(Wells

There is no waiver of the liabilities of the stockholders by reason of an unsigned agreement printed in the book of each depositor, nor by a printed release of liability inserted in the signature book, to which no special subscription was made by the depositors. v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090.) The fact that a provision of act of April 11, 1862, attempting exemption of stockholder from liability is unconstitutional under constitution of 1849, does not prevent a valid incorporation of a bank under the remaining provisions of the law which are separable, and continue in force. (McGowan v. McDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418.)

Rights of Depositors.-A "depositor" under the act of 1862 includes not only those who made deposits subject to check, but also those who made deposits not subject to check. (Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 159.)

The act of 1862 is not unconstitutional, because it subjects stockholders who are depositors to burdens to which other depositors are not subject. (Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 159.) A savings bank organized under the banking act of 1862, which had the required capital contemplated by the amendments of 1864, was authorized, by those amendments, to engage in commercial business; but the original act as thus amended constituted its charter, and, in the absence of the adoption of a by-law, authorized thereby, extending the same security to depositors who were stockholders as to other depositors, the provision of the act giving depositors who were not stockholders a prior claim upon the assets applies to savings banks who were doing a commercial business; and it was competent for its stockholders, either by acquiescence in the terms of the statute, or by an express provision in its by-laws, to assure such preference to nonstockholding creditors. (Murphy v. Pacific Bank, 119 Cal. 334, 51 Pac. 317.)

In an insolvent bank incorporated under the act of April 11, 1862, the claims of depositors, not stockholders, are preferred over those of depositing stockholders, in the absence of a by-law entitling them to share equally with them. If the stockholder is not a depositor and has loaned money to the bank, he is entitled to share equally in the assets with other creditors. (Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 159.)

General deposits made by a corporation in a bank to which it is indebted for overdrafts, of sums not greater than the balance of indebtedness, are presumed to have been made as payments thereupon, and do not make the account mutual, open and current, within the statute of limitations. The fact that the account started with a credit cannot alter the nature of the indebtedness for overdrafts, nor render the account of such indebtedness and of payments thereCorporation Laws-43

upon mutual, open and current account. (National Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.)

The proceeds of a draft which was deposited for collection with a bank that became insolvent, collected by the receiver of such a bank, belong to the depositor and are not a part of the assets of the bank to be distributed to the creditors. (Henderson v. O'Connor, 106 Cal. 385, 39 Pac. 786. To same effect: Anderson v. Bank, 112 Cal. 602, 53 Am. St. Rep. 230, 44 Pac. 1063.)

A bank incorporated under the act of April 11, 1862, has no power to contract any debt for borrowed money, or for money paid out at its request by a stockholder in discharge of the obligation to a depositor. Such contract is ultra vires and void, regardless of the relation of the stockholder to the bank. (Laidlaw v. Pacific Bank, 137 Cal. 392, 70 Pac. 277.)

Section 10 of the act of 1862 gives nonstockholding depositors a security in the capital stock and assets of an insolvent bank in liquidation, which should be satisfied before any other creditor should be permitted to apply any portion thereof to the satisfaetion of his debts, whether he be a stockholding depositor or a general creditor. (Laidlaw v. Pacific Bank, 137 Cal. 392, 70 Pac. 277.)

Where one bank takes from another bank an assignment of all its property, and, as a consideration agrees to pay all the debts and liabilities of the assignor, and credits a depositor of the former bank with the amount of his deposit upon its books of account, it assumes toward the depositor the same relation that its assignor bore, and a claim for the amount of such deposit cannot be barred by the statute of limitations. (Green v. Odd Fellows' etc. Co., 65 Cal. 71, 2 Pac. 887. To same effect: Los Angeles v. Loan Co., 109 Cal. 405, 42 Pac. 149.)

Certificates of Deposit.-Certificates of deposits are usual with commercial banks, and they have full power to issue them in the absence of a statutory provision; nor are their powers curtailed by the express statutory provision vesting similar powers in savings bank. (Abbott v. Jack, 136 Cal. 510, 69 Pac. 257.)

