.842
·yol. 43.
the water, loYerand across the .shore in 'front of sald;,property', and: that the town of Newport has no right to lease said shore to"1any nor to maintain ot authorize said tramway thereon, and thatanil.1jnnction may issue 8:s pril.yed·for in the bill, on motion of the plaintiff or his assigns, on the completion of the jetty or the expiration of three years from this date,· and that ,the, plaintiff recover from the defendant his. costa and expenses hereiusustained.
STEPHENS "'. FOLLETT 1
et ,,'
(Cirowtt Oourt, I D· .lI{wmesow. October 18,..1890.) L NJ.TlOIUL BAmtlI-INDIVIDt'AL LIJ.BILITY OF SHARBHoLD:BR8. '; .. Olle who .subscribes and JIllya specified numQe.J:'iof sl1"resof" "proposed 'increase" of the capitltl stock of a.n!ltional bank, whiohincrea.se IS1n fact never ; :;;' iSsUed, and to whom the bankofllOials transfer, iQste9.d, ola' stock of! the bank witbout hislo!owledge or consent is not a "shareholder" within of Rev. .St: U. 8. 55151, imposing individual liability on the shareholder8 for the debts of !. national banks.. .) ," . I
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!lew shar.esrepelvest !llvtdend, on the old to him does' not estop him from den.nl1:!rbliliability as a 8uch· dividend wall' receIved In the belletthat it Willi. paid to his sub8l?riptiop to the new stock. . ' , ' , ' '. ,:' '"
,At Law. " , . suit WRStried by the cotirt, a stipulation wamng'ajury being:filed. 1.l'he action'is brought to recover an assessment made, by the comptroller of the currency on the stockholderEi ofthe Fifth National Bank otthe. city of St. Louis, which went into liquidation November 1887,and'ohvhich the .' The assessmerit was 100 per cent. of the par 'valueofthe shates! 'The complaint alleges that Stephen A. Gardner held and. was the owner of 241 shares of the capital stock of -said bank; of the par value of $100 each, amounting to $24,100, and that l:1BidGardner died testate March 11,1889, ahd that the defendants'are the dulY'''qualified executors of his last will and and that by reason thereof the' plaintiff is entitleJtorecover $24,100, with intercst from June 22, 1889..' The defendants admit that G:ar,dJler owned 115 shares ofthe stock,butdenythat he owned any mote; arid further, in substance, set up, that if any other or greater amount than 115 shares 'stands in his name' on the books, the entries thereof are fraudulellt and uninithorized, andnnknown.tosaid Gardner until after the failure of the bank and the appointment of a receiver. T!le fopowing facts are stipulated,and the evidence of the receiver and'othel:''lVitriesses intro'daced do not change them. The .receiver testifies that ·when he took' charge of the bank he found. Gardnerl a of the proposed increase of the capit.al stock, but he nev'erregarded him'as a'subscriber to the new stock, and the books of the bank do not show that he receivedllew stock. :.Thefollowing are the findings dffaCt and conclusions .. ' . . ""This; cause, being for:trlai at the general. I:
T'
of:thiS.cOU1"t sitting at St. Paul, MlnnesQta,comlllenclng-on' the '9th daf of
STEPHENS t1., FOLLE'l"l'.
843
December, 1889, and under the stipulation on' file jury and' agreeing to the trial hereof by this court sitting witho\lt a jury, having come' regularly on for trial before meon the 5th day of May, A. D; 1890, and having been then tried and submitted to this court, sitting without a jury, for its decision, William Ely Bramhal1, Esq 0' then and there appearing for and in behalf of plaintiff, and McNeil V. Seymour, Esq., and John M. Gilman, Esq., having then and there appeared for and on behalf of the defendants: Now, after having fully heard said connsel, and after full and due consideration and deliberation, I find as facts, in addition to those contained in the tion and agreement iii writing between the parties hereto, dated on the 19th day of February, 1890, and which was filed in the office of the clerk. ofthis court on February 20, 1890, as follows: ' '" , "First. That at the time said Stephen Gardner subscribed to the proposed increase of the capital stock of the Fifth National Bank of st. Louis, in 1886, he was about 80 years of age, and was, and had been for some time p.rior thereto, and continued afterwards to be, iri very feeble health. " ' "Second. That at the time said officers of said bank, referred to in said at_po ulation, applied to said Stephen Gardner, and by its circular referred to in ,the; said stipulation, invited him to subscribe to the increase of the capital stock' of said bank, as well as for a long time prior thereto, said bank was, and'haa ever since continued to be, wholly insolvent, and was 'known to be insolve'nt' by the omoersof said bank at the time of sending satJ circular, and atthetime' said Stephen Gardner's written SUbscription to said proposed In-' crease of stock, and at the time said sum of ten thousand dollars was received·' by said bauk. .' , ..Third·.That said Stephen Gardner paid said sum of ten thousand dollll:rs to t said Qank for one hundred shares'of the proposed increase or new issue ofq:ie, capital stock of said bank, which he supposed would be made on theIst day' January, 1887: that said bank. upon receiving said sum of money, paid a'pilrtion thereof to the president,of said bank, and the balance of said sum of the directors, and In return therefor permittf'd said president and director to surrender to said bank hundrj!d sharElsof the original capital stock of said hank, and thereupon; and in lieu thereof, said bank did issue a certit)cate foroliehundred shares of said original stock in the name of Stephen Gardner, ' and sent said certificate to saidStf'phenGardner at Hastings, Minnesota,' wh,ere he resided ; that there was nothing on thll face of the certitlcateso' issued and received by saM Gardner to show that It was not one hundred, ,1Ia(l, , shares of,the proposed inc'rease of stock for which said Stephen subscribed, and fOl' which he had paid his money: that. the letter which said certitlcate was inclosed, taken in cooneetion with pi'ior correspondence, indicated, and was intendt'd by the officer of the bank who wrote it to indicate, that the said certitlcate reprt'sf'lltt'd the new issue of said stock which was proposed to be made, and said Stephen Gardner belieYed that such certificate t did in fact represent the, new issue of the capital stock of suid bank for which; he had subscribed, and had no knowledge or intimation to the contrary until long aftl'r the failure of said bank, and long after the of thlS plaintiff hl'rein as its receiver. , ,. " " .. l/ou1'th. That when the dividend menUoned in the stipulation was received', bysald Stephen Gardner, 'he believed it was a. dividend upon the stock Of the I proposf'd incre,ase whic.h heIJupposed hehadjn said bank. and never 'learned" or thought to the contrary until long after the failure of said ballkand 'the.! appolntm,Elnt of the plaintiff aueceiver. .'." ,', , ' " .. That E bit B, to the depositil>n ,,is.t,he of shareholders of saId bank, cetllfied to' the comptroller of the currency on the 1st Moodayof July, 1887, Ity:l:iaid bank. 'But in tll'st preparing ing .. ibebook .kept· for, tlutt. ,purpose tbe' list of shareholders,d"nth61!1t-'