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and other depositors. It alleges that, if ordinary care and prudence had been exercised by the officers of the bank, all of the money of the complainants and of other creditors of said bank would have been saved, and the wreck of the bank averted. The bill further charges that the president of the bank, by representing to the complainants that the bank was solvent, and that its stock was worth $110 on the share, induced them to deposit in said bank about $18,000. It charges that the officers and directors have violated the laws of the state of Virginia, and the general law governing their conduct and management of said bank; that they failed to use ordinary care and diligence in the management of its affairs, and have been guilty of gross and inexcusable negligence instead; that the assets of the bank which went into their hands were largely more than sufficient to pay and satisfy the whole of the demands of the complainants and of other depositors if the defendants had used ordinary care and diligence in the management of the same. The bill alleges that, by reason of the failure of the defendants to exercise such care and diligence, the defendants have become and are severally and jointly liable to the complainants and other depositors and creditors of the bank for the amount of their deposits, with interest thereon. It prays a reference, and that the conduct of the officers and directors of said bank be inquired into, and that the officers named as defendants be held liable for their defalcations to the complainants and other depositors.
In the first ground of demurrer assigned, it is insisted that, the complainants being depositors in said bank, they have no right to institute a suit against the defendants, who are directors of the bank, there being no allegation in the bill that the authorities of the bank decline to sue. That a stockholder in a corporation cannot maintain in this court a bill in equity against the corporation and other parties founded on rights which may properly be asserted by the corporation, without setting forth the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, admits of no discussion. These allegations are made necessary by the provisions of the ninety-fourth equity rule, and we have numerous decisions of the federal courts based on the requirements of this rule. Dannmeyer v. Coleman, 11 Fed. 97; Hawes v. Oakland, 104 U. S. 450; Huntington v. Palmer, Id. 482.; Bell v. Donohue, 17 Fed. 710; Church v. Railroad Co., 78 Fed. 526. Counsel for the defendants have discussed the demurrer as though this were a suit by a stockholder of a corporation against the directors thereof. All of the authorities cited are in support of this position. But the court conceives there is a wide difference between the relation of stockholders in a bank to the corporation of which they are members, and a majority of whom exercise a controlling in. fluence in all its affairs, and a depositor of the bank who has no voice in its control and management. The general relation of the bank to a depositor is that of debtor and creditor. City of St. Louis v. Johnson, 5 Dill. 241, Fed. Cas. No. 12,235. Under certain conditions a stockholder in a bank bears the relation of debtor to the
depositor. The relation of the directors of a bank to its depositors is that of trustees to cestuis que trustent, and, as such, they are personally responsible for frauds and losses resulting from gross negligence and inattention to the duties of their trust. Bank v. Bos. seiux, 3 Fed. 817; Marshall v. Bank, 85 Va. 676, 8 S. E. 586.
The requirements of the ninety-fourth equity rule as to precedent action to be taken by a stockholder before he can maintain a suit against the bank and its directors do not apply to a depositor, and no case to which the attention of the court has been directed so holds. But that a depositor can maintain a suit against a bank and its officers for losses occasioned by their fraud or negligence is sustained by both state and federal decisions. Marshall v. Bank, 85 Va. 676, 8 S. E. 586; Solomon v. Bates (N. C.) 24 S. E. 478; Bank v. Bosseiux, 3 Fed. 817, and others.
The second ground on which it is claimed that the bill is demurrable is because it contains several distinct and independent matters and causes which have no relation to each other. The charges in the bill are that the president of the bank, by false and fraudulent representations, induced the plaintiffs to. deposit in said bank; and it is also charged that the directors of the bank, of whom the president is one, by their negligence and failure to discharge their duties, injured the plaintiffs and all other creditors of said bank. In a case already quoted (Solomon v. Bates, supra), the supreme court of North Carolina says:
"It is not a misjoinder of causes of action to join in the same action, brought against bank directors individually, a cause of action for gross negligence in the discharge of their duties, whereby the plaintiff was injured, with causes of action for fraud and deceit in making false statements and misrepresentations of the condition of the bank, whereby the plaintiff was induced to deposit bis money in the care of the bank." (Syllabus.)
The demurrer is not well taken, and will be overruled, with leave to the demurrants to answer.
BRUNSWICK TERMINAL CO. et al. v. NATIONAL BANK OF BALTIMORE.
(Circuit Court, D. Maryland. July 8, 1898.)
