term, 1888, because evidence introduced by the plaintiff that within ten years the summons which had been delivered to the marshal for service, had not been properly submitted to the jury. The defendant answering denied, upon information and belief, that at the time of the commencement of the action the said plaintiff was, or is now, a corporation created or organized under the laws of the State of Michigan. In support of the other defense the defendant offered in evidence duly certified copies of the following documents:

First. Articles of association.

"Second. The organization certificate executed at the same date as the articles of association.

"Third. Instruments signed by the stockholders conferring the authority of the change of the State into a national bank. "Fourth. A certificate of the Comptroller of the Currency that the association had complied with the provisions of law, and was authorized to commence business."

The defense in this case in effect, was that the plaintiff at the time of the commencement of this action was not, or is it now, a corporation. The court, in discussing this question,

says:

"The evidence offered by the defendant on this point wholly failed to support this defense, and it must only profit that the plaintiff sued by the wrong name. It showed no more than, that the plaintiff corporation, having been originally created by the laws of Michigan, had, in accordance with the National Banking Act, become a national bank, and its name been changed accordingly, without affecting its identity or its right to sue upon obligations or liabilities incurred to it by this former name.

"In the absence of a statutory provision limiting or affecting the corporation rights of a State banking corporation after conversion into a national bank, the State bank does not lose its charter or right to sue in its original name; but where, at the time of re-organization the choses in action or property of the State bank have been assigned and transferred to the national bank, the action should properly be brought in the name of the assignee."

In the case of Atlantic National Bank v. Nathaniel Harris, 118 Mass. 147, held:

That "the new bank could maintain an action in its own name against the president for money had and received under the statute of 1870, chap. 217; the fact of sale by the State bank, and purchase of the chose in action by the plaintiff being set forth in the writ."

§ 159. Liabilities of national bank after conversion.

Upon the question as to liability of a national bank formed by the conversion of the State bank, for the debts of the State bank, the case of Metropolitan Bank v. Clagget, 141 U. S. 520, is directly in point. It holds that:

66

* where a national bank is organized as the successor of a State bank and takes over the assets of the bank and holds the same, it is liable to the depositors of the former bank."

In the case of The City National Bank of Poughkeepsie, Respondent v. William Philps, Appellant, 97 N. Y. 44, the court holds that:

* * a State bank transformed into a national bank is but the continuance of the same body under a changed jurisdiction, and between it and those who have contracted with it, it retains its identity and may, as a national bank enforce contracts made with it as a State bank."

Held also that:

*

where a State bank, at the time of its change to a national bank held a continuing guarantee of loans made by it to one W., upon the strength of which it had made loans, and after the change further advances were made, an action was maintained by the national bank upon the guarantee and that the guarantor was liable for the loans made both before and after the change."

Where a national bank goes into liquidation, closes its business, and ceases its organization as such in conformity with the act of Congress, in such cases made and provided, and the bank is subsequently legally organized and incorporated according to law, it becomes liable as the successor of all of the property and interests of the former bank to depositors in said bank.1

1 Eans, Administrator, Plaintiff in Error, . Exchange Bank of Jeffer

son City, 79 Mo. 182; Bank r. MeIntyre, 40 Ohio State 528.

Where a national bank is formed as the successor to a State bank and becomes possessed by assignment of the property of the State bank, owning and holding the assets of partics liable to the State bank before its formation or reorganization into a national bank, the debtors became liable to the national bank, and upon the same theory, if it took the assets of the state bank and can collect and sue upon them, it becomes liable for all the transactions legally entered into by the State bank prior to the assignment or reorganization.

A

And a national bank in taking over the assets of a State bank, either by conversion or otherwise, cannot take by transfer or assignment and hold the stock of the State bank. National banking corporations are prohibited by law from holding by purchase directly, stock of another corporation. State bank, as formerly stated, does not lose its corporate existence or its charter by conversion into a national bank; it simply transfers or converts its assets into the new corporation formed under the National Banking Law.

A State bank may transfer all of its assets and property of every nature, and its surplus fund, if authorized by all of its stockholders, but it cannot transfer its stock to a national bank. Such an act is an act ultra vires on the part of the National Banking Act, and, as previously stated, unless a statute exists which provides that the State bank's charter shall be annulled or be declared forfeited to the State within a certain period after conversion, the corporation (State bank) lives for the full period granted to it by the provisions of its charter and the law.

In the case of Hayden v. Bank of Syracuse et al., 15 N. Y. Supp. 48, it is held that:

66% * * in accordance with the provisions of the statute laws of said State, chapter 97 of the Laws of 1865, the change from a State bank to an association organized under the Banking Laws of Congress, the action on the part of the State bank under said statute operated as a surrender of its charter and its existence as a corporation ceased."

But, as stated, if there are no statutory provisions terminating the existence of the charter, its rights exist for the remainder of the period granted to it by law from the date of the transfer or reorganization.

"The transition of a State into a national bank does not disturb the relation of either the stockholders or officers of the corporation, nor does it enlarge or diminish the assets of the institution. These all remain the same under the national as they were under the State organization. The bank neither loses any of its assets nor escapes any of its liabilities by virtue of the change."

It is not a new creation, but as a national organization, in assuming the place and position of the State bank assumes all of its legal liabilities. It is held that: "Where certain packages of coin were specifically deposited with the State bank prior to the change, that an action in trover would lie against the national bank for conversion." 2

Where an asset has been assigned, the assignee taking title would be the proper party plaintiff in action, and the corporation bank after assignment, could not claim title or interest in the property, and, therefore, would not be a proper party plaintiff under the statute. But where the old bank corporation has a continuing guarantee of loans, it is held, it retains the right to enforce the guarantee.3

Assets which may be transferred by a State bank and converted and held by the new national bank, are limited to such only as the national bank may hold at any time. All assets prohibited to be held by sections 5137 and 5200 of the Revised. Statutes of the United States must be retained by the old corporation.

2 Benjamin Coffy, Respondent v. National Bank of the State of Mo., Appellant, 46 Mo. 140.

3 National Bank v. Phelps, 97 N. Y. 44.

CHAPTER XV.

AMENDING BANK CHARTERS.

§ 160. National bank charter, how amended.

The National Banking Act provides the steps to be taken in obtaining a charter, and when all such proceedings are complied with and the Comptroller of the Currency issues a certificate of due incorporation, the charter becomes a contract and is not subject to amendment, only under such laws and restrictions as are imposed by the statute. A national bank may amend its charter, providing "no change shall be made in the articles of association by which the rights, remedies, or security of the existing creditor of the association shall be impaired." The necessity of amending a charter obtained to conduct the business of banking, when obtained under the National Banking Act, could hardly arise. The charter when obtained with power to do a general banking business under said act is complete. An amendment does not enlarge its power by setting out the various statutory enactments, and provisions in the articles of incorporation. All such powers are implied and need not be set out In haec verba; but a national bank charter which has been granted, and is defective as to requirements of form and law, may be amended by application to the Comptroller of the Currency.

§ 161. Amending State bank charter.

The laws of the various States by statutory provisions provide for the amendment of the articles of incorporation setting out the mode which must be followed. But the amended. articles can, in no instance, extend the life of the corporation beyond the time granted to it by its original articles of incorporation, and the articles of incorporation by amendment cannot create a new power or definite purpose from that intended by the original articles. For example, a bank which is incorporated as a savings bank under a statute authorizing and providing specifically for the incorporation of such banks, and in