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Thomas Johnson Michie.

Banking cases, annotated. A collection of all cases affecting banks decided by the courts of last resort in the United States (Volume 5) online

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1



UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY








ANNOTATED.



A COLLECTION OF ALL



CASES AFFECTING BANKS DECIDED BY THE
COURTS OF LAST RESORT



IN THE



UNITED STATES.



EDITED BY

THOMAS JOHNSON MICHIK.



Volume V.



TH£i MICHIB COMPANY, Pubi^ishERS,

Chari,ottesvii,i,k, Virginia.

1904.



' ( * r

c ^ t '■



.^



T
)^9



PUBLICATIONS

of

THE MICHIE COMPANY,

Charlottesville, Va.

Virginia Reports, Annotated.

American and English Railroad Cases, N. S.

American and English Corporation Cases, N. S.

Municipal Corporation Cases.

Banking Cases.



Copyright, 1904,

BY

The Michie Company.




TABLE OF CASES.



Adams, Somerset Nat. Banking' Co.'s Receiver v. (Ky.) 481

Ainsworth, Fiala v. (Neb. ) 554

Albaug-h, Fourth Nat. Bank of St. Louis z/. (U. S. ) 477

Alexander v. First Nat. Bank of Harrodsburg- (Ky.) 424

Alexander v. Mercer Nat. Bank of Harrodsburg- (Ky.) 424

American Bonding Co. of Baltimore v. Nat. Mechanics' Bank of

Baltimore (Md.) . . 715

American Loan & Trust Co. et al., Hamilton Nat. Bank ei al. v.

(Neb.) 1

American Nat. Bank of Kansas City, First Nat. Bank of Moscow v.

