tI:te to fixtheilIabihty of shareholders durmghls hfe, appears. ' If there' had been shena judgment; bim alone 'c;o111d not set off against this joint debt. Gray v. Rollo.. 18, Wall. 629; Beauregard; , v. 0111e;9,lU. S. 134."; nis esta1.emay be liable directly to the creditors,01' tQ"contl'jbl1tion; bilt that does not show that either of the persons entitled to this recovery is liable on account of his stock. In the pl.;tintiffs' brief, and in argument,he and MC,Millllnare mentionl'ld as havin/li been partners in the transaction; but in the bill they are set-'up as metelyj,oint creditors. , In either case, upon his death the debt agaihat the corporation survived to McMillan. 1 Chit. PI. 11; 2 Redf. Wills., 952. This survivorship 'So completely vested" 172; 'Wood, this oeoi.-iil the survivor that it could be joined in a suit with his own individual debts, and his individual liability could be set off against it. Slipperv. StidWne, 5 'ferm, 493; Frenchv. Andrade, 6 Term, 582; Wood, Colly. Partn. 1105.. Althoitgh, for some reasons notapparE'nt here, the administratrix in Michigan was joined in the suit against the corporation in Ohio, the right is in McMillan alone, and cannot be affected by any d1l1m llgainstthe estate of Newberry. If, on adjustment between that estate and McMillan, some share should appear to bel<>ng to the estate, the fact thllit anything would>Bobelong is not alleg'ed in these pleas. The' supposed liability of one of these plaintiffs, on which these pleas are' founded, does not appear to exist; and they show DO good reason ,why 1 the suit shOUld not proceed. , The plea rests upon the idea that the judgment created a new two plaintiffs, which is the only one in-; cause of action in favor of volved here. ,As a judgment, it is a new cause of action; but it is founded l upon>one<existing before. ' It was notagainstthesEdndividualdefend-; ants,and does not merge their lia:bilityfor security of the pre-existing· debt; but was merely a step neceSsary to fix that liability. " ndoea',not' appear to stand in the way orany discovel'y or relief which wouldotberwise' be' proper to enforce that liability. ' Pleas insuflicielit.

",

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WELLESt1.GRAVES

et aZ.

(CircuU Court. N. D. IO'Wa, E. D. 'February 24,1890.)
L NATlON.ri. BANKS-UNLAWFUL

The perionalliability Of directors ofa natioual bank for violation of RevISti. U. B. § 5llO4,. by >4eclaring dividends j,n excess of net profits" and of fol' ' loaning to separate persons. firms, or corporations amounts exceeding one-tenth of the,capiml1stllok. cannot be enforced in an action at law. Unde,l' aeV. St. U,. S. §52i3\!, prOViding that, if the direct9rsof a national bank. shaUvillIate any of the pro'y'isiolUf of the tit,e relatfnjr to the orl\:anization and man- agement of ,banks. the' franchl.6es of the bank shaH be forfeited, 'suChVloliP.tion·. howjlver. to be.determined by': a proper court of the a suittAeI;ef-(ll': by 'the comptroller. and thatlIl" cases of 'such violation every dIrector participating
011 COMPTROLLER: (ro. AUTHOR1ZE SUIT·.

OJ!' DIREOTORS.

"

,

B.

460
tb.4'reIJ:lIlb.lIll be liable for all damages whioh the bank; Its shareholders, Or'&n10ther person shall have sustainl!d in oonsequenoe thereof, tbe comptroller cannotautborize the receiver to bring suit. under section 5284, to enforce such perit has been acljl,ldged by a proper court that, such acts have been done as authorize a forfeiture of the o'harter·
. . iI.

4. SAME, '.

The. forteitUl,'e (Jf the rights, prJvilegesl and franchises of a bank authorized by Rev. St.U.B.S 5239, for violatioJ;l bl its {lirectors of the provisions of the banking actioomes Within scction 1047, limitmgsuits for any penalty or forfeiture, accruing unaer the laws of the United States, to five years.

