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brokerage by any insolvent person, company, or corporation. It therefore inflicts punishment upon persons so engaged, knowing the fact. . . . . A bank implies capital, 7 and capital invites confidence. A man holding himself out as a banker or broker thereby gives public proclamation that he has money, and property readily converted into money, in his possession and subject to his control, and for that reason he may be safely trusted. . . . . For an insolvent banker, company, or corporation to continue the business of banking is to hold out assurances of responsibility and surplus capital where neither exists. To do so knowingly is to secure the confidence, and hence obtain the money, of the ignorant and unwary by an implied deception. It is the old story of securing the victim by a display of false colors. To suppress this mischief, to save the public from being induced to deposit money with such insolvent by the implied assurance of responsibility and wealth essential to the business, when they do not in fact exist, was the evident purpose of this statute": Baker v. State, 54 Wis. 376, 377. These views have been expressly sanctioned in Meadowcroft v. People, 163 Ill. 56; 54 Am. St. Rep. 447. Judge Jenkins has expressed similar views in In re Cook, 49 Fed. Rep. 842; Cook v. Hart, 146 U. S. 183. As said by Mr. Justice Winslow in a recent case: "The offense consists in receiving deposits in a bank in fact insolvent, and which the person receiving the deposit knew, or had good reason to know, was insolvent": In re Koetting, 90 Wis. 171.

Money deposited in a bank is, in law, a loan by the customer to the bank: Sims v. Bond, 2 Nev. & N. 608; 5 Barn. & Adol. 389. "All deposits made with bankers may be divided in two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter, and that other kind of deposit of money peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the banker; and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any 8 part thereof, on demand": Marine Bank v. Fulton Bank, 2 Wall. 256. See, also, Planters' Bank v. Union Bank, 16 Wall. 483; Oulton v. Savings Inst., 17 Wall. 109; Commercial Bank v. Armstrong, 148 U. S. 59. Ordinarily, the money so accepted or received by such bank or banker is accepted or received on deposit. In order to make the section broad enough to cover every case where money is so accepted or received by

a person so engaged in the business of banking when he knows, or has good reason to know, that such bank or banker is unsafe or insolvent, there were added to the words "on deposit" the words "or for safekeeping, or to loan," together with the other words mentioned, including the words "or for collection," as stated. The purpose of the section, therefore, seems to be to punish every person engaged in the business of banking who, knowing, or having good reason to know, that such bank or banker is unsafe or insolvent, nevertheless accepts or receives money in such business, either "on deposit, or for safekeeping, or to loan," or accepts or receives such paper "for collection." These four purposes accompanying such acceptance or receipt of money or commercial paper for collection would seem to be sufficiently broad and general to include every purpose for which the bank or banker could accept or receive money or commercial paper for collection. If making the certificate of deposit payable in one year takes the case out of the statute, then making such certificate payable in a month or a week or a single day would also take a case out of the statute. As short time certificates are, ordinarily, as acceptable to customers as certificates payable on demand, it is obvious that an insolvent banker or officer of an insolvent bank, with full knowledge of such insolvency, might, by issuing such time certificates, continue such business indefinitely, without committing the offense prescribed in the statute, unless it is construed so as to cover deposits upon which such time certificates are issued, as well as those payable on demand. "Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's unskilfulness or ignorance of the law, except in the case of necessity or the absolute intractability of the language used": Salmon v. Duncombe, L. R. 11 App. Cas. 627. "In construing statutes, the usual and proper mode is to ascertain the intention of the legis lature from the language they have used, connected with the state of the law on the same subject anterior to the passage of the statute. When the courts know for what particular mischief the legislature intended to provide a remedy, it is their duty so to construe the statute as most effectually to suppress the mischief and advance the remedy": Coster v. Lorillard, 14 Wend. 297. "Even penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature": United States v. Wiltberger, 5 Wheat. 76; Manitowoc Co. v. Truman, 91 Wis. 12. See, also, United States v. Freeman, 3 How. 564, 565; United States v. Saunders, 22 Wall. 492. While a certifi

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cate of deposit payable at a fixed time in the future may technically be regarded as a loan and not a mere deposit, yet, in view of the obvious purpose of this statute, we are constrained to hold that the transaction in question was a deposit within the meaning of the statute.

2. The mere fact that a portion of the three hundred dollars consisted of a certificate of deposit held against the same bank, and the accrued interest thereon, which was surrendered at the time, did not make the transaction essentially different from what it would have been had the whole amount of three hundred dollars been deposited in cash, as recited in the certificate. The cash was present, or supposed to be present, in the bank, and was considered and treated the same as though the cashier had actually passed it over to Glye and she had immediately redeposited the same in the bank.

3. We perceive no error in the method of proving the insolvency of the bank at the time of receiving the money and 10 issuing the certificate of deposit in question; and that is so whether by such insolvency is meant inability to pay its debts in the ordinary course of business, or merely inability to pay in full at some future time, upon ultimately winding up its affairs. The evidence was certainly material, and relevant and pertinent to the issue on trial, and hence competent.

By the Court. The several exceptions certified to this court pursuant to section 4720 of the Revised Statutes are each and all overruled.

