Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/282

 § 301.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VH. As Judge Cooley said, in Beeeher v. Marquette and Pacific Rolling Mill Co., 1 " Courts often speak of acts and contracts as void, when they mean no more than that some party con- cerned has a right to avoid them. Legislators sometimes use language with equal want of exact accuracy ; and when they say that some act or contract shall not be of any force or effect, mean perhaps no more than this : that at the option of those for whose benefit the provision was made it shall be voidable, and have no force or effect as against his interests. 2 .... If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are mi juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it." 3 § 301. Finally, as to the third qualification, the contract will not be held void and incapable of constituting the basis of an action, if to do so would frustrate the manifest intent of the statute. The National Bank- ing Act provides that " the total liabilities to any association of any person .... shall at no time exceed one-tenth of the amount of the capital stock of such association actually paid in." In view of this section the Supreme Court of the United States holds that a defendant sued by a national bank for moneys loaned him cannot plead that in making him the loan the bank violated this provision. 4 " We do not think that public policy requires, or that Congress intended that an excess of loans be} r ond the proportion specified should enable the borrower to avoid the payment of the money actually received by him. This would be to injure the interests of creditors, stockholders, and all who have an interest in the safety and prosperity of the bank." 5 Third qual ification. Excessive loans by national banks. Bridge Co. v. Poughkeepsie Silk Co., 25 Wend. 648; Tracy v. Talmage, 14 X. Y. 162, 189; Curtis v. Leavitt, 15 N. Y. 98. 1 45 Mich. 103, 108; Ace. Ricsterer v. Land & Lumber Co., 160 Mo. 141. 2 See Green v. Kemp, 13 Mass. 515. 8 Compare Johnson v. Underbill, 52 N. Y. 203; Greenpoint Sugar Co. 262 v. Whitin, 69 N. Y. 328; Paulding v. Chrome Steel Co., 94 N. Y. 334; An- derson v. Bullock County Bank, 122 Ala. 275; § 185. 4 Gold Mining Co. v. National Bank, 96 U. S. 640. 5 96 U. S. 642, followed in Dun- comb v. New York, H. and N. R. R. Co., 84 N. Y. 190. See Union Gold