Certificates of deposits are not promissory notes, and do not imply a loan in the ordinary sense, or create the ordinary relation of debtor and creditor evidenced by a promissory note. (Murphy v. Pacifie Bank, 130 Cal. 542, 62 Pac. 1059.)

A certificate of deposit, signed by the cashier of a commercial bank, must, in the absence of proof to the contrary, be taken as the act of the bank. (Abbott v. Jack, 136 Cal. 510, 69 Pac. 257.)

A deposit for which the certificate specifies, in addition to the ordinary clause, that it is to run for one year, and not mature sooner, and should bear interest at six per cent, may be considered a loan to a bank, but, upon the withdrawal of such a deposit and the deposit of another sum in the ordinary manner, the relation of bor

rower and lender ceased to exist, and the depositor cannot be considered a preferred creditor. (Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 1059.)

Where the certificate of deposit held by the stockholder when the tank became insolvent was assigned thereafter to plaintiff, who took the assignment with knowledge that the bank was insolvent and was in liquidation, and it was admitted that the assignor was a stockholder, the plaintiff is not protected, and is not entitled to share equally with preferred creditors not stockholders. (Murphy v. Pacific, 130 Cal. 542, 62 Pac. 1059.)

Officers, Powers of, etc.-The president or acting president of an insolvent bank has no authority, by virtue of his office merely, to retain special counsel in addition to the attorneys of the bank employed to assist in litigation for the bank without the sanction or ratification of the board of directors. (Pacific Bank v. Stone, 121 Cal. 202, 53 Pac. 634.)

Where president employed attorneys whose services were rendered for his private benefit alone, the fees of such attorneys cannot properly be paid by the bank, and if so paid stockholders can sue to compel him to account to the bank for the same, and where alleged and shown that a request to the directors to sue would have been futile, the president and trustees controlled by him cannot contend that such futile request should have been made. (Wickersham v. Crittenden, 106 Cal. 329, 39 Pac. 603.)

The president of a bank has no more power of management or disposal over the property of the corporation than any other single member of the board of directors. The cashier is the executive officer of a bank, and the one who transacts its financial operations, but his power is limited to transacting such business as the board of directors have authorized. (Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788.)

The trustees of a bank cannot vote a salary to one of their number as president, when he participates in the proceedings, and his vote is essential to the adoption of the resolution; and the corporation, or its stockholders, where the corporation refuses to act, may compel the president to account for and return to the bank the increase of salary so received. (Wickersham v. Crittenden, 106 Cal. 327, 39 Pac. 602.)

The declaration of the manager of an insolvent bank after its insolvency, showing the state of the accounts while the bank was still under the control of its directors, which did not purport to be the creation of a new indebtedness, but did purport to be the statement of an old account, is as potent to exhibit the true state of the account after the protest and surrender of dishonored drafts as was the book before their protest. (Dingley v. McDonald, 124 Cal. 90, 56

Pac. 790.)

An order for the collection of an assessment by suit could not be made by the directors at a meeting held prior to the delinquency; and they could not lawfully pass such resolution at an adjournment of such meeting where it does not appear that all the directors were present at the adjourned meeting. (Bank of National City v. Johnston, 133 Cal. 185, 65 Pac. 383, McFarland and Van Dyke, JJ., dissenting.)

Cashier of bank having authority to loan money without security is liable for losses of money so loaned, not entered in the books of the bank, nor reported to the board of trustees, but treated in his reports to the board as cash on hand. Negligence of the directors in discharge of their duties to the bank is no defense to the cashier. (San Joaquin Valley Bank v. Bours, 65 Cal. 247, 3 Pac. 864.)

Insolvency. Upon suspension of bank, balance due depositors becomes an account stated upon refusal of bank to pay, and bank thereafter detains moneys received to their use to the account of such balance, and is liable for interest thereon. (McGowan v. MeDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418.)