(Mo.) 462

Amoskeag Sav. Bank, State v. (N. H.) 303

Arnold v. Sedalia Nat. Bank (Mo. ) 712

Attorney General v. Pitcher ^^ al. (Mass.) 701

Avery v. Preston Nat. Bank (Mich. ) 501

Baeschlin et al. v. Chamberlain Banking House (Neb.) 331

Baker et al., Ladd et al. v. (Ore.) 108

Balling v. Manhattan Sav. Bank & Trust Co. (Tenn.) 757

Bank of Monongahela Valley v. Weston et al. (N. Y) 26

Bank of Overton v. Thompson (CCA.) 167

Bank of Plankinton, Dye v. (S. Dak.) 105

Bank of Princeton, Young v. (Mo.) 366

Bank of Tarboro, Havens v. (N. Car.) 491

Baker v. Williams «& England Banking Co. (Ore.) 108

Bingham, Canadian Bank of Commerce v. (Wash.) 140

Black V. First Nat. Bank of Westminster (Md.) 388

Block, London & San Francisco Bank, Limited, v. (Cal.) 48

Bloom V. Winthrop State Bank (iQwa) 607

Board of Education of Newport, Newport Nat. Bank v. (Ky.) 63

Board of Liquidation of State Debt et al., Hope et al. v. (La. ) 66

Bowery Sav. Bank, Ranney v. (N. Y. Supp.) 590

Boyd, Mendel z'. (Neb.) 124

Boyle Nat. Bank of Danville, Magoffin v. (Ky. ) 60

Brenneman, Pyle z^. (C C A. ) 722

Brinkley, Somerset Nat. Banking Co.'s Receiver v. (Ky.) 489

Brown v. Daugherty (Mo. ) 449

Brown v. Schintz (111. ) 635

Brown v. Schleier et al. (CCA.) 157

Bryan v. First Nat. Bank of McKees Rocks (Pa. ) 546

Bunker Hill Nat. Bank, Wiley v. (Mass.) 627

Butters Lumber Co., Davis v. (N. Car.) 469

Camp et al. v. First Nat. Bank of Ocala (Fla.) 202

Canadian Bank of Commerce v. Bingham (Wash.) 140

Carson, Susan, George H. Earle, Jr., Receiver of the Chestnut

Street National Bank, PlfF. in Err., z-. (U. S.) .273

Central Guarantee Trust & Safe Deposit Co. v. White (Pa.) 600

Chamberlain Banking House, Baeschlin et al. v. (Neb.) 331

Chamberlain Banking House, Chamberlain v. (Neb.) 439

Chamberlain v. Chamberlain Banking House (Neb.) 439

Chambers v. Custer County (Idaho) 233

Chase National Bank, George C Rankin, as Receiver of the Elmira

National Bank, Plff. in Err., z/. (U. S.) 442

Chas. Rosenheim & Co., Meyer v. (Ky.) 598

Citizens' Bank, Overstreet et al. v. (Okla. ) 685

Citizens' Nat. Bank of Kansas City, Mo., v. Donnell (Mo.) 504

Citizens' Nat. Bank v. Wilson (Iowa) 593

-Citizens' State Bank of Dubuque, Iowa, ^^ a/., First Nat. Bank of

Sheridan, Wyo., v. (Wyo.) 128



IV



TABLE OF CASES [vOL S



Citizens' State Bank of Ness City, Eakin z/. (Kan.) 654

City Nat. Bank of Fulton, Little's Adm'r z'. (Ky.) 728

Cleveland v. Hampden Sav. Bank et al. (Mass.) 314

Cleveland v. Spring-field Inst, for Sav. et al. (Mass.) 314

Columbia Finance &. Trust Co. v. First Nat. Bank (Ky.) 611

Commercial Bank, Taylor v. (N. Y.) 532

Commercial Nat. Bank, Jackson Paper Mfg-. Co. v. (111.) 33

Continental Nat. Bank of New York v. Trademen's Nat. Bank of

New York (N. Y) 242

Cook, Secretary of State, State ex rel. Jones v. (Mo. ) 576

Council of City of Burlington et at,, German-American Sav. Bank

of Burlington v. (Iowa) 45

Crawford County Bank et al., Curtice v. (C. C, A.) 252

Crocker- Woolworth Nat. Bank of San Francisco v. Nevada Bank of

San Francisco (Cal. ) 661

Currey v. Joplin Sav. Bank (Mo.) 740

Curtice v. Crawford County Bank et al. (CCA.) 252

Custer County, Cnambers v. (Idaho) 233

Daugherty, Brown v. (Mo.) 449

Davis V. Butters L,umber Co. (N. Car.) 469

Denny, Strauss et ux. v. ( Md. ) 189

Denver Nat. Bank, Wedge Mines Co. v. (Colo. ) 618

Dillingham et al. v. Parks (Ind.) 194

Dodge, Assessor et al., Nevada Nat. Bank of San Francisco v.

(CCA.) 306

Donnell, Citizens' Nat. Bank of Kansas City, Mo., v. (Mo.) 504

Donohoe-Kelly Banking Co. v. Southern Pac. Co. et al. (Cal.) 224

Dye V. Bank of Plankinton (S. Dak.). 105

Eakin v. Citizens' State Bank of Ness City (Kan.) 654

Earle, George H., Jr., Receiver of the Chestnut Street National

Bank, Plff. in Err. v. Susan Carson (U. S.) 273

Easton, James H., Plff. in Err., z/. State of Iowa (U. S.) 372

Elizabethport Banking Co., Smith v . (N. J.) 755

Exchange Bank of Macon, People's Nat. Bank of Talbotton v.

(Ga.) 402

Exchange Bank v. Thrower (Ga.) 624

Falls City State Bank v. Wehrlie (Neb.) 431

Farmers' & Merchants' Bank et al., Linn County v. (Mo.) 708

Farmers' & Merchants' Bank of Platte Center et al., First Nat.

Bank of Hastings v. (Neb.) 679

Fiala v. Ainsworth (Neb.) 554

Fifth Nat. Bank of San Antonio, Iron City Nat. Bank of Elano v.

