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CHAPTER XIII.

ACTIONS AND JURISDICTION.

§ 348. Summary remedy. In the days when banks were considered as the favored creatures of the law, a summary remedy was given to them in some states and jurisdictions. Especially in the early Alabama reports will be found a great deal of law upon this subject. Cranch's Circuit Court Reports are also thickly sown with cases upon this subject. The matter possesses only an antiquarian interest at the present day. These statutes permitted a judgment upon a bank's claims to be taken without pleadings,' but took away no defense that the maker of a note possessed.' They were held to apply only to paper acquired after the act was passed, and only to paper payable at the bank; but in some instances the remedy extended to all paper due the bank. The statute was required to be strictly followed, but one case held it to be remedial,' and the right to exercise the remedy could not be had against the personal representative of a deceased debtor. Under special charters the bank could insist upon a right to an immediate trial, and could have special privileges as to waiver of proof of notice, demand and protest,10 which privilege applied to notes not made payable at the bank."

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$ 349. Matters of procedure.-Certain miscellaneous matters of procedure are grouped in this section. In those states which gave the president the right to bring suit for the bank, it was held that he, as the bank, could sue or be sued,1 under the allegation that he was the president of the bank,2 or the bank itself could sue. A failure to file reports as provided by statute may prevent a bank from suing under a statute,' but the statute will not be applied in a federal court. Service upon a bank must be had in accordance with the statute applicable in the jurisdiction. A garnishment may be properly served on the cashier, but the answer thereto should be made by the president, yet the cashier generally would have the same power. A garnishment may be had without first making a demand upon the bank. In a suit against an unincorporated association whose members are numerous, it is not necessary to serve all the members before judg ment can be taken. A bank could formerly, where it had not the legal title to paper, sue in the holder's name to its use.10 But this matter is to-day of some importance in suing upon paper made to the cashier. The cashier's successor may sue upon it without an indorsement by the cashier," and the bank itself may sue, certainly where the allegation is made that the paper was given to the bank in the name. of the cashier; 12 or the cashier may sue in his own name to the use of the bank,13 or he may indorse to himself and sue

1 Hallett v. Harrower,33 Barb.537; Delafield v. Kinney, 24 Wend. 345; Thomas v. Dakin, 22 Wend. 9; Stanton v. Wilson, 2 Hill, 153.

2 Hallett v. Harrower, 33 Barb. 537. 3 Leonardsville Bank v. Willard. 25 N. Y. 574.

8 Birmingham Nat. Bank v. Mayer, 104 Ala. 634.

9 Mandeville v. Riggs, 2 Pet. 482. 10 Moore v. Penn, 5 Ala. 135. 11 Dutch v. Boyd, 81 Ind. 146; Barney v. Newcomb, 9 Cush. 46. The bank should sue where the real

4 Bank of British North Am. v. party in interest is required to sue. Improvement Co., 97 Cal. 28. Camden Bank v. Rogers, 4 How. Pr. 63.

5 Barling v. Bank of British North

Am., 50 Fed. R. 260.

6 Rosenberg v. First Nat. Bank, 27 S. W. R. 897.

7 Sturgis v. Rogers, 26 Ind. 1.

12 See cases cited in note 15.

13 O'Brien v. Smith, 1 Black, 99; Merchants' Bank v. McClelland, 9 Colo. 608; Johnson v. Catlin, 27 Vt. 87.

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upon it. An indorsement to the cashier as cashier is an indorsement to the bank, and may be so alleged; 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. 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 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.2 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

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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

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