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be pleaded in an action at law.204 It is otherwise if the claim sought to be set off was acquired after an act of insolvency, for the rights of the parties become fixed at that time.205

ATTACHMENTS, INJUNCTIONS, AND EXECUTIONS

111. No attachment, injunction, or execution may be issued against a national bank or its property, before final

judgment in any suit, action, or proceeding, in any state, county, or municipal court.

The provision against the issue of attachments, injunctions, and executions, already referred to, was not in the original bank act, but was added in 1873 as a proviso to another section, and was in the Revision placed where it now stands,206 thus indicating that it was intended as an aid to the enforcement of the principle of equality among creditors. 207 Even before its enactment, it was held that the then provisions of the act manifested a design to secure the government against its payment of the bank's circulating notes and to secure the assets of the bank for ratable distribution among the general

1059; Mercer v. Dyer, 15 Mont. 317, 39 Pac. 314. See "Banks and Banking," Dec. Dig. (Key No.) § 288; Cent. Dig. §§ 1105-1127.

204 Yardley v. Clothier, 51 Fed. 506, 2 C. C. A. 349, 17 L. R. A. 462; Adams v. Spokane Drug Co. (C. C.) 57 Fed. 888, 23 L. R. A. 334; Armstrong v. Warner, 49 Ohio St. 376, 31 N. E. 877, 17 L. R. A. 466. See "Banks and Banking," Dec. Dig. (Key No.) § 288; Cent. Dig. 88 1105-1127.

205 Davis v. Knipp, 92 Hun, 297, 36 N. Y. Supp. 705; Venango Nat. Bank v. Taylor, 56 Pa. 14; Beckham v. Shackelford, 8 Tex. Civ. App. 660, 29 S. W. 200. See "Banks and Banking," Dec. Dig. (Key No.) § 288; Cent. Dig. §§ 1105-1127.

206 Rev. St. U. S. § 5242 (U. S. Comp. St. 1901, p. 3517); ante, p. 421.

207 See Pacific Nat. Bank v. Mixter, 124 U. S. 721, 8 Sup. Ct. 718. 31 L. Ed. 567. See "Banks and Banking," Dec. Dig. (Key No.) 88 278-2802; Cent. Dig. §§ 1067-1074.

creditors, and that the property of a bank, attached at the suit of an individual creditor after the bank had become insolvent, could not be subjected to sale for the payment of his demand, against the claim for the property of a receiver subsequently appointed. 208 By virtue of the amendment it stands as the paramount law of the land that attachments shall not issue from state courts against national banks, so that all the attachment laws of the states must be read as if they contained a proviso in express terms that they are not to apply to suits against a national bank. 209 The prohibition does not in express terms refer to attachments in suits begun in the federal courts; but it has been held that by virtue of Rev. St. U. S. § 915 (U. S. Comp. St. 1901, p. 684), entitling the plaintiff in actions in the federal courts to similar remedies by attachment as those provided by the laws of the state, a federal court cannot issue a writ of attachment before final judgment against a national bank, its jurisdiction being limited by all the restrictions imposed upon the state courts.210 A national bank, whether solvent or insolvent, is within the exemption from the issue of attachment before judgment which the act affords in suits in state courts; and jurisdiction over the person or property of a national bank is not acquired by the issue of an attachment out of a state court before judgment.211 A garnishment is

208 First Nat. Bank v. Colby, 21 Wall. 609, 22 L. Ed. 687. Sce "Banks and Banking," Dec. Dig. (Key No.) §§ 278-2802; Cent. Dig. 88 1067-1074.

209 Pacific Nat. Bank v. Mixter, 124 U. S. 721, 8 Sup. Ct. 718, 31 L. Ed. 567. See "Banks and Banking," Dec. Dig. (Key No.) § 278; Cent. Dig. §§ 1067-1069.

210 Pacific Nat. Bank v. Mixter, 124 U. S. 721, 8 Sup. Ct. 718, 31 L. Ed. 567. See "Banks and Banking," Dec. Dig. (Key No.) § 278; Cent. Dig. §§ 1067-1069.

211 Van Reed v. People's Nat. Bank, 198 U. S. 554, 25 Sup. Ct. 775, 49 L. Ed. 1161.

No right to attachment against a national bank before judgment in a suit in a state court is given by Act July 12, 1882, c. 290, § 1, 22 Stat. 163 (U. S. Comp. St. 1901, p. 3458), making the jurisdiction for suits by or against national banks the same as the jurisdiction

not an attachment within this provision; but a state court has no authority to order execution against a bank in the hands of a receiver, by reason thereof, although the rights thus acquired must be recognized by the comptroller.212

The provision against the issue of injunctions, like that against attachments, is not limited to insolvent banks.218 It is meant not merely to preserve to national banks control of their general assets, but applies to an order restraining the transfer or enforcement of notes as wrongfully pledged to a bank without notice.214 It prevents the issue of any such writ in a state court.215

for suits by or against banks not organized under any law of the United States. Van Reed v. People's Nat. Bank, supra. Cf. Corn Exchange Bank of Chicago v. Blye, 101 N. Y. 303, 4 N. E. 635. See "Banks and Banking," Dec. Dig. (Key No.) § 278; Cent. Dig. § 1067-1069.

