v.
SAME. Appeal from the Circuit Court of the United States for the District of Massachusetts.
November 1, 1886.
The first of these cases was an action at law brought in the circuit court of the United States for the district of Massachusetts, by Linus M. Price, as receiver of the Pacific National Bank of Boston, for whom Peter Butler has been substituted, against John P. Delano, a citizen of Bath, Maine, to enforce the personal liability of the defendant, under section 5151 of the Revised Statutes, upon an assessment of 100 per centum of the par value of 60 shares of the capital stock of the Pacific National Bank alleged to be held and owned by said Delano at the time of the insolvency and suspension of said bank.
The Pacific National Bank was duly organized and authorized to do business as a national bank under the provisions embraced in title 62 of the Revised Statutes of the United States, and located in Boston, in October, 1877. Its capital stock was fixed at $500,000, paid in cash, with a right to increase it to $1,000,000. It continued business on this basis until September 13, 1881, when, as appears by the records of a meeting of the directors held in Boston, it was 'voted that the capital of this bank be increased to one milliondollars, and that stockholders of this date have the right to take the new stock at par in equal amounts to that now hold by them.'
On the same date a copy of the following notice was sent by the cashier to each stockholder of the bank:
'A. I. Benyon, President.
J. M. Pettingill, Cashier.
'PACIFIC NATIONAL BANK, 105 DEVONSHIRE STREET,
'BOSTON, September 13, 1881.
'At a meeting of the directors of this bank, held this day, it was '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 equal amounts to that now held by them.'
'Subscription to the new stock will be payable October 1st. Parties desiring to anticipate payment will be allowed interest to that date at four per cent. per annum.
J. M. PETTINGILL, Cashier.'
The whole amount of the increase of capital voted was not taken and paid in, nor was notice ever transmitted to the comptroller of the currency that all of such increase had been paid in; nor was that official's certificate of the increase to $1,000,000, with his approval thereof, ever issued. But $461,300 of the proposed increase to $500,000 was actually subscribed for and paid in as capital stock prior to November 18, 1881, and was used in the general business of the bank. On November 18, 1881, the bank became insolvent, suspended payment, and closed its doors. On the same day Daniel Needham, an examiner of national banks, was placed by the comptroller of the currency in charge of the assets of the bank, for the purpose of ascertaining its condition, where he remained until March 18, 1882.
The directors of the bank met on December 13, 1881, during the period of suspension, and passed a vote that, as $38,700 of the increase of capital voted on September 13, 1881, had not been taken and paid in, that amount be canceled and deducted from the capital stock of $1,000,000, and the paid-up capital stock fixed at $961,300; and that the comptroller of the currency be notified of the increase of $461,300, which had been paid in, and requested to issue a certificate of such increase according to law. Thereupon the comptroller of the currency, under date of December 16, 1881, made and issued the following certificate:
'TREASURY DEPARTMENT,
'OFFICE OF COMPTROLLER OF THE CURRENCY,
'WASHINGTON, December 16, 1881.
'Whereas, satisfactory notice has been transmitted to the comptroller of the currency that the capital stock of the 'Pacific National Bank of Boston, Mass.,' has been increased in the sum of four hundred and sixty-one thousand three hundred dollars, in accordance with the provisions of its articles of association, and that the whole amount of such increase has been paid in:
'Now, it is hereby certified that the capital stock of the 'Pacific National Bank of Boston, Mass.,' aforesaid, has been increased as aforesaid, in the sum of four hundred and sixty-one thousand three hundred dollars; that said increase of capital has been paid into said bank as a part of the capital stock thereof, and that the said increase of capital is approved by the comptroller of the currency.
'In witness whereof I hereunto affix my official signature.
[Seal]
'JOHN J. KNOX, Comptroller.'
No vote of the stockholders was taken relating to the increase or decrease of the capital stock of the bank.
