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by his wife to ber seducer was held competent."

"In criminal prosecutions the restrictions as to the competency of offered evidence are still further removed. By section 504, Rev. St. 1894 (section 496, Rev. St. 1881), all persons not expressly excepted are declared to be competent as witnesses in civil actions. In the succeeding section, those excepted as incompetent are the insane; children under 10 years of age, save in certain cases; attorneys, physicians, and clergymen, as to confidential matters; and, ésixth, husband and wife, as to communications made to each other.' Other exceptions, not necessary to state here, are made in the sections of the statute immediately following. By section 1867, Rev. St. 1894 (section 1798, Rev. St. 1881), all persons competent to testify in civil actions are declared to be also competent in criminal prosecutions, and, in addition, three other classes of witnesses are named as competent-that is, the accused, if he wishes to testify; his accomplices, if they consent; and the injured party. Under the last of these cases, it has been held that a wife, when the injured party, is competent to testify, even as to confidential communications between her and her husband. Doolittle v. State, 93 Ind. 272. It has also been held that, for the purpose of showing the relations that existed between husband and wife, letters written by her to her husband might be read in evidence, in a prosecution afterwards instituted against him in which he was charged with her murder. Petit v. State, 135 Ind. 393, 34 N. E. 1118. In Perry v. Randall, 83 Ind. 143, the actions of a husband in taking money belonging to another, counting it over, putting it into his pocket, and not returning it to the owner, all in presence of his wife, were held to be confidential communications, which could not be testified to hy her, even though she avoided the statement of any words spoken by her husband. Yet in Hụtchason v. State, 67 Ind. 449, the testimony of a wife as to the acts of her husband in the commission of arson was held competent; and in Jordan v. State, 142 Ind. 422, 41 N. E. 817, a husband was permitted to testify as to a communica

tion to him by his wife that she intended to burn a certain mill. The reason given for this last holding was, that the husband was der the statute above cited, an 'injured party,' being part owner of the mill which she was charged to have set on fire.”

"In the light of the interpretation so given to the statutes relating to a wife's testimony, there can be no doubt that the evidence here objected to was competent. It was not concerning any confidential or other communication made by the husband to the wife, but, as in several of the cases cited. was evidence of a crime committed by him in her presence. He, besides, forced her to aid him in the commission of the forgery; and appellant says that she herself committed the forgery: If she had been thus wrongfully accused by him, she might testify as an injured party; and, if she were indeed an accomplice with him, she might testify as such. If, on the other hand, as seems to have been the case, she was an abused and maltreated wife, forced, also, into the commission of a criminal action against her will, the marital relation had no connection with his act, and she might then, also, give evidence of the crime."

SUPREME COURT OF THE

UNITED STATES. Frederick N. Pauly, Rocolver of the Call

fornia National Bank of San Diogo, Plaintir in Error V8. Tho State Loan and Trust Company,

Defendant in Error. National Banks-Liability of Stock

holders--Pledgee of Stock. One who does not appear upon the offi

cial list of the names and residences of the shareholders of a national banking association otherwise than as "pledgee" of a given number of shares of the capital stock of such association-nothing else appearing is not liable as a “shareholder" of such association under section 5151 of the Revised Statutes of the United States declaring that "the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the amount of their stock herein at the par value thereof, in addition to the amount invested in such shares." Pullman v. Upton, 96 U. S. 328, National Bank v. Case. 99 U. S. 628. Bowden v. Johnson, 107 U. S. 251 and Anderson v. Philadelphia Warehouse Co. 111 U, S. 479 distinguished. In Error to the United States Circuit

was

Court of Appeals for ..e Ninth Circuit. Affirmed.

Mr. Justice Harlan delivered the opinion of the court.

This was an action to recover the amount of an assessment made on the shareholders of a national banking association in the hands of a receiver.

Is the defendant in error, the State Loan and Trust, company, a “shareholder" of the California National Bank of San Diego within the meaning of the statute relating to national banking associations? That is the sole question presented by the pleadings.

