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credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the associa tion; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.

1. Where a president of a bank, charged as a trustee with the administration of the funds of the bank in his hands, converts them to his own use, he embezzles and abstracts them within this section, unless he shows authority for so doing. In the Matter of Van Campen, 2 Ben. 423, Fed. Cas. No. 16,835.

2. Where false entries are made by a clerk in accordance with directions of the president of a bank, this is sufficient to make the president a principal in the offense, and to constitute a making of the entries by him. Id.

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3. It was intended in this section, by the use of the word "misapply," to cover cases of unlawful dealing with the funds of a bank by its officers, although without corrupt motive- the word "embezzle" and perhaps the word "abstract" referring to acts done for the actor's benefit as against the bank. Nor do the words with intent to injure or defraud," coupled with the former, defeat this intention, for while the word "defraud" may be limited to a malicious dealing with property for the personal advantage of the doer, the word "injure" is not of such limited application, and was doubtless inserted to cover cases of misapplication, causing injury to the association, without benefit to the offender. Hence the guilty intent, required by the section, would be shown by proof of general guilty intent involved in the act knowingly committed, and this though it be admitted that no personal pecuniary benefit was anticipated by the actor. Proof of the latter fact may, therefore, be properly rejected. United States v. Taintor, 11 Blatchf. 377, Fed. Cas. No. 16,428, concurred in by Woodruff, BLATCHFORD and BENEDICT, JJ., but see following note.

4. The willful misapplication, made an offense by this section, does not mean acts of official maladministration referred to in sertion 5239, U. S. Comp. Stat. 1901, p. 3515. "It must be a willful misapplication for the use or benefit of the party charged or of some person or company other than the association, with intent to injure and defraud the association, or some other body corporate or some other natural person." WOODS, J., 655, 27 L. ed. 520, 2 Sup. Ct. Rep. 512. Hence the purchase by a bank of its own shares, when not necessary to prevent

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a loss on a debt due it, is not a criminal misapplication of its funds. United States v. Britton, 107 U. S. 668, 27 L. ed. 525, 2 Sup. Ct. Rep. 512.

5. The purchase of stock in violation of section 5201, U. S. R. S., U. S. Comp. Stat. 1901, p. 3494, though made with intent to defraud, and by one or more of the officers of the bank named in this section, is not a crime under this section. 107 U. S. 660, 27 L. ed. 520, 2 Sup. Ct. Rep. 512.

6. It is not an offense under this section where an insolvent officer of a national bank procures the directors to discount his note, with an insolvent indorser as security, they knowing the facts, and he using the proceeds of the discount for his own purposes. United States v. Britton, 108 U. S. 193, 27 L. ed.

701, 2 Sup. Ct. Rep. 526.

7. Nor would it constitute a criminal misapplication of the funds of a national bank for the president, even though specially charged by the directors with the duty of looking after the deposits of debtors of the bank, and of applying their deposits to the payment of their debts, to allow a depositor, while indebted to the association, to withdraw and assign to another bank his deposit in the first. Id.

8. The directors of a national bank, while they may be subject to a personal liability for damages, are not rendered liable to a criminal prosecution, where they declare a dividend by the association when there are no net profits to pay it. 108 U. S. 199, 27 L. ed. 698, 2 Sup. Ct. Rep. 531.

9. It is competent for a State to protect, by penal enactments, its citizens in their business dealings, whatever they may be, with a national bank, located within its limits. Such an enactment is not predicted on, and has no relation to any law of Congress or offense cerated thereby, of which State courts have no jurisdiction. State v. Tuller, 34 Conn. 280.

10. Hence a penal statute of a State relating to embezzlement by the officers of a bank, applies to officers of a national bank who purloin a special deposit made by one of its customers, but it is inoperative in respect to the embezzlement of the property of the bank by its agents, for which the Act of Congress provides a remedy. Id.

11. The fact that an officer of a national bank is subject to punishment under this section for a breach of trust does not relieve him from liability to punishment for the same act as a larceny at common law, or under State statutes. There is no identity in the character of the two offenses. Exclusive jurisdiction of the one does not exclude jurisdiction of the other. Commonwealth v. Barry, 116 Mass. 6.

12. An officer of a national bank who makes false credits in favor of a firm of which he is a member and allows the money represented by such false credits to be drawn out by his partner in pursuance of an agreement with him to that effect, is guilty of a violation of above section. As to the guilt under this section there is no distinction between a loan made for fraudulent purposes, and an application with like fraudulent intent in a form other than a loan. U. S. v. Fish, 24 Fed. Rep. 585.

13. Allowing partners to overdraw account with intent to defraud is within the meaning of above section. Id.

14. In an indictment under section 5209, U. S. Comp. Stat. 1901, p. 3497, for willfully misapplying funds of a national bank it is not necessary to charge that

the funds misapplied have been previously intrusted to defendant. A willful and criminal misapplication may be made by an officer or agent without having previously received them into his manual possession. U. S. v. Northway, 120 U. S. 327, 30 L. ed. 664, 7 Sup. Ct. Rep. 580.

15. Directors of a national bank are officers thereof within the meaning of this section. It depends on the circumstances connected with the bank itself whether the teller is an officer or only an employe or clerk. United States v. Means, 42 Fed. Rep. 599.