01' ACTIONS.

If tllepel'iJonal liability imposed by Rev. St. U. S. § 3289, upon directors for violation (Jf. the provisions of the bankip.g act, in favor of anyone injured thereby, can be. enforced without reference to w:h!lther the charter has been forfeited or not, i' . isuota penalty; Within the meabiIigof section 1047, limiting actions for penalties to flve years. . · , .
.. . . .' ..

5.

SAMB-8'l'ATBST.lTUTE.

The,provmonsof a state statute of limitations do not apply to a liablllty oreated . by aot of OOJl"reBS, unless so by oongress. .· .

At .Law., On. demurrer to petition. Williai7l.ffla/yJ,m and ThIYYTUl8, U[p!1egraff, for. plaintiff'. Q'lJonneUi for defendants. t,;,i4is is an action law brought by the plaintiff as receiver of National of Dubuque, Iowa, against the former thereof, under the prQvisions of section 5239 of the Revised the United States. The first count in the,petition avers that the said 'bank was organized Qnder title 62 of the Revised Statutes; that it became insolvent, and on the 20th day of May, 1888. it closed its doors, to dobu,sines8jthat on the 2d day Of April, 1888, the comptroUel':of the currency duly, appointed the petitioner receiver of SJl.idllank; ;that. the capital \[email protected] was$100,000j that the liabilities of sltid; bjl,nk a.-e, largely in ,excess of its assets; that the action is brought under, tbediDection and by the aQthority of the comptroller of the curihat'on the 1st day of Janl;'iar-y; 1882, the defendants, composing the boardof diJ.'ectors, declared and caused to be paid to the stockholders of said llanka dividelld of 5 per upon the capital stock, amounting to the sum of $5,000; that at aaid date the said bank had sustained losses exceeding its undivided profits then on hand; that the bad debts due the bank exceeded the net profits of said bank then on hand at the date of said dividend; which fact was well known to the directors, the defendants herein; that each of the defendants in and assented to the making of said dividend, 'Rndthe violation of section 5204, and that thereby the said sum of $5,000 was wholly lost to said banking association and its creditors, to their'damage in the BUni of $5,000. The second, third, fourth, fifth, ninth counts are forin, being based upon. the semi-annual dividends of 5 per 0Il·the 1st and January in the succeeding years,down to and including the latany of January, 1886. The remaining counts of the petition, 46 in number, are based upon violations of section .5200 of the Revised Statl;1tes, which provides that the liabilities of anyone persOn, company, corporation, or firm, for money,borrowed,shall not exceed, one time, one-tenth part of the capital stock of the
..:...", , . , , ' _. . ,.' ..' . " , . . . : . 'u

