US SUPREME COURT DECISIONS

In the absence of any provision of the act of Congress creating the liability of stockholders of national banks, fixing a limitation of time for commencing actions to enforce it, the statute of limitations of the particular state is applicable.

Although a statutory liability may be contractual, or quasi-contractual chanrobles.com-red

Page 197 U. S. 155

in it nature, an action given by statute is not necessarily to be regarded a brought on simple contract, or breach of simple contract.

The liability of stockholder of national bank is conditional, and, the right to sue does not obtain until the Comptroller of the Currency has acted; his order is the basis of the suit, and the statute of limitations does not commence to run until assessment made, and then it run as against an action to enforce the statutory liability, and not an action for breach of contract.

As the statute of limitations of Washington has been construed by the court of that state, the time within which such an action must be brought is two years under § 4805, Ballinger's Code, and not within three year under subd. 3 of § 4800.

The First National Bank of South Bend, Washington, became insolvent and was closed August 10, 1895, and on the seventeenth day of the same month one Heim was appointed receiver, who was succeeded by Aldrich, and Aldrich by George C. Rankin.

August 17, 1896, the acting Comptroller of the Currency levied an assessment against the shareholders of the bank in enforcement of their statutory liability. Adolphus F. McClaine was one of the stockholders, was notified of the levy, and demand was duly made of him to pay the assessment on or before September 17, 1896, and shortly thereafter an action was commenced against him by the receiver to recover the same. Pending the action, efforts to settle the claim were made. Subsequently, the action was dismissed. Thereupon, the receiver brought an action against McClaine upon an alleged contract of compromise, which went to trial, and the receiver took a nonsuit. The present action was then brought on the assessment, August 15, 1899, and McClaine set up the statute of limitations by demurrer, which the circuit court sustained, and dismissed the action. 98 F.3d 8. The cause was taken to the circuit court of appeals, and the judgment of the circuit court reversed. 106 F.7d 1.

The case having been remanded, the circuit court overruled the demurrer, McClaine answered, and a trial was had, resulting in judgment for the receiver, which was affirmed by chanrobles.com-red

Page 197 U. S. 156

the circuit court of appeals. 119 F.1d 0. This writ of error was then brought.

The following are sections of the statutes of Washington in relation to limitations, as found in Ballinger's Code:

"SEC. 4796. Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases, a different limitation is prescribed by statute; but the objection that the action was not commenced within the time limited can only be taken by answer or demurrer."

"SEC. 4797. The period prescribed in the preceding section for the commencement of actions shall be as follows: . . ."

"SEC. 4798. Within six years: 1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States."

"2. An action upon a contract in writing, or liability, express or implied, arising out of a written agreement."

"3. An action for the rents and profits or for the use and occupation of real estate."

"SEC. 4800. Within three years: 1. An action for waste or trespass upon real property."

"2. An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated."

"3. An action upon a contract or liability, express or implied, which is not in writing and does not arise out of any written instrument."

"4. An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud."

"5. An action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity, and by virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon

Page 197 U. S. 157

an execution; but this subdivision shall not apply to action for an escape."

"6. An action upon a statute for penalty or forfeiture, where an action is given to the party aggrieved, or to such party and the state, except when the statute imposing it prescribed a different penalty [limitation]."

"7. An action for seduction and breach of promise of marriage."

"SEC. 4805. An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued. "

Page 197 U. S. 158