The statute directed against the embezzlement, abstraction or wilful misapplication of the funds of a national bank by its officers creates three distinct offenses,1 which cannot be mingled in one count charging more than one separate and distinct offense.2 The jurisdiction of these offenses is in the circuit court of the United States.3 But persons not officers of the bank are indictable as aiders and abettors.4 The offense of abstracting the funds may be begun in one jurisdiction and completed in another so that the offender becomes indictable in the latter jurisdiction.5 These offenses require an intent to defraud,6 but the intent may be inferred from a wilful doing of an illegal act,7 and is also to be inferred from an act of embezzlement,8 the indictment for which, if good as an indictment for embezzlement, would be held sufficient. The offense of abstraction of the funds may be laid without using the technical words necessary to charge larceny,9 but if the words of the statute are used the manner of abstraction •ought to be alleged.10 This offense is so close to that of misapplication of the funds that it is difficult always to separate them. Whatever qualifying or excepting clauses there are in the statute as to either this offense or that of misapplication must be negatived in the indictment.11 The making of an injudicious loan is said not to be a criminal offense under this section of the law.12 A definition of the offense was attempted in the statement that it meant knowingly applying the funds of the bank in a manner forbidden by statute, whether the officers of the bank knew of the act or not.13 But this definition is not correct, for it is held that neither the declaration of an illegal dividend, nor a conspiracy alleged to have for its object the declaration of an illegal dividend, are offenses under this statute;14 nor is the conversion of the funds of the bank in making an illegal purchase of its own shares,15 nor in making an improvident loan to an officer,16 nor the permission to an officer to overdraw his account with knowledge on the part of the association.17 It seems that any act ratified by the association cannot be a misapplication of its funds.18 It is said to mean a misapplication of the funds to the use of some other person than the banking association.19 The result is that it is very difficult to tell what this statute means.20 If the president of a bank should unload upon it worthless loans, which the board of directors should accept, he would be guilty of an offense under this statute.21 Overdrawing with knowledge that the checks are to be fraudulently paid and concealed by the teller would be an offense.22 A cashier making loans to himself upon the notes of insolvent makers23 commits a violation of the statute. But the mere payment of checks upon overdrafts does not prove necessarily a fraudulent appropriation.24 But at any rate the dicta in United States v. Britton have been considerably modified.

Harper, 33 Fed. R 471. As to indictment, see United States v. French, 57 Fed. R 382.

1 United States v. Lee, 12 Fed. R 816.

2 United States v. Cadwallader, 59 Fed. R 677.

3 United States v. Buskey, 38 Fed. R 99. But embezzlement of the property of a depositor in a national bank is punishable by the state. State v. Tuller, 34 Conn. 280.

4 Coffin v. United States, 156 U. S. 432, 162 U. S. 664

7 Putnam v. United States, 162 U. S. 687.

6 United States v.Voorhees, 9 Fed. R 143; United States v. Britton, 108 U. S. 199.

7 United States v. Harper, 33 Fed. R 471.

8 In re Van Campen, Fed. Cas. No. 16,835; United States v. Lee, 12 Fed. R 816.

9 United States v. Northway, 120 U. S. 327.

10 United States v. Britton, 108 U S. 199; United States v. Eno, 56 Fed. R 218.

11 Both cases last cited apply in principle.

12 United States v. Harper, 33 Fed. R471.

13United States v. Taintor, 11 Blatchf. 374

14United States v. BrittoD, 108 U. S. 199.

15 United States v. Britton, supra.

16 United States v. Britton, supra. 17United States v. Warner, 26

Fed. R. 616.

18 United States v. Warner, supra.

19United States v Britton, 108 U. S. 199. There must be a withdrawal or conversion of the funds. Renewals are not a conversion. Mohrenstecker v. Westervelt, 87 Fed. R 157.

20 For matters in regard to the indictment see Claasen v. United States, 142 U. S. 140; Evans v. United States, 153 U. S. 584; Batchelor v. United States, 156 U. S. 426.

21Agnew v. United States, 165 U. S. 36.

22 United States v. Kenney, 90 Fed. R 257.

23 United States v. Youtsey, 91 Fed. R864.

Sec. 94. Other Offenses Concerning National Banks

The wrongful certifying of a check where the depositor has not sufficient funds in the bank to meet the check is an offense, but a secured overdraft may be money on deposit.1 The forgery of a promissory note foi the purpose of deceiving the bank examiner is not a forgery to defraud the United States under section 5418 of the Revised Statutes.2 For technical matters in regard to the form of an indictment for wrongfully certifying a check, the cases referred to in the note are authorities.3