,at

oorporationactuaU, paid in; it being aterred in each count that, by reason of the special loan described in' such count, the liability of the named borrower was thereby increased, to an amount exceeding one-tenth part of the capital stock of the bank, the same being done with the assent of the defendants as directors, to the damage of the bank, its creditors and shareholders. To this petition a demurrer is interposed upon three grounds, the first being that the facts disclosed upon the face of the petition show that an action at law cannot be maintained thereon, the remedy being by a bill in equity. Under the counts charging a violation of the provisions of section 5204 in to declaring dividends, the principal matters to be investigated are the amount oflosses and bad debts; as compared with the net profits on hand' at the respective times the several dividends, were declared; whether there were then creditors of the bank who remain such at the present time, and, if so, the cau.sed to them by the payment of the dividends wrongly declared. Under the petition in this case, the condition of the bank, thequestil?n of the relative proportion of the profits and assets to the indebtednesS, the question of who were 'creditors, the amounUdtle them, arid' the damage caused them, would: have to 'be ascertained' at nine different periodS or times. Uncier the counts violations of section 5200 of the Revised Statutes in loaning to one perscm, firm; or corporation alllounts:exce¢ing one-tenth of the capital atock, the condition of the accounts, and the nature of the indebtedness of the different parties named, must be investigated. Not only so, but it must be ascertained which of the defendants assented to each excessive loan, and the damage caused thereby to creditors must be properly traced out. That the investigations necessary to be made in support of the S"eVeral counts ofthepetition cannot be properly and understapdingly made before a jury is too plain to demand more than the mere statement ()f the fac:t. Not only so, but the defendants have the right to demand that the questidnof their liability, and the amount thereof, shall be settled and determined in one proceeding, which shall be of such a nature as to bind thereeeiver, the association, the shareholders, and the creditors. This canriotbe in a court of law, and hence there exists good ground for the exercise bf equitable jurisdiction. '" The'pnnciple goverl1ing this ease is laid':down by the supreme court in v,Hmning, 93 U. S. ,provIsions. of the act of congress of May 228, which' case arose under .5, 1870,authorizinK the formation, ofoorporations in the District of Columbia,'which provides that, "iithe indebtedness of any conipany organized uxider this act shall at any time exceed the amount of its'capital ofsnch COlUPltnYa,ssenUng stock, the and indiviouallyliahle for such excess to the creditors of the company." The supreme court held that, to enforce the liability of the trustees for excessive indebtedness, the proceeding must beitl equity, using the lowing :' ,
"The remedyfQrthi!i violation of duty Mtrllstees ill ,in nature appr()pl'iate to a court of The powers and instrumentalities of that court enable it to asceltail1 the excess of the indebtedness over the capital'stock; tht

.1fM, 'f"W",dB 0,, f" t,hEl,!?, ",P, aliiO,'J1 ,rpay, be;, for,', ntof,'the ,of the pre$litors;' .the their,sevtrusteea; andapportlrafdebts; todeterminetlie'suin to be,reOOvered of tiOi1ed among' the' creditor/!; in a manner wblch the trial by jury and the rigid rules' of prbdeedingsfE'lDdeJi impossible. This course avoids the injUstice .of manysuits\Rgaiost defendants; for the, same li"bility. and the greater 1njusticeQf one cr!l,41l;Q,ll to absorl> all,or,a very unequal portion of the SIlO1 for "'Nchthe trustees .lU'e)iable. and it adjusts the rights foundation of the of 8Uconcernedon the 'equitable priIlciples which lie at ,tatute." .
P.fP,' "

1:',

'11l0Mtiot,UJ'a

'flC1J,

Ct. 497, the doctrine. a, case arising \lIlder a statthat U,the of anytIme owe shall npt excel;ld the amount o! ilJjand, in excess, the q,irectors iIl wh0/J6; it jIlappen, shall, be peJ;'Sonally liaplelor the same, bot,h.t9tl1e to tlw corpo,It was held.. to,enforce tpe.liapility created, an p.Paw'Y0qld not tn-fil, only remedy by a Eluit iJ;l.eq\l.Uy. The l'eaSons,assigJ;J.edfor in thelle with equal fqrpe to, ,are conclusive of the question 9f the form' of, ·. ", Tfle ,of various matters of fact o,ftqe of the, defendants, and the court,Cllfequity, 8$ in a court oHaw coui<l not" pr<mer!y had., The l:lecond of ,llpder, the provisions of section 9.2a9, ,the receivfilrcanproceed agaipl'lt the prs,.for of the pers()nalliability crl,lated by seeunl4\lllS)t, }hat, ina proper proceeding brought by the comptro.U.filr, It: j\)dipially that the, directors ,have to be jusHfy,ing the forfeiture ,of the cha,rof follows: .' · .' , .' the directofll bllnki:ng; l\$8ociation shan knowinll'ly vlootli(,ler\';o or servants }of t.be vtll,latP,nllrpf oUhls title. aU, thtl rights. and 'shall be thereby forfeited. SlIch vioJati()n litld"ad,llldgt'tfbY a proper circlIit,d:strict; _rritorial coutt'of. ,the United StateS; In asuitbro'lght for that purpose bythe comptroller otthe, ollrrenay.hrihis own name. before tb,e Rssociation shaH be in, cases: qfsllchVioJl'tion, every director who 1'AA'(1, to the in indl,capac I aU itssharelwldt'rs. or, any «fier'person. 8)il(1l'1ulve sustained 'in colisequence of such violation."

