NATIONAL BANK OF RUTLAND V. HANKINSON.
561
NATIONAL BANK OF RUTLAND t1. HANKINSON. ,
(Oircuit OOU1't, 8. D. New York. COURTS-DEPOSITARIES-RATE OF INTEREST.
January 26,1888.)
.A state depositary for court moneys, whose charter provides for a payment by it of not less than, 3 per cen,t. per an,n,um upon court money held in its trust capacity, has no power to make an agreement with parties to a suit for the payment.of a different rate of interest. Such power to vary the rate is vested in the court, and when the order directing the deposit is silent as to the rate If interest, the charter rate will apply.
Alfred R. Page, for plaintiff. Millir. Peckham &- Dixon. for Union Trust Co· . LACOMBE, J. This action was originally begun in the supreme court of the 'state of New York by one Newton Kellogg, for whom the National Bank of Rutland has since been substituted as plaintiff. The original defendant was the Mutual Life Insurance Company. A motion was made by said company to interplead John H. Hankinson, an attaching creditor,which motion was granted, and on July 6, 1886, an order was entered sublltitutingsaid Hankinson and the public administrator as defendants, and providing that upon the insurahce company depositing the amount of the debt, less $10 costs, viz., $15,521, in the Union Trust Company, it be discharged from all liability to either the plaintiff or the parties so substituted as defendants. By the seventieth rule of the state court the Union Trust Company is named as one of seven trust companies in which court moneys may be deposited. In compliance with the terms of the order of interpleader the Mutual Life Insurance Company sent, by one of its employes, a copy of the order and a check for $15;521 to the Union Trust Company. The order and check were received by the company, and duplicate receipts given therefor as follows: "[Caption and Title.] This is to certify that the Union Trust Company has this day received from the Mutual Lif" Insurance Company the sum of $15.521, to be held subject to the further order of the court in the above-entitled action. Interest to be allowed at the rate of one per cent. per annum. [Signatures.] " It is stated in plaintiff's affidavits that the officers of the insurance company .did not become aware of the terms of the receipts or certificates of deposit until recently, but that circumstance is immaterial. Neither they nor their company had any interest in the fund, nor concern in itR ultimate disposition. The action was subsequently removed into this.cpurt. The plaintiff has prevailed, and an order has been entered (December 12, 1887) directing the Union 'l'rustCompany to pay over to plaintiff's attorneys "any and a,llllums of money deposited with the Union Trust Company to the credit of this aotion, pursuant to order of the supreme court, dated 1886, entitled 'Newton Kellogg v·. The Mutual Life Insurlnce Company,'togE;lthenvith interest thereon froUl the date of depositto 'v':33F.no.9-36
M2
, 'FEDltRAL REPORTER.
date of payment." Upon presentation of this order, and demand of payment, the trust company declines to pay interest at any greater rate than 1 per cent'. per annum" claiming that such rate was agreed uP9n, and that its charter does not require it to pay interest at a rate of not less than 3 per cent. per annum, where a different rate has been agreed will. upon; nor to accept any depOSit, or on any terms, By the coarter of the Union: Trust Company (Laws 1864, c. 316) it is given power "to receive moneys intrust and to accumulate the same at such rate of interest as may be agreed on, or to allow such interest as may be agreed, not exceeding in either case the legal rate." (Section 1.) The act also provides (section 3) that "every court into. which moneys may be paid by parties, or be brough.t by order or judgment, lIlay I by order, direct the same to be deposited with the said company." And it is further expressly provided (se'Ction 4) that" on any sum, of money, not .less than 8100, ,which shall be poUected or received by the said conlPany in its capa.city,ofguardian, .receiver, ordepositaryofmQneys in court, interestshall be allowed by the .llaidcompany of· qQt less than 3 per cent. ann\Ul.lly.,"etc. Manifestly.,in the absence of,any to .the contrary, the. pornpany, .if it takes court moneys, must pay ,thereon 3 per cent.: interest. Whether it can refuse to take such moneys, or may take them,$t an agreed rate lower than 3 per. OOI:lt., need not be now decided. No agreement for a less rate is shown here. ,.The order was notice to the company that,the $15,321 was "moneys in court." None but the court, which held these inoneys in tr.ust for. owners not then ascer.tained,andwhich under the. rule had the choice of depositories, could make such an.agreementwiththecompany. If the company not cal'e to take ·a. dap;osit, of court at .the statut.e rate: it shoUld decline to receive ,them· 'Unless the order or decree, :which a ,spealone evidences the court's Muon or cial rate. Upon the argument attlilltion was called to:thecircumstau(le that the order directing the deposit is silent as to rate of interest. That fact will nQtfl,va,il the Gompany"howeyer, because. in the ab$enoo of express provision,the statute rate :will apply·
"11
. HAMrtTON fl. SOUTllERN
NEV.
GOLD
& l::1ILVER
Co.
,(Uif'cuit 001l,.t, D. Neoada. December ,28, 1887.)
. The Ip.cator pf mining ground under U. S: Rev. St., prior to the actualJ)ay. ment oHtUl' purchase money; and the reception' by'hIm of the receipt 'there· -for, issued 11JY"'le register anllreceiver· of the. prO,lJlet a mere to purcllase,the, property, and a constable's sale of tlie l1line before payl1IeIlt, only passes that 'privilege. If the sale valid, .the purcnaser .can only step ·intothe shoes of the execution debtor, and th'ereby obtain a rigbl go. oIl; perform the necessary acts, pay the purchasemonllY, contest .rights,of other claimants, and the entry Bn4 receive the cer· '. tiBcate'of purchase himself..' If the judgment debtor subsequently performs
MIImiG:-LocATION OP,-RIGHTS UNDER..
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