Mattone v. Illinois Surety Co.

GUY, J. The action was brought upon a bond given by one Pesce and the defendant, as surety, under chapter 185, Raws 1907, as amend [237] ed by chapter 479, Laws 1908. Pesce conducted a private bank. Plaintiff was a depositor to the amount in suit. In April or May, 1909, according to the testimony, Pesce absconded, and his bank closed. The bond is to secure the obligation of Pesce, among other things, “to repay any money received on deposit as provided” by said laws herein-above cited, and to “duly account for and promptly pay the moneys or equivalent thereof received by him as aforesaid.” It is conceded that part of the moneys in suit were deposited prior to the giving of the bond. Defendant appellant urges that it is not liable until a demand is made upon Pesce for the return of the deposit. But, in view of the proof that Pesce had absconded, it is plain that a demand, if necessary, is excused. Am. & Eng. Ency. of Law, vol. 3, p. 839. Appellant’s next point is that no recovery can be had against it until plaintiff has proved his claim against the trustee in bankruptcy of Pesce, and then only to the extent of the balance then unpaid. In view of the condition of the bond that the principal will duly account for and promptly pay over all moneys, and that the security was given for a deposit in a bank, and not for an ordinary debt, this objection is not good. Moreover, the authorities cited in support of appellant’s position are to the extent of holding merely that a stay might properly be granted under such conditions; but, as no application for a stay was made by this defendant in the federal court, this ground of appeal is without merit. The bankruptcy proceedings operate only to discharge the bankrupt, and do not deprive the creditor of any right of action against other persons. See Collier on Bankruptcy, § 16, III, b, p. 305 et seq. Finally, the appellant urges that there can be no recovery against it for moneys deposited prior to the giving of the bond, as such a construction of the statute would make it “retroactive.” It is rather difficult to understand what defendant regards as the application of this term to the case at bar. But, whatever defendant may mean, it is sufficient to say that appellant was at liberty to refrain from giving any bond, and, on the other hand, it must be bound by the terms of the bond, whether the same secures the prompt payment of moneys deposited only after the giving of the bond, or during any term of years theretofore. This is not the case of a statute imposing either a tax or an obligation with a retroactive effect, but rather the case of a contract voluntarily given by the appellant, to the precise terms of which it must necessarily be held. From the language of the statute, which is substantially incorporated in the bond in the case at bar, it is evident that the deposits are spoken of as in przesenti, and that the depositor, as to any person then engaged in the business, is entitled to recover the then existing as well as future deposits. It would be exceedingly simple, had the Legislature so intended, to have limited the application of the bond to the repayment of moneys “thereafter” received or deposited. The bond in this instance was required by the statute as a condition of the banker continuing in business, and it was clearly contemplated that it should be applicable to all matters relating to such continuance in business. The judgment below is affirmed, with costs. All concur.