Laws

McDaniel, 77 Ga 4 Post Date: Thu, 31 Jul 2008 12:00:42 +0000
Where a recognizance is returnable "at the next Court of Oyer and Terminer," the next court of that kind held in the county where Excuse for Nonappearanc e When appearance is rendered impossi- ble by the act of God or the obligee, it is excuse d 1 Illinoi S Piercy v People, 10 111 App 219; Brown v People, 26 111 28 Indiana Woolfolk v State, 10 Ind the indictment was found will be pre- sumed to be intended thereb Y Peo- ple v McCoy, 39 Barb ( N Y) 73 See Petty v People, 118 111 148; Ex p Croom, 19 Ala 561 Place not Specifie d Where the stat- ute designates the county court-house as the place where examinations shall be had, that is the place where the ac- cused is bound to appear, although the recognizance taken does not spec- ify it. Tyler v Greenlaw, 5 Ran d ( Va) 711 Removal of Cas e Where, after a recognizance is given, the case is transferred to another court, the ac- cused is bound to appear in the court to which it is transferre d Williams i. McDaniel, 77 Ga 4 Where a case is removed from a state court to a United States court, the whole proceedings are thereby re- moved, and the accused is not bound to appear in the state court according to the condition of a recognizance given before such removal, and his failure so to do is not a breach of the recognizanc e Davis v South Caro- lina, 2 Su P Ct Rep (U S) 636 Appearance must be Persona L A surety cannot appear in place of or for .

Autor of the post: Undefined

Imprisonment in an- other state Post Date: Thu, 31 Jul 2008 11:50:30 +0000
the accused, and plead to the in- dictment; the accused must person- ally appeaRWarren v State, 19 Ark 217 Not in Misdemeanor S Where the offense charged is a misdemeanor, the accused is not bound to personally appear at the trial, and his failure to do so is not a breach of his recogni- zanc e People v Budd, 57Cal349; State v Rovve, 8 Rich ( S Car) 21 But see State v Minton, 19 S Car 280 In cases of misdemeanor the accused may be tried without being present; and where in such a case the accused failed to appear and his recognizance was forfeited, but in the trial proceed- ing the accused was acquitted, it was held that the forfeiture should be set aside on application of the suretie S Iowa State v Scott, 20 Iowa 63 KentucKy M'Clelland v Chambers, i Bibb (Ky) 366 Massachusett S Bigelow v Johnson, 16 Mas S 218; Way v Wright, 5 Met (Mas S) 380 New Jerse Y State v Traphagen, 45 N J L 134; Steelman v Mattix, 38 N J L 247, 20 A M Rep 389; State S McNeal, 18 N J L 333 New York People v Manning, 8 Co W ( N Y) 297; People v Tubbs, 37 N Y 586 Pennsylvania Scully v Kirkpat- rick, 79 Pa St 324, 21 A M Rep 62 Tennessee State v Allen, 2 Humph (Tenn ) 258 ; State v Edwards, 4 Humph (Tenn) 226 VirginiaCo M v Craig, 6 Ran d ( Va) 731; Caldwell v Co M, 14 Gratt ( Va)6g8 United State S U S. v Santos, 5 Blatchf (U S) 104; Taylor v Tain tor, 16 Wal L (U S) 366; U S v Van Fossen, i Dil L (U S) 406 Sicknes S Where performance of the condition of a recognizance becomes impossible by the act of God or the obligee, it is excused, and the sickness of the accused, such that he is unable to appear, is a sufficient excuse for his nonappearanc e People v Manning, 8 Co W ( N Y) 297; Co M v Craig, 6 Ran d ( Va) 731; Strey v State (Tex Cri M App, 1894), 27 S W Rep 137; Russell v State, 45 Ga 9 While the sickness of the accused is not an excuse for him for his nonap- pearance, it is for his sureties for not producing hi M State v Edwards, 4 Humph (Tenn) 226 Contra, Piercy v People, 10 111 App 219 The sick- ness of the accused is not an excuse for his nonappearance, either for him or his suretie S Imprisonment. Imprisonment in an- other state, on a different charge, is no excuse for the failure of the accused to appear at the time specified in the recognizance, Taylor v Taintor, 16 Wal L (U S)36; unless it be caused by the act or consent of th~ obligee, Reese v U S, 9 Wal L ( U S) 13 Im- prisonment in the same state is an e*x- cus e Buffington v Smith, 58 Ga, 341 Discharg e Only a valid and legal discharge operates to excuse the nonappearance of the accuse d 1 The imprisonment of the accused in another county in the state is a suffi- cient excuse for his failure to appear as required in his recognizance; his appearance is thus rendered impos- sible by the act of the obligee, the stat e People v Bartlett, 3 Hill ( N Y) 570; Cooper v State, 5 Tex App 215; Buffington v Smith, 58 Ga 341 SoldieRWhere the accused is a sol- dier in the United States army and is prevented by his officers from appear- ing, appearance is excuse d Co M v Terry, 2 Duv (Ky) 383; People v Cook, 30 How Pr ( N Y Supreme Ct) no; People -v Cushney, 44 Barb ( N Y) 118 Life in DangeRIt is no excuse for his nonappearance that the accused fled to save his life, unless after due application to the authorities for pro- tection it was not accorde d Fleenor v State, 58 Ind 166; Weddington v Co M, 79 Ky 582 1 Fitch v State, 2 Nott M ( S Car) 558; Champlain v People, 2 N Y 82; Price v State, 42 Ark 178; State v Spear, 54 Vt 503; U S v White, 5 Cranch ( C C) 368; State v Haskett, 3 Hill ( S Car) 95 Acquitta L A recognizance is not discharged by the failure to indict the accused, or by his trial and acquittal; an order discharging him should be obtaine d State v Stout, n N J L 124; Champlain v People, 2 N Y 82 Contra, Goodwin v Governor, I Stew p (Ala) 465; State v Doane, 30 La An N 1194; Mills v McCoy, 4 Co W ( N Y)4o6 Discharge after Bailin g After a jus- tice has held the accused to bail and taken a recognizance he has no power to cancel it and discharge the accused from custody, and his act in so doing is voi d If the accused wishes to be released, he should appear at court and obtain an order discharging hi M Benjamin v Garee, Wright (Ohio) 450 No Indictment.

