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will be subject to all the liability of ordinary owners; for the reason the property is in his name and the legal ownership appears to be in him.3

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Where the transfer appears to be absolute on the books of the bank, the transferee is liable for the debts of the corporation, notwithstanding he may hold such stock by transfer or assignment as collateral security for a loan to the shareholder from whom he receives the transfer.22

In the case of Union Savings Association v. Seligman, 92 Mo. 635, the court in discussing this question and where it was shown that the certificate of stock was held under agreement, in writing, which agreement set out that the stock was held as collateral security, says:

"The simple act of accepting that certificate of stock under an agreement in writing, which as also the entry of the stock in the stock-book the other records of the company relating to the transaction showed that it was held by them only as collateral security, does not make them liable as stockholders, either to the corporation or its creditors. As long as they held the stock under that agreement, doing no other act, their liability to creditors depended upon their legal relation to the company. If stockholders as between themselves and the corporation, they would be liable as such to creditors of the corporation, otherwise not." 33

§ 66. An assignment absolute in form may be shown to be intended as security only.

It is always competent to show that an assignment or conveyance absolute in form is intended as a security only; and in an action by creditor of a banking corporation against a stockholder to enforce statutory liability, it is held: evidence is proper upon the part of defendant to show that an assignment of stock, absolute upon its face, was in fact given to him as collateral security, and was held by him for that purpose only.

31 Wheelock v. Kost et al., 77 Ill. 296.

32 Hale v. Walker, 31 Iowa 344.
33 Burgess v. Seligman, 107 U. S.

34

34 Despard v. Walbridge, 15 N. Y. 374; Sturtevant r. Sturtevant, 20 N. Y. 39; McMahon v. Macy, 51 N. Y. 155.

The general rule as laid down however may be stated as follows: A private agreement between the transferrer and the transferree that the former shall not be liable will not relieve him from liability.3

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§ 67. Statute protecting pledgee.

Where the statute protects the pledgee from liability, the stock if transferred on the stock books of the corporation must show that it is held as pledged property, otherwise the liability will rest upon the party shown to be the owner by the books. of the corporation.

§ 68. Individual liability of shareholders of national banks. The individual liability of shareholders in a national bank arises under section 5151, Revised Statutes of the United States. Which reads as follows:

"The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares, except that shareholders of any banking association now existing under State laws having not less than five millions of dollars of capital actually paid in and a surplus of twenty per centum on hand, both to be determined by the Comptroller of the Currency, shall be liable only to the amount invested in their shares; and such surplus of twenty per centum shall be kept undiminished, and be in addition to the surplus provided for in this Title; and if at any time there is a deficiency in such surplus of twenty per centum such association shall not pay any dividends to its shareholders until the deficiency is made good; and in case of such deficiency the Comptroller of the Currency may compel the association to close its business and wind up its affairs under the provisions of chapter four of this Title."

A stockholder's liability arises and exists by force of the Statute and is not contractual.3 36

35 Bells Appeal, 115 Pa. State SS, 2 Am. St. Rep. 532.

36 First Nat. Bank of Concord v. Hawkins, 79 Fed. Rep. 51; Keyser

r. Hitz, 133 U. S. 138: First Nat. Bank of Concord r. Hawkins, 33 U. S. App. 747.

A stockholder's liability is restricted to contracts and debts of the bank which have been contracted in the ordinary course of business.37

Where a bank has been placed into voluntary liquidation a stockholder cannot be held for the claims of new creditors.38

§ 69. Extent of liability.

A stockholder in a national bank is liable in proportion to the whole amount of the deficit that his own stock bears to the whole amount of the capital stock at its par value.39

A solvent shareholder cannot be required under the law to contribute more than his proportion in order to make good the deficiency of an insolvent shareholder.40

$70. Liable for interest.

The law holds a shareholder liable for the interest on debts of the bank as well as for the principal.*1

§ 71. Representatives of deceased shareholder liable. The representatives of a deceased shareholder cannot defeat a liability, though he dies before the insolvency of the bank.42 The fact that the title to the stock of a deceased stockholder is vested in an administrator will not relieve the estate from ar assessment.*

43

§ 72. Married woman stockholder.

In Vermont (and many other States) a married woman is competent to become a stockholder in a corporation, and to contract to charge her separate property with the payment of any liability which is implied from entering into that relation."

