'(66 of the officers of, the bank to believe that the .defendant Sowles was insolvent, and that the :m0rtgages were' made with, a view to give a preference to the .bank, :aitd as to whether the petition in insolvency was filed to be proceeded with when it was lodged with the judge of the court Of insolvency; The evid.ence claimedfu be newly discovered as to the first point appears to be so far merely cumulative, and its souroes were so well known to the defendants or their solicitors; that there is no ground apparent for opening the case on that subject. At first it seemed that the second point would be governed by the record,and that parol evidence would not be admissible to affect it in any way But the period of four months next befote the filing of a petition within which conveyances may be avoided is a sort of limitation, and it appears to be well settled that the time of commencement of judicial proceedings to avoid a statute bar may be shown by parol. Day v. Lamb, 7 Vt. 426; Gardner v.Webber, 17 Pick. 407; 2 Greenl. Ev. § 431. Therefore, this evidence may be admissible, and quite material. It appears to be in fact' newly discovered. Its materiality was not so direct and apparent that the failure to discover and produce it appears to amount t,o such laches that the defendants ought to be deprived of the opportunity to produce itnow, upon some terms. ' The question of terms is reserved. ' Proceedings upon the decree entered are stayed, and leave is granted to the defendants to take and file testimony as to the transaction of filing the petition of insolvency, at any time before December 1st, and, the plaintiff has leave to file testimony in answer thereto at any time before December 17th, on such terms as may be hereafter fixed.
Receiver, v. SowLEs and others, Assignees.
A decree will be stayed for the taking and filing of newly-discovered testimony which is material, and which could not have been produced OD the first. hearing.
In Equity., For statement of facts of this case, see Witter8 v. Sowles, ante, 758. Ohester W. Witters, for plaintiff. Willard Farrington and Henry A. Burt, for defendants, Assignees.
WHEELER,.J. This cause, has'how been heard on a motion by the defendants to take new testimony with respect to the reasonable cause , of the officers of the bank to believe the defendant Sowles 'to be insolvent, and that the transfer of the notes and securities in question was made
WITTERS 11. SOWLES.
with a view to give a preference, with respect to the filing of the petition in insolvency, and with respect to what the defEmdant Sowles did with the notes and securities when he discharged the debts to which they were applied from the books of the bank. The motion as to the testimony on the first point is denied, and as to that on the second point granted, for the reasons stated in respect to the motion in the other case between the same patties heard with this. The testimony' of Albert Sowles as to the other point appears to be in fact newly discovered, and to have been so far kept by him from the knowledge of the other defendants and their counsel that they ought not to be precluded from producing it now upon some terms. The question of terms is wholly reserved. Leave is granted to the-defendants to take and file testimony as to the transaction offiling the petition in insolvency, and to take the testi-' mony of Albert Sowles as to what he did with the notes and securities applied to the debts discharged from the books of the bank on January 25,1884, at any time before December 1st, and the plaintiff has leave to take and file testimony in answer thereto at any time before December 17th,on such terms as maybe hereafter fixed.
SOWLES and Wife.
(OVrc'Uit Oowrt, D. Vermont. November 1,1887.)
Rev. St. U. S.§ 5151, provides that "the shareholders of every national banking association shaH be held individually responsible, equally and ratably, and not one for another, for all contracts. debts, and enga/$'ements of such association, to the extent.of the amount of their stock therem, at the par value thereof, in addition to the amount invested in such shares." Held, that this section includes a married woman who holds stock in a national bank, and her separate property can be charged to satisfy an assessment leVied upon the shareholders on the Insolvency of the bank. ' And the liability of. the married w9man to respond to such assessment being personal u:llder this section, and the amount sought to be recovered being. a sum certain, the remedy to enforce the assessment' against the married woman. and to charge her separate property, is an action at law, and not a. bilI inequity. The contracts of a bank' are not contracts of the individual stockholders and where jln assessment was m,ade upon the shareholders of a national bank to satisfy a contractual liability, a married woman who held stock in such bank could"claim no immunity from the assessment on the ground that she had no legal capacity to contract.
In Equity. See case between same parties, ante, 130. Chester W. Witters, for plamtiff. Edward ..4.·. Sowle8. for defendants.