In the view most unfavorable to the plaintiffs, no ground appears which authorizes the bank to keep without repayment any part of the money received from them. Doubtless the power of savings banks, in common with other corporations, is limited by the purposes for which they are created and by those which are named in the charter or act authorizing their existence; but even admitting that the receiving of the plaintiffs' deposits in the manner detailed in the case was foreign to the purposes of the bank's creation, unauthorized by its legalized powers, and within the prohibition of the statute (P. S., c. 165, s. 10), yet, as the deposits went into the general fund and to the use and benefit of the bank (that is to say, to the use and benefit of the general depositors, who are in fact the bank), well established principles require that a recovery should be allowed for the full amount of such deposits.
The transactions were in the nature of loans. The true relation between the parties is that of debtor and creditor. The plaintiffs' money when deposited became the money of the bank, and they became its creditors in every sense and for all purposes. Having no share or interest in the profits or earnings of the bank, the plaintiffs are not liable to be subjected to any part of its losses so long as the assets are sufficient to pay its debts. The general depositors cannot shift upon them any share of the burden which properly rests upon themselves alone. As owners of the bank, and of which they are not creditors in a general sense or for all purposes, the general depositors, who alone are entitled to share in the bank's profits, must bear its losses, and can rightfully claim such assets only as may remain after payment *Page 292 of the corporate debts. In brief, the general depositors in a savings bank stand in the same relation to its assets as stockholders to banks of discount (Cogswell v. Savings Bank, 59 N.H. 43, 45), and the standing of special depositors, like the plaintiffs, in the former, corresponds to that of ordinary business depositors in the latter, whose deposits are subject to payment on call.
The doctrine of ultra vires is no defence in this case, nor, if it can be held applicable to the facts, is the prohibition of private banking. By taking the plaintiffs' money, converting it to the bank's use, and enjoying its gratuitous benefit, the bank is now equitably and legally estopped to deny its liability to repay the money, whether the taking was with or without authority. Rich v. Errol, 51 N.H. 350, 360, 361; West v. Errol,58 N.H. 233, 234; Cogswell v. Savings Bank, supra; Conn. River Bank v. Fiske, 60 N.H. 363, 369, 370; Norton v. Bank, 61 N.H. 589, 590, 593; Railroad v. Railroad, 66 N.H. 100, 126, 127, 131, 132.
Petition granted.
CLARK, J., did not sit: the others concurred.