Autor of the post: Undefined

Where an in- dictment Post Date: Thu, 31 Jul 2008 11:34:29 +0000
Where a person ac- cused has been bound to appear at a specified term of court, and in the meantime to keep the peace, and at said term no proceedings against him are taken and no regular continuance made, it amounts to a discontinuance of the proceeding, and the accused is in law discharged, and his recogni- zance cannot be forfeited for non- appearance at a subsequent ter M Goodwin v Governor, r Stew, p Ala (465). Quashing Indictment. Where an in- dictment is quashed on technical ground, the accused is not entitled to be discharged, but will be held on the original charge against hi M Young v Co M, i Ro b ( Va) 805; Nicholls v State, 5 N J L 539 Contra, People v Felton, 36 Barb ( N Y) 429 A recognizance to appear and not depart without leave binds for appear- ance until the accused is discharged, and the quashing of an indictment does not release or discharge hi M State v Hancock, 54 N J L 393 Defective Commitment.

Autor of the post: Undefined

1 In suits or actions Post Date: Thu, 31 Jul 2008 11:21:33 +0000
Although a commitment be found defective, the accused is not entitled to be abso- lutely discharged, but he may be dis- charged from that commitment and recommitted on the same or some other charge upon an application for bai L McCarty's Case, 2 Martin ( La) 278; Ex p Taylor, 5 Co W ( N Y) 39; Matter of Percy, 2 Daly ( N Y) 530; Gerdeman v Co M, n Phi La (Pa) 374; Taylor v Phillips, 3 East 155 Nolle Pro S Although a nolle prose- qui is entered as to the charge on which the accused is bound by recog- nizance to appear and answer, this does not operate to discharge the recognizance or entitle the accused to be discharge d A nolle pros, oper- ates only to discharge the particular charge or indictment; it does not va- cate previous proceedings had, and it leaves the accused liable to meet any other charge which may be preferred; it is not an end of the proceedin g State v Haskett, 3 Hill ( S Car) 95; Reg v Ridpath, 10 Mo d 152 Forfeiture of Recognizanc e The ac- cused is not discharged by the forfeit- ure of a recognizance given for his ap- pearance and the payment of the amount specified therein, but is bound to appear notwithstanding this, and is liable to rearrest on failure to do So A recognizance is to secure the appear- ance of the accused for trial, not to act as a satisfaction of the charge mad e Ex p Milburn, 9 Pet (U S) 710; Co M v Thompson, 3 Litt (Ky) 284 Discharge of Suretie S The discharge Indemnificatio N The accused is bound to indemnify his bai L 1 Custod Y The accused is regarded as in the custody of his bail from the moment a recognizance is executed until he; is discharged or recommitte d 2 of the sureties on a recognizance does not discharge the principal, and he re- mains liable thereafTer Lorance v State, i Ind 359 Performanc e A recognizance re- quiring the accused to remain and abide the judgment of the court is fully performed where the accused, being convicted and required to give a bond or be imprisoned, is committed to jail on failing to give the bon d Wheeler v State, 39 Ka N 163 Where a person accused of contempt of court gave a recognizance condi- tioned to appear and answer the charge, to be amenable to the process and order of the court, and, if con- victed, to appear for judgment and render himself in execution, and he was convicted and adjudged to pay a fine, which fine was fully paid, it was held that the condition of the recogni- zance had been fully performed, and neither the accused nor his sureties were further liable thereo N State v Crane, 15 Oregon 148 1 Jones v Orchard, i Ju R, N 8936 The person accused who obtains release on bail is bound to indemnify his surety for any injury sustained by the failure of the accused to comply with the terms of the recognizanc e His liability is the same as it would be in the case of a bond given in a civil actio N Reynolds v Harra L 2 Strob H ( S Car) 87 2 People v Penniman, 37Cal271; Anonymous, 6 Mo d 231 During Tria L Where a recognizance is conditioned " for the appearance of the accused from day to day and term to term until discharged by law," the accused is regarded as in the custody of his bail during his trial, and not in the custody of the sheriff Hawk v State, 84 Ala 466; State v Brown, 16 Iowa 314; People v McCo Y 39 Barb ( N Y) 73; Lee v State, 51 Mis S 665 Where a person accused of crime has been admitted to bail, the trial judge has no authority to order his arrest and confinement during his trial for such crime, unless he has reasonable ground to believe that he will escape; but such arrest will not vitiate a convictio N State v Black, 42 La An N 861 Where a statute provided that dur- ing trial the accused should be com- mitted to and remain in the custody of the proper officer, it was held that after a trial commenced a person accused was to be considered in the custody of the officer, and not in that of his bail; but that trial was not commenced until an issue was reached and the jury swor N Willis v Co M, 85 Ky 68 Where a person out on bail was, during his second trial for murder, ordered into custody by the trial jus- tice, his application for a mandamus to compel his admission to bail during