First National Bank of Brattleboro, 14 Am. Law Reg. N. S. 342, it was decided that the taking of special deposits, to keep merely for the accommodation of the depositor, was not within the authorized business of banks organized under the Act of Congress, and that the cashiers of such banks had no power to bind them on any express contract accompanying, or on any implied contract arising out of such thing. So, in a recent case in Maryland (Weckler v. The First Nat. Bank of Hagerstown, 14 Am. Law Reg. N. S. 609), it was held that in the act authorizing the incorporation of national banking associations, the kind of banking was limited and defined, and as the act contained no grant of power to engage in bond-brokerage, it was, therefore, prohibited to the banks, and that it was not necessary to the purpose of their existence, or in any sense incidental to the business of banking. It was, accordingly, decided that in an action of deceit against a national bank, seeking to recover damages for the alleged fraudulent representations of its teller made in the sale to the plaintiff of certain railroad bonds, that the business of selling bonds on commission was not within. the scope of the powers of national banking associations, and that the bank could not under any circumstances carry it on, and being thus beyond its corporate powers, the defence of ultra vires was open to it, and that it was not responsible for any false representations made by its teller by which the plaintiff might have been damaged. The very question which comes up for adjudication in this case was presented and passed upon in Fowler v. Scully, 72 Penn. St. 456. In that case Fowler, without any previous indebtedness, gave to the First National Bank of Pittsburgh a mortgage to secure the bank for notes, &c., thereafter to be discounted for him. Upon proceeding for foreclosure the court decided that lending money by a national bank on mortgage or real estate security was ultra vires and forbidden, and the mortgage was declared to be void. National banks possess just such powers as the act incorporating them gives to them-no more. They are the creatures of the act, and controlled by all its restrictions and limitations. Express power is given to them to "carry on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by buying and selling enchange, coin and bullion; by loaning money on personal security; by obtaining, issuing and circulating notes according to the provi sions of the act." Banks are formed and organized for commercial purposes, and not to deal in real estate. Their business is to discount and negotiate promissory notes, drafts, bills of exchange and other evidences of debt, the buying and selling of bills, bullion and lending of money on personal security. To permit them to loan their money on real estate security would be destructive of their efficiency and defeat the object had in view in their creation. Instead of being agents for purposes of trade, dealing in commercial paper, discounting notes and furnishing the necessary facilities for loans, they would have their capital locked up in landed property, and thus be powerless to carry on the business which induced their organization. These speculations in real estate are also hazardous and have no legitimate connection with the business of banking; they require the employment of outside parties to look after the land and examine titles and are apt to embark the banks in enterprises which sooner or latter will end in insolvency. Congress doubtless had these considerations in view, when it provided that the money should be loaned on personal security. When the mode of personal security was declared and pointed out, that excluded all others, for the maxim expressio unius est exclusio alterius, must prevail in this case. But the intention does not rest merely on the provision requiring personal security on loans. Section 5137 specifies for what purposes national banking associations may hold and convey real estate, and forbids their dealing in that kind of property for any other purpose. They may purchase and hold so much real estate as may be necessary for their immediate accommodation in the transaction of their business; such as may be mortgaged to them in good faith by way of security for debts previously contracted; such as shall be conveyed to them in satisfaction of debts previously contracted in the course of their dealings, and such as they shall purchase at sales under judgments, decrees or mortgages held by them, or shall purchase to secure debts already due. These are the specified instances, and the only instances, in which it is permissible for national banking associations to purchase or hold real property. Aside from the real estate necessary for the transaction of their business they can only acquire that description of property, to enable them to secure themselves for debts previously contracted. But in no case can they loan money on the faith of real estate security, where the debtor was not previously indebted to them. If they do, the security taken is ultra vires and void, and may be pleaded by the party as a defence against its enforcement. The case at bar shows that there were no previous dealings between the plaintiff and the bank; the bank loaned the money and took the deed of trust as security. This it had no power to do, and the judgment of the court below will be affirmed. Supreme Court of Rhode Island. REBECCA PERKINS v. REBECCA PERKINS, ADMINISTRATRIX. An executor or administrator cannot bring suit against himself for a debt due him by his decedent. Ox demurrer to plea in abatement. Dexter B. Potter, for Rebecca Perkins. Tillinghast & Ely, for administrator de bonis non, intervening. The opinion of the court was delivered by The DURFEE, C. J.