16. It makes no difference whether one or all of the officers of the bank were deceived or were intended to be deceived as to liability under this section. Id. 17. Making actual entry of an actual transaction, however fraudulent the transaction was, is not a false entry under this section "Aiders and abettors' defined. President's duties. Coffin t. U. S., 156 U. S. 463, 39 L. ed. 494, 15 Sup. Ct. Rep. 394.

18. The penalty applies to any bank agent making a false entry in a report even if unverified, Cochran v. U. S., 157 U. S. 293, 39 L. ed. 706, 15 Sup. Ct. Rep. 628.

19. Violation of this section held to be an "infamous crime." Folsom v. U. S., 160 U. S. 122, 40 L. ed. 363, 16 Sup. Ct. Rep. 222.

20. Violation includes false entry made by direction with intent to defraud or deceive and includes false deposit slip. Agnew v. U. S., 165 U. S. 52, 41 L. ed. 630, 17 Sup. Ct. Rep. 235.

21. Entries in reports as loans and discounts of overdrafts of customers do not violate this section. Graves v. U. S., 165 U. S. 329, 41 L. ed. 734, 17 Sup. Ct. Rep. 393.

§ 5210. [U. S. Comp. Stat. 1901, p. 3498.] The president and cashier of every national banking association shall cause to be kept at all times a full and correct list of the names and residences of all the shareholders in the association, and the number of shares held by each, in the office where its business is transacted. Such list shall be subject to the inspection of all the shareholders and creditors of the association, and the officers authorized to assess taxes under State authority, during business hours of each day in which business may be legally transacted. A copy of such list, on the first Monday of July of each year, verified by the oath of such president or cashier, shall be transmitted to the Comptroller of the Currency.

See, in connection with above, Johnson, Receiver, v. Lafflin, 17 Alb. L. J. 146, Fed. Cas. No. 7,393.

1. The provision that national banks shall keep open for inspection a list of stockholders was intended to give creditors and state officers opportunity for information as to liability of stockholders. Pauly v. State Loan Ann'n, 165 U. S. 621, 41 L. ed. 850, 17 Sup. Ct. Rep. 465.

2. A shareholder of a national bank is entitled to examine its list of shareholders and to make extracts therefrom for the purpose of negotiating for the

purchase of its stock. The State corporation laws apply to national banks. People ex rel. Lorge v. Consol. Nat. Bank, 105 App. Div. 409.

§ 5211. [U. S. Comp. Stat. 1901, p. 3498.] Every association shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors.

Each such report shall exhibit in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after the receipt of a request or requisition therefrom from his, and in the same form in which it is made to the Comptroller shall be published in a newspaper published in the place where such association is established, or if there is no newspaper in the place, then in the one published nearest thereto in the same county, at the expense of the association; and such proof of publication shall be furnished as may be required by the Comptroller. The Comptroller shall also have power to call for special reports from any particular association whenever in his judgment the same are necessary in order to a full and complete knowledge of its condition.

See Act of February 26, 1881, post. See Act of June 30, 1876, post.

§ 5212. [U. S. Comp. Stat. 1901, p. 3499.] In addition to the reports required by the preceding section, each association shall report to the Comptroller of the Currency, within ten days after declaring any dividend, the amount of such dividend, and the amount of net earnings in excess of such dividend. Such report shall be attested by the oath of the president or cashier of the association.

§ 5213. [U. S. Comp. Stat. 1901, p. 3499.] Every association which fails to make and transmit any report required under either of the two preceding sections shall be subject to a penalty of one hundred dollars for each day after the periods, respectively, therein mentioned, that it delays to make and transmit its report. Whenever any association delays or refuses to pay the penalty herein imposed, after it has been assessed by the Comptroller of the Currency, the

amount thereof may be retained by the Treasurer of the United States, upon the order of the Comptroller of the Currency, out of the interest, as it may become due to the association on the bonds deposited with him to secure circulation. All sums of money collected for penalties under this section shall be paid in to the Treasury of the United States.

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"g 5214. National banking associations having on deposit bonds of the United States, bearing interest at the rate of two per centum per annum, including the bonds issued for the construction of the Panama Canal, under the provisions of section eight of 'An Act to provide for the construction of a canal connecting the waters of the Atlantic and Pacific oceans,' approved June twenty-eighth, nineteen hundred and two, to secure its circulating notes, shall pay to the Treasurer of the United States, in the months of January and July, a tax of one-fourth of one per centum each half year upon the average amount of such of its notes in circulation as are based upon the deposit of such bonds; and such associations having on deposit bonds of the United States bearing interest at a rate higher than two per centum per annum shall pay a tax of one-half of one per centum each half year upon the average amount of such of its notes in circulation as are based upon the deposit of such bonds. National banking associations having circulating notes secured otherwise than by bonds of the United States shall pay for the first month a tax at the rate of five per centum per annum upon the average amount of such of their notes in circulation as are based upon the deposit of such securities. and afterwards an additional tax of one per centum per annum for each month until a tax of ten per centum per annum is reached, and thereafter such tax of ten per centum per annum, upon the average amount of such notes. Every national banking association having outstanding circulating notes secured by a deposit of other securities than United States bonds shall make monthly returns, under oath of its president or cashier, to the Treasurer of the United States, in such form as the Treasurer may prescribe, of the average monthly amount of its notes so secured in circulation; and it shall be the duty of the Comptroller of the Currency to cause such reports of notes in circulation to be verified by examination of the banks' records. The taxes received on circulating notes secured otherwise than by bonds

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