(Tex.) 237

First Nat. Bank of Cambridge, 111., Lewis v. (Neb. ) 596

First Nat. Bank of Chicago v. Selden (CCA.) 435

First Nat. Bank, Columbia Finance & Trust Co. v. (Ky.) 611

First Nat. Bank of Harrodsburg et al., Alexander v. (Ky.) 424

First Nat. Bank of Hastings v. Farmers' & Merchants' Bank of

Platte Center et al. (Neb.) 679

First Nat. Bank of Herington, Kleopfer v. (Kan.) 150

First Nat. Bank of Hightstown, Gnichtel v. (N. J.) 327

First Nat. Bank of Jacksboro, Lasater v. (Tex.) 525

First Nat. Bank of McKees Rocks, Bryan z/. (Pa.) , 546

First Nat. Bank of Maryville, Leech v. (Mo.) 730

First Nat. Bank of Morristown v. Hunter et al. (Tenn.) 324

First Nat. Bank of Morristown, McCreary v. (Tenn.) 317

First Nat. Bank of Moscow, Idaho, v. American Nat. Bank of Kan-
sas City ( Mo. ) 462

First Nat. Bank of Ocala, Camp <?/" a/, z^. (Fla.) 202

First Nat. Bank of Sheridan, Wyo., z/. Citizens' State Bank of Du-
buque, Iowa, et al. (Wyo.) 128

First Nat. Bank of South Weymouth, Nineteenth Ward Bank v.

(Mass.) 697

First Nat. Bank of Westminster, Black v. (Md.) 388

Fish, Hallett v. (Vt.) 586



BKG CAs] ' TABLE OF CASES V

Fourth Nat. Bank of St. Louis v. Albaugh (U. S. ) 477

Fredonia Nat. Bank v. Tommei (Mich. ) 88

German-American Sav. Bank of Burlington v. Council of City

of Burling-ton et al. (Iowa) 45

Giltner et al., Ladd et al. v. (Ore.) 108

Glines v. State Sav. Bank (Mich.) 568

Gnichtel v. First Nat. Bank of Hig-htstown (N. J. ) 327

Gordon v. Lansing- State Savings Bank (Mich.) 649

Gregory et al. v. Sturgis Nat. Bank (Tex.) 153

Guarantee Trust »& Safe Deposit Co.' of Shamokin, Second Nat.

Bank of Pittsburg v. (Pa.) 603

Gulf, C. & S. F. Ry. Co. et al. v. North Texas Grain Co. et al.

(Ifex.) 656

Gumaer, Murphy v. (Colo.) 118

Hallett V. Fish ( Vt. ) 586

Hamilton Nat. Bank et al, v. American Ivoan & Trust Co. et al.

(Neb.)

Hampden Sav. Bank et al., Cleveland v. (Mass.) 314

Havens v. Bank of Tarboro (N. Car.) 491

Hobbs et al., National Bank of the Republic of New York et al. v.

(Ga. ) 335

Hope et al. v. Board of Liquidation of State Debt et al. (La.) 66

Hopley, Hunt v. (Iowa) 734

Hunt V. Hopley (Iowa) 734

Hunter et al.. First Nat. Bank of Morristown v. (Tenn.) 324

Ida County Sav. Bank v. Seidensticker et al. (Iowa) 176

Illinois Nat. Bank v. Kinsella, County Treasurer (111. ) 414

In re Fdson ( Vt. ) 329

Iron City Nat. Bank of Llano v. Fifth Nat. Bank of San Antonio

(Tex.) .'. 237

Jackson Paper Mfg. Co. v. Commercial Nat. Bank (111.) 33

Joplin Sav. Bank, Currey v. ( Mo. ) 740

Kenneth In v. Co. v. National Bank of Republic of St. Louis (Mo.). 13

Kingsley v. Whitman Sav. Bank (Mass.) 210

Kinsella, County Treasurer, Illinois Nat. Bank v. (111.) 414

Kirtley's Adm'x v. Shinkle (Ky.) « 287

Kleopfer z'. First National Bank of Herington (Kan.) 150

Ladd et al. v. Baker et al. (Ore.) 108

Ladd et al. v. Giltner et al. (Ore. ) 108

Laidlaw v. Pacific Bank (McGowan , Intervener) (Cal. ) 290

Lander, Treasurer of Cuyahoga County, Ohio, v. Mercantile Nat.

