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October 1, 1876


THIS was an action at law, brought in this court by the receiver of the New Orleans National Banking Association, to enforce the individual liability of the defendant as a stockholder of that institution. The defendant is a subject of the Kingdom of Italy, and its vice-consul at the city of Philadelphia. By agreement, and in order to to present for the consideration of the court several of the grounds of defence, the defendant filed a demurrer to the declaration, and also pleas in abatement, without reference to the order of pleading them, and subject to the future direction of the court in disposing of them. The plaintiff joined in demurrer to the declaration, and demurred to the pleas in abatement, and the defendant joined in demurrer. The questions thus presented by defendant's demurrer are,–– 1. Whether the proceeding to enforce the liability of the defendant should not be in equity and not at law. 2. Whether to sustain the action at law it is sufficient to aver the necessity of enforcing the liability, and that such necessity has been declared by the comptroller of the currency without stating facts from which the court can determine the necessity. 3. Whether the order by the comptroller to collect from each stockholder the entire amount for which he is liable, is conclusive upon the defendant, without the allegation of any facts showing the amount which he is liable to contribute. The questions raised by the plea in abatement are,–– 4. Whether a majority of the directors, with the authority of the owners of two-thirds of the stock of a State bank, can change its organization into that of a national banking association without any authority given by the State law in its charter or otherwise to make the change. 5. Whether the certificate of the comptroller is conclusive as to the organization and existence of the association. The pleadings are set out in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Swayne delivered the opinion of the court.

Mr. J. D. McPherson for the defendant.

1. The State corporation never became a national bank, notwithstanding the assent of the owners of two-thirds of the stock. No number less than the whole could accept a charter from the United States, nor even then without an enabling act. Green's Brice on Ultra Vires, p. 539, note, and cases cited; Head v. Providence Insurance Co., 2 Cranch, 127, 166; Manufacturers' and Merchants' Bank v. Commonwealth, 72 Penn. 70. See Enabling Acts of Massachusetts, New York, Pennsylvania, Vermont, and other States.

2. The remedy of the plaintiff is in equity. As shareholders 'are only conditionally liable for those debts after all the ordina y resources of the bank have been exhausted,' Bank v. Kennedy, 17 Wall. 19, 22, and as the assets here have not been exhausted, an account must be taken of debts and assets in order to ascertain the deficiency; and as for such deficiency the shareholders are only 'equally and ratably' liable, the ascertainment of the proportion calls for the exercise of equity powers. Pollard v. Bailey, 20 id. 520.

3. The declaration only avers that the comptroller has determined that shareholders must pay the par value of their stock to pay he debts of the bank. The special plea avers that among the debts so intended to be paid by the comptroller are certain disputed claims, which are not debts of the bank.

Congress cannot withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit either at law, in equity, or in admiralty. Murray's Lessee v. Hoboken Co., 18 How. 284.

Whether the claim be a valid demand against the shareholder is in its nature a judicial question, The Empire Bank, 18 N. Y. 199, and must be open to contest by the shareholder in a suit to enforce his liability. Id.; Slee v. Bloom, 20 Johns. (N. Y.) 669. Any amount exacted from him in this suit can never be reclaimed, but must go to the creditor. It is not assets of the bank. Dutcher v. National Marine Bank, 12 Blatchf. 435.

Mr. Charles Case, contra.

The declaration avers as follows: On and before the third day of June, 1864, the Bank of New Orleans was a banking corporation organized under the laws of the State of Louisiana, and as such carried on the business of banking until about the first day of July, 1871, when the bank, by due proceedings under the act of Congress, entitled 'An Act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June 3, 1864, became a national banking association under said act of Congress, and as such took the name and style of the 'New Orleans National Banking Association,' and carried on the business of banking until the fourth day of October, 1873, when it failed and suspended payment.

Thereupon, the comptroller of the currency, after due proceedings had, appointed a receiver for the association, and it was put in liquidation under the act of Congress before mentioned and the acts amending it, and the plaintiff is such receiver, being lawfully appointed under the said act. By the conversion of the Bank of New Orleans into such banking association every holder of the shares of the capital stock of said Bank of New Orleans became a shareholder of the capital stock of said New Orleans Banking Association to the amount of his shares, and as such subject to the liabilities imposed by said act of Congress on such shareholders. There is owing by the association to its creditors large sums of money. Its assets are insufficient to pay its debts. It has become necessary, in order to pay the debts, to enforce the liability of the shareholders. The comptroller has decided that this shall be done. On the seventh day of June, 1875, by his order in writing, he required the plaintiff, as such receiver, to enforce such liability against each stockholder to the amount of the par value of his stock held at the time of the failure of the association. The capital stock of the association was $600,000, divided into twenty thousand shares of the par value of $30 each.

The defendant is an alien, a subject of the kingdom of Italy, and vice-consul, &c. At the date of the failure of the association he was the owner of fifty shares of the capital stock of the par value of $30 for each share. By reason thereof he is liable to pay the sum of $1,500. He has been specially requested to pay that sum, and has refused to do so. The plaintiff is, therefore, entitled by force of the statute to recover the said sum of $1,500, with interest at the rate of five per cent p r annum.

It was agreed by the parties that demurrers, pleas, replications, and other pleadings might be filed without reference to the order in which they were properly pleadable.

The defendant demurred to the declaration, and assigned the following causes:––

1. That the defendant is bound to contribute ratably, and that the proper amount can be ...

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