#### C. M. PALMER, J. H. PALMER, and M. V. PALMER, Trading and Doing Business as PALMER STONE WORKS, v. GURNEY P. HOOD, Commissioner of Banks, on Relation of PAGE TRUST COMPANY.

(Filed 20 June, 1934.)

Banks and Banking H ©—

The making of a deposit in a bank when same is insolvent to the knowledge of its officers does not entitle the depositor to a preference upon the bank’s later receivership.

Schenck, J., took no part in the consideration or decision of this case.

Civil action, before Sink, J., at April Term, 1934, of Stanly.

Plaintiff alleged that tbe Page Trust Company was a banking corporation, maintaining offices or branches within the State, and that on various days in February, 1933, and on the 1st, 2nd, and 3rd days of March, 1933, they had deposited various sums in said bank, aggregating $6,289.57.

Plaintiffs further alleged that at the time all of said deposits were made that said bank was hopelessly insolvent, and that the officers thereof knew of such insolvency at the time said deposits were received. It was further alleged that on 3 March, 1933, the bank closed and thereafter Gurney P. Hood, Commissioner of Banks, took charge of the assets thereof for the purpose of liquidation.

Upon the foregoing allegations the plaintiffs assert that said deposits constitute a preference. The defendant demurred to the complaint upon the ground that the facts stated did not constitute a preferred claim.

The demurrer was sustained and the plaintiffs appealed.

T. B. Mommy and B. L. Smith for plaintiffs.

G. I. Taylor and U. L. Spence for defendant.

Pee OuRiAM.

Is a general depositor of funds in a bank, hopelessly insolvent at the time of making such deposits, entitled to a preference in the liquidation of said bank?

Preferences are usually created by statute or arise from the application of the trust fund theory. In re Bank, 204 N. C., 143, 167 S. E., 561. While there is abundant authority for the position asserted by the plaintiffs, this Court has consistently held that a general deposit such as disclosed by the present record, does not create a preference. Although there may be slight variations of fact, the case of Mfg. Co. v. Hood, 204 N. C., 349, 168 S. E., 523, and Mfg. Co. v. Hood, ante, 324, are determinative in principle.

Affirmed.

Schenck, J., took no part in the consideration or decision of this case.