FRAUDULENT BANKING—WHAT IS—REMEDY OF DEPOSITOR. To permit a deposit in a bank in reliance upon its supposed solvency is a gross fraud if its officers know at the time of its insolvency, and the depositor is entitled to reclaim the deposit or the proceeds: Grant v. Walsh, 145 N. Y. 502; 45 Am. St. Rep. 626, and note. See State v. Eifert, 102 Iowa, 188; 63 Am. St. Rep. 433, and note. Where a deposit has been kept separate and fully received before formal insolvency, the depositor may claim it: American Exchange Bank v. Loretta etc. Co., 165 Ill. 103; 56 Am. St. Rep. 233. It is criminal negligence for a banker not to know his own insolvency: Meadowcraft v. People, 163 Ill. 56; 54 Am. St. Rep. 447; and it has been held that the directors of a bank are conclusively presumed to know its condition: Tate v. Bates, 118 N. C. 287; 54 Am. St. Rep. 719. See Solomon v. Bates, 118 N. C. 311; 54 Am. St. Rep. 725.

FARWELL COMPANY V. WOLF.

[96 WISCONSIN, 10.]

CORPORATIONS-ACTS ULTRA VIRES.-A corporation organized for the purpose of carrying on a general dry goods business does not possess the power to acquire by assignment claims of others for damages growing out of an alleged conspiracy to defraud, but in no way connected with its affairs, and not necessary to preserve its property or protect its interests.

CORPORATIONS - ACTS ULTRA VIRES-DEFENSES.Although the act of a corporation in acquiring a cause of action is ultra vires, yet want of corporate power to engage in such business cannot be interposed as a defense when the corporation seeks to enforce such cause of action.

ASSIGNMENTS.-A CAUSE OF ACTION FOR DAMAGES arising from a conspiracy to defraud, by purchasing and selling goods without paying for them, is not a cause for damages done to personal property, and hence is not assignable.

CONSPIRACY TO DEFRAUD-MEASURE OF DAMAGES. In an action to recover damages for a conspiracy to defraud by purchasing and selling goods without paying for them, the measure of damage is the value of the goods at the place where, and the time when, they were obtained from the plaintiff, with interest from such time, at the legal rate.

APPELLATE

PRACTICE.-ERROR NOT PREJUDICIAL cannot work a reversal of the judgment.

Action to recover damages for a conspiracy to defraud. In 1893, defendants entered into a conspiracy to defraud wholesale dealers in goods, wares, and merchandise by purchasing goods on credit, without intending to pay for them, and by having them delivered at the store of one Josephson; who was to sell them and divide the proceeds among the co-conspirators. This scheme was carried out, and large amounts of goods were purchased on credit from the plaintiff and numerous other dealers, who were not paid for their goods. Before the commencement of this action, such dealers, for a valuable consideration, sold and assigned to plaintiff their respective claims for the goods sold, together with their respective causes of action for damages against the defendants on account of such conspiracy. Judgment for plaintiff on all of the claims. Defendants appealed.

Blum & Blum and J. M. Morrow, for the appellants.

Lewis & Briggs and J. J. Hughes, for the respondent.

13 MARSHALL, J. The record shows that plaintiff is a corporation organized for the purpose of carrying on a general dry goods business. The point was raised on the trial, and preserved for review, that it did not possess power to acquire by assignment claims for damages in no way connected with its own af

fairs, growing out of the alleged conspiracy to defraud. It does not appear that such claims were in any way necessary to the preservation or enforcement of plaintiff's original claim, or that such purchase was to effect in any way the purposes of its organization, so as to bring its action in that regard within the rules. that a corporation may, to preserve its own property and protect its legitimate interests, acquire and enforce liens which would otherwise be outside of the purposes of its organization. A corporation has only such powers as its organic act, charter, or articles of organization confer. This is elementary, but it includes such powers as are reasonably necessary to effect all the general purposes of the corporate creation, though not particularly speci fied in its charter, unless prohibited thereby or by some law of the state. From the foregoing, without further discussion, we must hold that plaintiff had no authority to acquire by purchase the various claims for damages on which a recovery was had. But it by no means follows that its want of power can be taken advantage of by the defendants in this action. Formerly, want of corporate power was an effective weapon, both for defense and attack, in the hands of private parties; but, without any change whatever respecting the general doctrine of ultra vires as applied to the acts of corporations acting outside the purposes of their creation, there has been 14 a gradual development in the direction of holding that none but a person directly interested in the corporation, or the state, can question such authority. Such development from the rigorous rule which anciently obtained was manifested earliest in the adoption of the rule that, where a corporation has violated its charter in the purchase and acquirement of real estate, its title thereto and right to enjoy the same cannot be inquired into collaterally in actions between private parties or between the corporation and private partiesthat it can be questioned only by the state: Natoma etc. Co. v. Clarkin, 14 Cal. 544; Alexander v. Tolleston Club, 110 Ill. 65; Fritts v. Palmer, 132 U. S. 282; Runyan v. Coster, 14 Pet. 122; National Bank v. Whiting, 103 U. S. 99; Shewalter v. Pirner, 55 Mo. 218; Ragan v. McElroy, 98 Mo. 349; National Bank v. Matthews, 98 U. S. 621. In the latter case, the supreme court of the United States, reversing the supreme court of the state of Missouri, laid down the rule that, "where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object"; that "it is valid until assailed by a direct proceeding instituted for that purpose" by the government; and, further, in

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