 1, 1897, and that the bank would then proceed to liquidate. This interest was paid as called for. In the process of liquidation, 100 per cent. has been paid the general depositors in various dividends. The interest on the deferred dividends at 3 1/2 per cent. amounts to more than the sum in the hands of the receiver. The general depositors and the depositors to the guaranty fund each claimed this sum.

George B. French, for Farley, receiver. Harry P. Greeley, for guaranty fund depositors. Burnham. Brown, Jones & Warren, Walter C. Harriman, and William H. Barry, for general depositors.

PARSONS, C. J. The defendant bank, under its charter, was authorized to receive deposits of money on such terms and conditions as might be prescribed by it or its trustees, or be agreed to by the parties making the same, and to receive special deposits to constitute a permanent guaranty fund. Laws 1879, p. 420, c. 131, §§ 2, 3. The charter contemplates two classes of depositors—"general depositors" and "special depositors for the guaranty fund." In the ordinary savings bank the general depositors in some respects are stockholders, and their claims in case of insolvency are postponed to the claims of creditors. Francestown Savings Bank Case, 63 N. H. 138, 142; Hall v. Paris, 59 N. H. 71; Cogswell v. Bank, 59 N. H. 43; Simpson v. Bank, 56 N. H. 466, 22 Am. Rep. 491. But by force of the special provisions of the defendants' charter, as between the "general depositors" and the "special depositors for the guaranty fund," the general depositors stand as creditors and the special depositors as stockholders. The general depositors have no part in the management of the bank or share in its profits. They are entitled merely to interest upon their deposit and to its repayment according to the terms upon which it was entrusted to the corporation. The special depositors may vote in the choice of officers, being entitled to one vote for each $100 deposited, are not entitled to interest, but are entitled to share in the net profits of the bank. Their deposit is taxable as stock in banks, and the fund created by these deposits the bank is obliged to keep as a guaranty for the repayment of the general deposits. Laws 1879, p. 419, c. 131.

By force of the relation created by the...