In the argument at bar all but three of the grounds of error specified in the circuit court of appeals and assigned on the allowance of this writ were expressly waived. In stating the case we have, therefore, called attention only to the facts and proceedings essential to an elucidation of the three questions now pressed, and hence, disregarding the grounds of error which are obsolete, we come to consider the real issues.
1. Treating the facts as foreclosed by the verdict, the circuit court of appeals held that the trial court rightly instructed that the presumption of liability begotten by the presence of the name on the stock register would be rebetted if the jury found the fact to be that a bona fide sale of the stock had been made, and that the defendant had performed every duty which the law imposed on her in order to secure a transfer on the registry of the bank. The correctness of this ruling is not open to controversy. Matteson v. Dent, 176 U.S. 521, 44 L. ed. 571, 23 Sup. Ct. Rep. 419; Whitney v. Butler, 118 U.S. 655, 30 L. ed. 266, 7 Sup. Ct. Rep. 47. But, it is urged, the court erroneously assumed the bona fides of the sale to have been concluded by the verdict, since the trial court mistakenly refused to instruct the jury that the sale of the stock, though in every other respect lawful, could not be so treated by the jury if, as a matter of fact, it was found that at the time of the sale, to the knowledge of the defendant, the reserve of the bank was below the limit fixed by law. Rev. Stat. 5191, U.S.C.omp. Stat. 1901, p. 3486. To sustain this contention it is argued that, by operation of law, when the reserve of a national bank falls below the maximum provided in the statute, every transfer of stock made by a person having knowledge of the fact creates a legal presumption of bad faith, and, therefore, in the event of the future suspension of the bank, avoids the transaction. But the statute creates no presumption of inability to continue business as a consequence of the reduction of the reserve below the legal requirement. On the centrary, the statute expressly contemplates the continuance of business by a bank, although its reserve may have fallen below the standard, since it merely forbids the making by a bank of certain enumerated transactions during the period when the reserve is impaired. Whether the provisions just referred to are mandatory or directory, we are not called upon to determine, but certainly, in either event, they clearly refute the construction of the statute which would be necessary in order to sustain the proposition. True, the law confers authority on the Comptroller, in his discretion, to require a bank, whose reserve has fallen below the legal limit, to restore the reserve within thirty days, and moreover gives power to the Comptroller, with the approval of the Secretary of the Treasury, to appoint a receiver when a bank fails to comply, after the thirty days, with the demand made. These provisions, however, but add cogency to the view that it cannot be implied that the mere reduction of the reserve below the legal limit, as a matter of law, suspends the business of the bank, or, what would be tantamount thereto, affects with a legal presumption of bad faith all transactions made with or concerning the bank during the period while the reserve is impaired.