-This is an action of assumpsit to recover for services performed, and for care, provisions, and clothing furnished by the plaintiff to Jacob Perkins and his wife, during the lifetime of said Jacob. The plaintiff was administratrix on the estate of said Jacob, and commenced the action by service of the writ upon herself as such. She declared against herself as administratrix. The first plea is a plea in abatement. It was filed by Nathan M. Lockwood, and sets forth that he has been appointed administrator on the estate of said Jacob, in place of the plaintiff, who has resigned. It prays that the writ may abate, because the plaintiff and the defendant named in the writ are the same person. plaintiff demurs. Nathan M. Lockwood joins in the demurrer. The plaintiff does not cite any case to show that the action can be maintained. It is not the ordinary common law remedy. The ordinary common law remedy is retainer. Blackstone says: "If a person indebted to another makes his creditor his executor, or if such creditor obtains letters of administration to his debtor; in these cases the law gives him a remedy for his debt by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. This is a remedy by the mere act of law, and is grounded on this reason: that the executor cannot, without an apparent absurdity, commence a suit against himself, as a representative of the deceased, to recover that which is due to him in his own private capacity; but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor, he would be in a worse condition than all the rest of the world besides:" 3 Bl. Com. 18. The plaintiff, by way of justification, says the estate was represented insolvent, commissioners were appointed, and her claim was submitted to them and by them rejected. The statute provides that any creditor, whose claim is wholly or in part rejected, may have the same determined at common law, in case he shall give notice thereof in writing in the office of the clerk of probate within forty days, and bring and prosecute his action within sixty days, after the report of the commissioners shall have been received. The plaintiff says she commenced the action against herself, because, if she had waited for the appointment of an administrator after the report was received, she would have lost her right of action under the statute by the delay. In this view, the case is a hard one. But it was not necessary for the plaintiff to delay resigning until the report was received. She might have resigned as soon as she knew the estate was insolvent, and she would have to submit her claim to the adjudication of commissioners. It is well for an administrator to resign when he finds the estate is insolvent, if he has a claim against it which is open to question; for, otherwise, he may be tempted to take advantage of his position, and favor himself at the expense of other creditors. We think the action cannot be maintained. The demurrer will therefore be overruled, and the plea in abatement sustained. ABSTRACTS OF RECENT AMERICAN DECISIONS. SUPREME COURT OF THE UNITED STATES.1 SUPREME COURT OF NEW HAMPSHIRE. SUPREME COURT OF OHIO. ADMIRALTY. Collision-Steamer and Sailing-vessel.-A steamer held to be exclusively responsible for a collision with a sailing-vessel; the collision having occurred on a night when the stars were plainly visible, and when, 1 From John Wm. Wallace, Esq., Reporter; to appear in vol. 23 of his Reports. 2 From Hon. N. L. Freeman, Reporter; to appear in 77 Illinois Reports. 3 From J. M. Shirley, Esq., Reporter; to appear in 56 New Hampshire Reports. 4 From E. L. De Witt, Esq., Reporter; to appear in 26 Ohio St. Reports. though a little haze was on the water, the night was to be called clear; there having apparently been some want of vigilance in the lookout of the steamer, who did not discern the sailing-vessel until the steamer was close upon her, at which time orders, which, as the result proved, tended to bring on a collision, were given on board the steamer: The Sea Gull, 23 Wall. Collision-Two Steamers-Mutual Fault.-Two steam-vessels, one an iron steamship (an ocean vessel of twenty-five hundred tons), coming. from sea up the Mississippi to New Orleans, and the other a small river steamer of one hundred and thirty-five tons, trading up and down the river below New Orleans from plantation to plantation, and carrying passengers, and getting market produce for the city just named, held, in a case of collision, to be equally in fault for running at full speed in a very dark and foggy night, after they had learned by signals from each other of their respective existences in the river, and while they were in doubt as to what respectively were their courses and manoeuvres The Teutonia, 23 Wall. Collision Sailing-vessels meeting.--The rule of navigation prescribed by the Act of Congress of April 29th 1864, " for preventing collisions on the water," which requires "when sailing-ships are meeting end on, or nearly so, the helms of both shall be put to port," is obligatory from the time that necessity for precaution begins, and continues to be applicable so long as the means and opportunity to avoid the danger remain : The Dexter, 23 Wall. In a collision at sea, happening on a bright moonlight night, and when the approaching vessel was seen by the officer in charge of the deck long before the collision occurred, the absence of a lookout held unimportant; it being assumed that his presence would have done nothing to avert the catastrophe: Id.. AGENT. Action by undisclosed Principal upon Contract of Agent-Entirety of Contract.-A, acting as the agent of B. and C., who were tenants in common of certain real estate, leased the same to the defendant by a contract not under seal, made in his own name, and did not disclose his agency or the state of the title to the premises demised: Held, that an action to recover the rent might be maintained in the name of B. and C.; held, also, that the contract was entire, and that the principals must join in the action: Bryant v. Wells, 56 N. H. ARBITRATION. See Estoppel. ATTORNEY. Rights of Complainant-Duty of State's Attorney-Practice.-A complainant, who files a libel to procure the forfeiture of personal property for violation of law, and prosecutes the same wholly at his own expense, is entitled to do so without interference from the state's attorney: State v. Tufts, 56 N. H. When such libel is prosecuted at the expense of the county, its direction will be taken charge of by the attorney-general or solicitor: Id. |