such trial was denied, as being a mat- ter within the discretion of the trial justic e Hull v Reilly, 87 Mich 497- Joint Action by Foreign Ban K A Affidavit by CashieRWhere a na- foreign bank may maintain a joint ac- tional bank sues under the Maryland tion, under the statute, against a Procedure Act of 1864, C 6, the drawer and indorser of a bill of ex- cashier may make the affidavit re- change, as well as may a bank incorpo- quired to be filed with the declaration, rated in the stat e Lewis v Kentucky stating the true amount in which the Bank, 12 Ohio 132 defendant is indebted to the plaintiff 2 Where Maintaine d Whether a proceeding by or against a bank is cognizable at law 2 or in equity depends on the nature of the cas e 3 Eedemption of Bills and Note S Thus, in order to compel a bank to redeem its outstanding bills and notes, the creditor may proceed either at law or in equit Y 4 Usur Y But equity has no cognizance of a bill to recover usury from a national ban K 5 3 By Whom Maintaine d An incorporated bank may maintain an action in its own corporate name, 6 or, when so authorized by over and above all discount S Park- hurst v Citizens' Nat Bank, 61 Md 254, 3 Browne Nat B K Ca S 463 Suits by Banks are not within the meaning of the first section of the Ohio Act of March 12, 1844, "to reg- ulate the practice of judicial courts;" but said-section has reference to suits by individuals onl Y Clinton Bank -v Hart, 19 Ohio 372 Eight to Sue on Bon d The question as to the right of a bank to sue on a writing obligatory can be raised only by a proper ple A Neely v State Bank, 4 Ark 522 1 Noble v Kentucky Bank, 3 A K Marsh (Ky) 262 2 Action for Negligence of Director S An action to recover damages oc- casioned to the stockholders of a bank by the negligence of the directors is to be tried as an action at law by a jury; and an order directing its trial by the court without a jury should be reverse d Brinckerhoff v Bostwick, 43 Hun ( N Y) 458, distinguishing Brinckerhoff v Bostwick, 99 N Y 185, and following Hun v Gary, 82 N Y 65 Action on Coupon S Assumpsit is the proper form of action for a na- tional bank to sue upon coupons is- sued with and annexed to town bonds, but payable to the bearer and separated from the bond S North Bennington First Nat Bank 'v Ben- nington, 2 Browne Nat B K Ca S 437 3 In Alabama it has been held that the note holders of a foreign banking corporation which has suspended payment and become insolvent may, without first obtaining a judgment at law, proceed in equity against the bank, its directors, stockholders, and agents, charging them with fraud and misapplication of the assets, and seek- ing a discovery and account. Such a bill may be maintained under the general powers and jurisdiction of the court, which regards the capital stock of the company and all its assets as a trust fund for the payment of its creditors, and the directors, stock- holders, and agents as trustee S St Mary's Bank v St John, 25 Ala 566 4 Adkins v Thornton, 19 Ga 325 5 Hambright v Cleveland Nat Bank, 3 Lea (Tenn) 40, 31 A M Rep 629, 2 Browne Nat B K Ca S 419 6 Leonardsville Bank v Willard, 25 N Y 574, 16 Abb Pr ( N Y) in; Root v Price, 22 How Pr ( N Y Su- preme Ct) 372; East River Bank v Judah, icHo W Pr ( N Y C P I) 135; Delafield v Kinney, 24 Wen d ( N Y) 345- A bank may sue in its own name on a lease of its real estate when by the terms of the lease the rent is re- served to it, although the demise is in the name of the assistant commis- sioneRDouglass v Mobile Branch Bank, 19 Ala 659 Drafts Drawn in Favor of the Cashier are in law drawn in favor of the bank; and the bank may sue thereon in its own na Me Wright v Boyd, 3 Barb ( N Y) 523 An Individual Banker is not a cor- poration, though subject to the re- strictions imposed upon banking cor- porations, and therefore an action is properly brought in the name of the individual plaintiff Codd v Rath- bone, 19 N Y 37 Branch Bank S Suits by or against branch banks should be brought by or against the principal bank in its cor- porate na Me Tompkins v Branch Bank, n Leigh ( Va) 387; Mason v Farmers' Bank, 12 Leigh ( Va) 86; Tennessee Bank v Burke, i Cold W (Tenn) 623 But see Alabama Branch Bank v Rhew, 37 Mis S No statute, in the name of its president. 1 In suits or actions against it the bank should be designated by its proper name and the proceeding brought by the proper part Y 2 4 Proper Partie S In suits by or against banks, as in other cases, all the proper parties should be introduce d 3 Thus, in a 1 New York Act April 18, 1838 (since repealed); Root v Price, 22 How Pr ( N Y Supreme Ct) 372; East River Bank v Judah, 10 How Pr ( N Y C P I) 135; Delafield v Kin- ney, 24 Wen d ( N Y) 345; Stanton v Wilson, 2 Hill ( N Y) 153 Action in Name of President on Behalf of Ban K Although it is well settled that an action brought by A B, pres- ident of a banking association, gives merely a description of the person, and is the action of A B individually, yet it is equally well settled that where A B thus describes himself, and then avers that he prosecutes the action for the benefit of the association, this is sufficient to show that the action is prosecuted for and in behalf of the as- sociatio N Root v Price, 22 How Pr ( N Y Supreme Ct)372; Fortierz'.