: 'In thus announced th.e

()r

statutes" whioh is theoJ)6 referred ,to in the above YarW,qs, of the &tatute regulating the organiiation and management of national banks. In the sections of the ,title many actssre forbJMen, and tl;te doing of many ,artdjfWhe the contention of be 4eldto confer

,:Ti.iIe

the 'ttssociatiQn, ittf the' ;tightto Qf them,in any court;:fot:an alleged ':Qf,anyofthe provisioJ,l$ofthetitle, tben; indeEld,the position: ,of a. dibank:.is certainly nota desirab,lIH>ue. lftherl3 iano ,limiw.tion up"on the right: tQ sue the, directors, under section, 5239:, toen ,anyone, claiming to. may initiate proceedit1g3 in J /lny court against the directors for ani alleged violAtion.of any of the 'proyisjqQ.s of title -62, even ,t1;J.C)ngb. the operation and is NQtonly:lIo, but suoh suit, if damages claimed '#e mlliY' be broughtin a justice's ,conrti for national .r.e,bYitJie.act of AllgUSt13, 18813, phiced on the, ,same fopting" so$ar ·ali! .. of the, courts, is,cPncerned, with citizens of the ,state wherein they are located;. and certainly the directo.rsoannot claimaneJ;. i_tthis rega,rd Dpt'open to the, bank i)se1f'- It caI;mot bePQssi·;'I>le ,ltJV$S the. intllnt of congress. to subject the. ,<;lirector!lpf na.tiomU J>ank6,to liability,:to he called. to acco-ant in ac1;iQl,1sat.jawb.J.:Qught , ofthe:peace,an<;l tQ"have detel'l:qined· by a jury the.quesexe,essive ciividends ,were declared. orcwhether loans, in ,exwp.ethervWlati<lDshave occrin:ed pf nUD;leroua provisions. of ,title 62, llJldto have, ascertain(ld . tb,e to i plaililtiff .the· ili'Q.tion.,;,fB:ut'itis if this view of creaWd.by tbatllpon the appointment of areceiyer · in hUn right to bring actions at lawJor the enforc,ament lia1':lility, in that he the trlllltf3eor ,pf ,tue ,association, ofthe,. shareholders i and of. the creliitors, andean .call the to a,ccount tor: the alleged v:io1ationllof the statute. The Ja.ct Aia!:tb.e: action. is in the of the. receiV(lr does not obvi,ate, . in tbevvay, Of trying such questions before. a jury in a lawaoti,on,; "4Jrther pending in a. 'court of reoordor before a justice of the ,owever, that the,lluit .is brought in equity by the receiver, can maintai1jl.ed, uul-ass it be averred and Ilhownthat Hill balilkld of forfeiture rendered bya courtOfcOlIlpetent juris4ie'tjon?. J'p illustrate the point, supposejt is, that the dire<}tQrll title 62. by declaring one d.ividend, and by maklQan in ei.cess of one-tenth part '. of the capiW stock. re· a state damages cauB,ed Ahere!?y 4t the, the comptroller a proceeding fprtlle of the bank in the States OO,1,1rt;· . thereceiverreoovel$jtha.t court. holding that the divibeen, wroijgft¥ly declared,. and the loan had,beep D;la4e.· III t4eUnited States court the, comptr()ller fails .to make ,case,it the dividenp .was rightfully made, and that ,in ,aneged . loan . not exceS$ive.. .Are the. qirectWiS" to pa.y the damages&warq.ed aga.insttqemin : :Illlch circumsta.n.9!lS? ' "Suppose. t4e comptroAer. brings a U;1g;,W c1ul.rtel' Upoijeer.tain s,pecified acts to . 62, and,

