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1. An action brought by a receiver of a national bank under U. S. Rev. Stat. § 5234, to enforce the individual liability of a shareholder prescribed by § 5151 is not an action upon a “contract or promise in writing,” within the meaning of the Nebraska statute of limitations, but is governed by the provision of that statute requiring actions “upon a contract not in writing, express or implied," or “upon a liability created by statute,” to be begun within four years.
2. The objection that the statute of limitations does not bar the right of the creditors of a national bank, under the act of June 30, 1876, § 2 (19 Stat. at L. 63, chap. 156) to enforce the individual liability of its shareholders prescribed by U. S. Rev. Stat. § 5151, so long as there are any outstanding claims against the bank, cannot be raised by the receiver of a national bank, in an action brought by him under § 5234 to recover an assessment upon a stockholder, with interest from the date when payable, in which a demurrer to the bill on the ground that it sets forth a cause of action barred by the statute of limitations has been sustained.
8. A demand which starts the running of the statute of limitations against the right of a receiver of a national bank to enforce the statutory liability of its shareholders is snown by the allegations of the bill filed by the receiver to enforce such liability, that on a specified date the Comptroller of the Currency made an assessment upon the shareholders of such bank, and “did thereby make demand upon each and every share of the capital stock of the said association," and directed the receiver to take proceedings by suit to enforce the Individual liability of the shareholders.
ceiver of the Capital National Bank of Lincoln, Nebraska (of whom the present appelant is the successor in office), against David E. Thompson, to recover defendant's proportion of an assessment upon the stockholders of the bank to the amount of the par value of their shares. The bank failed on January 23, 1893, and a receiver was shortly thereafter appointed. On June 10, 1893, the Comptroller of the Currency ordered the asonent. which was made payable July 10, 893.
The bill alleged Thompson to have been the owner of 210 shares of the capital stock, which he had acquired upon subscription to such stock and as a part of the original issue; that he, knowing the bank to be in a failing condition and practically insolvent, and in anticipation of its approaching failure, had sold and caused such stock to be transferred to certain irresponsible parties, and that such transfer was made with intent to defraud the bank, its depositors and creditors.
Defendant demurred upon the ground that it appeared by the bill that the cause of ac-8 tion was barred by the statute of limita-o. tions. The demurrer was sustained, the bill amended, another demurrer interposed and sustained, and the bill dismissed. An appeal was taken to the circuit court of a peals, which affirmed the judgment of the circuit court.
Messrs. J. R. Webster, John H. Ames, and Andrew E. Harvey for appellant.
Messrs. Halleck F. Rose and C. E. Magoon for appellee.
Mr. Justice Brown delivered the opinion of the court: This bill is founded upon Rev. Stat. § 5151, which declares that “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,” etc. By $ 5234 the Comptroller of the Currency is authorized to appoint a receiver of insolvent banks, who “may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders.” The case turns upon the applicability of the state statute of limitations, which, so far as it is material, reads as follows: “Sec. 5. Civil actions can only be commenced within the time preseribed in this title after the cause of action shall have accrued. “Sec. 10. Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment. “Sec. 11. Within four years, an action upon a contract not in writing, express or implied; an action upon a liability created by statute other than a forfeiture or penalty.” As the cause of action in this case accrued
on July 10, 1893, when the assessment was made payable (Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184, 9 Sup. Ct. Rep. 739; Glenn v. Marbury, 145 U. S. 499, 36 L. ed. 790, 12 §Sup. Ct. Rep. 914; Thompson v. German Ins. * Co. 76 Fed. 892; Van Pelt v.” Gardner, 54 Neb. 701, 74 N. W. 1083, 75 N. W. 874), and the action was begun on May 20, 1898, more than four but less than five years thereafter, the case really turns upon the question whether the action is upon a “contract or promise in writing,” or “upon a contract not in writing, express or implied,” or “upon a liability created by statute.” If the cause of action be upon a written contract, the action was brought in time. If upon a contract not in writing, or a