HAZEL, District Judge. Motion to dismiss the complaint for misjoinder of parties defendant and for multifariousness.

This action is at law to recover damages for violation of the National Bank Act (Rev. St. §§ 5211, 5239 [12 USCA §§ 93, 161]), relating to the defendants as directors of the National Bank of Commerce of Rochester making and publishing certain reports required by the statute to be filed with the Comptroller of the Currency, and specifically to false reports relating to the resources and liabilities of the bank, and also knowingly violating, or permitting officers and agents to commit the violations prohibited by the

act.

There are twenty-three different plaintiffs, all of whom were stockholders of the bank. Fifty-seven causes of action are alleged against twenty-one defendants, who were directors of the bank at different times mentioned in the complaint. The bank went into liquidation on May 19, 1924. The various causes of action against the individual directors are separately alleged.

Section 209 of the Civil Practice Act of this state, under which the action was brought in the Supreme Court of this state, and subsequently removed to this court, provides: "Joinder of Plaintiffs Generally. All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled."

Under this provision, which is not limited to suits in equity, separate and independent causes of action may be united in one complaint, regardless of the number of plaintiffs, and the right of trial by jury was recognized in Akely v. Kinnicutt, 208 App. Div. 487, 203 N. Y. S. 741, but, according to the quoted provision, in the convenient administration of justice, the court may direct separate trials. In the cited case on this point, the defendants were charged with conspiracy to defraud, but the interpretation of the statute may fairly be applied to the instant objection.

[1, 2] Separate demands for a money judg ment are made against each defendant, and, in my opinion, it is clear that an adequate remedy at law exists (Scott v. Neely, 140 U. S. 106, 11 S. Ct. 712, 35 L. Ed. 358; Whitehead v. Shattuck, 138 U. S. 146, 11 S. Ct. 276, 34 L. Ed. 873), although paragraph 60 of the complaint asks, incidentally, that an accounting be had and that a multiplicity of actions of substantially the same character be avoided, yet without a waiver of trial by jury, the action, in its present form, must be regarded as properly on the law side of the court, inasmuch as the right to recover is based wholly upon a statutory liability. The rules of practice obtaining in the courts of the state, and section 209, relating to joinder of plaintiffs generally, must be applied. Moore Bros. Glass Co. v. Drevet Mfg. Co. (C. C.) 154 F. 737. Paragraph 60 may be either stricken out or regarded as surplusage. [3, 4] The history of the alleged transactions, covering many years, the very large amount involved, the time in which different defendants served as directors of the bank, the transactions of the finance committee, the character of the different reports made to the Comptroller of the Currency, representations to separate plaintiffs to induce them to become stockholders, details pertaining to discounts, the noncollectible loans falsely reported as collectible, and generally the condition of the bank for a long period of years, together with evidence of intent, knowledge, or acquiescence in making false reports, will obviously require much testimony, some relating to only one or more causes of action but not to all; and, for the convenience of the court, the services of an auditor would seem to be indispensable. To segregate and apply the testimony to the different causes of action, and, at the same time, protect the various defendants in its application, may prove to be a cumbersome task if the action in its entirety is tried either before the court or court and jury. The appointment of an auditor, herein suggested by the court, would be of substantial service, and would not operate to deprive a party of the right of trial by jury or violate the Seventh Amendment to the Constitution.

The proceedings before him would be subject to the supervision of the court (Ex parte Peterson, 253 U. S. 300, 40 S. Ct. 543 (64 L. Ed. 919), and in such case the final determination of all issues of fact must be made by the jury on the trial. Peterson v. Davison (D. C.) 254 F. 625. Although, as already remarked, separate questions undoubtedly will arise as between separate plaintiffs and separate defendants, or

groups of defendants, yet it is unlikely, if an auditor is appointed, that any confusion will arise or difficulty be encountered in applying the evidence to different causes of action. Indeed, the order of appointment would specifically instruct him to make inquiry on all matters to which reference is made by counsel for defendants.