nDJllBAL, REPORTED,

voL 41. .Then suppose the

I

thegraund ithat these acts have been committed, and are in violation of titI'; 61l;'lUld the directors plead as a defense the adjudication in the forWould not such plea be good? The receiver is but the!handofthe comptroller, and au adjudication binding,the comptroller tttullt:surely bind the and likewise the directors are in prlvitywiththe corporationj so that it must follow that when, in a given proceetiihg ,brought by the (lomptroller, it has been adjudged that certain acts .are 'not in violation o(any provision of title 62, so as to justify the forfeiture' oftlie charter (jf 1!hebank,such adjudication 'must bind the receiver', acting under the! comptroller, and estop him from eounting on , the· sam'eillcts a'S grounds tor recovery against the directors;" true; is it not a strong' hrgument in' support of:theproposiby the proper court, forfeiting the 'charter, is a necellsarY'Iiretequisite w the maintenance of a suit against the directors, 52&9f This section fcmns:part of chapter 4, tit. 62, which chapteriis headed "Dissolution and ·Receivership." In it are provided two'generl11lnbdes for winding up the ,affairs of natiOI1albanks,-the one being by voluntary liquidation on part ofthe aStlociatio8;,theotber by jnvoltintftry: prdceedings: ul'lder the :direction of the comptroller. If proiibstitutedby the comptroller, and it is foundtliat the ordina.ryassets are i'risufDcient to, pay the indebtedness, then 'tm:rstockholders may be called upon to pay an amount equal to the fac8V'all1aof the stock the reheld bythem,as,provlded in section 5151; and by ceiver 'is etilpowered to enforce this liability against the stockholders. In 8 Wll.U. 498, it was'held that in ,order to enable a receiv!3rto enforce this lia.bility against the stockholders,ft:must appear that the comptroller had decided that it Was necessary to :thstitute proceeding'fiagainst the stockholders to enforce their personalliabilityj that the t6 his judgment and discretioh,and his judgment thereon was'conclusivej that the stockholders cannot controvert it, nor couldjt'be questioned in the litigation that might ensue; that this action on' his part was indispensable, whenever the liability of the stoeIihblders is sought to be enforced, and must pre,cede the institutionofsuit'oy the. receiver. In the petition filed in the'case now before averred ''in:' conl'lt .thatthe actian brought under the cotrrt;, th'&comptroller. The point to be ,decided is !C'onlptrollerh!l.s' rlghttd decide that the directors sha.ll be proceeded against to enforce'the liability created by setlti6n 5289, until he hli,s;bya propel: probeeding ina c611rt ofth'eUnite,d States, had it acts hadbeeh, done which justified the 'forfeiture 9f the dllti'ter' 'of the It is'clear·thlit,urider'filiis'setltion, the directorscannotblfheld except for",'violation of of titie 62, ofsu'6b '8 hature as to justify the forfeitureof'thechamrj "and it is e<,lqa}ly.cleii,thaphe, decision of whethei' Violation,S of nature have ,.6ccurred is not intrusted t<) tne, comptroller;, He cannot but nl'l is authurized to bring 'a proceeding

brings 'suit to' recover on the ss-tIle specified acts against the directors, on

cOurt; "the'Judgment goes for the defendant.

, WELLES". GBAVEBi"