statutory liabil§: the statute of limitations is a complete r. Used in this connection and as distinguished from a contract not in writing, express or implied, we think it entirely clear that § 10 contemplates an action between the immediate parties or their privies to a written contract, and that the only contract covered by that definition in this case is the one arising from the allegation of the bill that Thompson was the owner of 210 shares of the original capital stock, and “that he acquired the same upon subscription to such capital stock,” and by a receipt of certificates for such shares. The only contract to be gathered from this allegation is one between the bank on the one hand and the defendant on the other, by which the latter agreed to take and pay for a certain number of shares, and the former agreed to issue certificates to him for the same. Had the action been brought upon this contract, —as, for instance, by the bank to recover an unpaid assessment upon the original shares, —the case would have fallen within § 10, and the suit might have been brought within five years. But there was no contract in writing with the creditors or depositors of the bank, and none with the bank itself, to which the receiver could be said to be a privy, except to ay for the stock as originally issued. §ns. there was a contract with the creditors to pay a sum equal to the value of the stock taken, in addition to the sum invested in the shares, this was a contract created by the statute, and obligatory upon the stockholders by reason of the statute existing at the time of their subscription; but it was not a contract in writing within the meaning of the Nebraska act, since the writing—that is, the subscription—contained no reference whatever to the statutory obligaSo tion and no promise to respond beyond the * amount of the subscription. In none of the numerous cases upon the subject in this court is this obligation treated as an express contract, but as one created by the statute and implied from the express contract of the stockholders to take and pay for shares in the association. Carrol v. Green, 92 U. S. 500, 512, 23 L. ed. 738, 739; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; First Nat. Bank v. Hawkins, 174 U. S. 364, 43 L. ed. 1007, 19 Sup. Ct. Rep. 739; Matteson v. Dent, 176
U. S. 521. 44 L. ed. 571, 20 Sup. Ct. 4.19; Whitman v. National Bank, 176 U. 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477. While $ 10 does not use the words “express contract,” but the words “contract or promise in writing,” we think that, taken in connection with $ 11, which is confined to contracts not in writing, express or implied, express contracts are primarily and principally intended by the earlier section. These are defined to be those contracts in which the terms of the agreement are fully and openly incorporated at the time the contract is entered into, while implied contracts are such as arise by legal inference and upon principles of reason and justice from certain facts, or where there is circumstantial evidence showing that the parties intended to make a contract. 2 Bl. Com. 443. As contracts for subscription to stock contain no stipulation with reference to the rights of creditors and depositors, it is clear that such rights can only be asserted upon the theory that the subscriber impliedly bound himself to respond to any liability arising indirectly from his contract of subscription. Whether the promise raised by the statute was an implied contract not in writing or a liability created by statute, it is immaterial to inquire. For the purposes of this case it may have been both. The statute was the origin both of the right and the remedy, but the contract was the origin of the personal responsibility of the defendant. Did the statute make a distinction between them with reference to the time within which an action must be brought, it might be necessary to make a more exact definition; but as the action must be brought in any case within four years, it is unnecessary to farther than to declare what seems entirely clear to us, that it is not a contract in writing within the meaning of $ 10 of the Nebraska act. Hawkins v. Iron Valley Furnace Co. 40 Ohio St. 507. § * Plaintiff, however, insists that defendant’scontract here sought to be enforced was not entered into between him and the bank, but between him and the creditors of the bank; that the order of the Comptroller of the Currency for the assessment of the shareholders did not create a cause of action or set the statute of limitations running, nor in any way affect the validity or duration of the right which belongs to the creditors to have this liability enforced; and that the action not being upon the contract of subscription, but upon the contract of the share. holder with the creditors of the bank, entered into by himself with the creditors through the agency of the officers of the bank, different considerations apply, and the statute of limitations does not operate as a bar so long as there are any outstanding: claims against the bank. In support of this proposition we are r ferred to § 2 of the act of June 30, 187° (19 Stat. at L. 63, chap. 156), which do. clares “that when any national banking association shall have gone into liquidation under the provisions of $ 5220 of said [Re