By the Revised Statutes of the United States, it is provided:

"Sec. 5139. The capital stock of each association shall be divided into shares of one hundred dollars each, and be deemed personal property, and transferable on the books of the association in such manner as may be prescribed in the by-laws or articles of association. Every person wecoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of such shares; and no change shall be made in the articles of association by which the rights, remedies or security of the existing creditors of the association shall be impaired.”

Sec. 5151. The shareholders of every national banking association shall be held individually responsible, equally and ratabıy, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.

"Sec. 5152. Persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such funds would be, if living, and competent to act and hold the stock in his own name."

“Sec. 5210. The president and cashier al every national banking association shall cause to be kept at all times a full and correct list of the names and residences of all the shareholders in

the association, and the number of shares held by each, in the office where its business is transacted. Such list shall be subject to the inspection of the shareholders and creditors of the association, and the officers authorizeu to assess taxes under state authority, during business hours of each day in which business may be legally transacted. A copy of such list, on the first Monday of July of each year, verified by the oath of such president or cashier, shall be transmitted to the comptroller of the currency."

The comptroller of the currency appointed the plaintiff in error, receiver of the California National Bank of San Diego, California. R. S. Sec. 5234. He gave bond as required by law, and thereafter entered upon the discharge of the duties of his trust.

In virtue of the authority conferred upon him by law, the compıroller made an assessment on the shareholders of the bank for $500,000, to be paid by them on or before the 18th day of June, 1892. The assessment equally and ratably upon shareholders to the amount of one hundred per centum of the par value of the shares of the capital stock or the bank held and owned by them respectively at the time of its failure or suspension, and the receiver was required by an order of the comptroiler to institute suits to enforce against each shareholder his personal liability to that extent.

The receiver gave due notice of the assessment, in writing, to the State Loan and Trust Company-which is a corporation of California, having its principal place of business at the city of Los Angeles in that state-and made demanu upon it therefor, but the company did not pay the same or any part thereof.

The facts upon which the claim against the defendant company is based are these: S. G. Havermale and J. W. Collins, owners and holders respectively of certiticates numbered 286 and 297 issued to them for one hundred shares, each, of the capital stock of the California National Bank of San Diego, were indebted to the State Loan and Trust company upon their promissory note for $12,500, besides interest. These certificates having been indorsed by the respective holders by writing

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their names across the back thereof, were transferred and delivered to the State Loan and Trust company as collateral security for the payment of the above note, and, so indorsed, were, in ordinary course of mail, transmitted and surrendered to the California National Bank of San Diego. New certificates, numbered 308 and 309, respectively, were thereupon issued to the State Loan and Trust company of Los Angeles, as "pledgee,” in lieu of certificates 286 and 297.

Each of the new certificates showed upon its' ace that it was issued to the "State Loan and Trust company of Los Angeles," and each purported to be for one hundred shares of the capital stock of the California National Bank of San Diego.

The defendant, after receiving certificates 308 and 309, held them "as pledgee, and as collateral security for the payment of said note, and for the unpaid balance of the debt thereby represented."

Otherwise than as just stated, the State Loan and Trust Company of Los Angeles never had, owned or held any shares of the capital stock of the California National Bank of San Diego, and never was entitled to hold the usual stock certiticate as sucu shareholder to the amount of two hundred shares or to any other amount.

Except as pledgee of the stock represented by certificates 308 and 309, respectively, the name of the State Loan and Trust company never appeared upon or in the stock or other corporate books of the California National Bank of San Diego as a shareholder. The entries in the books of the bank showed that the new certificates were issued to the State Loan and Trust company as pledgee, and not otherwise.

A jury having been waived by the parties in writing, the case was tried in the circuit court, and judgment was rendered for the defendant: 56 Fed. Rep. 430. Upon appeal to the circuit court of appeals that judgment was affirmed: 15 U. S. App. 259.

Is one who does not appear upon the official list of the names and residences of the shareholders of a national banking association otherwise than as "pledgee" of a given number

of shares of the capital stock of such association-nothing else appearingliable as a "shareholder" of such association under section 5151 of the Revised Statutes of the United States, declaring that “the shareholders of every national banking association shall be her individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares?"