Autor of the post: Undefined

A national bank Post Date: Thu, 31 Jul 2008 11:05:45 +0000
New Orleans Nat Bank, 112 U S 440, 3 Browne Nat B K Ca S 140 A declaration, however, containing the common money counts, commenced thus: " b complains of H, president of the St Lawrence Bank, a banking association organized under the act passed April 18, 1838, to authorize the business of banking," and then pro- ceeded to allege that the defendants became indebted, promised to pay, etc, but afterwards refuse d This was held not a declaration against the bank, but against H individually, the words added to his name being mere descriptio person A It would have been otherwise had the declaration alleged that the bank became indebted, and promised to pay, etc Ogdensburgh Bank v Van Rensselaer, 6 Hill ( N Y) 240 See Delafield v Kinney, 24 Wen d ( N Y) 345; Hunt v Van Alstyne, 25 Wen d ( N Y) 605 2 See Case v Mechanics' Banking Asso C, i Sandf ( N Y) 693 A Clearing-house Association is prop- erly sued in the names of the com- mittee, who have entire control of its business, funds, and securitie S Yard- ley v Philler, 58 Fed Rep 746 The Auditor of State only is, in In- diana, authorized to maintain an ac- tion against the officers and trustees of savings banks for the violation of their statutory dutie S Ryan v Ray, 105 Ind 101 A Trustee created by a bank may maintain a suit in his own name on a note payable to the bank and indorsed to him while the corporate capacity existed, though the action may not be commenced till afterward S Cooper v Curtis, 30 Me 488 See Stevens v Hill, 29 Me 133 The Assignees of an insolvent bank- ing corporation may maintain an ac- tion against a director for damages for loss occasioned by the fraudulent sale to the bank of his own stock by such directoRShultz v Christman, 6 Mo App 338 3 Joinder of Partie S Since the ap- pointment of a receiver, under the Na- tional Banking Act, does not absolute- ly dissolve the corporation, the bank and the receiver both may, in certain cases, be made parties defendant S Green v Walkill Nat Bank, 7 Hun ( N Y) 63; Turner v Keokuk First Nat Bank, 26 Iowa 562 And where a trustee deposits money in a bank to his credit as agent he may sue the bank for it; and it is not error for him to join with himself in the suit the beneficiary of the truSt Munnerlyn v Augusta Sav Bank, 88 Ga 333 Several creditors of an insolvent bank may unite in the same bill to charge the stockholders, who were also directors, for fraudulently ab- stracting the capital stock of the bank; and the bill is not objectionable to the charge of misjoinder of both com- plainants and defendant S Semmes v Mott, 27 Ga 92 Under 125, C 148, Wi S Rev Stat(2 Ta Y Stat, 1734), a creditor of a bank existing under the laws of Wisconsin may, without having obtained a judg- ment at law against it, maintain an ac- tion, in behalf of himself, and all other creditors who may choose to become parties thereto, against the bank jointly with the stockholders, to ob- tain the relief provided for by sections 21, 23, 24, 30, 31, and 32 of said chapTer Cleveland v Marine Bank, 17 Wi S 545- suit to recover the amount of a deposit from a bank organized under a law making stockholders individually liable for the debts of a bank, it has been held that the stockholders may properly be joined as defendants, though it is not necessary that they should b e 1 And where an action is in behalf of a bank, the bank is a proper party to the actio N 2 5 Requisites of Complaint, Declaration, or Bil L The complaint, declaration, or bill, in a proceeding against a bank, should show its capacity as a duly organized or a legally existing bank, 3 and But depositors in a bank cannot sue jointly for general and public fraud- ulent misrepresentations by certain of the managers of the ban K They may, however, sue jointly for mismanage- ment of the bank's fund S Chester v Halliard, 34 N J E Q 341 In an action by a national bank to recover damages of its directors for the wrongful acts of the president, the complaint alleged that the defendants, knowing of those acts, negligently permitted and allowed, and aided, countenanced, and assisted, the pres- ident to do them, and concealed the facts from the plaintiff and other stockholder S It was held that the president was not a necessary party to the actio N Smith v Rathbun, 22 Hun( N Y) 150 The Bank of the State of Arkansas, upon a bill for injunction, will not be allowed to prosecute her suit under cover of privileges which belong to the state by uniting the state with her as complainant. Ex p State, 15 Ark 263 1 Wright v Field, 7 Ind 376 2 Wickersham v Crittenden, 93 Ca L 17 Depositors in a savings bank cannot proceed in their own right, without making the corporation a party, to call the directors to account for the loss of the capital of the bank by the neglect and misconduct of such offi- cers, as the bank is the person pri- marily injured by such caus e Chester v Halliard, 36 N J E Q 313 A national bank having made a loan on the security of a warehouse receipt for merchandise is a proper party defendant to a suit in replevin by the consignor and owner of the merchan- dise against the warehouse keepeRCleveland v Shoeman 40 Ohio St 176; 3 Browne Nat B K Ca S 701 Tax Suit. A national bank is a proper party complainant to a bill in equity to enjoin the collection of a tax upon its shares, assessed against its stockholders, if it be shown that the bank would be subjected to a mul- tiplicity of suits, whereby its business would be interfered with, its credit impaired, and its stock depreciate d City Nat Bank v Paducah, 5 Cent L J 347, Thom P Nat B K Ca S 300 Action against StockholdeRIn an action by a creditor of a bank against a stockholder for the recovery of a debt due from the bank, the corpora- tion is not a necessary part Y Perkins v Church, 31 Barb ( N Y) 84 3 An indictment under U S Rev Stat, 5209, charging one with an of- fense as president of a certain national bank, " duly organized and doing busi- ness at the village of," etc, sufficiently states the organization under the National Banking A Ct U S v North- way, 120 U S 327, 3 Browne Nat B K Ca S 199 Banking Associatio N It is held that since the president, cashier, and di- rectors of a bank are an " association of individuals," within the meaning of the Texas act to suppress illegal banking (Hart Di g, art.