vised] Statutes, the individual liability of the shareholders provided for by § 5151 of said Statutes may be enforced by any creditor of such association, by bill in equity in the nature of a creditors' bill, brought by such creditor on behalf of himself and of all other creditors of the association against the shareholders thereof,” etc.; and we are cited to several cases holding that claims against shareholders under similar statutes do not become barred until the expiration of the time at which the claims against the corporation also became barred. There are several answers to this position. Section 5220, to which the 2d section of the act of June 30, 1876, is supplementary, contemplates only a voluntary liquidation, providing, as it does, that “any association may go into liquidation and be closed by the yote of its shareholders owning two thirds of its stock.” Richmond v. Irons, 121 U. S. 27, 47, 30 L. ed. 864, 870, 7 Sup. Ct. Rep. 788, 797. Now, the Capital National Bank did not go into voluntary liquidation, but, as averred in the bill, “the Comptroller of the Currency of the United States became and was satisfied of the insolvency of the said Capital National Banking Association,” and § thereupon appointed a. receiver. In other * words, the proceedings "were taken under § 5234 as supplemented by § 1 of the act of June 30, 1876, authorizing the Comptroller of the Currency to appoint a receiver when the association had refused to Fo its circulating notes and is in default, or he is otherwise satisfied of its insolvency. But it is also sufficient to say of this that the action is not brought by the creditors under the 2d section of the act of June 30, 1876, but by the receiver under Rev. Stat. § 5234. In such cases no debt becomes due to the receiver as such until a deficiency has been ascertained and an assessment made, when the statute begins to run. Scovill v. Thayer, 105 U. S. 145, 26 L. ed. 968; Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184, 9
Sup. Ct. Rep. 739. Upon the theory of the plaintiff, if the statute of limitations were pleaded, it would become necessary for the receiver to show that there were outstanding claims against the bank which were not barred by the statute, and therefore that the bill might be maintained. This would involve a departure from the whole theory of the bill in this case, which is based upon the allegation that the Comptroller of the Currency made an assessment upon the stockholders June 10, 1893, payable July 10, from which latter date plaintiff claimed interest. Defendant demurred to this upon the ground that the bill set forth a cause of action barred by the statute, and plaintiff went to a hearing upon this demurrer and was defeated. Obviously he cannot now set u a right to recover, if the creditors ha brought a bill under another statute, to which no allusion is made in the bill in this case, and which provides for a wholly separate and independent remedy. Plaintiff's final contention, that no cause of action arises until a demand has been made, is also fully met by the allegation of the bill that on June 10, 1893, the Comptroller of the Currency made an order in which he declared that he had made an assessment and requisition upon the shareholders, “and that he did thereby make demand upon each and every share of the capital stock of the said association,” and directed the receiver to take proceedings by suit to enforce the individual liability of the shareholders. Having made this allegation himself, we do not understand upon what theory the plaintiff now assumes that no demand was made.R. * In the view we take of the statute of limi-tations, we have not thought it worth while to consider the points made by the defendant, that the action should have been at law, and that the bill is defective for the want of proper parties. There was no error in the decree of the court below, and it is therefore affirmed.
(184 U. S. 77)
PEOPLE OF THE STATE OF ILLINOIS ea rel. GEORGE HUNT, Attorney General, Appt.,
to. ILLINOIS CENTRAL RAILROAD COMPANY et al.
Appeal—conclusiveness of prior decision on second appeal—effect of decision on subsequent proceedings in lower court–piers erected by riparian proprietors—eatension beyond point of practical navigability—question of fact—concurrent findings.
