is presumed that the parties had existing usage in mind, and justice requires that full force should be accorded to it. In one of the older and well wrought cases, Justice Storrs remarked, "The presumption is that those who enter into contracts intend to be governed by the general principles of law. It is, however, competent for them to renounce those principles, where public policy does not forbid, and to adopt another rule of action; and the prevalence of a particular legal usage on the subject, variant from those general rules, in the absence of evidence to resist it, affords a rational ground of inference that they intended to do so."74

The question still remains for answer, how well known or universal must a principle of common law be to escape modification or overthrow by usage. What headlands on the banking coast remain unmoved by the repeated attacks of business men to change them? That usage cannot cut off days of grace from a bill of exchange;75 cannot change the legal effect of a blank endorsement 76 or power of attorney;77 cannot, in many States, excuse the neglect of a notary, even of the highest competency, to make a demand and give notice of the non-payment of a note received by a bank for collection;78 are good examples.

13. Local Usage.

Individuals living in the same community with banks are

Rider, 62 Wis. 235; Day v. Holmes, 103 Mass. 306; Greenstine v. Borchard, 50 Mich. 434; Mechem on Agency, $485. See Commercial Bank v. Red River Valley Nat. Bank, 8 N. Dak. 382.

74 Kilgore v. Bulkley, 14 Conn. 362, 391.

75 Woodruff v. Merchants' Bank, 25 Wend. (N. Y.) 673.

Contra.-See 89.

76 Shaw v. Jacobs, 89 Iowa 713.

77 First Nat. Bank v. Taliaferro, 72 Md. 164.

78 Ayrault v. Pacific Bank, 47 N. Y. 570. A local custom is "too limited to control positive requirement of law. Usage can only regulate the manner of the performance of required acts; it cannot excuse non-performance." Citizens' Nat. Bank v. Third Nat. Bank, 19 Ind. App. 69, 79; Adams v. Otterback, 15 How. (U. S.) 539.

supposed to know bank usage;79 and are presumed to act accordingly in doing business with these institutions whether they have actual knowledge of the existence of the usages prevailing among them or not.80

"The general course of business in a community, including the universal practice of banks, is a matter of which the courts may take judicial notice." 81

14. Private or Particular Usage.

The usage of a bank in a particular matter is only binding on those who know of its existence, and are presumed to have assented thereto.82 Such a usage is that of a bank in crediting a check, endorsed by the owner for collection and delivered by him to a messenger for deposit, to the messenger instead of the Owner. 83

79 Howard v. Walker, 92 Tenn. 452; Sahlien v. Bank, 90 Tenn. 221; Bank v. Fitzhugh, 1 Har. & Gill (Md.) 239, 248; Bank v. Smith, 18 Johns. (N. Y.) 230.

80 Bank v. Triplett, 1 Pet. (U. S.) 25; Bank v. Fitzhugh, I Har. & Gill (Md.) 239; Dorchester & Milton Bank v. New England Bank, 1 Cush. (Mass.) 177, 188; Lincoln & Kennebeck Bank v. Page, 9 Mass. 155. “A local custom, if relied upon as entering into and forming a part of a contract, must be pleaded." Sherwood v. Home Sav. Bank, 109 N. W. (Iowa) 9; Lindley v. First Nat. Bank, 76 Iowa 629.

81 Agawam Bank v. Strever, 18 N. Y. 502, 512; Merchants' Nat. Bank v. Hall, 83 N. Y. 338, 345.

82 Kilgore v. Buckley, 14 Conn. 362. See Bank v. Smith, 18 Johns. (N. Y.) 230. "A usage of universal prevalence becomes a part of the exist ing law, and is to be noticed ex-officio by the courts of justice; but a particular usage has a circumscribed and limited application, and must be supported by proof." Earle, J., Bank v. Fitzhugh, Har. & Gill (Md.) 239, 248; First Nat. Bank v. Farmers' & Merch. Bank, 56 Neb. 149, 157. A particular custom to bind a customer sending a draft for collection must have been known by him. Bank v. Miller, 105 Ill. App. 224; affd. 202 Ill. 410.

83 Kuder v. Greene, 82 S. W. (Ark.) 836. In an action on a note payable at a bank, evidence of the bank's custom to require payment of interest in advance is admissible. Ellis v. Littlefield, 93 S. W. (Tex. Civ. App.) 171.

