Citations for Plaintiff in Error.

repugnant to the Constitution of the United States, I dissent from the opinion and judgment in this case upon the ground that the statute of Mississippi is, within the decision in Hall v. De Cuir, a regulation of commerce among the States, and is, therefore, void.

I am authorized by MR. JUSTICE BRADLEY to say that, in his opinion, the statute of Mississippi is void as a regulation of interstate commerce.

ASPINWALL v. BUTLER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 957. Submitted January 7, 1890.- Decided March 3, 1890.

This case differs in no material fact from Delano v. Butler, 118 U. S. 634, and is governed by it.

When the previous proceedings looking to an increase in the capital stock of a national bank have been regular and all that are requisite, and a stockholder subscribes to his proportionate part of the increase and pays his subscription, the law does not attach to the subscription a condition that it is to be void if the whole increase authorized be not subscribed; although there may be cases in which equity would interfere to protect him in case of a material deficiency.

The provision in Rev. Stat. § 5142, that no increase of capital in a national bank shall be valid until the whole amount of the increase shall be paid in, and the Comptroller of the Currency notified and his consent obtained, was intended to secure the actual cash payment of the subscriptions made, and to prevent watering of stock; but not to invalidate bona fide subscriptions actually made and paid.

The Comptroller of the Currency has power by law to assent to an increase in the capital stock of a national bank less than that originally voted by the directors, but equal to the amount actually subscribed and paid for by the shareholders under that vote.

THE case is stated in the opinion.

Mr. Benjamin N. Johnson, for plaintiff in error, cited: Eaton v. Pacific Nat. Bank, 144 Mass. 260; Winters v. Armstrong, 37 Fed. Rep. 508; Chubb v. Upton, 95 U. S. 665;

Opinion of the Court.

Hamilton Plank Road Co. v. Rice, 7 Barb. 157; Nutter v. Lexington &c. Railroad Co., 6 Gray, 85; Salem Milldam Co. v. Ropes, 6 Pick. 23; Central Turnpike v. Valentine, 10 Pick. 142; Scovill v. Thayer, 105 U. S. 143; Sutherland v. Olcott, 95 N. Y. 93; Railway Co. v. Allerton, 18 Wall. 233; Gray v. Christian Society, 137 Mass. 329; People's Ins. Co. v. Westcott, 14 Gray, 440; Zabriskie v. Cleveland Railway Co., 23 How. 381; Atlantic Delaine Co. v. Mason, 5 R. I. 463.

Mr. A. A. Ranney, for defendant in error, cited: Cadle v. Baker, 20 Wall. 650; Davis v. Essex Baptist Society, 44 Connecticut, 582; Upton v. Tribilcock, 91 U. S. 47; Winters v. Armstrong, 37 Fed. Rep. 508, and cases cited; Brigham v. Mead, 10 Allen, 245; Buffalo &c. Railroad v. Dudley, 14 N. Y. 336; Seymour v. Sturgess, 26 N. Y. 134; Am. Tube Works v. Boston Machine Co., 139 Mass. 5; Reed v. Boston Machine Co., 141 Mass. 454; Wontner v. Shairp, 4 C. B. 404; Asphitel v. Sercombe, 5 Exch. 147; Johnson v. Goslett, 3 C. B. (N. S.) 569; Watts v. Salter, 10 C. B. 477; Garwood v. Ede, 1 Exch. 264;· Scovill v. Thayer, 105 U. S. 143; Chubb v. Upton, 95 U. S. 665; Pullman v. Upton, 96 U. S. 928; Casey v. Galli, 94 U. S. 673; Keyser v. Hitz, 2 Mackey, 473; Kennedy v. Gibson, 8 Wall. 498; Curran v. Arkansas, 15 How. 304; Hawthorne v. Calef, 2 Wall. 10; Davis v. Weed, 44 Connecticut, 569, Shipman, J.; Railway Co. v. Allerton, 18 Wall. 233; Sawyer v. Hoag, 17 Wall. 610; Gray v. Portland Bank, 3 Mass. 364; Hart v. St. Charles Street Railway, 30 La. Ann. 758; Terry v. Eagle Lock Co., 47 Connecticut, 141; Clarke v. Thomas, 34 Ohio St. 46; Nutter v. Lexington &c. Railroad, 6 Gray, 85; Reed v. Memphis Gayoso Gas Co., 9 Heiskell, 545; Skowhegan & Athens Railroad v. Kinsman, 77 Maine, 370.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This case is governed by that of Delano v. Butler, 118 U. S. 634. The cases are not identical, it is true; but the principles established in that case require a similar decision in this. The substantial facts, up to a certain point, are the same; what took place afterwards cannot vary the result.

Opinion of the Court.