1. Every matter embraced by a decree of a United States circuit court, and not left open by a decree of the United States Supreme Court assirming the former decree in all respects but one, and as to that one remanding the case for further investigation of the facts upon which it depended, is conclusively determined, as between the partles, by such affirmance, and is not subject to re-examination on a second appeal. In determining whether piers erected in Lake Michigan by a railroad company by virtue of its riparian proprietorship extended into the lake beyond the polnt of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake, the circuit court to which the cause has been remanded for further investigation of the facts on which this question depends is not confined to the consideration of the size and capacity of vessels habitually employed on the lake at the commencement of the litigation or at the date of its original decree. Piers, docks, and wharves erected in Lake Michigan by a railroad company by virtue of its riparian proprietorship cannot be said to extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on that lake, where such structures extend no farther into the lake than is necessary to accommodate a great number of vessels of moderate capacity, and the average depth of water at the outer line of the structures is insufficient for the accommodation of a vast amount of commerce carried on in vessels on the lake. The concurrent findings of the two lower courts that piers, docks, and wharves erected in Lake Michigan by a railroad company by virtue of its riparian proprietorship do not extend into the lake beyond the point of practicable navigability will not be disturbed unless clearly in conflict with the evidence.
Messrs. John H. Hamline, Frank H. Scott, Frank E. Lord, and Edward C. Akin for appellant. Messrs. John N. Jewett, Benjamin F. Ayer, and J. M. Dickinson for appellees. 0 te * Mr. Justice Harlan delivered the opin-" ion of the court: This case has been heretofore in this court. Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110. The decree then under review was affirmed in all respects except one, and as to that one the cause was remanded for further investigation of the facts upon which it depended. The case involved the asserted ownership by the Illinois Central Railroad Company of certain piers, docks, and wharves constructed by it on the lake front of the city of Chicago, east of Michigan avenue. The state contended that the structures in question were erected, without authority of law, on lands belonging to it, and that the decree now before us was erroneous in not so declaring. The railroad company contended that the mandate of this court on the former appeal left open for consideration by the circuit court only one question, namely, whether those structures extended beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on Lake Michigan; and that that issue of fact having been found in its favor, the circuit court could not properly have passed any other decree than one confirming the company's title to such structures. The history of the litigation relating to this property is fully disclosed in Illinois C. R. Co. v. Illinois, above cited. But it will be appropriate and will contribute to a clear understanding of the present appeal if the essential facts be restated in this opinion. In the year 1883 an information was filed in the circuit court of Cook county, Illinois, by the People of that state against the Illinois Central Railroad Company, the city of Chicago, and the United States of America. That case was removed into the circuit court of the United States for the northern district of Illinois, and a motion to remand it to the state court was overruled. 16 Fed. 881. In the same case the city of Chicago filed a cross bill against the state and its codefendants. At the same time there was pending in the circuit court of the United: States for the same district an "informations in equity filed by the government against the Illinois Central Railroad Company, the Michigan Central Railroad Company, the Chicago, Burlington, & Quincy Railroad Company, the Baltimore & Ohio Railroad Company, and the city of Chicago. At the hearing of those causes in the circuit court certain maps were used; one being known as the map of “Fort Dearborn addition to Chicago” made by direction of the Secretary of War, under the authority of an act of Congress approved March 3d, 1819; the other being known as the Morehouse map. Both maps were made part of the opinion of this court in Illinois C. R. Co.
v. Illinois, and for convenience are here re | scribed in the act of 1869,tand the rightprod:1000:
1 subject to the paramount authority of the
on p. 80
* The questions involved in the above suits / United States in respect to the regulation are inrlicated by the following extract from of commerce between the states to fill the the opinion of the circuit court at the orig.
"An act in relation to a portion of the subinal hearing: “The state, in the original
merged lands and Lake Park grounds, lying on suit, asks a decree establishing and confirm. and adjacent to the shore of Lake Michigan, on ing her title to the bed of Lake Michigan, the eastern frontage of the city of Chicago. and her sole and exclusive right to develop | Passed over veto, April 16, 1869." The 3d sec. the harbor of Chicago by the construction
tion of that act reads:
"§ 3. The right of the Illinois Central Rail. of docks, wbarves, etc., as against the claim
road Company under the grant from the staie by the railroad company that it has an ab- in its charter, which said grant constitutes a solute title to said submerged lands, de part of the consideration for which the said