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by commitment. We think that in this there ceiver of the Capital National Bank of Lin. was error, and that the circuit court of ap- coln, Nebraska (of whom the present appelpeals was right in its decree of reversal. ant is the successor in office), against David Decree affirmed.
E. Thompson, to recover defendant's propor.
tion of an assessment upon the stockholders Mr. Justice Harlan dissented.
of the bank to the amount of the par value of their shares. The bank failed on Janu.
ary 23, 1893, and a receiver was shortly (184 U. S. 71)
thereafter appointed. On June 10, 1893, the JOHN W. MCDONALD, Receiver, etc., Appt. Comptroller of the Currency ordered the as
sessment, which was made payable July 10, DAVID E. THOMPSON.
The bill alleged Thompson to have been Limitation of actions—statutory liability of the owner of 210 shares of the capital stock, shareholders in national banks-action by such stock and as a part of the original is
which he had acquired upon subscription to receiver to enforce-demand.
sue; that he, knowing the bank to be in a 1. An action brought by a recelver of a na- failing condition and practically insolvent,
tional bank under U. s. Rev. Stat. 5234, to and in anticipation of its approaching fail. enforce the individual liability of a share ure, had sold and caused such stock to be holder prescribed by $ 5151 is not an action transferred to certain irresponsible parties, upon a "contract or promise in writing," and that such transfer was made with inwithin the meaning of the Nebraska statute tent to defraud the bank, its depositors and of limitations, but is governed by the pro
creditors. vision of that statute requiring actions "upon a contract not in writing, express or implied,"
Defendant demurred upon the ground that or "upon a liabllity created by statute," to it appeared by the bill that the cause of ac-a be begun within four years.
tion was barred by the statute of* limita2. The objection that the statute of limitations tions. The demurrer was sustained, the bill
does not bar the right of the creditors of a amended, another demurrer interposed and national bank, under the act of June 30, sustained, and the bill dismissed. An ap1876, $ 2 (19 Stat. at L. 63, chap: 156) to peal was taken to the circuit court of apholders prescribed by U. S. Rev. Stat. $ 5151, peals, which affirmed the judgment of the
circuit court. 80 long as there are any outstanding claims against the bank, cannot be raised by the
Messrs. J. R. Webster, John H. Ames, receiver of a national bank, in an action brought by him under $ 5234 to recover an and Andrew E. Harvey for appellant. assessment upon a stockholder, with in. Messrs. Halleck F. Rose and C. E. Materest from the date when payable, in which coon for appellee. a demurrer to the bill on the ground that it sets forth a cause of action barred by the Mr. Justice Brown delivered the opinion
statute of limitations has been sustained. of the court: 8. A demand which starts the running of the This bill is founded upon Rev. Stat. $
statute of limitations against the right of a 5151, which declares that "the shareholders receiver of a national bank to enforce the of every national banking association shall statutory liability of its shareholders is be held individually responsible, equally and sdown by the allegations of the bill fled by ratably, and not one for another, for all & specified date the Comptroller of 'the Cur contracts, debts, and engagements of such rency made an assessment upon the share-association, to the extent of the amount of holders of such bank, and "did thereby make their stock therein at the par value thereof, demand upou each and every share of the in addition to the amount invested in such capital stock of the said association," and di- shares,” etc. By § 5234 the Comptroller rected the receiver to take proceedings by of the Currency is authorized to appoint a suit to enforce the Individual liability of the receiver of insolvent banks, who may, if shareholders.
necessary to pay the debts of such associa[No. 95.)
tion, enforce the individual liability of the
stockholders." Argued January 13, 14, 1902. Decided Fcb The case turns upon the applicability of
the state statute of limitations, which, so
far as it is material, reads as follows: A
PPEAL from the Circuit Court of Ap "Sec. 5. Civil actions can only be com.
peals for the Eighth Circuit to review menced within the time prescribed in this a decree which affirmed a judgment of the title after the cause of action shall have ac Circuit Court for the District of Nebraska crued. dismissing a bill in a suit to enforce the stat "Sec. 10. Within five years, an action utory liability of a shareholder in a national upon a specialty, or any agreement, conbank. Affirmed.
tract, or promise in writing, or foreign judg. See same case below, 40 C. C. A. 685, 100 ment. Fed. 1002.
