EMBEZZLEMENT AND LARCENY-Continued.

willfully misapplying the moneys and funds of the bank" with intent to
injure or defraud the association." Held, that the intent to injure or de-
fraud was conclusively presumed upon proof of the act charged, and that
therefore evidence was not admissible to prove that the cashier used the
funds with the knowledge and consent of the president, and some of the
directors of the bank, and on account of and for the benefit of the bank.
United States v. Taintor, 256.

6. By officers and servants of National banks-jurisdiction of State courts
of the offense.] A State statute prescribed punishment for any officer
or servants of any bank, "incorporated by authority in this State" who
should purloin, etc., any moneys, etc., belonging to or deposited in such
bank. Held, (1) to apply to tellers of National banks; (2) that a teller of
such bank could be punished under the statute for purloining property
deposited with the bank for safe-keeping, but (3) semble that such teller
could not be punished under the statute for purloining or embezzling the
property of the bank. State v. Tuller, 375.

7.

8.

-] State courts have no jurisdiction of offenses created by act of
Congress, and, therefore, such courts cannot punish officers of National
banks for embezzling the property of the bank; but State courts can
punish such officers for purloining the property of others. Ib.

-] A State statute made it larceny for any "officer of an incorporated
bank" to fraudulently convert to his own use property of the bank or be-
longing to any person and deposited therein. Held, (1) to apply to officers of
National banks located in the State; and (2) that a State court had jurisdic-
tion of an indictment under the statute against an officer or servant of a
National bank for the fraudulent conversion of the property of individuals
deposited in such bank. Commonwealth v. Tenney, 568.

9. Fraudulent conversion — intent.] An officer of a National bank took bonds
deposited with the bank and sent them to a broker in another State as
collateral security for money advanced. Held, a fraudulent conversion and
larceny within the statute. Ib.

-

10. By officers of National banks — jurisdiction of offense.] A State court
has no jurisdiction of the crime of embezzlement by an officer of a
National bank situate within the State; and since the National Bank-
ing Act makes such embezzlement a misdemeanor, an accessory thereto
cannot be indicted in a State court under a statute making an embezzle-
ment, or the being accessory thereto, a felony. Commonwealth v. Felton,
573.

11.

12.

-] State courts have jurisdiction over larcenies committed upon the
property of National banks, by their officers. Commonwealth v. Barry,
605, and note, 610.

.] The fact that an officer of a National bank, who has stolen its prop-
erty, is subject to punishment for embezzlement under the National Bank-
ing Act, does not relieve him from liability to punishment for the same
act as a larceny at common law, or under the statutes of a State. Ib.

13.

EMBEZZLEMENT AND LARCENY-Continued.

-] Where the property of a National bank is intrusted to the teller
during the day while engaged in transacting its business, but at night is
placed in a safe which he cannot rightfully open, if he abstracts the prop-
erty from the safe at night and converts it to his own use, his offense is
larceny and not embezzlement. Ib.

See STATE V. GASTING, 508.

ESTOPPEL.

1. An action having been commenced in a State court against an insolvent Na-
tional bank, the receiver of the bank appointed by the Comptroller of the
Currency was, on his own application, substituted as defendant. Held,
that the receiver was not thereby estopped from questioning the jurisdic-
tion of the court. Cadle v. Tracy, 230.

2. A shareholder in a National bank, who has participated in its trans-
actions as such and received dividends, is estopped from denying the
legality of its incorporation. Casey v. Galli, 142; Wheelock v. Kost, 406.
3. One accustomed to deal with a National bank as such, and who so
deals with it in respect to a promissory note, is estopped from denying
the incorporation of the bank in an action on the note. Nat. Bank v.
Phanix Warehousing Co., 784.

See BANKING BUSINESS, 794.

EVIDENCE.

1. Of appointment of receiver.] The certificate of the Comptroller of the Cur-
rency duly made is sufficient evidence of the appointment of the receiver

2.

in an action brought by him. Platt v. Beebe, 725.