Bank of Cleveland, Ohio (C. C. A.) 295

Lansing State Savings Bank, Gordon v. (Mich.) 649

Lasater v. First Nat. Bank of Jacksboro (Tex. ) 525

Leech v. First Nat. Bank of Mary ville (Mo.) 730

Lewis V. First Nat. Bank of Cambridge, 111. (Neb.) .... 596

Linn County v. Farmers' & Merchants' Bank et al. (Mo.) 708

Little's Adm'r z/. City Nat. Bank of Fulton (Ky.) 728

Logan V. United States (C. C. A.) 631

London & San Francisco Bank, Limited, v. Block (Cal.) 48

McClaine v. Rankin (CCA.) 269

McCreary v. First Nat. Bank of Morristown (Tenn.) 317

McGonigle, Merigan v. (Pa. ) 763

Magoffin z/. Boyle Nat. Bank of Danville (Ky.) 60

Mahon v. South Brooklyn Sav. Inst. (N. Y. ) 761

Manchester Sav. Bank, State v. (N. H.) 303

Manhattan Sav. Bank & Trust Co., Balling v. (Tenn.) 757

Mason v. Stevens et al. (S. Dak.) 213

Mendel v. Boyd (Neb.) 124

Mercantile Nat. Bank of Cleveland, Ohio, Lander, Treasurer of

Cuyahoga County, Ohio, z^. (CCA.) 295

Mercantile Nat. Bank of Pueblo v. Peabody (Colo.) 745

Mercer Nat. Bank of Harrodsburg, Alexander v. (Ky. ) 424

Merigan v. McGonigle (Pa.) 763

Meyer v. Chas. Rosenheim & Co. (Ky.) 598



^l



TABLE OF CASES [vOL 5



Mt. Morris Bank v. Twenty-Third Ward Bank (N. Y.) 56

Murphy v. Gumaer (Colo.) 118

National Bank & Loan Company v. Petrie (U. S.) 543

National Bank of the Republic of New York et al. v. Hobbs et al.

(Ga.) 335

National Bank of the Republic of New York, National Revere Bank

of Boston z/. (N. Y.) 90

National Bank of Republic of St. Louis, Kenneth Inv. Co. v. (Mo.) . . 13
National Mechanics' Bank of Baltimore, American Bonding Co. of

Baltimore v. (Md.) 715

National Revere Bank of Boston v. National Bank of the Republic

of New York (N. Y.) 90

Nevada Bank of San Francisco, Crocker-Woolworth Nat. Bank of

San Francisco v. (Cal.) 661

Nevada Nat. Bank of San Francisco v. Dodge, Assessor, et al.

(CCA.) 306

New England Trust Co., O'Brien v. (Mass.). 551

New Madrid Banking Co., Rhinehart z'. (Mo.) 574

Newport Nat. Bank v. Board of Education of Newport (Ky.) 63

Nineteenth "Ward Bank v. First Nat. Bank of South Wevmouth

(Mass.) ' 697

North Texas Grain Co. et at.. Gulf, C & S. F. Ry. Co. et al. v.

(Tex.) 656

O'Brien v. New England Trust Co. (Mass. ) 551

Officer V. Officer (Stewart, Intervener) (Iowa) 749

Officer (Stewart, Intervener) , Officer v. (Iowa) 749

Overstreet et al. v. Citizens' Bank (Okla. ) . . . 685

Pacific Bank (McGowan, Intervener) , Laidlaw v. (Cal.) 290

Parks, Dillingham et al . v. (Ind.) 194

Peabody, Mercantile Nat. Bank of Pueblo v. (Colo.) 745

People's Bank of Talbotton v. Exchange Bank of Macon (Ga.) 402

People's Nat. Bank of Lebanon, Pa., Van Reed z^. (N. Y.) 383

Petrie, National Bank & Loan Co. <7. (U. S.) 543

Pitcher et al. Attorney General v. (Mass.) 701

Placer County Bank,"Pullen etal. v. (Cal.) , 216

Preston Nat. Bank, Avery v. (Mich.) 501

Pullen et al. v. Placer County Bank (Cal.) 216

Pyle V. Brenneman (CCA.) 722

Rankin, George C, as Receiver of the Elmira National Bank, PlfF.

in Err., v. Chase National Bank (U. S. ) 442

Rankin, McClaine f. (C C A.) 269

Ranney v. Bowery Sav. Bank (N. Y. Supp.) 590

Rhinehart v. New Madrid Banking Co. (Mo. ) 574

Robison et al., Warren et al. v. (Utah) 259

St. Croix Power Co., Security Nat. Bank of Sioux City v. (Wis.) ... 560
Savings Bank of St. Paul, State ex rel. Douglas, Atty. Gen., v.

