The question in this case arises upon a demurrer to the plea. The plea confesses the plaintiff's action to the amount of $655.22, and pleads in bar to the residue of the plaintiff's claim that proceedings had been had under the law of June, 1874, entitled "An act for the further protection of savings banks and savings bank depositors;" and that, on April 9, A. D. 1875, the bank commissioners, in conjunction with a justice of the superior court, had examined into the affairs of the bank, and found that one third of its deposits had been lost, and that the plaintiff's just proportion of the remaining two thirds amounted to the above mentioned sum of $655.22, and no more. The plea amounts, I think, to a sufficient allegation that the whole present value of the plaintiff's share of the deposits in the bank amounts to that sum, and no more. *Page 476
This brings us directly to the question whether a depositor in a savings bank is entitled, by getting ahead in what used to be called the race of diligence, to pay himself his whole demand out of the funds of the bank at the expense of his co-depositors. The question has only to be asked, to be answered in the negative.
In the case of Coite v. Soc. for Savings, 32 Conn. 173, the court say that savings societies "are in fact large incorporated agencies for receiving and loaning money on account of their owners. They have no stock and no capital. * * * They are merely places of deposit, where money can be left to remain, or be taken out, at the pleasure of the owner."
In the case of Bunnell v. The Collinsville Saving Soc., 38 Conn. 203, it appeared that the bank, having met with losses, and the directors having ascertained that the bank had suffered losses amounting to a sum equal to twenty-four per cent. of the deposits, voted that "the twenty-four per cent. of his balance, on January, 1868, be charged to each depositor to cover the loss sustained by the bank, it being understood that a dividend is to be declared in the same way to the depositors when all accounts are settled." The vote of the directors was substantially like the statute of New Hampshire, reducing the deposit accounts to the present value of the funds of the bank, and providing for a further dividend in case there should eventually be anything more realized.
The action was brought after the plaintiff had received his seventy-six per cent., for the purpose of recovering the remaining twenty-four per cent. It was held that he could not recover. PARK, J., arguendo, says, — "Had this institution wound up its affairs in consequence of this loss, the plaintiff would not have received any portion of the sum he now seeks to recover. * * * He knew, when he deposited his money, that he was placing it at hazard. He put it into the hands of the defendant to be used by it substantially as his agent for his benefit, and in the use so much of it as has been lost. What ground has he to complain?
"The assets this institution now has belong substantially to the present depositors. How can he obtain his loss? Shall he be paid out of their money? They have an equal right to be paid out of his. Substantially, he has lost the sum he now seeks to recover by his own act, through the instrumentality of his agent, and he has no cause to complain."
In the present case, it stands admitted on the pleadings that the defendants have confessed the plaintiff action for the whole amount of his share of the present value of the assets of the bank. There can be no hardship in holding him to this, because, by the provisions of the statute, if anything more should be realized out of the assets of the bank, he is to have his share.
This view of the case entirely avoids all question as to the constitutionality of the statute under consideration, because there never was and contract on the part of this bank to pay any more than the *Page 477 plaintiff's share what should be found to be the actual value of the deposits.
The charter of the bank, as well as the general law of New Hampshire, provides that the legislature may at any time amend, alter, or repeal the charter, but always so as not to affect any existing rights or liabilities. The charter of this bank must be taken, therefore, to be now amended by the provisions of the act.
It should be remembered that this case comes up on a demurrer to a plea by which, as I think, it is substantially admitted that the plaintiff's share of the assets of the bank amounts to no more than the sum confessed, so that the question is distinctly raised whether the plaintiff can recover more than his share of the assets of the bank.
From the charter of the bank, taken in connection with the general law — Gen. Stats., ch. 152, and Comp. Stats., ch. 148 — I infer that the depositors are entitled to their shares of the profits and bound to bear their shares of the losses according to the amount of their deposits, and each depositor is entitled to his share of the assets of the bank. I do not think there is any contract, express or implied, on the part of the bank, to pay any more.
With this view of the matter, I confess I do not see any room for the intervention of a bankrupt law at all, if there are no claims against the bank excepting those of the depositors. How can it be said, in any just sense, that the bank, under such circumstances, is owing debts which it cannot pay? Nor can I see of what use a certificate of discharge would be. The depositors are entitled to the aid of the statute, and, in the absence of statute provision, to the aid of chancery, to effect a fair distribution of the assets.
If there were anything conclusive as to the final result in the action under the statute of 1874, I should be extremely doubtful of its constitutionality, in so far as it attempted to provide for a permanent adjudication without notice to all the parties who are entitled to be heard.
The statute, however, does not, as I understand it, propose any final result, or deprive the depositors of the right to a full hearing before the proper tribunal for the purpose of determining the exact value of each depositor's share. There is nothing in the act under consideration, which I can see, which purports to interfere with or prevent the statutory provisions for winding up such banks whenever the bank commissioners think it expedient. The statute furnishes a very convenient mode by which the bank can be put in condition to go on if the depositors acquiesce; but it does not, that I can see, present the plaintiff, or any other depositor, from applying to the commissioners, and putting in motion the statutory provisions for winding up the bank and dividing the deposits.
Neither does it, in any way that I can see, interfere with the operation of the bankrupt law, if the bank should be so situated as to come within its provisions, — i. e., if it should be found to be owing debts which it could not pay, — to which the bankrupt law could apply. I do not now see how the claims of the depositors to their shares of the *Page 478 capital stock or deposits can be considered such a debt; but that need not be determined here.