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Comptroller of the Currency, retaining a copy thereof.

If, however, satisfactory proof is produced to the notary public that the payment of the notes demanded is restrained by order of any court of competent jurisdiction, he shall not protest the same. When the holder of any notes causes more than one note or package to be protested on the same day, he shall not receive pay for more than one protest.”! “On receiving notice that any national banking association has failed to redeem any of its circulating notes, as specified in the preceding section, the Comptroller of the Currency, with the concurrence of the Secretary of the Treasury, may appoint a special agent, of whose appointment immediate notice shall be given to such association, who shall immediately proceed, to ascertain whether it has refused to pay its circulating notes in the lawful money of the United States, when demanded, and shall report to the Comptroller the fact so ascertained. If, from such protest, and the report so made, the Comptroller is satisfied that such association has refused to pay its circulating notes, and is in default, he shall, within thirty days after he has received notice of such failure, declare the bonds deposited by such association forfeited to the United States, and they shall thereupon be so forfeited."2 “After a default on the part of an association to pay any of its circulating notes has been ascertained by the Comptroller, and notice (of forfeiture of the bonds] (thereof] has been given by him to the association, it shall not be lawful for the association suffering the same, to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep money belonging to it, and to deliver special deposits.”: “On becoming satisfied, as specified in sections 5226 and 5227, that any association has refused to

· Act Cong. June 3, 1864, ch. 106, Cong. Feb. 18, 1875, ch. 80; 18 U. S. § 46; 13 U. S. Stat. at Large, 113; Stat. at Large, p. 320; Rev. Stat. Rev. Stat. U. S., 85226.

U.S., 85228. The phrase in this sec; Act. Cong. June 3, 1861, ch. 106, tion, deliver special deposits," implies $ 47; 13 U. S. Stat. at Large, p. 114; the power to receive such deposits. Rev. Stat. U. S., 85227.

National Bank v. Graham, 100 U. 8. • Act Cong. June 3, 1864, $ 46; 13 699; 8. c. 2 Nat. Bank Cas. 64; affirmU. S. Stat. at Large, p. 113; Act ing 8. c. Thomp. Nat. Bank Cas. 775.

pay its circulating notes as therein mentioned, and is in default, the Comptroller of the Currency may forth with appoint a receiver, and require of him such bond and security as he deems proper.

Such receiver, under the direction of the Comptroller, shall take possession of the books, records, and assets, of every description, of such association, collect all debts, dues, and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders. Such receiver shall pay over all money so made to the Treasurer of the United States, subject to the order of the Comptroller, and also make report to the Comptroller of all his acts and proceedings."1

§ 7265. Circumstances under Which Comptroller may Appoint Receiver under Act of 1876.—This is now determined by the first section of the act of Congress of June 30, 1876, which is as follows: “That whenever any national banking association shall be dissolved, and its rights, privileges, and franchises declared forfeited, as prescribed in section 5239 of the Revised Statutes of the United States; or whenever any creditor of any national banking association shall have obtained a judgment against it in any court of record, and made application, accompanied by a certificate from the clerk of the court, stating that such judgment has been rendered and has remained un paid for the space of thirty days; or whenever the Comptrol

; . ler shall become satisfied of the insolvency of a national banking association;- he may, after due examination of its affairs, in either case, appoint a receiver, who shall proceed to close up such association, and enforce the personal liability of the shareholders, as provided in section 5234 of said statutes."?

1 Act Cong. June 3, 1864, ch. 106, • Act Cong. June 30, 1876, 91; 19 $50; Act Cong. June 30, 1876, ch. U. S. Stat. at Large, 63; 1 Supp. to 156, 98 1,3; 19 U. S. Stat. at Large, Rev. Stat. U. 8. (2d ed.), p. 107. p. 63; Rev. Stat. U. S., 85234.

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8 7266. Action of Comptroller in Appointing Receiver Conclusive upon Debtors. The debtors of a national bank, when sued by its receiver, appointed by the Comptroller of the Currency, cannot require the receiver to allege and prove the propriety of his appointment. “It is sufficient, for the purposes of such a suit, that he has been appointed and is receiver in fact. As to debtors, the action of the Comptroller in making the appointment is conclusive, until set aside on the application of the bank. The bank may move in that behalf, but the debtor cannot. Section 50% makes express provision for a contest by the bank.” Another statute authorizes the Deputy Comptroller of the Currency to act in the place of the Comptroller in certain contingencies stated; and therefore, it seems that where a deputy has acted in making an appointment, or in ordering an assessment against shareholders, his action is equally conclusive with that of the Comptroller.”