As both sides contend that their respective positions are in harmony with decisions heretofore rendered in this court, it will be necessary to refer to some of the cases cited by counsel.

In Pullman v. Upton, 96 U. S. 328, 330, which was an action by the assignee in bankruptcy of an insurance company to compel holder of shares of its stock to рау the balance due thereon, the court said: "The only question remaining is, whether an assignee of corporate stock, who has caused it to be transferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company, after it has become bankrupt. That the original holders and the transferees of the stock are thus liable, we held in Upton v. Tribilcock, 91 U. S. 45, Sanger v. Upton, Id. 56 and Webster v. Upton, Id. 65; and the reasons that controlled our judgment in those cases are of equal force in the present. The creditors of the bankrupt company are entitled to the whole capital of the bankrupt, as a fund for the payment of the debts due them. This they can not have, if the transferee of the shares is not responsible for whatever remains unpaid upon his shares; for by the transfer on the books of the corporation the former owner is discharged. It makes no difference that the legal ownerthat is, the one in whose name the stock stands on the books of the corporation-is in fact only, as between himself and his debtor, a holder for security of the debt, or even that he has no beneficial interest therein."

In National Bank v. Case, 99 U. S. 628, 631, 632—which was an action to make the Germania National Bank of New Orleans liable as a shareholder of another national bank that had become insolvent-it appeared that Phelps, McCullough & Co. borrowed money from the defendant bank, and to secure the payment of the loan, evidenced by note, pledged one hundred shares of the stock of the Crescent City National Bank, with power on non-payment of the sum borrowed to dispose of the stoc. for cash without recourse to legal proceedings, and to that end to make transfers on the books of the latter corporation. The note not having been paid, the stock was transferred on the books of the Crescent City National Bank to the Germania National Bank. The latter subsequently caused the stock to be transferred, on the books of the former, to one of its clerks, who acquired no beneficial interest in it, and between whom and the ouicers of his bank it was understood that he would retransfer the stock at their request. This court, observing that notwithstanding the transfer to the clerk the stock remained subject to the bank's control, and that the transfer to him was made to evade the liability of true owners, said: “It is thoroughly established that one to whom stock has been transferred in pledge or as collateral security for money loaned, and who appears on the books of the corporation as the owner of the stock, is liable as a stockholder for the benetit of creditors. We so held in Pullman v. Upton, 96 U. S. 322; and like decisions abound in the English courts, and in numerous American cases, to some of which we refer: Adderly v. Storm, 6 Hill (N. Y.), 624; Roosevelt v. Brown, 11 N. Y. 148; Holyoke Bank v. Burnham, 11 Cush. (Mass.) 183; Magruder v. Colston, 44 Md. 319; Crease v. Babcock, 10 Metc. (Mass.) 525; Wheelock v. Kost, 77 11l. 290; Empire City Bank, 18 N. Y. 199; Hale v. Walker, 31 Iowa, 344.

For this several reasons are given. One is, that he is estopped from denying us liability by voluntarily holding himself out to the public as the owner of the stock, and his denial of ownership is inconsistent with the representations he has made; another is,

that by taking the legal title he has released the former owner; and a third is, that after having taken the apparent ownership and thus become entitled to receive dividends, vote at elections, and enjoy all the privileges of ownership, it would be inequitable to allow him to refuse the responsibilities of a stockholder. *

When, therefore, the stock was transferred to the Germania Bank, though it continued to be held merely as a collateral security, the bank became subject to the liabilities of a stockholder, and the liability accrued the instant the transfer was made." After referring to some of the English cases, the court proceeds: "The American doctrine is even more stringent. Mr. Thompson states it thus, and he is supported by the adjudicated cases: 'A transfer of shares in a failing corporation, made by the transferrer with the purpose of escaping his liability as a shareholder, to a person who, from any cause, is incapable of responding in respect of such liability, is void as to the creditors of the company and as to other shareholders, although as between the transferrer and the transferee it was out and out.' Nathan v. Whitlock, 9 Paige (A. Y.), 152; McClaren v. Franciscus, 43 Mo. 452; Marcy v. Clark, 17 Mass. 329; Johnson v. Laflin, by Dillon, J., 6. Cent. Law Jour. 131 (5 Dillon, 65). The case in hand does not need the application of so rigorous a doctrine. While the evidence establishes that the Crescent City was in a failing condition when the transfer to Waldo was made, and leaves no reasonable doubt that the Germania Bank knew it and made the transfer to escape responsibility, it establishes much more. The transfer was not an out and out transfer. The stock remained i property of the transferrer. Waldo was bound to retransfer it when requested, and all the privileges and possible benefits of ownership continued to belong to the bank. No case holds that such a transfer relieves the transferrer from his liability as a stockholder."