485

for the purpose of ascertaining whether suoh violations have taken plaoe as will justify the forfeiture of the charter, the adjudication to be made by a court of the United States. If the comptroller cannot, for the purpose of forfeiting the charter, decide whether the provisions of the title have or have :not been violated by the directors, can he decide the same question in order to determine whether the directors are liable to be proceeded against by the receiver for damages? The right oithe receiver to maintain this action is claimed under the provisions of 'Section 5234, and, as already said, in Kf!/nnedy v. Gibson, the supreme court has ruled that, by the terms of this section, the receiver is the mere instrument of the comptroller, and must show authority from him to institute actions for the collection of the assets and claims of the allsociation. The same limitation must apply to this action, and the receiver cannot maintain the same, except under the direction and authority of the comptrollerj and, unlesldt appears that the comptroller has himself the 15tepsimposed upon him by the statute to authorize him to direct the receiver to enforce the liability of the directors, there is a consequent failure to show a right to institute and maintain the action,and the same result must follow as in' Kf!/nnedy v. Gib8on. As already sliid, suppose the comptroller in a given Case institutes a proceeding in the proper United States court to forfeit 'the charter of a national banle for certain alleged acts, the bank being wound up under the statutory provisions, and in that proceeding it is adjudged that cause for forfeiture does not exist. Could the comptroller, after such adjudication, authorize and empower the receiver to proceed against the directors to enforce a liability against them based upon the same alleged grounds for forfeiture? I cannot conceive how such a proceeding could be maintained. The statute confers upon the comptroller power to institute proceedings in the proper court· for the purpose of obtaining an adjudication upon the question whether the directors have knowingly d.>ne or permitted the doing of acts justifying the forfeiture of the charter. If the court adjudges against the forfeiture, it is not within the power of the comptroller to disregard such adjudication, and to authorize the receiver to proceed against the directors. If, however, the court finds that certain acts, justifying the forfeiture of the charter, have been done or permitted /by the' directors, and awards judgment of forfeiture, then the comptroller can authorize the receiver to proceed against the directors. In such a proceeding, it will not be open to the defendants to question the facts necessarily found and adjildged in the forfeiture case, to-wit, that certain acts were done or certain requirements of the statute were not obeyed,ahd,that the same Were causes of forfeiture, and consequently grounds for liability on part of the directors. The questions open to investigationwould be as to the assent or participation of the particular directors in the several acts adjudged to be causes of forfeiture, and the amount of damages caused thereby, and· recoverable under the statute. As is held in PoUard v. Baile:y, 20 Wall. 520: "The intention of the legislature; when properly ascertained, must 'govern in the construetion of everlstatute. ' For such purpose, the whole statute v.41F.no.8-30

W,ust. be '[6 When: the: comptroller; under the 1lowers'granted· t(!), him by·,tlhei statthe d.uty. of closing "up the affairs: of an insolvept! bank, r:be is·:goverIied and!\Glbntrolled by! the entire prov.isionsofthestatute, which: should receive a;hanID.onious:[oonstruction,' and the ,powera. of. the receiver appointed by,him ,aresubjeet tGl, the liltelimitation.As; the loLtlie,', receiver :to: j·nstitute; any: form of proceeding: against the 'di.rectors is i,basedupoo, Uleprovisions;Qfsection:523!!,:it of necessUiy fol-low.s;; qnder; the conlitruction it\:t.eootoby. the,stlpreme eOllrt ,in KenlJw8CYtt,! that the-: ,acts (under the direction of: thecompthe.la:ttel': cannot 6onfertbe:au:thority and right 10'sue except aecordan:c& the provisions' of the section .creating tbeLiabil:ity; aggiM'ttheidireet<1>JlS; cannot au,tlionze, the receiver to direct!'rB ,until he bas established .tbe , fact ..thataets:hJ\vebeen'done whicb j.ustify, the forfeiture' oLthecharter..He ,cauotihimJ3elf detetJbme tbis questionj: but, the statuteclothes.him:witb ;the, pow-er ,tQ insntuta prooeedings·,.in the proper 'court: Jor that pnrpose. ,If itnaHlcts violative :of the statnte: have been d&near by the 'f!.orfeit the charter, "J.udlclally deter.ltl!lned :-that done w:h1cprendertbe dll.re.ctol'S.lp.arti.cipating therein liable:t4etefoI', .buHt is' stilha: question for ',the'<l0mptrollell to determine l whether the.' .receiver shall or shall not :un.dertak,ef ,such If,:hy r,easonof the insolv,encyof,tb'tdire,ctors. it,Mquldappear to, the comptroller ,that the ,costs ex.ceed'ithereturns,llfemight, intbe interest of tbesbare·holders1 aJIild· crE!dit<>rs.refuse to diroot, the' receiver ,to undertake :the en,the ; and in sueh Case .tbereceiver would not ,bave -tbe.right :f;oinstitute. the proceedings. .If in the proceedings to forfeit the it ;oojudgedthllt-no grounds therefore'Xiisted. the .<lomptrol1er WQuld the right to: disregard sUQb,adjudication., and to ,re4eiVcellto ,aue the directors'; and,until theprQp.er court haa ,decided ,that acts of forfeitureexi$t, neither .tbecomptroller. nor any ,ODe elsil' sucbac,ta do .exist, and make such detennina.tio:ptbe:ibaais: fat authorizing thereoeivei to sue the directors; ,of ,demurrer presents the question of,the statute of .limitat!(Uls,iJ Ifithe,.vie'Vs, expresaed,:on;the other pointsarisiiig op the demurrer it is, :pecesaal'y.fotthe comptroller, by a proper .procee4i,Qg,l' to ptocure a: ebarter bef'<!ltehecan authorize the itof necessity, follows:'that any,limitation'Qu.tM tight of forfeiture inure to tbe'benefit:ofthe,directors; thatie to,say,.,;if·tberight to forfeit the charter a :givehviolation of the prQvjsi0hs oOit1,(> 62 :i8 lost by.1apae· of time,: tben the directors cannot for such alleged; ;violation:;becauBe it cannot be judicially dQterliUined,that.. 8ucb" exists. Section 1047. of the Revised Statutes provides that,;;.- i' , ; ' " ' . ' . :", 1':N9 ,any penalty ;or. forfeiture. pecuniary' Oi' other,wllle.J\QPr,"il)g,JJnl;ler tpeIp. ws of th$ U.Iliteli ,shall be mai ntained; ex"j,

