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rate capacity, and it cannot be collaterally attacked on that ground, in order to avoid a sale under execution thereupon. (McFall v. Warehouse Assn., 122 Cal. 468, 68 Am. St. Rep. 47, 55 Pae. 243.)

It is sufficient defense to an action by banking corporation that it has not complied with the requirements of act of April 1, 1876, in regard to publication and record in recorder's office of a sworn statement as to its capital, assets and liabilities. This act is not repealed by the bank commissioner's act. (Bank of B. N. A. v. Cahn, 79 Cal. 463, 21 Pac. 863. To same effect: Bank v. Alaska ete. Co., 97 Cal. 36, 31 Pac. 726.)

Where an attorney, sued by an insolvent bank upon a note executed by him thereto, alleged in defense a special contract made with the acting president of the bank, employing him to assist as special counsel in litigating the bank, in consideration of a sur. render and cancellation of the note, without relying upon any counterclaim for the value of work and labor performed by him for the benefit of the bank, he cannot recover upon a quantum meruit. (Pa. cific Bank v. Stone, 121 Cal. 202, 53 Pac. 631.)

The act of April 1, 1876 (Stats. 1875-76, P. 729) is penal in its nature and should receive a liberal interpretation in favor of a bank, but the court cannot refuse to enforce the statute, when a failure to comply with its terms is palpable and material. (Bank of British N. A. v. Alaska Imp. Co., 97 Cal. 28, 31 Pac. 726.)

Commercial banks are subject to examination by bank commissioners under act of March 30, 1878. (W. F. Co. v. Coleman, 53 Cal. 416. Affirmed: People v. Superior Court, 100 Cal. 120, 34 Pac. 492. Note: 32 Am. Dec. 300.)

Under facts of case bank held to be commercial and not savings bank. (Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110. Cited: Los Angeles v. Loan etc. Co., 109 Cal. 404, 42 Pac. 149.)

Corporation formed for the purpose of receiving deposits and loan. ing money, if it does not issue paper to circulate as money, is not a bank within the meaning of section 34, article IV of the Constitution, although it is called a bank. (Bank of California v. W. C. T. Co., 52 Cal. 280.)


[Although not strictly within the scope of this work, the following authorities, with a brief statement of their holdings, are given here for convenient reference.-Eds.)

Power to Subscribe for Stock of Corporation.— The question as to the power of a national bank to subscribe for, purchase, or own shares of stock in another corporation must be determined from the statutes of the United States as construed by the supreme court of the United States. (Chemical Nat. Bank v. Havermrale, 120 Cal. 601, 65 Am. St. Rep. 206, 52 Pac. 1071.)

A national bank has no power to purchase or subscribe for the stock of another corporation, but may, as incidental to its powers to loan money on personal security, in the usual course of doing such business, accept stock of such corporation as collateral, even for a previous indebtedness, and by the enforcement of its rights as pledgee may become the owner of the collateral, and subject to liability as such stockholder. (Chemical National Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pac. 1071.)

And the acquisition by a national bank, by purchase or subscription, of stock in another corporation is an ultra vires act and void, and creates no liability to the creditors of the corporation whose stock was attempted to be transferred, and the bank may urge such vant of power to defeat an attempt to enforce against it the liability of a stockholder, and is not estopped by receipt of dividends from setting up such want of power. (Chemical Nat Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pac. 1071.)

Neither is the payment of dividends on the stock on another corporation standing in the name of the officers of a national bank, by à check drawn in favor of the bank, conclusive that the bank was the owner of the stock. (Chemical Nat. Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pac. 1071.)

And evidence that certificates of stock in another corporation drawn in favor of the officers of a national bank, without ever having been delivered to them, were afterward presented by one of such officers, without being indorsed, for transfer by the bank, is not sufficient to show an acquisition by the bank of the title to the stock in any mode in which it was authorized to acquire it. (Chemical Nat. Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pac. 1071.)

In an action against a national bank to charge it with liability as a stockholder in another corporation, the bank may show that it never authorized its officers to subscribe for stock in such corporation. (Chemical Nat. Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pac. 1071.)

Shares as Collateral Security.-But national banks may take shares in another corporation as collateral security. (Kennedy v. California Sav. Bank, 101 Cal. 495, 40 Am. St. Rep. 69, 72, 35 Pac. 1039. But see: Chemical etc. Bank v. Havermale, 120 Cal. 603, 65 Am. St. Rep. 208, 52 Pac. 1070.)

And a national bank registered on the books of a savings bank as a stockholder is presumed to hold the stock for lawful purposes of the corporation in absence of notice of its being held otherwise. (Kennedy v. California Savings Bank, 101 Cal. 495, 40 Am. St. Rep. 69, 72, 35 Pac. 1039.)

A national bank which has received stock of a savings bank and retains it, and has received dividends on it, is estopped to deny its

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stockholders' liability for its proportion of the debts of the savings bank. (Kennedy v. California Sav. Bank, 101 Cal. 495, 40 Am. St. Rep. 69, 72, 35 Pac. 1039. To same effect: McGowan v. MeDonald, 111 Cal. 67, 52 Am. St. Rep. 155, 43 Pac. 418. Contra: Chemical Nat. Bank v. Havermale, 120 Cal. 601, 55 Am. St. Rep. 206, 52 Pae. 1071.)

