The national banking law requires a return verified by the president or cashier of a national bank and attested by three directors to be made five times a year, and special reports at such other times as the comptroller of the currency may designate.1 The form is designed by the comptroller, and the date of the call is never known until the call is made. Thus two kinds of reports are provided for, both upon call. Another section of the statute makes it an offense wilfully to make a false entry in such a return.2 The entries are criminal when made with an intent to deceive or defraud persons named in the statute. This statute therefore requires two intents: the first, the intent to make a false entry with knowledge of its falsity.3 It does not cover and is not intended to cover honest mistakes. It will be seen, therefore, that if a defendant is in fact ignorant of the falsity of the entry, whether his mistake arose from ignorance of fact or of law, he has committed no offense.4 Such a question must always be submitted to the jury, and if it is not, but the court assumes to say that the entry is false, its charge is erroneous.5 If the entry in the report is thus found to be wilfully false the second question arises: Was it intended to deceive or defraud ?6 but that fact may be inferred from the wilful making of a false entry with knowledge of its falsity.7 The charge must be the intent to deceive one of the persons named in the statute; an intent to deceive the comptroller of the currency is insufficient.8 The report must be one of the reports named in the statute; a report made to a bank examiner, which it is not the duty of the officer to make, will not support an indictment.9 The persons named in the statute alone are indictable, not the directors who certify,10 although they may be indicted as aiding and abetting the act.11 The form of the report is the regular blank form. It provides for the entry of totals of the various resources of the bank and the various liabilities. Loans and discounts are under one head, overdrafts secured and unsecured under other heads. Under the various heads are provided subdivisions for the loans and discounts upon which officers of the bank are liable, and for overdrafts of officers or upon which they are liable.12 Suspended loans may be entered under the head of loans and discounts." Unmatured and contingent liabilities must be shown in the report.14 But difficult questions arise as between loans and discounts and overdrafts. Cases have arisen where overdrafts so called have been reported among the loans and discounts. This may be caused by the fact that they have been arranged for verbally, or that the customer has given a note to the bank for a certain amount secured by an in-dorser or sometimes not, wherein the parties promise to pay the overdraft with a rate of interest above the legal rate, with collection charges and attorney's fees. The two cases differ in this: The arrangement in the one case is verbal, in the other is evidenced by a writing; but both make a contract differing from an overdraft pure and simple, which does not draw interest unless a course of dealing or custom makes it draw interest. Now it seems plain that if the officer making the report honestly thought that the overdrafts had become loans he was guilty of no offense, because it was an honest mistake.15 In the first case it has been held that the overdraft remained as a matter of law an overdraft, despite the verbal arrangement.16 But in the second case the transaction is certainly a loan, although it is not a discount. It is a contrivance of the borrower to avoid paying interest on any more money than he has use for. The contract of the parties is determined by the note, and the overdraft is simply evidence of the amount due on the note. The indorser, if there be one, could only be held by virtue of the writing. But such transactions would appear on the books simply as overdrafts. The demand notes could not be entered among the bills receivable of the bank, because the amount due would vary from day to day. Yet this makes no difference, because the report ought to show the actual facts; it may agree with the books or not.17 The books ought not to be evidence against the officer as admissions, unless he kept the books or directed the form of entries in the books,18 although they would be evidence if proved to be entries in due course of business with the suppletory oath of the person who made the entries that they were correct.

2 Comm. v. Dunham, supra. Compare Graves v. United States, 165 U. S. 323.

3 See cases of false return in the next section.

4 State v. Stimson, 24 N. J. Law, 9. The phrase was " money, bank bill or note." The word "note," on the principle of noscitur a sociis, was construed bank note.

5 People v. Clements, 42 Hun, 286.

6 State v. Stimson, 24 N. J. Law,

47a

1 Sea 5211, R. S. U. S.

2 Sea 5209, R, S. U. S. On principle the two kinds of reports ought to be discriminated. If the indictment was based upon an allegation of a report made to the comptroller, proof of either one of the regular five reports, or of a report on special call, would answer. But if the indictment alleged one of the five reports, proof of a report upon special call would be a varianca Because needless particularity of averment in an indictment where matter of description must be proven as alleged. This very point was made in Bacon v. United States, 97 Fed. R.

35, but the court ignored it or refused to notice it at alii The record shows that the point was made. See United States v. Hughitt, 45 Fed. R. 47. United States v. Booker, 80 Fed. R. 376, wrongly holds that the report need not be a report mentioned in sec. 5211, R. S. Bacon v. United States, 97 Fed. R. 35, so holds also, but the statement is dictum, for it appeared that the report was a report covered by sec. 5211.

3 Graves v. United States, 165 U. S. 323; United States v. Allis, 73 Fed. R. 165; United States v. Allen, 47 Fed. R 696; United States v. Graves, 53 Fed. R 634.