MCDONALD V. THOMPSON, 184 U. S. 71 (1902)

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U.S. Supreme Court

McDonald v. Thompson, 184 U.S. 71 (1902)

McDonald v. Thompson

No. 96

Argued January 13-14, 1902

Decided February 3, 1902

184 U.S. 71


To a bill in equity by a receiver of a national bank to recover an assessment made by the Comptroller of the Currency to the amount of the par value of the shares formerly owned by one of the stockholders, defendant pleaded the statute of limitations. The statute provided that actions upon contracts in writing should be brought within five years, but that actions brought upon contracts not in writing or upon liabilities created by statute should be brought within four years. Held: that a bill to recover the assessment in question was not brought upon a contract in writing, but upon an implied contract not in writing, or upon a liability created by statute, and that the suit was barred.

This was a bill in equity originally filed May 20, 1898, in the Circuit Court for the District of Nebraska, by Kent K. Hayden, receiver of the Capital National Bank of Lincoln, Nebraska (of whom the present appellant is the successor in office), against David E. Thompson, to recover defendant's proportion of an assessment upon the stockholders of the bank to the amount of the par value of their shares. The bank failed on January 23, 1893, and a receiver was shortly thereafter appointed. On June 10, 1893, the Comptroller of the Currency ordered the assessment, which was made payable July 10, 1893.

The bill alleged Thompson to have been the owner of 210 shares of the capital stock, which he had acquired upon subscription to such stock and as a part of the original issue; that he, knowing the bank to be in a failing condition and practically insolvent, and in anticipation of its approaching failure, had sold and caused such stock to be transferred to certain irresponsible parties, and that such transfer was made with intent to defraud the bank, its depositors and creditors.

Defendant demurred upon the ground that it appeared by the bill that the cause of action was barred by the statute of

Page 184 U. S. 72

limitations. The demurrer was sustained, the bill amended, another demurrer interposed and sustained, and the bill dismissed. An appeal was taken to the circuit court of appeals, which affirmed the judgment of the circuit court.

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