Autor of the post: Undefined

In a suit Post Date: Thu, 31 Jul 2008 10:53:42 +0000
87), it is no objection to the petition or informa- tion that it does not in terms allege them to be such " association," if it appear that they were associated together as an organized banking company, and acting together as offi- cers in doing the thing complained of Williams v State, 23 Tex 264 Location of Ban K The name " Farm- ers and Mechanics' National Bank of Buffalo" being recited in a com- plaint, it was held that there was sufficient to fix the location at Buffalo, N Y, under Code Civ Pro, 1775 Farmers', etc, Nat Bank v Rogers, 3 Browne Nat B K Ca S 683 Private Statut e And in a suit against a director of a bank the statute incorporating the bank, though should also state whether it is a foreign or a domestic institutio N 1 It should allege every material or component part of the cause of action or offense complained of 2 Nonpayment of Chec K Thus, in an action against a bank by a depositor to recover damages for the nonpayment of his check in favor of a third person, the complaint is fatally defective if it fails to allege that the check had been indorsed by the paye e 3 Kecovery of Deposit S So a complaint to recover money deposited with a banker should show that some form of written evidence of payment was offere d 4 Failure to Collect Not e But in an action against a bank to recover damages for its failure to collect a note placed with it for collec- tion, the declaration is sufficient if it states that the note was so a private one, need not be set out in the declaratio N Gaffney v Colvill, 6 Hill ( N Y) 567 1 Northampton First Nat Bank v Doying, 13 Daly ( N Y) 509 A complaint, in an action by a nation- al bank, which states that such bank is duly organized under the National Banking Act, but does not statedirectly where it is located, etc, doing busi- ness, or whether it is a domestic or a foreign corporation's still sufficient on demurrer, where the bank is described as a national bank of a city in the state, and that it has done business in that city for more than ten years, under Code Civ Pro N Y, 1775, which provides that in suits by or against corporations the complaint must state whether it is a domestic or a foreign corporation, and, if the latter, in what state or country it was organize d Farmers, etc, Nat Bank v Roger S (SupeRCt) i N Y Supp 757 2 State v Williams, 8 Tex 255; Gaffney v Colvill, 6 Hill ( N Y) 567; Kearny v Buttles, i Ohio St 362; Wal- lace v State Bank, 7 Ark 61; Dela- field v Kinney, 24 Wen d ( N Y)345 3 Rowley v Deposit Nat Bank, 18 N Y Supp 545, 63 Hun ( N Y) 550 In an action against a bank for re- fusing to honor the plaintiff's drafts upon it, a complaint which, after de- scribing the draft and the proceedings 'up to protest, alleges that, at the time of defendant's refusal to pay, the bank had on deposit enough of plaintiff's money to pay such a draft, and that by reason of such refusal plaintiff has been compelled to pay the amount due, though seeming to ground the action upon the draft itself instead of upon the refusal to pay, is sufficient, as contain- ing "a plain and concise statement of the facts constituting the cause of ac- tion," as required by Code Civ Pro N Y, 481 Citizens' Nat Bank v Importers', etc, Bank, 119 N Y 195- In a suit against a bank for the amount of certain checks drawn by a firm of millers in plaintiff's favor, and which, although there were moneys to the drawer's credit, were refused pay- ment because the bank retained such moneys for the discharge of a debt about to fall due to itself, an allega- tion that such moneys were the pro- ceeds of wheat sold to the drawers by the plaintiff, and were deposited for the payment of such checks and for no other purpose, was not sufficient to charge the bank as a trustee, in the ab- sence of an averment that it was a party to the agreement or had notice thereof Boettcher v, Colorado Nat Bank, 15 Colo16 4 McEwen v Davis, 39 Ind 109 An allegation in pleading that a bank held cash belonging to A "on deposit and payable to his order," amounts in law to an aljegation of a general deposit, creating the relation of debtor and creditoRDawson v Real Estate Bank, 5 Ark 283 Bill of Particulars Bank-boo K Where the plaintiff, in a suit against a bank for a balance of a deposit, attaches to his affidavit the bank-book contain- ing the entries made by the bank, and showing the balance due, this will be a bill of particulars, notwithstanding ts beina; sworn to so as to prevent a continuanc e Chicago Bank v Hull, 74 111 106 deposited before maturity, though the date of depositing be not give N 1 Proof The complaint, etc, should be so framed as to admit all proof necessary to establish the cas e 2 Duplicity should be carefully avoide d 3 I I OFFENSES AGAINST BANKS 1 False Entrie S An indictment for the offense of making false entries 4 in the books, etc, of national banks must aver: I That the accused was the president or other officer of a national banking association which was carry- ing on a banking busines S 5 2 That being such president or 1 Rnanoke Nat Bank v Hambrick, 82 Va 135 Collection of Draft. In an action against a bank for failure to promptly present a draft drawn by plaintiffs on an insolvent firm, the declaration al- leged that defendants, with knowledge that by diligence they could collect the draft, negligently and fraudulently re- tained it without trying to collect, and, when notified to hand it to attorneys, neglected and refused to do so until after the drawee became insolvent, so that it was impossible to collect the claim; and that by reason of the neg- ligence and fraud of defendants plain- tiffs lost all opportunity to collect their account, and were greatly injured held, that the declaration did not fail to show that defendants' failure to perform their duties resulted in loss to plaintiffs, and that it was unneces- sary to negative complainants' knowl- edge of the drawee's impending failure or their own negligenc e Finch v, Karste, 97 Mich 20 Copy of Note Exhibit. In a suit by a banking corporation against the pro- prietors of a private bank to recover damages sustained by the former through the neglect of the latter to perform their duty in the collection of a note payable at the latter bank, the note is not the foundation of the ac- tion, and a copy thereof attached to the complaint as an exhibit forms no part of the complaint.