(Minn.) 284

Schintz, Brown v. (111.) 635

Schleier et al. , Brown 7'. (C C A. ) 157

Second Nat. Bank of Pittsburg v. Guarantee Trust & Safe Deposit

Co. of Shamokin ( Pa. ) 603

Security Nat. Bank of Sioux City f. St. Croix Power Co. (Wis.) 560

Sedalia Nat. Bank, Arnold v. (Mo. ) 712

Seidensticker et al. , Ida County Sav. Bank v. (Iowa) 176

Selden, First Nat. Bank of Chicago v. (C. C A.) 435

Shinkle, Kirtley's Adm'x z'. (Ky.) 287

Smith V. Elizabethport Banking Co. (N. J. ) 755

Somerset Nat. Banking Co.'s Receiver v. Adams (Ky.) 481

Somerset Nat. Banking Co.'s Receiver v. Brinkley (Ky. ) 489

South Brooklyn Sav. Inst., Mahon v. (N. Y.) 761

Southern Pac. Co. et al., Donohoe-Kelly Banking Co. v. (Cal.) 224

Springfield Inst, for Sav. et al., Cleveland v. (Mass.) 314

State V. Amoskeag Sav. Bank (N. H. ) 303

State V. Manchester Sav. Bank (N. H. ) 303

State V. Stevens (S. Dak.) 97



BKG CAs] 'table OF CASES



VU



State ex rel. Douglas, Atty. Gen., v. Saving-s Bank of St. Paul

(Minn. ) 284

State ex rel. Jones v. Cook, Secretary of State (Mo. ) 576

State of Iowa, James H. Easton, Plff. in Err., v. (U. S. ) 372.

State Sav. Bank, Glines z/. (Mich.)., 568

Stevens et al., Mason v. (S. Dak.) 213

Stevens, State v. (S. Dak. ) 97

Strauss ^/ «-r. z;. Denny (Md.) 189

Sturgis Nat. Bank, Gregory et al. v. (Tex. ) 153

Taylor v. Commercial Bank (N. Y. ) 5:^2

Thompson, Bank of Overton v. [C C. A. ) 167

Thrower, Exchange Bank v. (Ga.) 624

Tommei, Ft;^ donia Nat. Bank v. (Mich.) • 88

Tradesmen's Nat. Bank of New York, Continental Nat. Bank of

New York z^. (N. Y. ) 242

Twenty-Third Ward Bank, Mt. Morris Bank z/. (N. Y.) 56

United States, Logan z/. (C. C. A. ) 631

Van Reed v. People's Nat. Bank of Lebanon, Pa. (N. Y.) 383

Warren et al. v. Robison et al. (Utah) 259

Wedge Mines Co. v. Denver Nat. Bank (Colo.) 618

Wehrlie, Falls City State Bank v. (Neb. ) 431

Weston et al. , Bank of Monongahela Valley z*. ( N. Y. ) 26

White, Central Guarantee Trust & Safe Deposit Co. v. (Pa.) 600

Whitman Sav. Bank, Kingsley v. (Mass.) 210

Wiley V. Bunker Hill Nat. Bank ( Mass. ) 627

Williams & England Banking Co., Baker v. (Ore.) , 108

Wilson, Citizens' Nat. Bank v. (Iowa) 593

Winthrop State Bank, Bloom v. (Iowa) 607

Young V. Bank of Princeton (Mo. ) 366



■J



a



BANKING CASES.



VOLUME' V.



Hamilton ''Nat. Bank et al. v. American Loan & Trust

Co. et al.

{Supreine Court of Nebraska, Oct. 22, igo2.)

[92 N. W. Rep. 189.]

Constitutional Provision — Construction.

In construing constitutional provisions, the rule prevails that words
shall be given their ordinary meaning except whers the context makes
it plain that they have been used in a technical sense.