rfU.ftt

it is specialty, u,q)$8sthef same is com· . llve years ·. from time wilen or crued.; providt\c1; that the perSon orthe offender, or'the propfll'ty liable for such penulty or forfeitute, shall, within t.he same perio(l." be found within the U ni-ted States; so that the proper process therefor may be instituted and served against such person or property." ' .
Section 5239 declares thataqy violation of the provisions of title 62, (;1QI1eor permitted knowingly by directors of 8'oational baok, shall for forfeiting the rights, privileges,and franchises of the bank. The, doing the prohibited aot is cause for a forfeiture which accrues uneler provisions of the laws orthe United States, and is therefore subject tp tpe of five years, enacted by section 1047. I can see no gJ:gp,pd ,foqpr,cepting such a forfeiture fron).tbe general declaration:touching suits for the enforcement of penalties and forfeitures contained in that section, anel, in the view I take of the necessity of an adjudication forfeiting the charter of the" bank as a prerequisite to the maintenance of a suit by the receiver against the directors, it follows that this limitation inures indirectly to, the benefit .of the directors. If, however the receiver can maintain a suit to enforce the liability created by section 5239 against directors, regardless of the question. whether the charter has been forfeited or not, then the question would arise whether sll.ch tQ ,be deeme<ia penalty provided for the 'violations of the statute, in which case the limitation of five years provided in seotion 1047 would apply; or ,does section 5239 simply imposethe liability upon the directors, and create the right to sue for damages·on.part of anyone injured? A penal statute is ordinarily defined to be Ol'1e which inflicts the violation o(someone or more ofitsprovisions. The forbidden :incursthe penalty, regardless Of the question person. Unwhether injury has been caused thereby to any der the provisions of section 5239, the liability of the directors is dep;m:tdeii(, not only on the fact of a violation of some one or more of the pr6visioDspf title 62, but also on the fact of causing damage by snch violation 'to the association, its shareholders or other parties. In this pa.rticular, therefore, the section does· not impose a penalty, but Blfiability for damages,if any such are cansed by the wrongful acts of the·dii-ecto..s. If, then; the liability of the directors onder seotion 5239 is not to be deemed a penalty, within the meaning of that term as used iii 'seetiO:n 1047, the limitation therein contained is not applicable. ' :.Itifl, hbWever, urged on behilf of defendants that if-the liability of the to be dee!ned a penalty within the'weaning of section is: to be held to .be .merelY a liability to. to damages then the provisions of the statute of Iowa limitiu.g BUchactions to two years is applicable. The question of when and under what tircumstanoes the state statute of limitations is available as in the courts of the Uriited Stateswa.sconslderedbY v. (Jou:rl,(yoj Buchanan, .29 Fed. 'Rep. t4,ereip reached it seeml'ltome, decisive of the pr,esent cause ofaction is oreatedby Qs1llt:qte of

