STEPHENS fl. OVERSTOLZ.
4:65
STEPHENS
'I).
OVEBSTOLZ.
{otrcttit Oourt, E. D. Mis8ouri, E. D. September 96, 1800.}
1.
SURVIVAL OJ' AOTIONS-RElIIEDIAL STATUTE·
.An act ot congress imposing a legal liability on tbedirectors of a nl!r.Monal bank for certain things whioh they may do, whioh shall result in an injury to the bank, its stockholders, or creditors, and lIlaking them liable for the amount of the dalllage, is a rellledial and not a penal statute, and 'therefore an action under it survives against the estate of a director.
2.
SAME.
Wbete a, bank director make8 a wrongful loan of 1Il0ney from which loss occurs, it is no'defense to an action, by the receiver of the bank against the director's estate tllat the iusolvenoy oUbe person to whom the loan was made was not discovered until' after the death of the director and the appointment of the receiver. , A ,general demurrer to a petition as a whole oannotbe sustained if there is one good cause ,of aotion stated it.
8.
PLEA'DING-DEMORRER.
At Law., 'On demurrer to petition. Action' by Lon V. Stephens, receiver of the Fifth National Bank of St. Louis, Phillipine Overstolz, executrix of Henry Overatolz, deceased. ' (leo. U. S. Atty., and Lubke Muench, for plaintiff. Oh¢er H. 'Kru,m, for defendant. :MILLIllR,Justice, (orally.) The main question in this case, which it would seem to necessary to determine at this time, is the question whether the right of action stated in the petition in favor of the ,receiver is one that has abated' by the death of the director who committed the wrongful acts charged, or is a right of action that survives against the executrix of the deceased. The argument is that the statute under which the suit is brought is a penal statute, and imposes a punishment; that the demand sLled for is a penalty; and that it is of that character that the right to reco\fer it ceased with the death of the wrong-doer. We cannot, as important as the case is, when on the circuit, where so much is to be done in a short time, give as full investigation to the authorities on the subject as we would like to do, but we have given it such con sideration as we are able to. and all three of us are of the opinion that the act of congress on this subject treats the directors of a national bank as persons charged with a duty and a trust for the benefit of other parties; that, when they viOI!1te such trust, the statute in effect declares that they shall compensate t4e parties who have been injured for that violation of the tr,ust. In effect ,that was a principle which existed before the statnte was enacted. The statute declares the mode of proceeding, the liability 0.£ the wrong-doer, and the limit of his responsibility. It is not so esscrntially a penal statute intended to ,punish a wrong-doer for a ,wrongfl;ll act as to bring it within that class of the liability for which expires with the death of the party. The statute imposes a legal upon the officers of .bank ifor certain things which, they may inaninjury the stockholders ,or v .43F .no.7 -30 M
itors. The statute says, in effect, that they shall be liable for whatever damages result to anyone ftorn their vi6httion Of duty. Penal statutes, strictly speaking, are generally those which impose a punishment measured only byitM:o'ffiifistl or gnUtoftheparty. ' They g'eliehi.lly say that, for every such offense, the party shall be fined in a given sum, or im·. ,they the' purrishment'shall.be;that,a',llarty who does thus and,so',shall be liable to a firi.<:l of to for so long a time. Penalties of that nature are of a. criminal character, but ill, so, U"ligh,t 1:>,e,' object of the ,wrong-doel!' for the wrongful 6fthe inJury they have sustamedj" and ilie nglit to sue IS glveQ.,to, th,e 'bapk or andeveJl'to the, stoCkholders, andperhapstothe creditors of the bank who have been damaged by the wr6ngfuI ;act in question. Whoever is injured may sue, and,thE! of re9Qver,y depends not.fix, any tQbe, the'pltrty fot ..' It ply says ,he must Make good the datnage 'he has inflicted upon others. bank We thjnk, therefore, thllt it is, ar:erpedial are forbiduell'ito do a: cfJrtain it may' 'tend to the ruiJl of the bank. The statute says you shall not 'do that, 'and if you do it you shall be liable to all persons injured by your wrongful, You beliaole to .youshaU l bi:Hikble to the st6ckholders, and you 'lDay liablet6thegeneral 'of 'the bank, orthe depositors of , the bank,)' The'extentof tbat liabilitY' is pot'liffectedby th'e circumstanceswhich)mislead you, or by yotir'criminal'lntention, 'but depends On the' fMt that the aCt was done knowingly, and was in violation of the Jaw; '1;heextent'of the liability incurred is the amount of damage you Jiaveirtllicted' upon others.',WEli are dE the opinion that of ac'tionini ithiscaseis not terminated 'b'Y" the death onhe wrotig-doer, but thM the damage for which he is liable isil. claim that survives against his estate as any 'other claim. . , Some p<>int W8:S lIlade that the reeeiver has iloright to sue, because had11bt;beensustliinedat the iinieof the director's death, the <>r 'anhe tIttle O'f the appointment of a receh'er'df the bank.' confess I have had· some difficulty in apprehending the :force 'of thaf argument. All' that I can make of the contention :is that although the wrong had been done, and theirioney had, been loaned;'yet, bp.cause it was not fulond out until after the receiver Was appointed that the wrong had occasioned a losstosontebody, that,th'ertHore, was no right of aolidn. We cannot assent to that view." The injUry was done by the di,in i his by the, wrongful loan' of the 'money' in (Juestion, allind the loss had really'occurted before the though it was not kl10WIlI 'prior to that' tillie, yetthetnen to whom the money was 10ttnel1 were insolvent" '." '; ," ,There is one objection to what'is'ferhlea the'Xlfirst of the thionm deel8,ration' that, we" think 'i's 'it, good" one.' That'· courit recites
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11·.
467
certain proceec;ljngs had which the;bankitselfsuffereda forfeiture of its.charter 9yrea$oll ofthe wrongful al;lts of.iti! directors. The couot; understand plerely recites that the court before whom that was pending found that thewrongfuLacts in question were done knowingly by t.he 91rectors, but, does not cont;lin any direct were don,e knowingly. averment ,otherwise than .by,recital that The averment .of course that the court found th3tthe deceased director did certaIn acts knowingly is not tantamount to an ar;errnl:lnt by the pleader that the, deceased director did the acts knowingly. If this part of the petition had been demurred to specially we should have it, beca,use tpe knowledge of the director is not directly averred. But the deruprrer is a general demurrer to the petition as a whole,and if there is one good cause of action stated.in it the demurrer must be overruled., We do not know ,whether relies on the first count, bu,t, as the matter sPtnds, tbe other charge that the de<leased did the acts and things ,complained of knowingly , and the m uuer (accordingly be, qverruled. ,
.
B:E:RRIAN fl. -ROGEns et
al.
SAME
fl.
CObK et al., (three cases.)
,(CircuitOourl, D. Oolorado. JUDe 20, 1800.)
.At TAl",:
Wells, Tay7ar, for plaintiff'. L.' a. R,oc.kweU and! E. P. Hannon,for defendants.
This is nn action of ejectment brought by Berrian others. The easeis this: All a'lministrator was ppiuted for an estate, ahd he went Lelore the probate court of the proper county I!o petition nsrequire9 by the III ws of state,askhlg to authpr!zed to, sell real estate.of his iJ1testate to 'pay deLts. rfhat , No questions aLout that, petition il;sv{'I'Y full and and, such aQtjpn. ''''lls hadOD ihnt petition as that it was granted, and, a very fuJJ order'malIe by the and directing saleqf estate1a!ld it wass91dby ,the administrator.. '1'he
'.I,