Bank of British N. A v. Cahn

Foote, C. —The plaintiff, a banking corporation, loaned a large sum of money to another corporation, in which the defendant was a stockholder. A portion of that sum remaining unpaid, the plaintiff brought this action to recover from the defendant, as a stockholder in the corporation which had borrowed the money, his proportionate share of the indebtedness.

An answer was filed, alleging, by way of defense, that the plaintiff had not complied with the provisions of an act of the legislature of the state of California, approved April 1, 1876, entitled “An act concerning corporations and persons engaged in the business of banking.” The delinquency of the plaintiff being stated to consist in its failure “to publish in a newspaper, or any newspaper, or to file in the recorder’s office of the city and county of San Francisco, or in the office of any recorder, a sworn statement or any statement of the amount of capital actually paid into said corporation or into such banking business.” And that at all those times the plaintiff had further failed to so publish or file for record “ a sworn statement, or any statement, of the actual condition and value of its assets and liabilities, or where said assets are situated.”

The plaintiff demurred to the answer as not showing facts sufficient to constitute a defense. The demurrer [465]was overruled, and a trial had by the court without a jury. The findings of fact are to the effect that all the allegations of the complaint and answer are true. The conclusion of law is, that defendant is entitled to judgment in his favor. From the judgment made and entered in the premises, this appeal is taken.

The appellant contends for a reversal of the judgment, on the ground that the act of April 1, 1876, with which the plaintiff did not confessedly comply, and by section 3 of which it was debarred from the right to maintain its action, is repealed by the act creating a board of bank commissioners. (Stats. 1877-78, p. 740.)

The point made on this contention being that “when a later statute covers the whole ground of a former one, the latter repeals the former.”

In Chicago Railway Co. v. United States, 127 U. S. 409, Mr. Justice Field says: “When there are two acts or provisions of law relating” to the same subject, effect is to be given to both, if that be practicable. If the two are repugnant, the latter will operate as a repeal of the former to the extent of the repugnancy. But the second act will not operate as such repeal merely because it may repeat some of the provisions of the first one and omit others, or add new provisions. In such cases the later act will operate as a repeal only where it plainly appears that it "was intended as a substitute for the first act. As Mr. Justice Story says, it 'may be merely affirmative, or cumulative, or auxiliary.’ (Wood v. United States, 16 Pet. 342-363.)”