Autor of the post: Undefined

The substance of the report Post Date: Thu, 31 Jul 2008 10:41:29 +0000
Locke v Merchants' Nat Bank, 66 Ind 353 2 In an action to compel redemp- tion by a bank of its bill, there being no averment of the amount of out- standing unredeemed notes, and proof thereof being necessary, the declara- tion was held defectiv e Adkins v Thornton, 19 Ga 325 So in a suit brought to recover the penalty given by statute for " the use or exercise of banking or discounting privileges for one month," the petition, after setting out the offense defined by the statute, should allege with great particularity the specific fact or facts constituting the offense charged and the person or persons who had obtained the discount or discounts, and thus raise the foundation for proof that it had been so continued for one Month State v Williams, 8 Tex 255 3 A count charging the directors of a bank with all the acts prohibited by I N Y Rev Stat, p 589, i, is bad for duplicity, Gaffney v Colvill, 6 Hill ( N Y) 567; but a count charging the ille- gal receiving and discounting of notes by a bank at various times during a specified period, contrary to the fourth subdivision of the first section of same statute, is not bad for duplicity, Gaff- ney v Colvill, 6 Hill ( N Y) 567 Nor is a count objectionable on this score where it charges that the direc- tors of a bank " did divide, withdraw, and pay to the stockholders a portion of the capital stock," though it adds that thereby the capital stock was re- duced without the consent of the legis- latur e Gaffney v Colvill, 6 Hill ( N Y,) 567- 4 Procuring and Counseling False En- tries before the Fa Ct Counts in an in- dictment under U S Rev Stat, 5209, which charge the defendant with pro- curing and counseling a false entry be- fore the fact, are valid, for such acts are covered by the clause of the section extending the penalty to any one who " abets " an officer or agent in the acts prohibite d U S v French, 57 Fed Rep 382 See II I, I, infr A 5 Description of Defendant In an in- dictment under U S Rev Statfor aid- ing and abetting a cashier in making false entries, if the defendant be de- scribed as "being then and there a director" of the bank, this cannot be considered as charging him with other officer, he made in the book, report, or statement of the association [describing it] a false entry [describing it]. 13 That such false entry was made with intent to injure or defraud the association, or to deceive any agent [describing him] appointed to examine the affairs of the associatio N 3 4 Averments of time and plac e 3 2 Embezzlement, Abstraction, Wilful Misapplicatio N Embez- zlement, abstraction, and wilful misapplication of the moneys, funds, etc, of a national bank, as described in United States Revised Statutes, constitute three separate crimes or offenses, an d aiding and abetting in his official ca- pacit Y U S v French, 57 Fed Rep 382 1 Allegations Concerning Report. The substance of the report only need be allege d U S v French, 57 Fed Rep 382 And the omission of the dollar mark which appeared at the head of the columns in the report is immate- ria L U S v French, 57 Fed Rep 382; U S v Potter, 56 Fed Rep 83 The context need be set out in the indictment only when it so far modi- fies the entries as to be, in presump- tion of law, a part of the M U S v Potter, 56 Fed Rep 97; U S v French, 57 Fed Rep 382 An indictment is bad, however, which fails to allege specifically that the reports were verified and attested by the cashieRU S v Potter, 56 Fed Rep 97 Order of Occurrence of Event S The preparation and completion of the re- port, the making of the false entry therein, and its verification, attestation, and delivery to the comptroller, may be considered as simultaneous, and there is consequently no 'repugnance in fail- ing to allege that any or all of these things occurred in consecutive ordeRU S v French, 57 Fed Rep 382 Transmission of Publication of Eeport.

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An allegatio-n that defendant "did Post Date: Thu, 31 Jul 2008 10:30:57 +0000
It is not necessary to allege specifi- cally in such an indictment that the report was transmitted to the comp- troller of the currency, or that it was publishe d U S v Potter, 56 Fed Rep 83 Form and Time of Report. Nor need it be averred that the report was made pursuant to a request of the comp- troller, or according to a form or at a time prescribed by hi M U S v Hughitt, 45 Fed Rep 47 Entry as Alteration of Beport. An allegatio-n that defendant "did make 3 Ency C P I Pr 17 25 a certain false entry in a certain re- port of the said association" will not be construed to mean that the entry was made after the report was com- pleted, and was in fact an alteratio N U S v French, 57 Fed Rep 382 Department of Ban K When the in- dictment alleges that the false entries- in question indicated that there was then in the paying teller's department of the bank a certain amount in gold,, legal tender, and gold certificates, when such amount was not there in fact, it is not necessary that it should further allege that such amount was not then in other departments of the ban K U S v Potter, 56 Fed Rep 97 following U S v Britton, 107 U S 655- 2 Allegations that false entries were made with intent "to injure and defraud the said association and cer- tain persons to the grand jury un- known" are sufficient.