1. CONFLICT OF LAWS-LIMITATION OF ACTIONE.
Statutes of limitation affect the remedy, and not the substantive right,
and are determined by the law of the forum. 2. SAME-CORPORATIONS-STOCKHOLDERS' LIABILITY UNDER LAWS OF ANOTHER
The Maryland statute of limitations is pleadable in an action in a federal court in that state, against a citizen thereof, to enforce a liability imposed by a Georgia statute on stockholders in a Georgia bank, when the statute giving the right of action does not itself provide a limitation, and especially when there is no statute of limitations whatever in Georgia applicable to
the case. 8. FEDERAL COURTI-FOLLOWING STATE DECISIONS.
A decision by a state court that every right of action given by a statute is in the nature of a specialty is not, when applied to a particular statute of that state, a construction of that statute wbich a federal court is bound to follow, but is a ruling upon the question of general law.
LIMITATION OF ACTIONS-LIABILITY OF STOCKHOLDER IN BANK.
The Maryland statute requiring actions on the case, or actions of debt on simple contracts, to be brought within three years, is applicable to an action to enforce the statutory liability of a stockholder in a bank of another state. Demurrer to Defendant's Plea of the Maryland Statute of Limitations.
Williams & Williams and Goodyear & Kay, for plaintiffs.
Wm. A. Fisher, James L. McLane, and Allan McLane, for defendant.
MORRIS, District Judge. This is a suit in equity by creditors of the Brunswick State Bank of Georgia, who are citizens of Georgia, against the National Bank of Baltimore, a citizen of Maryland, to enforce a statutory liability imposed by the statute of Georgia upon stockholders in the Brunswick State Bank. The defendant has pleaded the Maryland statute of limitations applicable to actions of assumpsit or on the case, or actions of debt on simple contracts, which requires the suit in such cases to be commenced within three years. The complainants demur to this plea. The questions now before the court are: First, is it the Maryland statute or the Georgia statute of limitations which is applicable to this action? And, second, if the Maryland statute does apply, is this court, in applying the Maryland statute, controlled by the decisions of the supreme court of Georgia holding that the right of action given by the Georgia statute against stockholders is in the nature of a specialty?
First, as to whether the Maryland or the Georgia statute of limita. tions is applicable: The established rule is that remedies are determined by the law of the forum, and that statutes of limitations are part of the remedy, and are not laws affecting rights. McElmogle v. Cohen, 13 Pet. 312–327; Bank v. Eldred, 130 U. S. 693–696, 9 Sup. Ct. 690; Telegraph Co. v. Purdy, 162 U. S. 329-339, 16 Sup. Ct. 810; Williard v. Wood, 164 U. S. 502-520, 17 Sup. Ct. 176; Townsend v. Jemison, 9 How. 407; Railway Co. v. Wyler, 158 U. S. 285-289, 15 Sup. Ct. 877. By the general rule, therefore, it is the Maryland statute of limitations which is applicable to this suit, which the complainants have instituted in the district of Maryland. If the contention of the complainants, that the Georgia law of limitations is to be here applied, is sustainable, they must show some recognized exception to the established rule. Counsel for complainants contend that, in suits against stockholders to enforce a statutory liability to the creditors of a corporation, the general laws of limitations of the state creating the corporation are to be applied, no matter in what state the suit is prosecuted; and they rely upon the following cases as supporting this alleged exception to the general rule: Flash v. Conn, 109 U. S. 371-378, 3 Sup. Ct. 263; Bank v. Francklyn, 120 U. S. 747-756, 7 Sup. Ct. 757; Andrews v. Bacon, 38 Fed. 778. It is to be observed that there is no period of limitation prescribed by the Georgia law which makes the stockholders liable to this action. If the statute giving the right to sue limited the duration of the right, undoubtedly the limitation would apply in this jurisdiction, just as in Georgia. The Harrisburg, 119 U. S. 199-214, 7 Sup. Ct. 140. But not only is there no special limitation put upon this right of action by the Georgia law which gives it, but the supreme court of Georgia has held that there is no clause of the general law of limitations enacted by Georgia which is applicable to this action. In Thornton v. Lane, ii Ga. 459-502, the supreme court of Georgia, in considering this question, said, "We are clear that a statutory liability is not included within any of the acts of limitation of this state." As there is no limit of time prescribed by the Georgia statute giving the right of action, and no clause of the general statute of limitations of Georgia which is directly applicable, I can see no reason why the Maryland statute applicable to causes of action of the class to which this belongs should not be applied.
