When a bank officer makes a false and fraudulent representation to a man, whereby he becomes a creditor of, or a depositor in, a worthless or insolvent bank, and the creditor relies upon that fraudulent statement, the officer must respond in damages in an action of deceit.1 But fraud may consist of a representation made either by words or by conduct. If bank officers, who control a bank, keep its doors open when it is insolvent, they thereby represent to every one who comes to the bank that it is competent to do business and a safe place to deposit money.2 This latter case is simply the former case, but the poration or its receiver need not be made a party9 unless the depositor or creditor so injured desires to hold the bank also responsible as a joint tort-feasor. Many and various may be the phases of such an action against officers of a bank, and they would all be governed by the same rule.10 The foregoing principles apply also to national banks. They are wholly independent of statutes, for they exist by force of the common law.11 The corporation or its receiver has nothing to do with this action.12

1 Seale v. Baker, 70 Tex. 283; Gid-dings v. Baker, 80 Tex. 308; Pres-cott v. Haughey 65 Fed. R. 653; Solomon v. Bates, 118 N. C. 811. Since this liability exists against the director, not as officer, but as an individual, a forfeiture of the bank charter is wholly immaterial Hargroves v. Chambers, 30 Ga. 580. Such fraudulent representations may be contained in published reports. Merchants' Nat Bank v. Thomas, 28 Wkly Law Bui. 164 It has been said that the bank itself is not liable for the directors' false statements as to the condition of the bank, where a man loaned money on the stock of the bank. Merchants' Nat. Bank v. Armstrong, 65 Fed. R 932. Whether a director would be liable would depend in such case upon whether the party had a right to rely on the statement as one to himself. The director is liable even though he resided away from the bank's location. Houston v. Thompson, 29 S. E. R 827. If the director attests a report he is liable to one who acted on it, regardless of his knowledge. Gerner v. Mosher, 78 N. W. R 384. 2 St Louis & S. F. Ry. Co. v. Johnston, 133 U. S. 566, and the cases cited therein; Craigie v. Had-ley, 99 N. Y. 131; Townsend v. Williams, 117 N. C. 330; Miller v. Howard, 95 Tenn. 407; Delano v. Case, 17 Bradw. 531; Higgins v. Hayden, 73 N. W. R 280. See under a statute, Cummings v. Spannhorst, 5 Mo. App. 21; Cummings v. Winn, 89 Mo. 51. The statute may make a failure within thirty days prima facie evidence of an intent to defraud. Am. T. & S. Bank v. Manuf. Co. 150 I1L 336. Since such a statute is simply declaratory of the common law, it is nothing but an instance of judicial density to call it a penalty, as it isrepresentation is by conduct and not by express words.3 If the officer knew, or ought to have known, or through negligence did not know, of the bank's condition he is guilty of the misrepresentation.4 However in the preceding ways, he made the representation, he will not be heard to say that he did not intend to defraud.5 A bank is not insolvent under this rule as long as it is meeting its liabilities in due course of business and there is an expectation entertained on reasonable grounds of belief by those who are familiar with its business that it will continue to meet its obligations.6 The action above some courts in their confusion have called negligence or gross negligence,7 while others have called it the violation of a trust duty which the officers owed to the depositor.8 But the slightest analysis shows that it is neither, but simply an action of deceit. To such a case, it being a tort committed by the officer against the depositor, the corcalled in Ashley v. Frame, 45 Pac. R. 927. There was a statute which was wholly useless and was a correct statement of the common-law principle, yet the court had the hardihood to declare the liability created a penalty.

3 See Rochester Printing Co. v. Loomis, 45 Hun, 93,120 N. Y. 659.

4 Delano v. Case, 17 Bradw. 531; Baxter v. Coughlan, 72 N. W. R. 797; Cassidy v. Uhlman, 50 N. Y. Supp. 318. Negligence in not knowing is the same as knowledge. Wolf v. Simmons, 23 S. R. 586. The case of Pierrat v. Young, 49 S. W. R 694, failed to notice this fact.

5 Seale v. Baker, 70 Tex. 283; Giddings v. Baker, 80 Tex. 308; Gerner v. Mosher, 78 N. W. R. 384. But the allegation must show a reliance upon the representation. Baker v. Ashe, 80 Tex. 356. And it seems the allegation must be that the depositor would have withdrawn his deposit, not that he allowed it to remain. Pierrat v. Young, 49 S. W. R. 964; Brady v. Evans, 78 Fed. R. 558.

6Minton v. Stahlman, 96 Tenn. 98. This case is unsound on another point.

7 Hodges v. Screw Co., 1 R. I. 312; Savings Bank v. Caperton, 87 Ky. 306.

8 Delano v. Case, 17 Bradw. 531, 121 III 247. It must have been an exceedingly astonishing thing for the attorneys for the plaintiff who carefully drew a declaration based upon deceit, which is an admirable precedent in its way (see 17 Bradw. 531), to find themselves allowed to recover because they sued for a breach of trust. How the court could make such an absurd error in a state where the common law and chancery jurisdictions are kept separate almost surpasses belief. All judges ought to know the remedies for breaches, of trust are equitable.