In North Carolina a Code section 1826 provides, that no woman during coverture shall be capable of making any contract to affect her real and personal estate without the written consent of her husband. But the court holds that a purchase of stock by a married woman is not a "contract" within the terms of the statute, and that the wife is liable upon an assess

37 Richmond v. Irons, 121 U. S. 27; Schrader v. Mfg's. Nat. Bank, 133 U. S. 67.

38 Schrader v. Mfg's. Nat. Bank, 133 U. S. 67.

39 United States v. Knox, 102 U. S. 422.

40 Schrader v. Mfg's. Nat. Bank, 133 U. S. 67.

41 Casey v. Galli, 94 U. S. 673; Richmond v. Irons, 121 U. S. 27.

42 Wickman v. Hull, 60 Fed. Rep. 326; Richmond v. Irons, 121 U. S. 27.

43 Davis v. Weed, 44 Conn. 569.
44 Witters v. Sowles, 38 Fed. Rep.

700.

ment, though purchased without the written consent of her husband. In discussing this question, the court says:

"To hold that a State law, were there such a law, could except certain shares from the liability, would enable States to defeat the policy of the Federal government in establishing the national banking system. That the Congress has power to establish and legislate for such banks has not, since 1819, been an open question. McCulloch v. Maryland, 4 Wheat. 316. If a purchase of stocks in a national bank by a married woman without the written consent of her husband gives her the ownership of such stock, judgment must be given against the femme defendant. If she owned the stock at the failure of the bank, she is liable to the assessment; if she did not, she is not liable. While the Federal government exclusively controls the question of the liabilities of stockholders in national banks, it is not doubted but that a State has power to say that for reasons seeming good to its Legislature, and not in conflict with organic law, a particular class of persons shall not be permitted to own particular classes of property. It may lawfully be provided that a guardian or other trustee may not invest in securities other than those specified by statute. Probably it might be held that a statute might constitutionally provide that purchases by guardians of, say, railroad stock, in the name of their trust, should be absolutely void. In such case it might be held that an attempted transfer of such stock so purchased passed no title; that the stock still remained, although duly assigned and transferred, on the corporation books, the property of the vendor; and that the guardian could recover the money paid from the vendor. It would, I think, require strong and plain words to induce courts to give such a construction to an act of the Legislature." 45

The law as previously stated is: A married woman may become a stockholder in a State bank where the law of the State in which the contract is made permits it and she will be subject to all the liabilities as such.46

A married woman in the District of Columbia may become a holder of stock in a national banking association, and assume all the liabilities of such a shareholder, although the consideration may have proceeded wholly from the husband.

45 Robinson v. Turrentine, 59 Fed. 46 Bundy v. Cook, 128 U. S. 185. Rep. 554.

The coverture of a married woman who is a shareholder in a national bank does not prevent the receiver of the bank from recovering judgment against her for the amount of an assessment levied upon the shareholders equally and ratably under the statutes.47

Where one knowingly permits his name to be entered upon the stock books of a bank as the owner, he cannot be permitted as against creditors or a receiver of the bank to show that he was not the owner of the stock, and it is held that he is liable for assessments thereon though he held the stock in fact as trustee for the bank itself.48

This is in direct contravention of the law as laid down in the case of McMahon v. Macy, 51 N. Y. 155.

Where a stockholder sold stock several months before the insolvency of the bank, but the transfer was not made on the books until the date of the bank's failure, held, that the stockholder incurred the statutory liability.

49

But where the stockholder has delivered his certificate of stock with a power of attorney to an officer of the bank, which power of attorney directed him to immediately make the transfer on the books, the owner of the stock will not be held responsible for the failure of such officer to actually make the transfer.50

Where stock has been placed upon the stock book in the name of a person with the knowledge of such fact, and he fails to repudiate the transfer to himself, or deny the ownership, he is held liable as the owner of such stock.51

Where the by-laws of a bank require that the transfer of the stock shall be registered, where a certificate is issued to a subsequent purchaser in lieu of a certificate of a prior owner, such person will be held liable as a stockholder.52

§ 73. Executors, administrators, guardians, or trustees not personally liable.

Section 5152 Revised Statutes of the United States provides: That "persons holding stock as executors, administrators,

47 Keyser . Hitz, 133 U. S. 138; Bundy r. Coeke, 128 U. S. 185.

48 Lewis r. Switz, 74 Fed. Rep. 381. 49 Richmond v. Irons, 121 U. S. 27. 50 Whitney r. Butler, 118 U. S.

655; Cox r. Elmendorf, 97 Tenn. 518; Hayes t. Shoemacker, 39 Fed. Rep. 319.

51 Finn v. Brown, 142 U. S. 56. 52 Laing v. Burley, 101 Ill. 591.

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