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Co M v Wyman, 8 Post Date: Thu, 31 Jul 2008 10:18:25 +0000
U S v Potter, 56 Fed Rep 83, following U S z/ Britto N 107 U S 655 Proof Where an indictment under U S Rev Stat, 5209, alleges the mak- ing of false entries in a report of a na- tional bank to the comptroller of the currency, with intent to injure and defraud the banking association and the stockholders thereof, and to de- ceive its directors, it is not sufficient to prove an intent to deceive other persons, such as creditors, depositors, the comptroller, or the publi C U S v Allen, 47 Fed Rep 696 3 U S v Britton, 107 U S 655 The Use of the Words ' ' Then an d There," in alleging that the defendant was president or director of the bank, and that he made alleged false entries,, is not uncertain or repugnant merely because in one place they may refer to the whole of a day and in another to only one instant of the da Y U S v Potter, 5-6 Fed Rep 83 must be stated in separate count S 1 An indictment for the wil- ful misapplication of the funds of a national bank by its president or other officer 2 should aver that the officer committed the acts for the benefit of himself or some person or body other than the association, and with intent to injure and defraud the association or some other person or body corporat e 3 1 U S v Cadwallader, 59 Fed Rep 677 Embezzlement. An indictment against an officer of a bank for em- bezzling property belonging to or de- posited in the bank (U S Rev Stat, 5209) must charge a specific act of fraud, and the defendant must be proved guilty of the specific offense charged; and not more than one of- fense can be alleged in one count of the indictment. Co M v Wyman, 8 Met (Mas S) 247 Such an indictment, charging that the funds alleged to have been em- bezzled were at that time in the pos- session of the defendant as president and agent, is good, and it is not neces- sary to aver that the funds had been previously intrusted to the Defendant U S v Northway, 120 U S 327, 3 Browne Nat B K Ca S 199 Under this indictment it is not nec- essary for the jury to find that the precise amount stated in the indict- ment was embezzled, it being sufficient if they find that the defendant embez- zled any of the funds or assets of the said associatio N U S v Harper, 33 Fed Rep 471 See II I, I, infr A Abstractio N In an indictment under U S Rev Stat, 5209, for abstracting the funds of a national bank, the of- fense need not be described by the words used to describe larcen Y U S v Northway, 120 U S 327, 3 Browne Nat B K Ca S 199 2 President and Agent An indict- ment charging the defendant with committing the offense charged as pres- ident and agent, is goo d U S v Northway, 120 U S 327, 3 Browne Nat B K Ca S 199 3 U S v Britton, 107 U S 655 See Evans v U S, 153 U S 584 Bad Indictment.