212 Earle v. Pennsylvania, Use of Commonwealth Title Ins. & Trust Co., 178 U. S. 449, 20 Sup. Ct. 915, 44 L. Ed. 1146. See "Banks and Banking," Dec. Dig. (Key No.) § 77; Cent. Dig. §§ 165–1762.

213 Pacific Nat. Bank v. Mixter, 124 U. S. 721, 8 Sup. Ct. 718, 31 L. Ed. 567; Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N. E. 865. Cf. Cogswell v. Second Nat. Bank, 76 Conn. 252, 56 Atl. 575. See "Banks and Banking," Dec. Dig. (Key No.) § 279; Cent. Dig. § 1070.

214 Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N. E. 865.

Rev. St. U. S. § 5242 (U. S. Comp. St. 1901, p. 3517), was not repealed by Act July 12, 1882, c. 290, § 4, 22 Stat. 163 (U. S. Comp. St. 1901, p. 3458), making the jurisdiction of suits against them the same as those against other banks which are or might be in the same place, nor by Act Aug. 13, 1888, c. 866, § 4, 25 Stat. 436 (U. S. Comp. St. 1901, p. 514), declaring them, for the purpose of suit, citizens of their respective states, and federal jurisdiction so far the same for them as for individuals. Freeman Mfg. Co. v. National Bank of the Republic, supra. See "Banks and Banking," Dec. Dig. (Key No.) § 279; Cent. Dig. § 1070.

215 Meyer v. First Nat. Bank of Cœur d'Alene, 10 Idaho, 175, 77 Pac. 334. See, also, Hazen v. Lyndonville Nat. Bank, 70 Vt. 543, 41 Atl. 1046, 67 Am. St. Rep. 680. See "Banks and Banking," Dec. Dig. (Key No.) § 279; Cent. Dig. § 1070.

ACTIONS BY AND AGAINST NATIONAL BANKS

112. Suits, actions, and proceedings against a national bank may be had in any district court of the United States held within the district in which the bank may be established, or in any state, county, or municipal court in the county or city in which the bank is located having jurisdiction in similar cases. The federal district courts have original jurisdiction of all cases commenced by the United States, or by direction of any officer thereof, against any national bank, and of cases for winding up the affairs of any such bank, and of all suits brought by any such bank established in the district for which the bank is held, to enjoin the comptroller of the currency, or any receiver acting under his direction, as provided by the National Bank Act. All national banks, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, are to be deemed citizens of the states in which they are respectively located.

In General

Among the powers conferred by the National Bank Act of June 3, 1864, upon national banks, is the power "to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons." 216 The question as to the proper court in which the suit is to be brought, in respect to jurisdiction, is to be determined by other provisions.217 These provisions have been changed, so far as concerns the jurisdiction

216 Rev. St. U. S. § 5136 (U. S. Comp. St. 1901, p. 3455); Act June 3, 1864, c. 106, § 8, 13 Stat. 101.

217 See Manufacturers' Nat. Bank v. Baack, Fed. Cas. No. 9,052, 8 Blatchf. 137. See "Banks and Banking,” Dec. Dig. (Key No.) § 275; Cent. Dig. §§ 1056–1066.

of the federal courts, by the recent act, which abolishes the circuit courts, and gives original jurisdictions in matters formerly appertaining to them to the district courts and which prescribes the cases, by and against national banks, in which the district courts shall have jurisdiction. To the understanding of the present law it will be necessary to set out briefly the law as it stood before the recent enactment.

Jurisdiction Under Original Act

By the act of June 3, 1864, it was declared that suits, actions, and proceedings against any association "may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established, or in any state, county or municipal court in the county or city in which said association is located having jurisdiction in similar cases: Provided, however, that all proceedings to enjoin the comptroller under this act shall be had in a circuit, district or territorial court of the United States held in the district in which such association is located." 218 The revision omitted the last provision, but this was remedied in 1875 by an amendment, which added the same provision, except the proviso, to Rev. St. § 5198.219 The Revised Statutes provided, also, that the district courts should have jurisdiction "of all suits by or against any association * within the district for which the court is held," 220 and that the circuit courts should have original jurisdiction "of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations." 221 As the law thus stood,

218 Act June 3, 1864, c. 106, § 57, 13 Stat. 116.

219 Act Feb. 18, 1875, c. 80, 18 Stat. 320 (U. S. Comp. St. 1901, p. 3493). See First Nat. Bank v. Morgan, 132 U. S. 141, 10 Sup. Ct. 37, 33 L. Ed. 282. See "Banks and Banking," Dec. Dig. (Key No.) § 275; Cent. Dig. §§ 1056–1066.

220 Rev. St. U. S. § 563, subd. 15 (U. S. Comp. St. 1901, p. 459). 221 Rev. Stat. U. S. § 629, subds. 10, 11 (U. S. Comp. St. 1901, p.

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