The contention that this action, transferred to this court, must now proceed in equity, and that equity rule 26 applies, is unsubstantial, since I think, as heretofore stated, that plaintiffs, under the bank statute, have a complete remedy at law. See, also, Chesbrough v. Woodworth (C. C. A.) 195 F. 875; and Jones Nat. Bank v. Yates, 240 U. S. 541, 36 S. Ct. 429, 60 L. Ed. 788. Of course, to avoid any confusion as to the probability of plaintiffs relying on different reports filed by the bank with the Comptroller of the Currency, or on different statements or reports, and when, how, and by whom made, a bill of particulars would be serviceable and an aid to the court or auditor.

The purpose of the Civil Practice Act, § 211, in my opinion, was intended to enable plaintiffs, who have any right to relief against a number of defendants, to proceed against them in a single action when the right arises out of the same transaction and to lessen expense and a multiplicity of actions, and this right obtains, regardless of whether the liability is joint or several or alternative.

It is not necessary that the complaint should be amended, especially as a bill of particulars would serve the purpose to acquaint the defendants with the specific grounds against them.

[5,6] The defendants, in my opinion, were properly joined in this action, and the complaint is not open to the objection of multifariousness.

The motion is denied.

BENTON et al. v. DEININGER et al.

ty, and recovery depends wholly on extent of damages proven.

On Entry of Order.

2. Abatement and revival 55(3)-Right of action against bank director for false reports of resources survives against defendant's personal representatives (National Banking Act [12 USCA §§ 93, 161]; Decedent Estate Law N. Y. § 120).

Right of action against bank directors for violating National Banking Act (Rev. St. 88 5211, 5239 [12 USCA §§ 93, 161]), by making false reports as to bank's resources, does not abate on death of defendant, but survives against his personal representatives under Decedent Estate Law N. Y. (Consol. Laws, c. 13) § 120, since substance of action is remedial rather than penal.

3. Courts

343—In

determining whether

right of action against bank director for making false reports survives against deceased defendant's representatives, law of state must guide federal court (National Banking Act [12 USCA §§ 93, 161]).

In determining whether right of action against bank director for violating National Banking Act (Rev. St. §§ 5211, 5239 [12 USCA 88 93, 161]), by making false reports as to bank's resources, survives against deceased defendant's personal representatives, law of state where action is originally brought must guide federal court, since cause of action is to recover under remedial statute.

Action by Isaac S. Benton and others against William Deininger and others. On motion to revive action against Julia Breed French, personal representative of deceased defendant, George J. French. Order of re

vival entered.

See, also, 21 F. (2d) 657.

Barber B. Conable, of Warsaw, N. Y., and Louis L. Thrasher, of Jamestown, N. Y., for plaintiffs.

Hubbell, Taylor, Goodwin & Moser, of Rochester, N. Y., for Julia Breed French.

HAZEL, District Judge. The question submitted is whether a particular cause of action alleged in the complaint survives, and, if it does, concededly it may be continued against the personal representative of the deceased in question. Rev. St. § 914 (28

1927.

On Entry of Order August 10, 1927.

1. Banks and banking 254-Recovery for violating statute by making false reports as to bank's resources depends wholly on extent of damages (National Banking Act [12 USCA §§ 93, 161]).

In action for damages for violation of National Banking Act (Rev. St. §§ 5211, 5239 [12 USCA § 93, 161]), by making false reports as to resources of bank, there is no fixed penal

complaint alleges that the deceased and other directors made false reports as to the condition of the bank upon which plaintiffs relied in their purchase of bank stock, and suffered pecuniary loss.

[1] The various authorities cited in the briefs have been considered, but I incline to the view that the cause of action has not abated, but survives against the personal representatives of the deceased. The statute, authorizing the action, is remedial, and its intendment was that directors should become personally liable for damages which its shareholders or other persons sustained in consequence of failure to comply with their statutory duties. Although in a sense the statute is penal, it was nevertheless intended to afford a civil remedy for a wrongful act, without involving a direct issue of tort. There is no fixed penalty, and the recovery depends wholly upon the extent of damages proven. Stephens v. Overstolz (C. C.) 43 F. 46.

In Boyd v. Schneider, 131 F. 223, the Circuit Court of Appeals for the Seventh Circuit regarded an action brought against directors of an insolvent national bank for failure to properly apply its assets, as in the nature of an implied contract, which survived against the personal representatives of a deceased director.