15. How Usage is Proved.

A usage is proved generally by parol evidence.84 Proof of a single fact will not suffice;85 how many repetitions are needful to harden the matter into a usage or custom must always remain one of the open questions of the law.

16. Effect of Change of Usage on Previous Contract.

A usage may be changed or discontinued; in such cases an individual who has contracted with reference to the former usage may claim the benefit thereof unless he has learned through positive notice or otherwise of the change.88

Again, a usage may grow up among all the banks of a community, or in only some of them.88

87

84 Bank v. Dunn, 6 Pet. (U. S.) 51; Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446; Renner v. Bank, 9 Wheat. (U. S.) 581, 587; Mills v. Bank, 11 Wheat. 431; Griffin v. Rice, 1 Hilton (N. Y.) 184. A usage may be proved by a banker, a bank clerk or bank customer. Ibid.

85 Duvall v. Farmers' Bank, 9 Gill & J. (Md.) 31; Chesapeake Bank v. Swain, 29 Md. 483; Adams v. Otterback, 15 How. (U. S.) 539; Burr v. Sickles, 17 Ark. 428.

86 Barnes v. Ontario Bank, 19 N. Y. 152; Cumming v. Shand, 5 Hurl. & N. (Eng.) 95.

87 Bridgeport Bank v. Dyer, 19 Conn. 136, 141; Renner v. Bank, 9 Wheat. (U. S.) 581; Bank v. Triplett, 1 Pet. (U. S.) 25.

88 City Bank v. Cutter, 3 Pick. (Mass.) 414, 418; Boston Bank v. Hodges, 9 Pick. 420; Lincoln & Kennebeck Bank v. Page, 9 Mass. 155; Smith v. Whiting, 12 Mass. 6; Chicopee Bank v. Eager, 9 Met. (Mass.) 583; Cohea v. Hunt, 2 Sm. & M. (Miss.) 227; Bank v. Smith, 18 Johns. (N. Y.) 230; Hotchkiss v. Artisans' Bank, 52 Barb. (N. Y.) 517; Mills v. Bank, 11 Wheat. (U. S.) 431; Camden v. Doremus, 3 How. (U. S.) 515; Patriotic Bank v. Farmers' Bank, 2 Cranch C. C. (U. S.) 560. A usage existing among any number of banks will not affect one that has not adopted it. Williams v. National Bank, 70 Md. 343.

CHAPTER IV.

THE RIGHTS OF STOCKHOLDERS.

1. Who Can Subscribe.

3

The persons who can subscribe for stock are designated by statute. Authority has been conferred on charitable organizations; an attorney may subscribe for another person; and anyone can subscribe orally. Whether married women, guardians, trustees, and others acting in a fiduciary capacity can subscribe for stock is a question requiring answer. Doubtless by the laws now regulating the rights of married women in most States they can subscribe for stock, and act at corporate meetings like other persons. Yet the more common practice in organizing banks is to subscribe in the name of a man, who transfers the stock to the true owner, after the completion of the organization. Aliens also may be excluded unless they consent to such taxation on their investments as the State may impose.7

2. Unsubscribed Stock.

4

The balance of the stock not at first subscribed cannot be claimed by the subscribers;8 for this the directors therefore may solicit subscriptions, or make any other disposition not contrary to law."

I Bishop's Fund v. Eagle Bank, 7 Conn. 476.

2 State v. Lehre, 7 Rich. Law (S. C.) 234. He is not forbidden by a provision that "it shall not be lawful for any person to subscribe for shares in the name of other persons." Ibid.

3 Somerset Nat. Bkg. Co. v. Adams, 24 Ky. L. Rep. 2083; Tabler v. Anglo-Am. Association, 17 Ky. L. Rep. 815.

4 Witters v. Sowles, 32 Fed. 767; Laws of N. Y., 1849, Ch. 226. In re Reciprocity Bank, 22 N. Y. 9; Matthewman's Case, L. R. 3 Eq. (Eng.) 781. 5 See People v. Webster, 10 Wend. (N. Y.) 554.

6 In 1886 the Supreme Court of Pa. decided that a married woman could hold and transfer stock, but had no authority to contract to pay for it. But there can be no doubt of her authority to make such a contract now. See opinion of Attorney-General on Married Women Corporators, 18 Pa. C. C. 492.

7 State v. Travellers' Ins. Co., 70 Conn. 590. See Mager v. Grime, 8 How. (U. S.) 490.

8 Reese v. Bank, 31 Pa. 78.

9 Curry v. Scott, 54 Pa. 270. See $7.