17

16

upon it. An indorsement to the cashier as cashier is an indorsement to the bank, and may be so alleged; 15 or if alleged to be indorsed simply to the cashier, the allegation is sufficient. The general rule as to pleading the existence of a corporation is applicable to banks. It is not necessary to allege the corporate character specifically, and if the plaintiff sues as a corporation the corporate character must be denied; and under common-law pleading the general issue might not put in issue the corporate character of the plaintiff, where the plaintiff sued as a corporation.18 Matters of evidence have been incidentally noticed in many places in the preceding sections. It remains to be said here. that an indorsement upon a note of the sum for which it was discounted, and the date of the discount, is an admission binding upon the bank.19 A defense by a stockholder to a note to the bank is immaterial where it is based upon illegal proceedings whereby he lost a dividend upon his stock.20 In an old case it was held that an action on the case against a bank did not lie for failure to pay over money which it had collected and credited. A judgment where all the parties liable are sued under a statute may be against any or all of the defendants.2 Proceedings supplementary to execution may be had against the officers of the bank, as holding property of the bank.23 Statutes of limitation govern banks, unless they are exempted by statute or charter.24 But it was held in Illinois that the state bank

14 Young v. Hudson, 99 Mo. 102. 15 Bank of U. S. v. Davis, 4 Cranch, C. C. 533; Pratt v. Topeka Bank, 12 Kan. 570.

16 Ryan v. Farmers' Bank, 5 Kan. 658; Lewis v. Bank of Ky., 12 Ohio, 132.

17 Ryan v. Farmers' Bank, 5 Kan. 658, semble. See the next note.

18 See the conflicting authorities, 5 Encyc. Plead. & Pr. 77 et seq. 19 Colgin v. State Bank, 11 Ala. 222. 20 Whittington v. Farmers' Bank, 5 Har. & J. 489.

21

21 Tinkham v. Heyworth, 31 Ill. 519. The bank here had the right to credit the owner of the collection. The language of the case goes far beyond anything necessary to be decided. The case shows a deposit for collection and credit, and is therefore correctly decided. 22 Bussey v. Branch Bank, 15 Ala. 216.

23 Ballston Spa Bank v. Marine Bank, 18 Wis. 490.

24 Mahone v. Central Bank, 17 Ga. 111. See the queer discussions of

was the state, and hence a statute of limitation did not run against it.25 For the same reason it was held that ministerial agents of the bank sued with it were not liable for costs.26 But in Arkansas the state bank was required to give a bond upon an injunctional order.27

$350. Jurisdiction of courts over national banks.— The law of June 30, 1864 (13 Stat. 99), and of June 3, 1866, carried into section 5198 and section 629 of the Revised Statutes, gave jurisdiction in cases relating to national banks to the state courts, and also to the circuit courts of the United States. The act of June 30, 1876, gave federal courts jurisdiction of equity suits where brought to enforce the statutory liability. The act of July 12, 1882 (22 Stat. 163), restricted the jurisdiction of federal courts over national banks to such cases as those courts would have jurisdiction to entertain over individuals. Cases involving usury by national banks were governed by sections 5197 and 5198, which gave concurrent jurisdiction to federal courts and to state courts; 3 but by 22 Stat. 163, and by 25 Stat. 433, courts of the United States have jurisdiction in such suits only on the ground of diverse citizenship or the presence of a federal question; but an exception is made in 25 Stat. 436, as to cases for winding up the affairs of national banks. Therefore in suits for receivers, etc., the United States courts have the same juris

the state's right to delegate its sovereignty in Bank of Alabama v. Gibson's Adm'rs, 6 Ala. 814, and also the case first cited in this note, which should be compared with the cases cited in the next two notes. It is interesting to conjecture what the Alabama court, in its then condition of mind, would have held as to the delegated power to condemn private property.

25 State Bank v. Brown, 2 Ill. 106. See the last note.

26 Duncan v. State Bank, 2 Ill. 262. 27 Ex parte State, 15 Ark. 263.

1 Irons v. Manufacturers' Nat. Bank, 17 Fed. R. 308.

2 Union Nat. Bank v. Miller, 15 Fed. R. 703; National Bank v. Fore, 25 Fed. R. 209; Price v. Abbott, 17 Fed. R. 506. And see Wilson Co. v. Third Nat. Bank, 103 U. S. 770; Commercial Nat. Bank v. Simmons, 1 Flip. 449, for the rule.

3 First Nat. Bank v. Morgan, 132 U. S. 141. The defense of usury was governed by the same rule. National Bank v. Eyre, 52 Iowa, 114. See § 200, ante, for other authorities.

diction presumably which they had prior to the passage of 22 Stat. 163; but that is a close question, because 25 Stat. 436, left this particular jurisdiction over winding-up suits as it existed prior to its passage, and that jurisdiction was controlled by the statute of 1882 (22 Stat. 163), which had probably taken it away. To obtain a review of a usury case by the Supreme Court of the United States in error to the Supreme Court of the state, a claim of a right under a federal statute must be specially set up and claimed in the state court. The statute of July 12, 1882, has practically been incorporated into the act of 1887 (24 Stat. 373), amended and corrected in 1888 (25 Stat. 433), whereby the national banks are made citizens of the state where they are located, and the jurisdiction of the United States courts over them is dependent upon the diverse citizenship of the parties or the presence of a federal question." It is difficult to see what effect the exception as to winding-up suits has, for that jurisdiction was taken from the United States courts by 22 Stat. 163. Since a state court cannot issue an injunction against a national bank (see § 352, post), these suits are left in a very unsatisfactory condition. A national bank cannot, any longer, remove a case simply because it is a national corporation. Where jurisdiction is conferred by reason of diverse citizenship, the matter involved must reach the jurisdictional amount, which is $2,000 by 25 Stat. 434. Non-residents may of course remove a suit to the federal court. But where a federal question is involved, the circuit courts of the United States have concurrent jurisdiction, and the suit may be re

4 Schuyler Nat. Bank v. Bollong, Union Nat. Bank, 9 Biss. 178,—a 150 U. S. 85. case wrongly decided as the law then was.

5 Whittemore v. Amoskeag Nat. Bank, 134 U. S. 527; Petri v. Comm. Nat. Bank, 142 U. S. 644; Danahy v. National Bank, 64 Fed. R. 148, 24 U. S. App. 351. The provision as to jurisdictional amount of $2,000 governs.