Banlcs — Powers.

To buy and sell commercial paper, to make and negotiate loans, to
receive money to be transferred to and paid at other places, to buy and
sell exchange upon other cities in this and foreign countries, to receive
money on deposit, and to pay the same out upon checks or orders, are
each banking functions ; but it is not necessary, in order to consti-
tute a corporation a banking institution within the meaning of section
7, art. lib. Const., that it shall exercise all of these functions.
Banking Institutions.

In determining whether or not a corporation is a banking institution
within the meaning of section 7, art. lib. Const., the court will look to
its articles of incorporation, its declared, objects and purposes, the
character of the business transacted by it, and even the construction
which the officers themselves, in their management of its affairs, place
upon its charter powers, if this construction is not unwarranted by the
language of its charter.
Same — Liability of Stockholders.

A corporation filed articles providing, among other things, that the
general nature of its business should be to make and negotiate loans, to
purchase and sell notes, mortgages, stocks, and bonds, to borrow money
and issue its own obligations therefor, to receive money on deposit, and
to execute trusts. It received money on deposit, and paid the same out
on checks ; it bought and sold commercial paper ; it made and negoti-
ated loans ; it bought and sold exchange upon other cities, and also
transacted much of the business of a loan and trust company. It desig-
nated itself a "loan and trust company" : held, that it was a bank, and
its stockholders were liable under the provisions of section 7, art. lib,
of the constitution.
Res Judicata.

In order that a judgment in a prior suit may be a bar to a subsequent
action, it must appear either by the record, or by clear and satisfactory
evidence, that the identical issue presented by the subsequent suit was
involved or adjudicated in the prior suit, and that both actions are
between the same parties or their privies.

Receivers — Removal.

An adverse ruling on a motion the principal purpose of which is to
secure the removal of a receiver on the ground that he is a stock-
holder of the corporation, and therefore not a suitable person to enforce
the stockholders' liability provided for in the case of banking institu-



2 BANKS [vol V

Hamilton Nat. Bank v. American Loan & Trust Co

tions, is not an adjudication of the question whether the corporation is

a banking' institution within the meaning' of section 7, art. lib, of the

constitution ; but such ruling will leave the party free to litigate the

question of the stockholders' liability in another court of concurrent

jurisdiction.

Liability of Stockholders.

The liability of stockholders of a banking- institution to its creditors,
imposed by section 7, art. lib, of the constitution, is not an asset of the
corporation, collectible by suit or assessment by the officers of the cor-
poration or a receiver acting in their stead, but is a subject-matter
wholly distinct from that of the assets of the corporation ; and a re-
ceiver can proceed to the enforcement of such liability only at the
instance of the creditors themselves, and by direction of the court, and
then only after the claims of the creditors have been judicially ascer-
tained, and the assets of the corporation exhausted.

Same — Evidence.

Evidence examined, and found not to sustain the finding' and judg"-
ment of the trial court.

(Syllabus by the Court.)

Commissioners' opinion. Department No. i. Appeal from
district court, Douglas county; Fawcett, Judge.

Bill by the Hamilton National Bank and others against the
American Loan & Trust Company and others. Decree for
defendants, and plaintiffs appeal. Reversed.

J. H. Mcintosh, for appellants.

W. D. McHugh, W. A. Saunders, and Montgomery & Hall,
for appellees.

KIRKPATRICK, C. This is a suit brought in the district
court of Douglas county by the Hamilton National Bank and
others, appellants, against the American Loan & Trust Com-
pany and others, who were stockholders in the company, for
the purpose of enforcing the constitutional liability of the
stockholders; alleging said loan and trust company to be a
banking corporation or institution.