"Sec. 11. Within four years, an action
upon a contract not in writing, express or Statement by Mr. Justice Brown: implied; an action upon a liability created
This was a bill in equity originally filed by statute other than a forfeiture or penMay 20, 1898, in the circuit court for the alty." district of Nebraska, by Kent K. Hayden, re As the cause of action in this case accrued
ruary 3, 1902.
on July 10, 1893, when the assessment was 0. S. 521, 44 L. ed. 571, 20 Sup. Ct. Rep. made payable (Hawkins v. Glenn, 131 U. S. 419; Whitman v. National Bank, 176 U. Š. 319, 33 L. ed. 184, 9 Sup. Ct. Rep. 739; Glenn 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477. v. Marbury, 145 U. S. 499, 36 L. ed. 790, 12 While § 10 does not use the words "exSup. Ct. Rep. 914; Thompson v. German Ins. press contract,” but the words "contract or Co. 76 F'ed. 892; Van Pelt v.* Gardner, 54 promise in writing,” we think that, taken Neb. 701, 74 N. W. 1083, 75 N. W. 874), and in connection with $ 1l, which is confined the action was begun on May 20, 1898, more to contracts not in writing, express or imthan four but less than five years thereafter, plied, express contracts are primarily and the case really turns upon the question principally intended by the earlier section. whether the action is upon a "contract or These are defined to be those contracts in promise in writing," or "upon a contract not which the terms of the agreement are fully in writing, express or implied," or "upon a and openly incorporated at the time the conliability created by statute." If the cause tract is entered into, while implied contracts of action be upon a written contract, the ac- are such as arise by legal inference and tion was brought in time. If upon a con- upon principles of reason and justice from tract not in writing, or a statutory liabil- certain facts, or where there is circumstanity, the statute of limitations is a complete tial evidence showing that the parties inbar.
tended to make a contract. 2 BI, Com. 443. Used in this connection and as distin. As contracts for subscription to stock conguished from a contract not in writing, ex- tain no stipulation with reference to the press or implied, we think it entirely clear rights of creditors and depositors, it is clear that $ 10 contemplates an action between that such rights can only be asserted upon the immediate parties or their privies to a the theory that the subscriber impliedly written contract, and that the only contract bound himself to respond to any liability covered by, that definition in this case is arising indirectly from his contract of subthe one arising from the allegation of the scription. bill that Thompson was the owner of 210 Whether the promise raised by the statute shares of the original capital stock, and was an implied contract not in writing or a “that he acquired the same upon subscrip- liability created by statute, it is immaterial tion to such capital stock,” and by a receipt to inquire. For the purposes of this case of certificates for such shares. The only it may have been both. The statute was the contract to be gathered from this allegation origin both of the right and the remedy, but is one between the bank on the one hand and the contract was the origin of the personal the defendant on the other, by which the responsibility of the defendant. Did the latter agreed to take and pay for a certain statute make a distinction between them number of shares, and the former agreed to with reference to the time within which an issue certificates to him for the same. Had action must be brought, it might be neces. the action been brought upon this contract, sary to make a more exact definition; but --as, for instance, by the bank to recover an as the action must be brought in any case unpaid assessment upon the original shares, within four years, it is unnecessary to go -the case would have fallen within $ 10, farther than to declare what seems entirely and the suit might have been brought within clear to us, that it is not a contract in writ. five years.
ing within the meaning of $ 10 of the Ne But there was no contract in writing with braska act. Hawkins v. Iron Valley Fur. the creditors or depositors of the bank, and nace Co. 40 Ohio St. 507. none with the bank itself, to which the re- * Plaintiff, however, insists that defendant's ceiver could be said to be a privy, except to contract here sought to be enforced was not pay for the stock as originally issued. entered into between him and the bank, but Granting there was a contract with the between him and the creditors of the bank; creditors to pay a sum equal to the value of that the order of the Comptroller of the the stock taken, in addition to the sum in- Currency for the assessment of the sharevested in the shares, this was a contract holders did not create a cause of action or created by the statute, and obligatory upon set the statute of limitations running, nor the stockholders by reason of the statute ex- in any way affect the validity or duration isting at the time of their subscription; but of the right which belongs to the creditors it was not a contract in writing within the to have this liability enforced; and that the meaning of the Nebraska act, since the writ- action not being upon the contract of subing—that is, the subscription-contained no scription, but