DEVIN, J., took no part in the consideration or decision of this case. Civil action to establish preference, or priority of plaintiff's claim to funds in the hands of liquidating agent of insolvent bank.
The facts are these:
1. On 25 February, 1933, the plaintiff deposited with the Tarboro unit of the North Carolina Bank and Trust Company "for collection and credit" two checks, amounting to $2,836.99, "subject to final payment in cash or solvent credits," as shown by deposit slip, one drawn upon the National State Bank, Newark, N. J., and the other upon the First National Bank, Binghamton, N.Y.
2. These checks were paid by the drawee banks and final credit was given to the North Carolina Bank and Trust Company by its corresponding *Page 282 bank, the State-Planters Bank, Richmond, Va., on 2 March, 1933.
3. On 3 March, 1933, the North Carolina Bank and Trust Company went on a 5 per cent restricted basis, and later was placed in liquidation.
4. The plaintiff drew out 5 per cent of his account, including the checks above mentioned, between 3 March and 9 March, 1933. On 20 May, 1933, the plaintiff received a dividend of 12 per cent, or $308.90, from the liquidating agent.
The court, being of opinion that plaintiff was not entitled to a preference, entered judgment of nonsuit, from which he appeals, assigning error. That the relation of creditor and debtor existed between the plaintiff and the North Carolina Bank and Trust Company at the time of the latter's closing is clearly established by what was said in Arnold v. Trust Co.,195 N.C. 345, 142 S.E. 217. See, also, Bank v. Bank, 197 N.C. 526,150 S.E. 34.
The case of Textile Corp. v. Hood, Comr., 206 N.C. 782,175 S.E. 151, cited and relied upon by plaintiff, is distinguishable by reason of different fact situations.
The judgment denying priority of plaintiff's claim is correct.
Affirmed.
DEVIN, J., took no part in the consideration or decision of this case.