¶1 dissenting:
¶2 I concur in that part of the opinion which, as I interpret it, holds the plaintiff below to be entitled to a preference in the payment of his claim against the bank, if there be sufficient assets to pay all other preferred claims of the same class; I also concur in the holding that there should not be a final decree on the amount of the said claim until it is first determined that the assets of the bank are sufficient to pay all claims of the class to which that of the plaintiff belongs. I cannot agree that a decision on the question of interest should be postponed. That the defendant bank is insolvent may reasonably be assumed from the closing thereof and the appointment of a receiver to liquidate its assets, and, if insolvent, it necessarily follows that creditors will not be paid in full. The claim made that plaintiff’s claim should bear interest from the date of the appointment of the receiver and be paid in full before common creditors are paid, and the denial of that contention by the receiver clearly raises an issue of law which, in the public interest, and in aid of the prompt liquidation of closed banks, should be decided at this time. I entertain the view that, whatever may be the rule applied to preferred claims arising out of voluntary acts, or through the force of a statute, a fund held to be a trust created ex maleficio should bear interest and be paid in full before other creditors, common and otherwise preferred, are paid, but inasmuch as a majority of the court is of the opinion that a decision on the question of interest should await further development in the liquidation of the defendant bank, any discussion of the matter on my part at this time, would be premature. The only purpose of this note is to record my view that the question of interest raised on the record and briefs should be decided at this time.