Rate of Interest.-Under section 5197 of the United States Revised Statutes, and section 1918 of the Code of Civil Procedure, a national bank situated and doing business in this state is author. ized to charge and receive such rate of interest as may be agreed upon. (California Nat. Bank etc. v. Ginty, 108 Cal. 148, 41 Pae. 38.)

Organization and Attack Thereon.—The United States alone can be heard to question the authority of a national bank to make a loan of money upon the security of a trust deed of real estate under sections 5136 and 5137, Revised Statutes of the United States. (Camp v. Land, 122 Cal, 167, 54 Pac. 839.)

The parol evidence of the bank's president, received without objection, proving the organization of the bank as a national bank under the laws of the United States, and establishing the fact that for many years before and after the execution of the trust deed it had done business as a national bank, is sufficient to establish its corporate existence de facto. (Camp v. Land, 122 Cal. 167, 54 Pae. 839.)

The grantor of a trust deed of real estate, securing his indebtedness to a national bank, having dealt with the bank as a corporation having power to enter into the contract of which he received the benefit, cannot be heard to object to a lack of proof of its corporate existence and power to make such contract. (Camp v. Land, 122 Cal. 167, 54 Pac. 839.)

Agent of an Insolvent Bank.-An agent of an insolvent national bank appointed by shareholders and commissioned by the comptroller under act of Congress to succeed the receiver in the performance of his duties, stands in place of the receiver, and is in fact a receiver under a varied form of appointment, and is at least a quasi public officer of the United States. (Chetwood v. California Nat. Bank, 113 Cal. 649, 45 Pac. 854.)

And where one who is de facto agent of insolvent national bank presents his commission from the controller reciting his appointment, and the regularity of the proceedings attending it, the question of the regularity of his appointment cannot be collaterally assailed. (Chetwood v. California Nat. Bank, 113 Cal. 649, 45 Pac. 854.)

Power to Sue and be Sued.-National banking law confers upon national banks power to sue and be sued in any court of law or equity as fully as natural persons; and a state court may acquire jurisdiction of such incorporations outside the county or city in which it is located, regardless of whether action is transitory or local in its character. (Fresno National Bank v. Superior Court, 83 Cal. 491, 24 Pac. 151.)


An act to amend an act entitled "An act to authorize the husband

or wife, or next of kin, of a deceased person, to collect and receive of any savings bank any deposit in such bank when the same does not exceed the sum of three hundred dollars,'' approved February 18, 1874.

[Stats. 1895, 32.]

1. Right to collect deposit. § 2. Power of bank. $ 3. Penalty for false affidavit.

Section 1. Section one of said act is hereby amended so as to read as follows:

Section 1. The surviving husband or wife of any deceased person, or if no husband or wife be living, then the next of kin of such decedent, may, without procuring letters of administration, collect of any bank any sum which said deceased may have left on deposit in such bank at the time of his or her death; provided, said deposit shall not exceed the sum of five hundred dollars.

Sec. 2. Section two of said act is hereby amended so as to read as follows:

Section 2. Any bank, upon receiving an affidavit stating that said depositor is dead, and that atfiant is the surviving husband or wife, as the case may be, or stating that said decedent left no husband or wife, and that affiant is next of kin of said decedent, and entitled to distribution, and that the whole amount that decedent left on deposit in any and all banks of deposit in this state does not exceed the sum of five hundred dollars, may pay to said affiant any deposit of said decedent, if the same does not exceed the sum of five hundred dollars, and the receipt of such affiant shall be a sufficient acquittance therefor.

Sec. 3. Any person who shall make a false affidavit in regard to the matters specified in this act, shall be deemed to be guilty of perjury.

Sec. 4. This act shall take effect from and after its passage.

[Became a law, under constitutional provision, without governor's approval, March 8, 1895. The original act was the same except that the amount was $300.]



An act to facilitate the giving of bonds required by law.

[Approved March 12, 1885; Stats. 1885, 114.]

§ 1. Incorporation for giving bonds.
§ 2. When corporation not accepted.
§ 3. Duty of insurance commissioner.

Section 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sureties, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or undertaking specified, any head of department, board, court, judge, officer, or other person who is now or shall hereafter be required to approve the sufficiency of any such bond or undertaking, or the sureties thereon, may accept as sole and sufficient surety on such bond or undertaking, any corporation incorporated under the laws of any state of the United States for the purpose of making or guaranteeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this state regulating the admission of such corporation to transact such business in this state; and all such corporations are hereby vested with full power and authority to make and guarantee such bonds and undertakings, and shall be subject to all the liabilities and entitled to all the rights of natural persons sureties.

Sec. 2. It is further provided that the guaranty of any such company shall not be accepted by heads of departments or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascertained in the manner provided in section three of this act.

Sec. 3. Whenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for

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