In Yates v. Jones National Bank, 206 U. S. 158, 27 S. Ct. 638, 51 L. Ed. 1002, the suit was against directors of a national bank for mismanagement and waste of assets and general neglect of duty, resulting in plaintiff's damage. It was continued against an administrator of a deceased director.

In Allen v. Luke (C. C.) 141 F. 694, a receiver of a national bank brought action for misconduct or negligence of the directors on behalf of creditors and stockholders and the cause of action was also held to survive against the executor of a director.

This action was removed to this court from the state Supreme Court, and, under the Decedent Estate Law (Consol. Laws N. Y. c. 13) § 120, survived against the representatives of the deceased director.

Counsel for the executrix, appearing specially, relies upon actions for penalties and forfeitures under the copyright laws, which, however, specifically declare the amount of the penalty that may be recovered, qui tam actions for penalties, and, in some instances, for negligence wherein personal injuries were sustained, and generally actions arising ex delicto, which I conceive are not strictly apposite. Nor does Chesbrough v. Woodworth (C. C. A.) 195

F. 875, modify the decisions above cited. Indeed, in that case the learned court declared that making a false report, under the statute here considered, did not constitute an underlying wrong, since it was "the medium of necessary causal relation between wrong and damage," without involving a direct issue of negligence. It must therefore be ruled herein that the cause of action alleged in the complaint did not abate on the death of the defendant French, even though it is not claimed that the estate benefited by his failure to comply with the statute.

The motion is granted. A supplementary summons and complaint may be served upon the survivor's representative. So ordered.

On Entry of Order.

[2, 3] Consideration has again been given to the arguments of counsel for defendants, and the various authorities cited by him, but I think now, as I did when the original opinion was filed, that the right of action has not abated. It is true that actions for a common-law tort abate, even though they are in their nature statutory, unless there is a survival provision, but I still think that the substance of the action with which we are here concerned is remedial, as distinguished from those that are purely penal. Concededly actions brought by a receiver of a national bank against its officers or directors for misappropriation or misapplication of its fund, or actions brought against the directors by the bank, under section 5239, Rev. St., the National Banking Act, to recover loss due to making false reports, do not abate as against the personal representatives of a director. This rule of decision is not limited to losses sustained by the bank or its depositors, since, under the statute, a director is liable, in terms, for damages sustained by the bank, its stockholders, or any other person. The cases of Stephens v. Overstolz (C. C.) 43 F. 465, and Boyd v. Schneider (C. C. A.) 131 F. 223, are perhaps, as contended, actions brought by depositors for violation of the bank's implied contract, still, as stated in my original opinion, the remedy here invoked does not involve a direct issue of common-law tort. To falsify the report and mislead purchasers of stock was, of course, a wrongful thing to do, and the extent of the liability, not unlike what was said in Stephens v. Overstolz, supra, is the damage imposed on others. Moreover, as the cause of action is to recover under a remedial statute, I think that the law of this state, where the action was originally brought, must guide me in the

determination that the remedy did not abate by the death of the wrongdoer, and that the claim is one that survives against his estate. No direct authority is cited to the contrary, while Langdon v. Penn. R. Co. (D. C.) 194 F. 486, holds that a cause of action survives when it was brought to recover damages under the Interstate Commerce Act (49 USCA § 1 et seq. [Comp. St. § 8563 et seq.]); such an action not being limited to the recovery of a penalty. There the court applied the state statute which provided that the executor or administrator had power to prosecute any personal action which deceased might have prosecuted, except for slander, libel, or for wrongs to the person. In Baltimore & Ohio R. Co. v. Joy, 173 U. S. 226, 19 S. Ct. 387, 43 L. Ed. 677, an action for negligence, the Supreme Court ruled that the survival of the action, upon the death of either party, depended primarily upon the laws of the jurisdiction in which the action was commenced. It was not an action under a federal statute, but nevertheless it has a bearing upon the right of revival of a right to enforce a remedial statute. In Cockrill v. Butler (C. C.) 78 F. 679, the action was against the directors of a national bank under section 5239, R. S., and there the liability was held to be a common-law tort, but it was also ruled that the state statute of limitations applied. Other citations have been examined, but the weight of authority is believed to support the conclusion that actions such as this are remedial in a contractual sense, and, inasmuch as the action was originally begun in the state court and removed here, it survived under the Decedent Estate Law of this state.