] A copy of the certificate of organization of a National bank, certified
by the Comptroller of the Currency and authenticated by his seal of office,
is competent evidence in a State court. Tapley v. Martin, 611.

3. Of incorporation — certificate of organization.] In an action by "The West
River National Bank of Jamaica, Vermont," held, that the certificate of
the Comptroller of the Currency of the existence of a corporation under
the name of "The West River National Bank of Jamaica," described as
located in the town of Jamaica, Vermont, was admissible under the general
issue for the purpose of proving the plaintiff's corporate existence
Thatcher v. West River Nat. Bank, 622.

4.

5.

-.] It is no objection to the admission in evidence of the certificate of
the organization of a National bank, that the notary before whom it was
acknowledged was one of the shareholders of the bank. The Comp-
troller's certificate of compliance with the act of Congress removes any
objection which might otherwise have been made to the evidence on
which he acted. Ib.

-] The certificate of the Comptroller of the Currency is conclusive evi-
dence of the validity of the organization of the bank in an action against
the stockholders. Casey v. Galli, 142.

6. Of incorporation in suits by National bank.] In an action by a National

EVIDENCE-Continued.

bank against the maker of a promissory note, the fact that the note is
made payable at the plaintiff bank is not conclusive evidence that such
bank is a corporation. Hungerford Nat. Bank v. Van Nostrand, 589.
See ACCEPTANCE; ADMISSIONS.

EXAMINATION.

1. Of National bank by revenue collectors.] Paid bank checks which were
duly and sufficiently stamped at the time they were made are not " articles
or objects subject to taxation," and an officer of a bank may lawfully
refuse to allow a collector of internal revenue to examine such checks.
United States v. Mann, 154.

2.

3.

-] The law under which National banks are incorporated does not
exempt them from examination by the internal revenue officers, men-
tioned in section 3177 of the Revised Statutes. The United States v.
Rhawn, 358.

-.] A clerk of a supervisor of internal revenue is, however, not such
an officer. Ib.

FOREIGN CORPORATION.

See CITIZENSHIP.

FRAUDULENT CONVERSION.

See EMBEZZLEMENT AND LARCENY, 568.

INCREASE OF CAPITAL STOCK.

See STOCK, 898.

INCORPORATION.

Of National bank.] See ORGANIZATION.

INDICTMENT.

See EMBEZZLEMENT AND LARCENY.

INJUNCTION.

A Circuit Court may, at the suit of a stockholder, enjoin officers of a National
bank from any misapplication of the funds. Shoemaker v. Nat. Mechanics'
Bank, 169.

When granted to restrain collection of tax on bank.] See TAXATION, 267, 326.
When granted at suit of bank to restrain tax on shares.] See TAXATION, 267,
300, 926.

INSOLVENCY.

1. Evidence of] A return of nulla bona, made by a sheriff upon an execution

INSOLVENCY-Continued.

issued against a National bank, is sufficient evidence of its insolvency.
Wheelock v. Kost, 406.

2. Transfers of bank property in contemplation of insolvency.] To render a
transfer by a National bank made after an act of insolvency, or in con-
templation of insolvency, void, under section 52 of the act of 1864 (R.
S., § 5242), it must have been made either with a view to prevent the
application of the assets in the manner prescribed by the National Bank-
ing Act, or with a view to the preference of one creditor to another. Casey
v. La Société de Credit Mobilier de Paris, 285.

3.

4.

] The preference of one creditor to another, mentioned in section
52 of the act of 1864, is a preference given to an existing creditor for a pre-
existing debt; and does not refer to a case where one makes a loan to a
bank and receives a concurrent transfer of property as security therefor.
lb.

] A bank, being in an embarrassed financial condition, received a loan
of money from defendant upon depositing with a certain commercial firm
a portion of its assets as security. Held, that the fact that one of the
members of such firm was president of the bank did not render the
transaction illegal; and that the bank could not escape liability for
such loan on the ground that the president had no authority to effect it
where it appeared that it was effected with the knowledge of the direct-
ors, and the money was received and used by the bank. lb.