upon the contract of the sharereference whatever to the statutory obliga- holder with the creditors of the bank, ention and no promise to respond beyond the tered into by himself with the creditors amount of the subscription. In none of the through the agency of the officers of the numerous cases upon the subject in this bank, different considerations apply, and the court is this obligation treated as an express statute of limitations does not operate as a contract, but as one created by the statute bar so long as there are any outstandin: and implied from the express contract of the claims against the bank. stockholders to take and pay for shares in In support of this proposition we are re the association. Carrol v. Green, 92 U. S. ferred to g 2 of the act of June 30, 187“ 509, 512, 23 L. ed. 738, 739; Terry v. Little, (19 Stat. at L. 63, chap. 156), which do 101 U. S. 216, 25 L. ed. 864; First Nat. Bank clares "that when any national banking av. v. Hawkins, 174 U. S. 364, 43 L. ed. 1007, sociation shall have gone into liquidatio 19 Sup. Ct. Rep. 739; Matteson v. Dent, 176'under the provisions of $ 5220 of said (R
vised) Statutes, the individual liability of Sup. Ct. Rep. 739. Upon the theory of the the shareholders provided for by $ 5151 of plaintiff, if the statute of limitations were said Statutes may be enforced by any cred- pleaded, it would become necessary for the itor of such association, by bill in equity in receiver to show that there were outstanding the nature of a creditors' bill, brought by claims against the bank which were not such creditor on behalf of himself and of barred by the statute, and therefore that the all other creditors of the association against bill might be maintained. This would inthe shareholders thereof,” etc.; and we are volve a departure from the whole theory of cited to several cases holding that claims the bill in this case, which is based upon the against shareholders under similar statutes allegation that the Comptroller of the Curdo not become barred until the expiration of rency made an assessment upon the stock. the time at which the claims against the holders June 10, 1893, payable July 10, from corporation also became barred.
which latter date plaintiff claimed interest. There are several answers to this position. Defendant demurred to this upon the ground Section 5220, to which the 2d section of the that the bill set forth a cause of action act of June 30, 1876, is supplementary, con barred by the statute, and plaintiff' went to templates only a voluntary liquidation, pro- a hearing upon this demurrer and was deviding, as it does, that "any association may feated. Obviously he cannot now set up go into liquidation and be closed by the vote a right to recover, if the creditors had of its shareholders owning two thirds of its brought a bill under another statute, to stock.” Richmond v. Irons, 121 U. S. 27, which no allusion is made in the bill in this 47, 30 L. ed. 864, 870, 7 Sup. Ct. Rep: 788, case, and which provides for a wholly sep797. Now, the Capital National Bank did arate and independent remedy. not go into voluntary liquidation, but, as Plaintiff's final contention, that no cause averred in the bill, "the Comptroller of the of action arises until a demand has been Currency of the United States became and made, is also fully met by the allegation of was satisfied of the insolvency of the said the bill that on June 10, 1893, the ComptrolCapital National Banking Association,” and ler of the Currency made an order in which thereupon appointed a receiver. In other he declared that he had made an assessment words, the proceedings were taken under s and requisition upon the shareholders, "and 5234 as supplemented by $ 1 of the act of that he did thereby make demand upon each June 30, 1876, authorizing the Comptroller and every share of the capital stock of the of the Currency to appoint a receiver when said association," and directed the receiver the association had refused to pay its cir- to take proceedings by suit to enforce the culating notes and is in default, or he is individual liability of the shareholders. otherwise satisfied of its insolvency. Having made this allegation himself, we do
But it is also sufficient to say of this that not understand upon what theory the plain. the action is not brought by the creditors tiff now assumes that no demand was made. under the 2d section of the act of June 30, * In the view we take of the statute of limi. 1876, but by the receiver under Rev. Stat. $tations, we have not thought it worth while 5234. In such cases no debt becomes due to to consider the points made by the defend. the receiver as such until a deficiency has ant, that the action should have been at law, been ascertained and an assessment made, and that the bill is defective for the want when he statute begins to run. Scovill v. of proper parties. Thayer, 105 U. S. 145, 26 L. ed. 968; Haw Î'here was no error in the decree of the kins v. Glenn, 131 U. $. 319, 33 L. ed. 184, 9 court belowo, and it is therefore affirmed.
(184 U, S. 77) PEOPLE OF THE STATE OF ILLINOIS Messrs. John E. Hamline, Frank A.
ex rel. GEORGE HUNT, Attorney Gen. Scott, Frank E. Lord, and Edward C. Akin eral, Appt.,
Messrs. John N. Jewett, Benjamin F. ILLINOIS CENTRAL RAILROAD COM- Ayer, and J. 1. Dickinson for appellees. PANY et al.