It may be here observed that in Pullman v. Upton, the person who sought to escape liability as a shareholder appeared on the books of the insolvent insurance company as the owner of

the stock; and that in National Bank v. Case, the Germania National Bank, after the original transfer under the power of attorney executed by its debtor, appeared on the books of the other bank as the owner of the stock, and that the liability arising therefrom could not be defeated or avoided by a transfer, however regular in form, to another who acquired no beneficial interest in it, and was to hold the stock simply for its benefit. Nothing appeared upon the stock list, in either case, to indicate that the person or corporation who appeared on such list as a shareholder was not, in fact, the actual owner.

In Bowden v. Johnson, 107 U. S. 251, 261, which involved the liability as a shareholder of a national bank of one who became the purchaser and owner of some of its shares, and who, in apprehension of the bank's failure, and in order to escape liability, transferred his stock to an irresponsible person, the court said: "The answer sets forth that Johnson rucame the purchaser and owner of the one hundred and thirty shares in 1869. As such shareholder, he became subject to the individual liability prescribed by the statute. This liability attached to him until, without fraud as against the creditors of the bank, or whose protection the liability was imposed, he should relieve himself from it. He could do so by a bona fide transfer of the stock. But where the transferrer, possessed of information showing that there is good ground to apprehend the failure of the bank, colludes and combines, as in this case, with an irresponsible transferee, with the design of substituting the latter in his place, and of thus leaving no one with any liability to respond for the individual liability posed by the statute in respect of the shares of stock transferred, the transaction will be decreed to be a fraud on the creditors, and he will be held to the same liability to the creditors as before the transfer. He will be still regarded as a shareholder quoad the creditors, although he may be able to show that there was a full or partial consideration for the transfer, as between him and the transferee.

The appellees contend that the

statute does not admit of such a rule, because it declares that every person becoming a shareholder by transfer succeeds to all the liabilities of the prior holder, and that, therefore, the liabilities of the prior holder, as a stockholder, are extinguished by the transfer. But it was held by this court in National Bank v. Case, 99 U. S. 628, that a transfer on the books of the bank is not in all cases enough to extinguish liability. The court, in that case, defined as one limit the right to transfer, that the transfer must be out and out, or one really transferring the ownership as between the parties to it. But there is nothing in the statute excluding, as another limit, that the transfer must not be to a person known to be irresponsible, and collusively made, with the intent of escaping liability, and defeating the rights given by statute to creditors.”

But the case to which our attention has been particularly called is Anderson v. Philadelpua Warehouse Company, 111 U. S. 479, 183-5, in which the question was as to the liability of the Philadelphia Warehouse Company as a shareholder of a national 'bank that had become insolvent. The facts in that case were tuese: Blumer & Co. (the senior member of that firm being president of the bank) arranged with the Warehouse company for a loan or banker's credit, to be secured by collaterals. Kern, a member of the firm, transferred 450 shares of the stock of the bank, standing in his name on the books of the bank, and caused a new certificate to be issued in the name of Henry, as president of the Warehouse company, and it was taken or sent to that company as rurther security for the credit extended to Blumer & Co.

The fact of this transfer of stock to the name of Henry, as president, having come to the knowledge of the directors and executive committee of the Warehouse company, they caused а. transfer to be made on the books of the bank to one McCloskey, an irresponsible person, and a porter in its employment, an a new certificate to be issued in his name, because they deemed it inadvisable to have the stock stand in the name of the company's president, and thus incur the

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