5. National banks.] The word "insolvency," as used in section 52 of the act
of 1864 (13 Stat. at Large, 115; R. S., § 5242), making void all transfers,
assignments, payments, etc., "made after the commission of an act of
insolvency or in contemplation thereof," is synonymous with the same
word as used in the Bankrupt Act, and means a present inability to pay
in the ordinary course of business. Case v. Citizens' Bank of Louisi
ana, 276.

6. Transfers in contemplation of.] To make transfers, assignments, etc., void
under said section 52, it is only necessary that the insolvency should be
in the contemplation of the bank making transfers; the party receiving
the transfers need not know of or contemplate such insolvency. 1b.

See WINDING UP.

INSOLVENT BANKS.

See WINDING UP.

INTENT.

See EMBEZZLEMENT AND LARCENY, 185, 256.

INTEREST.

1. National banks not governed by State usury laws.] National banks are not
governed by the usury laws of a State, and the only penalties incurred by
them for taking excessive interest, are those imposed by the National
Banking Act. Farmers and Mechanics' Nat. Bank v. Dearing, 117;

INTEREST-Continued.

Davis v. Randall, 600; Central Nat. Bank v. Pratt, 595; First Nat.
Bank v. Garlinghouse, 811; Shinkle v. First Nat. Bank, 824.

2. Effect of usury on note.] Where a National bank exacts illegal interest
on the discount of a note the interest-bearing power of the obligation is
destroyed and there will be no time from which it can bear interest.
Lucas v. Government Nat. Bank, 872.

3. What interest National banks may charge.] Where the general rate of in-
terest in a State is higher than that allowed to State banks of issue, Na-
tional banks may take the higher rate. Tiffany v. Nat. Bank, 90.

4

5.

6.

7.

] A National bank is limited, in its right to take or charge interest
on its loans and discounts, to the rate of interest allowed by the State
laws to banks of issue organized under those laws, if the rate so allowed
is different from the general rate allowed by the laws of the State.
Shunk v. First Nat. Bank, 820.

-] National banks are not authorized to take the rate of interest al-
lowed by special statutes of a State to a few banks of issue where such
rate is higher than that allowed to banks of issue generally. Duncan v.
First Nat. Bank of Mt. Pleasant, 360.

-] By the statute of Kentucky no more than six per cent interest could
be exacted, but parties were allowed to contract to pay and receive ten
per cent" by memorandum in writing, signed by the party chargeable
thereon, and not otherwise." A National bank located in the State dis-
counted notes, charging interest in advance at the rate of ten per cent
without other "memorandum in writing" than the notes, wherein was
a promise to pay the principal and accrued interest at the rate of ten
per cent. Held, that the transaction was not usurious. Newell v. Nat.
Bank of Somerset, 501.

] By the statute of a State, six per cent was declared to be the
legal rate of interest, but parties were authorized to agree in writ
ing for a higher rate not exceeding ten per cent. Held, that National
banks located in the State could charge ten per cent. Wiley v. Starbuck,
436.

8. On loans to corporations in New York.] In New York the rate of interest
which a corporation may pay is not limited. A National bank, located in
that State, loaned money to a corporation at a rate of interest exceeding
seven per cent per annum. Held, that the interest on the loan was for-
feited under section 30 of the National Banking Act (13 Stat. at Large,
108), which provided that when no rate of interest was fixed by the law of
a State, a National bank might charge a rate not exceeding seven per
cent, and that if it charged more, the entire interest should be forfeited.
In re Wild, 246.

9. Forfeiture.] In an action by a National bank upon a note discounted at a
usurious rate of interest the bank can recover the amount of the principal
less the interest received. Farmers & Mechanics' Nat. Bank v. Dearing,
117.

10.

Extent of forfeiture - interest after maturity.] Under section 30