ble, and eliminate the question of jurisdiction, it would be fatal to the action on the merits, because by their terms the notes in suit are not yet due. This construction of the statute, however, does not meet my approval. It would lead to the conclusion-indeed, it means-that an original holder or payee of such paper, though made without consideration, or made for fraudulent purposes, to which he was a party, may recover the amount thereof, not only from the trustee, who may or may not have intended a wrong, but from his bondsmen, innocent of any wrongful act or purpose. So interpreted the statute would be highly penal, and, by the rule of strict construction, I should be inclined to hold that liability in such cases does not attach to the Bureties on such bonds at all. The language of the act is "that any township trustee * '" '" shall be personally liable, and liable on,his official bond." The bondsmen, if included, are included only by implication, and the implication by no means impel'ative or necessary. A personal liability and a liability on an official bond are different, and the remedies to be bad in a suit upon one are different from those available in an action upon the other; and consequently the provision for liability on the bond is not meaningless or useless, ihough the sureties be not included. But, in my judgment, the liability declared by this statute is measured, not by the sum named in the forbidden contract or writing, but by the amount of the indebtedness evidenced thereby. By its terms the act applies to transactions in which a trustee "shall contract any debt;" and he is made liable, to the holder of the "evidence of Imch indebtedness, for the amount thereof." The indebtedness, therefore,-the value of the consideration recElived by the township, or, possibly, of that received by the trustee for the township,-is the measure of liability. The right of action is given, not upon the paper, but to the holder of it. It would seem to follow from this, and, as I nnderstand, it has been conceded in argument, that the right of action is transferable with the paper to successive holders; but I think it clear that an assignee acquires no different or better right, as against the trustee or his bondsmen, than that of the first holder. And while, in this view, the suit is not, in a strict sense, founded on the contracts expressed in the notes, it is, perba ps, so far incident thereto as to bring the case within the rule that the assignee of a contract cannot sue in a federal court when llis assignor could not. It may be, however, that the plaintiff's right of action, if any he has, is purely statutory, and not to be regarded in any sense as "founded on contract;" and if this be so, there is apparently no valid objection to the court's jurisdiction in the case. But, whatever be the ·right view of this subject, it is proper to decide the further question, fully argued by counsel, whether or not the complaint shows a cause of action upon the merits; because there are other cases pending, which were submitted and argued at the same
time with this, from which, by amendment of the complaints, the question of jurisdiction may be eliminated. Little need be added on this point. The conclusion bas already been declared that the recovery in such a case must be for the amount of indebtedness for which the notes were given. The complaint shows that the notes were issued in violation of law. The defendants are not party to them, nor bound-conclusively, at least-by them. They are not, in the sense of the Indiana Code, the foundation of the action, and need not have been made exhibits in the complaint. It may be that they constitute, even as against the defendants, prima facie evidence of the'indebtedness-that is to say, of the amount or value of the consideration-for which the trustee issued them; but, in my judgment, the copies set out in the complaint do not supply the want of direct averment in respect to that indebtedness. Whether or not it is necessary to show an indebtedness for which the township became legally bound, or only the value of the consideration upon which the notes were executed, need not now be decided. One or the other must be shown. Notwithstanding the illegality of the notes, and their consequent want of binding force upon the municipality, it may be that the township received, and has retained and used, the consideration in such way as to be liable in an action for the reasonable value; and, if so, the case is one in which an actual indebtedness may be shown. Or it may be that the trustee received the consideration, but converted it to individual uses, the township getting no benefit; and in such case a valid indebtedness, of course, could not be alleged; and this, regardless of inquiry whether the payee of the notes, the veudor of the goods for which they purport to have been given, acted in good or bad faith. If he acted in good faith, selling the goods at a fair price, and supposing that the township would get them, it would seem not unreasonable that he should have his remedy under the statute. But suppose he acted fraudulently? Leaving such qnestions for consideration when it shall be necessary to decide them, it is enough now that j in any view, the present complaint is not sufficient. Demurrer sustained.
BIDDLE V. FIBST NAT. BANK.
RIDDLE 11. FIRST NAT. BANK OF BUTLER, PA.,
with notioe to Campbell, Receiver of said Bank.
(Oircuit Oourt, lv. D. Pennsyl1Jania. April 21, 1886.)
BANKS AND BANKING-NATIONAL BANKS-CERTIFICATES OF DEPOSIT-POSTNOTES,
Certificates of deposit in the ordinary form, issued br. a nati'onal bank to depositors, and payable to order, are not post-notes, wIthin the prohibition of section 5183, Rev. St.
2. SAME-CERTIFICATE NOT DUE TILL DEMAND.
A certificate of deposit; payable to the order of the depositor on the retum of the certificate, is not due or suable until demand made and return of the certificate. The statute of limitations is not set in motion against a certificate of deposit by the appointment of a receiver for the bank which issued it. 1
3. SAME-STATUTE OF LIMITATIONS-RECEIVER.
The assets of a national bank in the hands of a receiver constitute a trust fund, in behalf of all creditors claims thereon valid and in full life when the receiver was appointed, WhICh the statute of limitations does not touch or affect.
The Pennsylvania act of April 25, 1850, which takes out of the operation of the statute of limitations suits against a corporation which may have suspended business, etc., applies to a suit brought against a national bank in the hands of a receiver. Under the findin/\,s of fact, held, that the certificates in suit were not extinguished or affected by a composition of certain claims entered into between the plaintiff and the receiver of the bank under the direction of the comptroller of the currency. While the plaintiff will be entitled to a dividend only upon the basis of the debt, and interest as of the .date when the bank suspended, in this suit against the bank interest should be computed to the date of judgment.
SAME-COMPOSITION OF CLAIMS.
In pursuanoe of a written stipulation, this case was tried by the court without the intervention of a jury. The following facts are therefore found by the court.
(1) The First National Bank of Butler, Pennsylvania, (the defendant,) issued, on the several datI'S thereof, and to the rl'spective payees therein named. for deposits of money by them made, certificates of depOSIt, of which the following are copies:
FIRST NATIONAL BANK OF BUTLER, PA., August 12,1878. "Mrs. Annie Riddle has deposited in this bank sixty-four 60-100 dollars, payable to her order on retum uf this certificate properly indorsed, 12 months after date, with interest at five per centum per annum. If not presenteu at maturity, it will be considered as a reuewal for same term, at same rate· ..ALEX. MITCHELL, Casbier." B., "THE FIR8T NATIONAL BANK OF BUTLER, PA., January 8,1879. "W. H. H. Riddle. Esq.· has deposited in this bank five hundred dollars, payable to the oruerof himself on return of this certificate properly indorsed. "$500. ' A L E X . MITCHELL, Cashier."
note at end of case.