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Tracy, n Blatchf (U Post Date: Thu, 31 Jul 2008 10:07:06 +0000
In an action against the president of a national bank for misapplication of the funds, the in- dictment alleged that he "unlawfully and wilfully, and with intent to injure and defraud the said association for the use, benefit, and advantage of him- self, did misapply certain of the money and funds of said association, which he then and there, with the intent aforesaid, paid and caused to be paid " to certain persons name d It was held that the indictment was bad for failure to allege the facts that made such payment unlawful or crimina L U S v Eno, 56 Fed Rep 218 Proof Under an indictment for the wilful and criminal misapplication of funds of a national bank by its officer, containing several special counts charging particular acts of misappli- cation, to sustain a verdict on the specific counts the particular acts must be proven as alleged; but the proof of acts other than those alleged may be included in the verdict on the general count. U S -v Harper, 33 Fed Rep 471 Averment of Knowledg e An indict- ment charging the president of a na- tional bank with aiding and abetting one alleged to be cashier to misapply the funds of the bank, need not charge that the president knew that such per- son was cashieRU S v Northway, 120 U S 327, 3 Browne Nat B K Ca S 199 Nor is it essential that an indict- ment against the president for misap- plication of the funds should allege that the acts charged were done with- out the knowledge and assent of the directors of the association, for such knowledge and assent would not re- lieve the president from liabilit Y U S v Eno, 56 Fed Rep 218 Officer Converting Property to His Own Us e Under N J Rev Stat, ^ 125, it is an indictable offense for the cashier of an incorporated bank of that state to convert to his own use banknotes, the property of the said corporation, with intent wrongfully to make use of the sa Me The indictment in this case need not allege that such notes were intrusted to the defendant as cashier, nor that he embezzled them or took them with intent to defraud the corporatio N But it is not suffi- cient to charge him with converting to his own use nineteen thousand dol- 3 Other Offense S In addition to those already noticed there are other offenses against banks, the criminal procedure concerning which is laid down by the authorities and cases found in the note S 1 lars of money and nineteen thousand dollars of bank bills, with intent, etc, for there should be some description of either the number or denomination of the coins and of the notes, and also an averment of the value of the note S State v Stimson, 24 N J L 9 1 Illegal Bankin g Several persons may be jointly indicted for a violation of the "act to prevent illegal banking and the circulation of depreciated cur- rency," etc; and an indictment which describes the offense in the words of the act is goo d State v Presburg, 13 Mo 342 And under the Ohio Act of Ja N 16, 1816, " to prohibit the issuing and cir- culating of unauthorized bank paper," it is sufficient to charge in the indict- ment, in general terms, that the de- fendant acted as an officer of a bank not incorporated by la W Lougee v State, ii Ohio 68 Illegal Certification of Check S Under the Act of July 12, 1882, C 290, 13, amendatory of U S Rev Stat, 5208, making it a misdemeanor for any national bank officer, etc, to certify any check drawn by a person not then having on deposit sufficient to cover the same, an indictment need not al- lege delivery of the check by the bank after certificatio N U S v Potter, 56 Fed Rep 83 It is sufficient to allege in such an indictment that the drawer of the check had not on deposit at the time it was certified " an amount of money equal to that specified " in the chec K U S v Potter, 56 Fed Rep 83 In an indictment ^nder this section some of the counts simply charged that the checks wer certified contrary to this prohibition, and others that after certification they were authenti- cated by the paying telleRIt was held that inasmuch as the counts al- leged the certification as an accom- plished act, it will not be presumed that the authentication was any essen- tial part of it: and hence it is not nec- essary to allege the absence of the re- quired credit or depose it at the time the authentication was mad e U S v Potter, 56 Fed Rep 83 An indictment against the president of a national bank for "aiding and abetting " the cashier in certifying checks under the prohibited circum- stances is not sustainable, for the statutes are of narrow range and apply only to the person who commit- ted the act directly, or who perhaps so intimidated or overpowered another that the latter became the mere physi- cal instrument of the formeRU S v Potter, 56 Fed Rep 83 Receiving Deposit during Insolvenc Y In an indictment against a banker for fraudulently receiving a deposit, being insolvent, it is not necessary to allege either knowledge of insolvency or fraudulent intent, nor need either be proved; but the allegation of insolv- ency is a necessary and material on e Murphy v People, 19 111 App 125 Such an indictment, charging de- fendants with receiving a deposit dur- ing insolvency, is sustained by proof that their cashier received the deposit as their agent, the rule applying that what one does by his agent he does himself State v Cadwell, 79 Iowa 432 An indictment under Pa Act of May 9, 1891, relating to receiving deposits by insolvent bankers, which charged that defendants "were engaged in the business of carrying on a private bank," did not sufficiently allege that defendants were "bankers," within the meaning of the statut e Co M v Delamater, 2 Pa DiSt Rep 118 Fraudulent Purchase of Stoc K An in- dictment against the president of a national banking association, which charges his fraudulent purchase of shares of the capital stock of the as- sociation, is bad if jt fails to state for whose use the purchase was made, or if it states that it was made for the use of the association, or if it does not aver that it was not made in order to prevent loss on some previously con- tracted Debt U S v Britton, 107 U S 655- Excessive Loan S An allegation that the directors " permitted " loans to be made to one person in excess of ten per cent of the bank's capital is not equivalent to an averment that they knowingly permitted them, or that they II I JURISDICTION OF NATIONAL BANK CASES 1 State Court S A national bank may be sued in any state, county, or municipal court in the county or city where such bank is located * having jurisdiction, under state laws, of similar controversie S 8 It may be sued in a state court by a citizen of another stat e 3 could have ascertained the existence thereof by an examination of the books, and is insufficient to charge them with liability for resulting losse S Robinson v Hall, 59 Fed Rep 648 1 The weight of authority appears to be that a national bank may be sued in a state court, though out of the city or county in which it is locate d Cooke v State Nat Bank, 50 Barb ( N Y) 339, 3 Abb Pr, N S ( N Y) 339; Talmadge v New York Third Nat Bank, 27 Hun ( N Y)6i; Fresno Nat Bank v Superior Ct, 83Cal491; Casey v Adams, 102 U S 66 But in Crocker v Marine Nat Bank, 101 Mas S 240 Thom P Nat B K Ca S 575, it was held that actions against national banks could be brought only in the county or city in which the banks were locate d And in Charlotte First Nat Bank v Morgan, 132 U S 141, it was said that the exemption of national banks from suits in state courts elsewhere than in the county or city where the bank is located, which is granted by the Act of Fe b 18, 1875, may be waived; and a bank which submits to trial in another county cannot, on a writ of error to the state Supreme Court, raise the objection to the juris- diction and claim the immunit Y See also Lee v Citizens' Nat Bank, 2 Cin e SupeRCt Rep (Ohio) 298 2 Bethel First Nat Bank v National Pahquioque Bank, 14 Wal L (U S) 383, Thom P Nat B K Ca S 77; Cadle T. Tracy, n Blatchf (U S) 101; New Orleans Nat Banking Asso C v Adams, 3 Woods (U S) 21, 2 Browne Nat B K Ca S 207; Charlotte First Nat Bank v Morgan, 132 U S 141; Citi- zens' Nat Bank v Leming, 8 Int Rev Re C 132; Bletz v Columbia Nat Bank, 18 Al b L J 231; Gruber v First Nat Bank, 9 Pitt S L J 97, 19 Al b L J 137; White v Common- wealth Nat Bank, 4 Brew S (Pa) 234; Lebanon Nat Bank v Karmany, 98 Pa St 65: Dow v Irasburgh Nat Bank, 50 Vt 112; Montpelier First Nat Bank v Hubbard, 49 Vt i, Thom P NB Ca S 912; Whitehall First Nat Bank v Lamb, 50 N Y 97; Farmers' Bank v Hale, 59 N Y 53; Adams v Daunis, 29 La An N 315; Hade v McVay, 31 Ohio St 231; Pickett v Merchants' Nat Bank, 32 Ark 346, 2 Browne Nat B K Ca S 209; Ordway -v Cent Nat Bank, 47 Md 217, 28 A M Rep 455; Tecumseh First Nat Bank v Overman, 22 Neb 116, 3 Browne Nat B K Ca S 556; Schuyler Nat Bank v Bullong, 24 Neb 825, 3 Browne Nat B K Ca S 561 The section of the National Banking Act providing for hearing and deter- mining actions brought against a na- tional bank was designed to confer jurisdiction upon proper state courts, and leave such courts, after the action is commenced, to be governed solely by the state statutes, so far as their mode of proceeding is concerned, in- cluding even a change of place of tria L Kinser v Farmers' Nat Bank, 58 Iowa 728 3 Holmes z/Wilmington Nat Bank, 18 S Car 31; Robinson v Newberne Nat Bank, 81 N Y 385, 58 How Pr ( N Y) 306, 2 Browne Nat B K Ca S 309; Cooke v State Nat Bank, 52 N Y 96, Thom P Nat B K Ca S 698 But Missouri River Te L Co v Sioux City First Nat Bank, 74 111 217, Thom P Nat B K Ca S 401, holds that the courts of one state have no juris- diction of an action against a national bank located in another state, to re- cover the penalty imposed by the act of congress for the taking of unlawful intereSt Under section 57 of the Act of 1864 (13 Statat Large, 116) the Supreme Court of New York, was held to have no jurisdiction of a suit brought by a creditor, resident of Kentucky, against a national bank located in Alaham A Cadle v Tracy, II Blatchf (U S) 101, Thom P Nat B K Ca S 230 Suit on Attachment Bon d By Acts Con g, ist Ses S 1882, p 163, the juris- diction of suits by and against na- tional banks, except where the United States is a party, is declared to be the same as that of similar suits by or against other bank S Since any non- resident person, natural or artificial, who brings attachment in a local court.

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