The directors of an insolvent bank, after the adjudication of its insolvency, under the banking act of 1895 may, without authority from the court, assess the shareholders on the unpaid capital stock, for the purpose of liquidating the bank's indebtedness and settling its affairs. There being no shares to sell for the delinquent assessment, they may collect it by action in the name of the bank. (Union etc. Bank of San Jose v. Dunlop, 135 Cal. 628, 67 Pac. 1084.)

Where, pending proceedings for insolvency, an assessment was levied by the bank for the payment of its debts, and prior to the delinquency of the assessments the bank was declared insolvent, the judgment has the effect to set aside the assessment, and all power to collect it is ended. (Bank of National City v. Johnston, 133 Cal 185, 65 Pac. 383.)

Such assessment cannot be treated as a call for unpaid subscriptions to stock. The bank commissioners have no power to make such call, nor could the directors act as trustees under the statute prior to the judgment; nor did their resolution of assessment contemplate or attempt such call. (Bank of National City v. Johnston, 133 Cal. 185, 65 Pac. 383.)

A creditor of an insolvent bank is entitled to share in each dividend declared by way of percentage, upon the basis of his original claim as a creditor, without regard to previous collections, whether from prior dividends, or from actions brought against solvent stockholders. (Sacramento Bank v. Pacific Bank, 124 Cal. 147, 71 Am. St. Rep. 36, 56 Pac. 787.)

An ordinary action for the collection of a debt cannot be maintained against an insolvent state bank which is in process of liquidation under the bank commissioner's act as amended in 1895. (Argues v. Union etc. Bank, 133 Cal. 139, 65 Pac. 307.)

Yet an action may be maintained by a creditor against the directors in their own names or under their corporate name on a claim disallowed by them. But until the claim is disallowed, there is no cause of action. The disallowance must be alleged. (Argues v. Union etc. Bank, 133 Cal. 139, 65 Pac. 307.)

Under the bank commissioner's act as amended in 1895, the directors of an insolvent bank, while it is in liquidation, are trustees for the creditors, and no action can arise in their favor against the directors or the bank, except for a breach of trust on the part of the trustees, but then an action may be maintained in equity for the appropriate relief. (Argues v. Union etc. Bank, 133 Cal. 139, 65 Pac. 307.)

The assets of an insolvent bank are to be administered exclusively under the bank commissioner's act for the benefit of all the depositors and creditors of the bank, as well as its stockholders; and upon the suspension of a bank and the closing of its doors owing to insolvency in fact, the right of attachment does not exist, and an attachment by a creditor or depositor will be dissolved, although levied before the commencement of an action by the people under the bank commissioner's act. (Crane v. Pacific Bank, 106 Cal. 64, 39 Pac. 215.)

The amount of a deposit in a bank which became insolvent was not diminished by the amount of the checks drawn for drafts which were dishonored and returned to the other bank, and for the amount of which the bank gave credit to the depositor. The drafts did not operate as payment of the checks, in the absence of an express agreement that they should so operate; and there was no payment of the checks which could withdraw the deposit. (Dingley v. McDonald, 124 Cal. 90, 56 Pac. 790.)

The superior court has a very extensive jurisdiction over an insolvent savings bank during the whole progress of its liquidation, and it may, upon petition showing vacancies in the board of directors, appoint directors to fill such vacancies. (Braslau v. Superior Court, 124 Cal. 123, 56 Pac. 792.)

The bank commissioner's act of 1878 was intended to provide an exclusive method for the winding up of the affairs of all insolvent banks, and such banks are not subject to the insolvency act. (People v. Superior Court, 100 Cal. 111, 34 Pac. 492; Long v. Superior Court, 102 Cal. 450, 36 Pac. 807; Crane v. Pacific Bank, 106 Cal. 20.) Actions by and Against Banks.-In an action by a bank in the justice's court, a copy of the note of the defendant to the bank, which is sued upon, is a sufficient complaint; and if the bank is in fact a corporation, in the absence of objection to its want of capacity to sue, by demurrer or answer, all objection thereto is waived, and a judgment rendered in favor of a bank in a justice's court is not void because the record does not affirmatively show its corpo