The order of revival may be entered.

COFFEY v. DAY & NIGHT NAT. BANK OF

PIKEVILLE.

the return of this certificate properly indorsed," held negotiable (Ky. St. § 372061).

Certificate of deposit, payable to "himself order * ** after date on the return of this certificate properly indorsed," held negotiable under Ky. St. § 3720b1, since word "or" or words "or to his" may be supplied between "himself" and "order."

5. Bills and notes 342-Plaintiff held holder in due course of certificate of deposit payable to "himself order," as against contention instrument was not complete and regular on face (Ky. St. §§ 3720b1, 372068, 3720b10, 3720b17, 3720b52).

Defendant held holder in due course of certificate of deposit as required by Ky. St. § 3720b52, as against contention that instrument was not complete and regular on face, in view of sections 3720b1, 3720b8, 3720b10, 3720b17, though it was payable to "himself order"; word "or" being omitted.

6. Bills and notes 155-Certificate of deposit held negotiable, notwithstanding stipulation that bank may require 30 days' notice of time payment will be required.

Certificate of deposit held negotiable, notwithstanding stipulation that bank may require 30 days' notice of time when payment will be required to meet requirements of Federal Board regarding time deposits.

Action by George W. Coffey against the Day & Night National Bank of Pikeville. On plaintiff's démurrer to the answer, setoff, and counterclaim of the defendant. Demurrer sustained.

1926.

W. Va., for plaintiff.

Browning & Reed, of Ashland, Ky., Martin & Smith, of Catlettsburg, Ky., and Johnson, Auxier & Hinton, of Pikesville, Ky., for defendant.

ANDREW M. J. COCHRAN, District Judge. This action is before me on plaintiff's demurrer to the answer, set-off and counterclaim of the defendant. It is brought

The answer sets up, by way of set-off, an indebtedness of Varney, the payee, to defendant, in the sum of $5,000, owing to it at the time the certificate became due. The sufficiency of this defense depends on whether this certificate of deposit was negotiable and whether the plaintiff is a holder in due course. By section 3720b1, Kentucky Statutes, in order to the negotiability of an instrument, it is essential amongst other things that it "be payable to the order of a specified person or to bearer." By section 372068 it is provided that an instrument is "payable to order where it is drawn payable to the order of a specified person or to him or his order."

The certificate here is not payable to the order of Varney. The question is whether it is payable to him or to his order. Defend ant contends that it is not, and that it is payable only to Varney himself. Had the wording been "payable to himself or order," instead of "payable to himself order," the requirement of the statute would have been met. By section 3720b10 it is provided that the instrument "need not follow the language of this act, but any terms are sufficient which clearly indicate an intention to conform to the requirements thereof." If, instead of inserting the word "or" between the words "himself" and "order," the words "or to his" had been inserted, the instrument would have followed the exact language of the statute. The word "order" is not the only indication which the instrument contains that it was intended that it should be negotiable. A further indication is to be found in the words, "on the return of this certificate properly indorsed." These words

174 F. 345, the following instrument was involved.

"No. 1853. Philadelphia, January 2d, 1909 $3,000.00

"Peter F. Fallon has deposited in the Safety Banking & Trust Company three thousand dollars to the credit of himself, payable in current funds on return of this certificate properly indorsed on July 1, 1909. Interest 32 per cent. per annum.

"H. J. Colver, Cashier. "H. L. Rock, Secretary. "This certificate of deposit is not subject to check and is only payable at maturity."

It was held: "The present certificate is in effect payable to Fallon or his order, for this is necessarily implied by the phrase 'properly indorsed.'"

Had the certificate here not contained the word "order," it would still be a question whether, in view of this clause, it should not be construed to be payable to Varney or his order. The defendant has treated the certificate as if it did not contain this clause, "on the return of this certificate properly indorsed." The word "order," as well as this clause, is in print, whereas the word "himself" is in typewriting. Defendant contends that this circumstance calls for the application of subdivision (4) of section 3720b17, which is in these words:

"Where there is conflict between the written and printed provisions of the instrument, the written provisions prevail." [1-3] The conflict had in view here is one that exists after the instrument has been properly construed. Before, therefore, the question as to whether there is any such con