The petition, among other things, alleged that the American
Loan & Trust Company was incorporated in December, 1885;
that it continued to do business until May 10, 1894, at which
time it went into the hands of a receiver, who subsequently
collected the assets of the corporation and closed up its busi-
ness; that appellants are creditors of the company, and that
appellees were stockholders, each holding the number of
shares set out in the petition, and that they were such stock-
holders at the time the indebtedness due appellants respec-
tively was contracted; and praying the appointment of a re-
eiver, with an order to him to proceed to enforce the
constitutional liability of the stockholders. The answer
admits the incorporation as alleged, and that appellants are
creditors of the trust company, and at the trial it was further
admitted that appellees were stockholders of the American
Loan & Trust Company at the time the indebtedness pleaded
was contracted; admitted the commencement of the action in
the circuit court of the United States, and the appointment



BKG CAS] BANKS 3

Hamilton Nat. Bank v. American Loan & Trust Co

of a receiver, and alleged that each of the appellants duly
entered an appearance in said proceedings; that said receiver
was finally discharged by order of the circuit court. It is
further alleged that appellants duly presented to said circuit
court an application for an order adjudging the American
Loan & Trust Company to be a banking corporation, and that
the stockholders of said corporation be adjudged liable as
stockholders of a banking corporation under the constitution
of the state of Nebraska; that upon said application the cir-
cuit court of the ynited States adjudged that the American
Loan & Trust Company was not a banking corporation, and
that the stockholders were not liable as stockholders of a
banking corporation, and denied the application; and that
said proceedings amounted to an adjudication of the rights of
appellants, which is binding upon each of them, and that they
are estopped from pleading, asserting, or maintaining the
present action. To this answer, for reply, was filed a general
denial. Trial was had on the 22d day of December, 1900, re-
sulting in a finding that the American Loan & Trust Company
was not a banking institution, and that the stockholders were
not liable, and a judgment dismissing the petition filed by
appellants for want of equity. To reverse this judgment, the
cause is brought to this court upon appeal.

But two questions requiring determination are presented:
First, is the American Loan & Trust Company a banking cor-
poration within the meaning of section 7, art. lib, of the
constitution? and, second, are the proceedings had in the
circuit court of the United States a bar to the right of appel-
lants to recover in this suit.^ The constitutional provision
referred to is as follows: "Every stockholder in a banking
corporation or institution shall be individually responsible and
liable to all its creditors over and above the amount of stock
by him held to an amount equal to his respective stock or
shares so held, for all its liabilities accruing while he remains
such stockholder; and all banking corporations shall publish
quarterly statements under oath of their assets and liabilities. "
In State v. Bacon, 6 Neb. 286, this court, quoting with
approval from Sedgwick on Constitutional Law, said: "In
the consideration of these questions, it may be observed, in
the first place, that in the construction of a constitution the
rule is 'its terms must be taken in their ordinary and common
acceptation, because they are supposed to have been so under-
stood by the framers and by the people who adopted it.'
This is unquestionably the correct rule of interpretation.
Unlike the acts of our legislature, it owes its whole force and
authority to its ratification by the people; and they judge
it by the meaning apparent on its face, according to the gen-
eral use of the words employed, when they do not appear to
have been used in a legal or technical sense." This has be-
come the settled rule of interpretation of constitutional pro-
visions. State V. Lancaster Co. Com'rs, 6 Neb. 474; Belnap



4 BANKS [vol V

Hamilton Nat. Bank v. American Loan & Trust Co

V. City of Louisville, gq Ky. 487, 36 S. W. 11 18, 34 L. R. A.
256, 59 Am, St. Rep. 478.

The question would, therefore, seem to be, was the Ameri-
can Loan & Trust Company a banking corporation or institu-
tion within the meaning of the provision quoted, taking those
terms in the ordinary and commonly accepted meaning.^
I Morse, Banks (3d Ed.) § 2, defines a bank as follows: "An
institution, usually incorporated, with power to issue its
promissory notes intended to circulate as money (known as
bank notes) ; or to receive the money of others on general
deposit; to form a joint fund that shall be used by the institu-
tion for its own benefit for one or more of the purposes of
making temporary loans and discounts; of dealing in notes,
foreign and domestic bills of exchange, coin, bullion, credits,
and the remission of money; or with both these powers, and
with the privileges, in addition to these basic powers, of re-
ceiving special deposits, and making collections for the holders



Online LibraryThomas Johnson MichieBanking cases, annotated. A collection of all cases affecting banks decided by the courts of last resort in the United States (Volume 5) → online text (page 1 of 91)