W, W.Erwin: and E. F. Lane, for plaintiff. Lusk &: Bunn, for defendant.
.BREWER, J. A demurrer was argued in this case, and I shall confine myself to a single issue raised therein.· I think it. settled law that a corporation can be held responsible for a tort, even to the extent of holding it liable for a tort of such a character that a court would call it so wanton as to be malicious; and that a master may be responsible for an assault and battery committed by one of his servants, Whether that assault and battery be committed upon a co-servant or a stranger. I also take it to be settled under the rules of pleading that what was equivalent to a common count under the old practice is good now as against an objection raised by demurrer; and I think that is all that can be said about this pleading. It'alleges that the defendant, by one of its employes, committed an assault and battery upon the plaintiff, another employe. That is the allegation in the pleading of a substantive and ultimate fact. What the particular facts may be, whether that assault and battery was committed in the line of his employment, and in the discharge of a duty which he owed the defendant, the master, as an employe, does not now appear. Of course, I do not mean to sanction the idea that if one of defendant's employes gets into a quarrel with another employe and assaults him, the master is liable. But the allegation of the pleading is general. The complaint says that the plaintiff was a porter, and the other employe a conductor on the same cars; but under what circumstances the afjlsault and battery was committed is not disclosed. It is set up, as in the old-fashioned common count, that the defendant, by one of its employes" committed an assault and battery upon another employe, and ,that is all. I will overrule the demurrer, with leave to answer in 40 .4ays. There are one or two other errors alleged beyond this,but I do not deem them sufficient to warrant me in taking notice of them.
(Oircuit Oourt, D. Vermont. July 21, 1888.
BANKS AND BANKING-NATIONAL BANK-SHAREHOLDERS-MARRIED WOMEN.
Rev. St. U. S. 5151, providing that shareholders of national banks shall be responsible "(or all contracts, debts. and engagements of such association to the extent of the amount of their stock therein," applies to a married woman who is such a shareholder. and she is liable for an assessment upon stock . held by her, whether she acquired the same by subscription, purchase, bequest, or otherwise. Following 82 Fed. Rep. :/67. .
At Law. Action by Chester W. Witters, receiver, etc.', against Edward A. Sowles and Margaret B. Sowles, his wife, to recover an assessment on bank stock held by the latter.
WITTERS V. SOWLES.
Chester W. Witter8, for plaintiff. Edward A. Sowles and Kittredge Haskins, for defendants.
,\VIlEELER, This suit is brought to recover an assessment to the par value on 400 shares of $100 each in the First National Bank of St. Albans, of which the plainti ff is receiver, held by thefeme defendant. The defendants have demurred to the declaration, and the cause has been heard on that demurrer. The plaintiff first brought a bill in equity against these defendants to enforce this liability. The defendants demurred to the bill on the ground that a married woma n could not be holden for such an assessment; and that, if she could, the remedy in that case would be at law, and not.in equity. The question of hE-r liability was then examined, and held to exist, but the nature of it was found to be such that there was no jurisdiction in equity to enforce it, and the bill was dismissed for that reason. 32 Fed. Rep. 767. The defendants insist again, here, that this liability rests upon contract; that the contracts of married women, in Vermont, at the time when the liability accrued, if at all, were wholly void, and that therefore no liability was created. Some books and cases not referred to before have been produced now, and the subject has been re-examined. That the liability for such an assessment rests upon contract, and not upon any incurring of a penalty or tort, is true, (Richmond v. Irons, 121 U. S. 27, 7 Ct. Rep. 788;) and that married women could not at that time by their mere contracts bind themselves to the payment of money, in Vermont, is also true. But the contracts sought to be enforced are the contracts of the bank,and not those of thi!! feme, or any shareholder. . Without the statute she would not· be liable in this direction at all. That makes the shareholders' of everv national association responsible "for all contracts, debts, and engagements Qf such association to the extent of the amount of their stock therein." Rev. St. U. S. § 5151. The contract is the contract .althe bank; the shareholders have nothing whatever to do about making it. The law their obligations byits own force; no actor capacity to act on thei,r part is required. The declaration well sets forth that the f&me defendant was the shareholder of these shares,and that proper proceedings .were taken to fix this liability. facts are admitted by the demurrer. The declaration, therefore, sets forth a 'good cause of action, if married women are included 'by the genera.l words of the statute. That they are included is shown by the case. of The Recip-rocily Bank, 22 N. Y. 9; Sayles v.Bates, 5 Atl. Rep. 497; and Hobart v. Johnson, 19 Blatchf. 359, 8 Fed. Rep. 493. By taking the position of a shareholder she placed herself within reach of the statutory obligation. She could become a shareholder in various ways: by subscribing for the stock; by purchasing it; or by accepting it as a gift or bequest. The mode of acquisition would make no difference. Assent, at least, is required to becoming a stockholder in any manner; and that is sometimes referred to in connection with this liability. This reference is not, however, understood to signify that the assent or contract involved in becoming a shareholder is of any materiality beyond accomplishing that v.35F.no.9-41
relation. No agreement to become liable, or pre>test against liability, would add to or take from the statutory obligation; and no contract or assent is involved beyond what is necessary to acquire the stock. Consequently no capacity would be required outside of what would be sufficient for that. This liability is an incident to holding the shares, like that to pay taxes. on them. The coverture does not appear to afford any exception from either. Many cases have been' referred to in argument bearing upon the manner in which married women and their property may become bound, and how they may be proceeded against; but as this case is not understood to rest upon any contract of the ferne defend, ant, they do not appear to have any important part in determining the questions involved, and are not further referred to. The relation of shareholder, admitted by the demurrer, appears to carry with it the liability of .the defendants. The demurrers must therefore be overruled. On motion of thedefelldants, however, leave to withdraw the demurrer and replead'is granted. Demurrers overruled, with leave to defendants to withdraw them and replead by August 10th next·.
BREED 'l7. NORTHERN PAC.
(Oircuit Oourt, D. Minnesota. June 19, 1888.) 'In an action for personal injuries resulting in the death of plaintiff's intestate,received in the territory'of'Dakota. the case having been begun in a " state court and removed to the United States circuit court, the latter court, :will take judicial notice of the Dakota. statute giving the right of action to the representatives of the deceased, although the statute was not pleaded or proved.' .' 2.'NlI:w, TRIArr-oDISCRETION OF OOURT. Where an ,action for injuries roceived in the territory of Dakota, begun a state court and removed to the United States circuit court, has been prosecuted by the personal representatives. upon the theory' that there is a statute in Dakota giving the right of survival. and there is in fact Buch a statute, a.motionfor 8 new trial on the. that the statute was not pleaded or proved, to the discretion of the court, will not be granted.
t .. ,
At Law. On motion for new tnal. , Action by D.F. Breed" administrator,· against the Northern Pltcific Railroad Company, forperse>nal injuries resulting in the death of plaintiff's inteslate.' . '0. D. O'Brien, for plaintiff. John O. BuUitt, for defendant.
BREWER, J. This is a motion for anew trial. . The case was tried before JudgeN'EtJl()N, who heard the motion for anew trial, and overruled all points save onei which he referred for future argument before me. The decedent was injured and killed in the territory of Dakota, and this actionis brough.t by the administrator to recover for his death. Of course,