'(68

I'EDERAL RlllPORTER,

vol. 41.

States,the provisions" bf the state statute of

'fiot "apply has so de(}lared. If, then, an;action at law is m/!-iJ;1tainable by the receiver for the purpose of enforcing the liability of the ,direptQrs created by section 5239, there seems to be no statutory provision limiting the time within which such action may be brought. If, however, the remedy against the directors is by a proceeding in equity, the court, in the absence of statutoty limitation, can apply the recop;nizedequitable principle of refusing to give relief claimed upon stale antiquated demands, or where there has been laches on part of the complainant or long acquiescense on part of those now seeking relief, but would not, of course;ibe justified in refusing relief upon such grounds, unless the facts of the (J8se were suchnsto clearly demand the application and second grounds the demurrer is sustained. oUhe,rule. Upon the

!, '

(Cil'cmt Cowrt, E. D· ..ArH:ama,. January, 1800.)'
LAW-J)BUmt1IlRS' Tn...,.INTJllRSTATB '" ·

I.,

. 'An agent of a foreign oorporation, selling rapges whioh have been previously shipped into the state, and there stored, oallnot avoid the payment,of the lioensere, quire<lof stove.range agenUi 'by Mansf.Dig., Ark. 55589, onthll. ground that he is engaged in interstate commerce.
,I

1/.nder theoonstitutioll,.of Arkans8s,as .nterpreted by supreme court of the state. no tax oan'be imposed upon and pursuits f,?r the purpose of raising a state revenue, Mansf. Dig. Ark; § 5589,' requiring a certam sum to 'be levied" lIS II stll,1;ertax agents doing; business in this state forthe term of One year or fess, n ls,unconstitutlOnaL
8. FBDBIUL' COtmTS-JURISDIOTIONAL AMOUNT-FALSB IMPRlS()NMENT.

.u

,

, Oucomplaint for false imprisonment. with damages laioi at'$10,OOO, it oannot be said that the amount in oontroversyislessthan$2,OOO, and not within the jurisdiction of the circuit court, though plaintiff was deprived of his liberty for onlt 15 , minutes, for refusal to pay a lioense demanded of him as a stove-range 8goent.

f$lse imprisonment. by M. J, HynesagainstW. H. Briggs and J.,R. Ferguson,,for,false imprisonment,amUs submitted upon the following agreed stat6J;llent of fact!!: . is, and was at hereinafter mentioned. the sheriff of Howard. l(j)unty,Ark., and justice of the peace in . ,the general agent of the Wrought and for said., county. l;'laintitf is and Iron RangeQ<>mpany; afol'cign corporation duly incorporated'under the laws of thestat\i 'of MisBouri,'with headquarters in the city of St. Louis. Mo. Prior to the date iofthe' filing oftlle affidavit set out in dpfendants' answer, plaintiff had been engaged fntheeali:l and delivery of stove ranges in Howard county, Ark., alii agent fOlthe Wf(,ught Iron Range Company, in the following manner: were shipped. to Nashville, Ark., by thl! ·. signed to tbe,Wrought Iron Range then stored by plaIntiff 1n the raili'oaddepot. Which had been rented by' plaintiff for that purpose. Plain7 tiff had many subagents under him in Howard and surrounding,connties. Plaintiff sold stove ranges to variouspal'Ues 'in Howard county,sometimes

At

LlI.:W, , Action for