Weitzel v. Brown

Braley, J.

By the U. S. Rev. Sts. § 884, "Every certificate, assignment, and conveyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer.” And by §§ 178, 327, a deputy comptroller of the currency may exercise the powers and discharge the duties attached to the office of comptroller during a vacancy in that office or in the absence or inability of the comptroller. If necessary the court also will take judicial notice that a certain person was deputy comptroller, and will assume “that, at the date of his certificate, he was authorized to exercise the powers and discharge the duties of the comptroller, and was therefore, at the time, acting comptroller.” Keyser v. Hitz, 133 U. S. 138, 146.

It is plain under these statutes that all of the certificates from the comptroller’s office authenticated by his seal were admissible in evidence. Keyser v. Hitz, 133 U. S. 138. Bowden v. Johnson, 107 U. S. 251. See Wigmore on Evidence, §§ 1677, 1684.

The power to adjudicate that a national bank is insolvent, and to appoint a receiver, and to levy assessments on the stockholders, and to order their collection being vested in the comptroller, the defendant cannot inquire into the legality of the plaintiff’s appointment. U. S. Rev. Sts. § 5234. It is enough that he has been appointed and is a receiver in fact. Cadle v. Baker, 20 Wall. 650.

The jury from the defendant’s answers to the interrogatories and his correspondence with the plaintiff well could find, that, even if he did not assent when the charter of the bank was renewed, he neither withdrew nor transferred his shares, but continued to receive dividends as they were declared and his name as a shareholder appeared on the books of the bank with his consent at the date of insolvency.

It moreover is settled that the validity of the bank’s incorporation is not open to collateral attack by the stockholder whose liability the receiver seeks to enforce. Casey v. Galli, 94 U. S. 673.

The assessment made by the comptroller also bound the defendant even if levied without notice to him. United States v. Knox, 102 U. S. 422. Finn v. Brown, 142 U. S. 56.

And the comptroller’s certificate being sufficient evidence of the plaintiff’s appointment, and, he having been ordered as receiver to enforce the individual liability of the shareholder under the assessment, the action can be maintained in his own name. Kennedy v. Gibson, 8 Wall. 498. Bank v. Kennedy, 17 Wall. 19. Howarth v. Lombard, 175 Mass. 570, 576, 578. Platt v. Beebe, 57 N. Y. 339.

It is urged that the trial court was without jurisdiction. But, being domiciled in this Commonwealth and the plaintiff as receiver being clothed with all the rights which the bank as a citizen possessed to bring suit on any demand it might have held against him, the defendant can be impleaded in our own courts and the plaintiff is not obliged to resort to the federal tribunals. 24 U. S. Sts. at Large c. 373, § 3. Leather Manufacturers’ Bank v. Cooper, 120 U. S. 778. Petri v. Commercial National Bank of Chicago, 142 U. S. 644. Ex parte Jones, 164 U. S. 691, 693. Cragie v. Hadley, 99 N. Y. 131. Davis v. Watkins, 56 Neb. 288. The liability is contractual and not statutory. Richmond v. Irons, 121 U. S. 27. Converse v. Ayer, 197 Mass. 443, 454.

The plaintiff having been entitled to go to the jury before a court having jurisdiction of the subject matter and of the parties, he is to have judgment in accordance with the terms of the report for the amount stipulated with interest.

So ordered.