In the case of national bank directors it is necessary to keep in mind that there are liabilities created by statute and liabilities that exist independently of any statute. Thus national bank directors are liable, just as any other bank officer or private person, for fraudulent representations by words or by conduct.1 The bank or its receiver may sue the directors for mismanagement and mis-application of the funds of the bank.2 The stockholders in a national bank may sue where the receiver or the corporation will not.3 The creditors may have the remedies that exist for the creditors of any other bank.4 But where the redress sought is for a violation of the national banking law, a court of appeal has erroneously held that the remedy given to the comptroller is exclusive, and can only be enforced by the receiver of the comptroller.5 But that receiver may bring the suit without an order from the comptroller.6 It is held further that where a remedy is sought in order to charge directors with a violation of the national banking act, under section 5239 of the Revised Statutes of the United supra. Hayden v. Thompson, 71 Fed. R 60, puts the suit on the ground of breach of trust This is true where the corporation or its receiver sues. When the creditor sues, the right to recover, on whatever ground it is put, is not for a breach of trust toward the creditor, but a breach of trust toward the bank.

15 Cooper v. Hill, 94 Fed. R 582. But the laches will not begin until the directors surrender control. National Bank v. Wade, 84 Fed. R 10.

1 Prescott v. Haughey, 65 Fed. R 353; Merchants' Nat. Bank v. Thorns, 28 Wkly. Law Bul. 164. Withdrawal of a large deposit by a director is said to be by a remarkable effort of the judicial intellect cognizable at law, but not in equity. Robinson v. Hall, 59 Fed. R 648. That is not true. It is an illegal preference which the receiver of the bank may recover. See Sec. 327, post.

2 Robinson v. Hall, 63 Fed. R 222, 25 U. S. App. 48; Warner v. Pen-noyer, 91 Fed. R 987. See Sec. 81,

3 Ex parte Chetwood, 165 U. S. 443. See Sec. 80, supra, and cases cited in note 3 to that section.

4 See Sec. 86, supra.

5 Hayden v. Thompson, 71 Fed. R 60. But this case must be considered as overruled by Ex parte Chetwood, 165 U. S. 443. See Sec. 3M,post

6 Hayden v. Thompson, supra

States, no suit lies until forfeiture of the charter is made as provided in that act.7 This erroneous ruling in effect denies such remedies to either stockholders or creditors until a forfeiture has taken place, when, a receiver being already in possession, the suit would be useless. The rules of joinder of causes of action have been noticed in the preceding section. The directors cannot discharge their liability for any part of an illegal loan by showing that part of the loan was paid in illegal dividends.8 The statute of limitations or the defense of laches will not run in favor of the officers while they control the bank.9

Sec. 88. Release To Directors

The rule of law is, except where modified by statute, that the release of one joint tortfeasor releases all.1 A release to one director jointly liable would be a defense to the action. Since the right to call its officers to account belongs to the corporation, except where the statute confers the right on some other party, the corporation can release its directors from liability to it, if the act be otherwise lawful. But such a transaction would be narrowly scanned by a court for evidences of fraud. If fraudulent it would be held for naught.2 Compromises of the liability are not usually permitted.3