The Pacific National Bank of Boston failed, and passed into the hands of a receiver on the 22d day of May, 1882, and the Comptroller of the Currency on the 27th of November, 1882, ordered an assessment of 100 per cent on the capital stock for the purpose of enforcing the individual liability of the stockholders, to pay the liabilities of the institution, under section 5151 of the Revised Statutes. Fifty shares of the stock, amounting to $5000, stood in the name of Aspinwall individually, and 50 other shares in his name as trustee and guardian. This suit was brought against him by the receiver of the bank to recover $5000 as the holder of the individual stock. He denied that he was the holder of any such stock; and, for another plea, averred that it had been fraudulently and illegally issued, and was not binding against him as a holder thereof. A trial by jury was waived, and the cause was tried by the Circuit Court, which made a special finding of facts, and decided in favor of the plaintiff. The writ of error is to that decision.

After the finding of facts had been made, the defendant prayed the court to rule "upon the facts found in this case the plaintiff is not entitled to judgment;" but the court refused this prayer, and found that the defendant was the owner of fifty shares of stock on May 20 and May 22, 1882, and entered judgment for the plaintiff for the sum of $6550; to which refusal to rule, ruling and entry of judgment the defendant then excepted; and this is the only exception in the case. The question is, whether this general finding is supported by the special facts found, and is in accordance with the law.

Amongst other things, the findings set forth the 5th and 6th of the original articles of association of the bank. By the 5th article the capital stock is fixed at $250,000, but with the privilege of being increased, according to section 5142 of the Revised Statutes, to any sum not exceeding $1,000,000; and in case of increase, each stockholder was to have the privilege of subscribing his pro rata share. The 6th article specifies the powers and duties of the board of directors, amongst which was the power "to provide for an increase of the capital of the association, and to regulate the manner in which

Opinion of the Court.

such increase shall be made," and the power "to make all bylaws that it may be proper and convenient for them to make under said Revised Statutes for the general regulation of the business of the association and the management and administration of its affairs."

The findings also set forth the first and eleventh by-laws of the bank; the former of which fixed the regular annual meeting of the stockholders for the election of directors on the second Tuesday of January of each year; fourteen days' notice of which was to be given. The eleventh by-law was as follows, to wit:

"SEC. 11. Whenever an increase of stock shall be determined upon it shall be the duty of the board to notify all the stockholders of the same and cause a subscription to be opened for such increase, and each stockholder shall have the privilege of subscribing for such number of shares of new stock as he may be entitled to subscribe for in proportion to his existing stock in the bank. If any stockholder should fail to subscribe for the amount of stock to which he may be entitled within a reasonable time, which shall be stated in the notice, the directors may determine what disposition shall be made of the priv ilege of subscribing for the new stock."

The findings further state:

"On the 13th day of September, 1881, the capital stock of the bank was $500,000, divided into 5000 shares of the par value of $100 each, of which shares the defendant, Aspinwall, as trustee under the will of Augustus Aspinwall and guardian under the will of Thomas Aspinwall for the benefit of his son, William H. Aspinwall, a minor, held fifty, which stood in his name as guardian and trustee on the books of the bank, a certificate of said shares having been taken in the same way.

66

September 13, 1881, the directors of the bank passed the following vote:

"Voted, that the capital of this bank be increased to one million dollars, and that stockholders of this date have the right to take the new stock at par in an amount equal to that now held by them.''

Opinion of the Court.

A printed notice of this resolution was thereupon sent to all the stockholders of the bank; and at the bottom of this printed notice there was left a space and lines indicated for stockholders to write therein their subscriptions to the new stock to which they were entitled. Other than this there was no subscription paper opened. Some stockholders signified their assent on the notice in the place indicated at the bottom and sent it to the bank. Others did not, but went or sent to the bank and paid the money for the new stock to which they would be entitled in the proposed increase, taking receipts in the printed form prepared for that purpose.

The defendant received said notice, and thereupon went to the bank and informed A. I. Benyon, its president, that he had not sufficient funds in his hands as guardian and trustee with which to take as such the fifty shares in the proposed increase, and that he should, therefore, subscribe for and take the same himself individually. The president of the bank said that he could do so. The defendant afterwards returned to the bank the said notice received by him with the following subscription written at the bottom thereof signed by him:

"I will take the fifty new shares to which I am entitled and will pay for them as above. WILLIAM ASPINWALL."

Subsequently, on October 1st, 1881, the defendant went to the bank and paid the sum of five thousand dollars, receiving therefor a receipt, a copy of which is as follows:

"$5000.

"Pacific National Bank.

BOSTON, October 1st, 1881.

"Received of William Aspinwall five thousand dollars on account of subscription to new stock.

“J. M. PETTENGILL, Cashier."

The defendant was well acquainted with Mr. Benyon, seeing him almost daily, and he did some business with the bank.

At the time the defendant paid this money and took this receipt he asked Mr. Benyon, the president of the bank, if