Henry Billings Brown

“ The bill of complaint filed in the superior court of San Francisco by a stockholder of the California National Bank sought to charge three directors of the bank with negligence in the performance of their trust, and particularly in failing to comply with certain by-laws of the bank, by which large amounts of money were lost to the bank, which the bill prayed that the defendants might be decreed to make good and restore. ”

“ The bank was chartered under the national banking act, and the by-laws were adopted in pursuance of Revised Statutes (section 5136) , which authorizes associations incorporated under the act to define the duties of the president and other officers, and to regulate the manner in which its general business shall be conducted. ”

“ But this is not the cause of action pleaded against him, and it is well settled that, where the case made out by the findings is a different case from that presented by the pleadings, the judgment will be reversed; for the relief decreed must be the relief sought, and a variance, even if it be such as could have been cured by amendment, is fatal to the validity of the judgment." The court further held (2) that, as the defendants in error were sued jointly for a tort, a withdrawal of the action in favor of Thompson and Wilson operated also to release the defendant Thomas. ”