* Mr. Justice Harlan delivered the opin. appeal-conclusiveness of prior decision on ion of the court: second appeal-effect of decision on sub
This case has been heretofore in this court. sequent proceedings in lower court-piers Illinois C. R. Co. v. Illinois, 146 U. S. 387, erected by riparian proprietors-eaten- 36 L. ed. 1018, 13 Sup. Ct. Rep. 110. The sion beyond point of practical navigabili- decree then under review was affirmed in all ty-question of fact-concurrent findings. respects except one, and as to that one the
cause was remanded for further investiga1. Every matter embraced by a decree of a
tion of the facts upon which it depended. United States circuit court, and not left open
The case involved the asserted ownership by a decree of the United States Supreme by the Illinois Central Railroad Company Court afirming the former decree in all re of certain piers, docks, and wharves conspects but one, and as to that one remanding struoted by it on the lake front of the city the case for further investigation of the facts of Chicago, east of Michigan avenue. upon which It depended, is conclusively de termined, as between the parties, by such af: in question were erected, without authority
The state contended that the structures Armance, and is not subject to re-examina. of law, on lands belonging to it, and that
tion on a second appeal. 2. In determining whether plers erected in the decree now before us was erroneous in
Lake Michigan by a rallroad company by vir not so declaring. tue of its riparian proprietorship extended The railroad company contended that the into the lake beyond the point of practical mandate of this court on the former appeal navigability, having reference to the manner left open for consideration by the circuit In which commerce in vessels is conducted on court only one question, namely, whether the lake, the circult court to which the cause those structures extended beyond the point has been remanded for further investigation of the facts on which this question depends of practical navigability, having reference to is not confined to the consideration of the the manner in which commerce in vessels is size and capacity of vessels habitually em conducted on Lake Michigan; and that that plosed on the lake at the commencement of issue of fact having been found in its favor, the litigation or at the date of its original the circuit court could not properly have decree.
passed any other decree than one confirming 8. Piers, docks, and wharves erected in Lake the company's title to such structures.
Michigan by a rallroad company by virtue of its riparian proprietorship cannot be said
The history of the litigation relating to to extend into the lake beyond the point
property is fully disclosed in Illinois C. practical navigability, having reference to R. Co. v. Illinois, above cited. But it will the manner in which commerce in vessels be appropriate and will contribute to a clear is conducted on that lake, where such struc- understanding of the present appeal if the tures extend no farther into the lake than essential facts be restated in this opinion. Is necessary to accommodate a great number
In the year 1883 an information was filed of vessels of moderate capacity, and the average depth of water at the outer line of the in the circuit court of Cook county, Mlinois, structures is insufficient for the accommoda- by the People of that state against the mition of a vast amount of commerce carried on nois Central Railroad Company, the city of in ressels on the lake.
Chicago, and the United States of America. 4. The concurrent findings of the two lower That case was removed into the circuit
courts that piers, docks, and wharves erected court of the United States for the northern in Lake Michigan by a railroad company by district of Illinois, and a motion to remand virtue of its riparian proprietorship do not it to the state court was overruled. 16 Fed. extend into the lake beyond the point of practicable navigability will not be disturbed $81. In the same case the city of Chicago unless clearly in conflict with the evidence.
filed a cross bill against the state and its
codefendants. At the same time there was (No. 28.)
pending in the circuit court of the United
States for the same district an information Argued March 15, 1901. Decided February the Illinois Central Railroad Company, the
in equity filed by the government against 3, 1902.
Michigan Central Railroad Company, the
Court of Appeals for the Seventh Cir. Company, and the city of Chicago. cuit to review a decree which affirmed a de At the hearing of those causes in the cir. cree of the Circuit Court of Cook County, cuit court certain maps were used; one be Illinois, confirming the title of the Illinois ing known as the map of "Fort Dearborn Central Railroad Company to certain piers, addition to Chicago" made by direction of docks, and wharves constructed by it on the the Secretary of War, under the authority lake front of the city of Chicago. Affirmed. of an act of Congress approved March 3d,
See same case below, 34 C. C. A. 138, 91 1819; the other being known as the More Fed. 955.
house map. Both maps were made part of The facts are stated in the opinion. the opinion of this court in Illinois C. R. Co.
v. Ilinois, and for convenience are here rescribed in the act of 1869,** and the rightproduced
I subject to the aparamount" authority is that
The questions involved in the above suits / United States in respect to the regulation are indicated 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 ght to develop Passed over veto, April 16, 1869." The 3d secthe harbor of Chicago by the construction tion of that act reads: of docks, wbarves, etc., as against the claim road Company under the grant from the state
"] 3. The right of the Illinois Central Rall. 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 sald