6 Leather Mfg. Nat. Bank V. Cooper, 120 U. S. 778; Wilder v.

7 See cases cited in last two notes. 8 Union Nat. Bank v. Miller, 15 Fed. R. 703; Auburn Sav. Bank v. Hayes, 61 Fed. R. 911; Walker v. Windsor Nat. Bank, 56 Fed. R. 76, 5 U. S. App. 423. The suit may go on in the state court and be taken to the United States Supreme Court

moved upon that ground from the state court, provided the matter in dispute is $2,000 or over. The receiver of a national bank being an officer of the United States may sue in the circuit court of the United States or in the district court, regardless of citizenship or of the amount involved. He may remove a suit against him from the state court upon this ground. The same rule applies to the agent of the stockholders after the termination of the receivership." Either of these officers may sue or be sued in the state courts.12 But the receiver must be really involved as to his rights directly and not remotely," and adversely to the party litigating. If he be merely a formal party, or joined because he holds the fund in litigation, the federal court does not thereby gain jurisdiction. The receiver is not estopped from asking a removal by causing himself to be substituted in an action in the state court. 15 But where a national bank, as a going concern and not in the hands of a receiver, is a party, the rule applied to determine the jurisdiction of a United States court is precisely the rule that would be applied to any citizen of the state where it is located,16 unless in winding-up

where a federal question is specially raised. Miller v. National Bank, 106 U. S. 542.

9 Yardley v. Dickson, 47 Fed. R. 835; Price v. Abbott, 17 Fed. R. 506; Armstrong v. Ettlesohn, 36 Fed. R. 209; National Bank v. Crawford, 69 Fed. R. 532; Thompson v. Pool, 70 Fed. R. 725; Stephens v. Bernays, 119 Mo. 143; s. C., 44 Fed. R. 642. A petition to compromise may also be brought in the federal court. In re Platt, 1 Ben. 534.

10 School Dist. v. First Nat. Bank, 61 Fed. R. 417; Bartley v. Hayden, 74 Fed. R. 913. Contra, Bird v. Cockrem, 2 Woods, 32.

607; Thompson v. Schaetzel, 2 S. D. 395; Witters v. Sowles, 61 Vt. 366.

13 Le Sassier v. Kennedy, 123 U. S. 521; Van Antwerp v. Hulburd, 8 Blatch. 282.

14 St. Luke's Church v. Sowles, 51 Fed. R. 609.

15 Cadle v. Tracy, 11 Blatchf. 101. 16 See cases cited in notes 2 and 5 to this section, and Petri v. Comm. Nat. Bank, 142 U. S. 644; Danahy v. National Bank, 64 Fed. R. 148, 24 U.S. App. 351. It may be worthy of note that the first United States Bank could not sue in the federal courts (Bank of U. S. v. Devaux, 5 Cranch, 85), but could on the ground

11 McConville v. Gilmour, 36 Fed. of diverse citizenship of its officers.

R. 277.

12 Brinckerhoff v. Bostwick, 88 N. Y. 52; Peters v. Foster, 56 Hun,

The second United States Bank was given the right. Osborn v. Bank of U. S., 9 Wheat. 738.

suits a jurisdiction remains in federal courts. A national bank bringing suit in another state than the one where it is located may sue in the United States court on the ground of diverse citizenship, if it bring itself within the jurisdictional requirements." The method of alleging the residence of the bank is to allege its due organization and the place and state where located, but it has been held to be sufficient to describe it as of a certain city.18 But where a note was executed to a national bank, a denial on information and belief of its corporate existence in a suit on the note is frivolous.19

351. What court of state or United States has jurisdiction.— The rule as to jurisdiction of the various federal courts in the act of 1888 is that the suit, where diverse citizenship exists, must be brought either in the district of the residence of the plaintiff or the defendant.' Hence a national bank could be sued in a United States court in another district than the one where it is located if a good service could be obtained. But section 629 of the Revised Statutes limits the district where a national bank may bring suit or be sued to the district where it is located. That statute must be considered as modified by the later statute. equity suits to remove a cloud from title—and the principle would apply to all suits of a local nature - the United States court where the property is situated would have jurisdic

17 Manuf. Nat. Bank v. Baack, 8 Blatchf. 137; Petri v. Comm. Nat. Bank, 142 U. S. 644. But see First Nat. Bank v. Smith, 6 Fed. R. 215; Farmers' Nat. Bank v. McIlhaney, 42 Fed. R. 801, wrong.

18 Farmers' Nat. Bank v. Rogers, 1 N. Y. Supp. 757. Compare Third Nat. Bank v. Teal, 5 Fed. R. 503. 19 Huffaker v. National Bank, 75 Ky. 287.

1 See 25 Stat. 433. The decisions upon this point are the following:

But in

McCormick v. Walthers, 134 U. S. 41, citing many other decisions, and Bostwick v. American Finance Co., 43 Fed. R. 897. Therefore a national bank could sue a non-resident in the district either where the bank resides or where the non-resident resided. And the bank could be sued in its own district as well as where the plaintiff resided.

2 If this statute is applied to suits. against national banks it would conflict with the later statute.