The complainants rely upon the language of the opinion of the supreme court in Bank v. Francklyn, 120 U, S. 747, 7 Sup. Ct. 757 On ge 756, 120 U. S., and page 762, 7 Sup. Ct., the court says:
“Pursuant to these principles, this court has repeatedly held, not only that suits, either in law or in equity, in the circuit court, by creditors of a corporation, to enforce the liability of stockholders under a state statute, are governed by the statute of limitations of the state (Terry v. Tubman, 92 U. S. 156; Carrol v. Green, Id. 509; Terry v. Anderson, 95 U. S. 628), but that the question whether the remedy in the federal court should be by action at law or by suit in equity depends upon the nature of the remedy given by the statutes (Mills v. Scott, 99 U. S. 25; Terry v. Little, 101 U. S. 216; Pattersor v. Lynde, 106 U. S. 519, 1 Sup. Ct. 432; Flash v. Conn, 109 U. S. 371, 3 Sup Ct. 263)."
The case of Bank v. Francklyn was a suit instituted in New York under a statute of Rhode Island; and the court held that, as the Rhode Island statute required a creditor to obtain a judgment against the corporation before he could proceed at law to charge the stockholder, the plaintiff could not maintain his suit unless he first obtained a judgment against the corporation. The cases of Terry v. Tubman, 92 U. S. 156, Carrol v. Green, Id. 509, and Terry v. Anderson, 95 U. S. 628, were all cases in which the suit was brought in the state creating the corporation; and, in holding that the statute of limitations of that state was applicable, the court was only sustain ing the rule that the law of the forum was applicable. In Terry v. Anderson, the supreme court upheld the constitutionality of a statute of Georgia, passed after the right of action had accrued, limiting the time within which the action could be brought to nine months after the passage of the act. This act was passed by Georgia in 1869 because of the distracted condition of affairs in that state arising from the Civil War, and it was held to be justified by the local circumstances which called for its enactment. This case is a full recognition by the supreme court of the United States of the doctrine that the period of limitation of actions is a matter which each sovereignty decides for itself, and varies according to the peculiar environment of its citizens, and their special necessities.
As was said by the supreme court in McElmoyle v. Cohen, 13 Pet. 327:
"It would be strange, if, in the now well-understood rights of nations to organize their judicial tribunals according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be litigated in their courts."
In Hawkins v. Barney, 5 Pet. 457-466, it was said: “Laws limiting the time of bringing suit constitute a part of the lex fori of every country. They are laws of administering justice,-one of the most sacred and important of sovereign rights and duties."
In Campbell v. City of Haverhill, 155 U. S. 610, 15 Sup. Ct. 217, the question was whether the statute of limitation of the several states applied to the actions for infringement of patents brought in the circuit courts of the United States under acts of congress.
The supreme court held that the local statutes of limitation were applicable to such actions, and said (155 U. S. 618, 15 Sup. Ct. 220):
"The truth is that statutes of limitations affect the remedy only, and do not impair the right, and that the settled 'policy of congress has been to permit rights created by its statutes to be enforced in the manner, and subject to the limitations, prescribed by the laws of the several states."
Looking then to the question which the supreme court had before it in Bank Francklyn, and to the cases cited by the court in its opinion, it would seem reasonable to conclude that the language used had reference either to cases in which the statute creating the liability prescribed the time within which it might be enforced, or to cases in which, as in all the cases cited in the court's opinion, the suit was brought in a court sitting in the state which created the corporation. The general rule prevails in cases of other statutory rights,—such as the right to sue for death caused by wrongful act. Munos v. Southern Pac., 2 C. C. A. 163, 51 Fed. 188; The Harrisburg, 119 U. S. 214, 7 Sup. Ct. 140; O'Shields v. Railway Co., 83 Ga. 621, 10 S. E. 268; Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905; Thompson v. Insurance Co., 76 Fed. 892. It would seem that, where foreign laws of limitation have been allowed to be pleaded, they have not been strictly laws of the limitations of actions, but laws specially limiting the time during which some special statutory right was permitted to continue. It is true that in Andrews v. Bacon, 38 Fed. 777, the United States circuit court for the district of Massachusetts, in 1889, held in a similar case to this that the statute of limitations of the state creating the corporation should govern. The facts of that case are not fully reported, and it does not seem to me it should govern in the case in hand.
The plaintiffs further contend that, even if the Maryland statute of limitations is to be applied, the supreme court of Georgia has so construed the Georgia statute giving the right of action against stockholders of banks, and has so defined the nature of the action, that even under the Maryland statute it is not barred under 12 years. The Maryland statute of limitations provides that "actions of assumpsit or on the case, actions of debt on simple contract, shall be commenced within three years,” and that “no judgment, recognizance, statute merchant, or of the staple or other specialty whatsoever shall be admitted in evidence after the debt or thing in action shall be above twelve years standing.” The supreme court of Georgia has made two rulings with regard to the right of action against stockholders given by the Georgia law,-one general in its character, and the other local. The local ruling is that there is no statute of limitations of the state of Georgia which is directly