8 7267. Evidence of his Appointment.-In any action by the receiver, where the validity of his appointment is challenged, the certificate of his appointment made by the Comptroller of the Currency is legal evidence of the fact that he was duly appointed. The receiver is not required to prove the facts upon which the Comptroller based his action; because the statute,“ in requiring the Comptroller to make the appointment on becoming satisfied,” etc., of the facts upon which the preceding sections authorize him to make the appointment, was drawn with the evident purpose of excluding the idea that he was required to be satisfied by legal evidence.

* Rev. Stat. U. S., 85237.

» Platt v. Beebe, 57 N. Y. 339; 8. C.

u. • Cadle v. Baker, 20 Wall. (U. S.) 1 Nat. Bank Cas. 725; Platt v. Craw650; 8. c. 1 Nat. Bank Cas. 108; Platt ford, 8 Abb. Pr. (n. 8.) (N. Y.) 297. v. Beebe, 57 N.Y. 339; 8. c. 1 Nat. That the Comptroller's certificate is Bank Cas. 725; affirming Platt v. evidence of the due organization of a Crawford, 8 Abb. Pr. (N. 8.) (N. Y.) national bank,- see Thatcher v. West 297; Young v. Wempe, 46 Fed. Rep. River Nat. Bank, 19 Mich. 196; 8. C. 354.

1 Nat. Bank. Cas. 622; Tapley v. MarYoung o. Wempe, 46 Fed. Rep. 354. tin, 116 Mass. 275; 8. c. 1 Nat. Bank • Rev. Stat. U. 8., & 5234; ante, Cas. 611. Compare ante, $ 219, et seg. $ 7264.

8 7268. Effect of Appointment on Rights of Action by and against Bank.- There is nothing in the National Banking Act' which goes to show that, upon the appointment of a receiver for any of the reasons named therein, the corporation is thereby dissolved. On the contrary, it may be concluded that its corporate existence remains unimpaired, although unable to continue the exercise of its banking po wers. For example, it may receive and keep all money be longing to it, and also re-deliver special deposits. Moreover, the fiftieth section of the act contains an express recognition of the right of creditors to have their claims adjudicated by a court of competent jurisdiction. Accordingly, the law is stated by the Supreme Court of the United States as follows: “The association may sue and be sued, com. plain and defend, in all cases where it may be necessary that the corporate name of the association shall be used for that purpose in closing its business and winding up its affairs under the provisions of the act which authorized its formation. Suits and proceedings under the act, in which the United States or their officers or agents are parties, whether coinmenced before or after the appointment of a receiver, are to be conducted by the District Attorney under the direction of the Solicitor of the Treasury; and no doubt is entertained that the directors, from the time a receiver is appointed, cease to have any power in respect to such matters, and that the control and supervision of the same are vested in the proper officers of the United States."3 So, a national bank which goes into voluntary liquidation under the provisions of the statute,' is not thereby dissolved as a corporation, but

113 U. 8. Stat. at Large, 99.

Bank of Bethel o. Pahquioque • National &c. Bank o. First Nat. Bank, 14 Wall. (U. 8.) 383, 386, 400, Bank, 36 Conn. 325; 8. c. 4 Am. Rep. per Clifford, J. That an action may $0; 14 Wall. (U. S.) 383; Kennedy v. be maintained against a national Gibson, 8 Wall. (U. S.) 498; Green v. bank after the appointment of a reWalkill Nat. Bank, 7 Hun (N. Y.), 63; ceiver of its assets by the Comptroller Turner . First Nat. Bank, 26 Iowa, of the Currency, - see Green v. Wal562; National Bank v. Insurance Co., kill Nat. Bank, 7 Hun (N. Y.), 63; ICA U. S. 64.

8. c. 1 Nat. Bank Cas. 786. • Rev. Stat. U. S., 5220.

may sue and be sued by its corporate name, for the purpose of winding up its business."

8 7269. Effect of Judgments against National Banks in the Hands of Receivers. - If judgment is rendered against a national bank in the hands of a receiver, execution cannot issue upon the judgment; but, under the operation of the statute, it is to be paid by the Comptroller from the assets in his hands, ratably with other claims. For this purpose the judgment should be certified by the receiver to the Comptroller. Where a judgment is rendered against a receiver of a national bank in a Circuit Court of the United States, upon a demand against the bank, “it requires neither argument nor authorities to show" that it is competent for the court to make an order upon the Comptroller of the Currency to provide for its payment.

§ 7270. Right of Action of Receiver in Federal Courts. The appointment of a receiver of a national bank, made by the Comptroller of the Currency as provided by the National Bank Act, is presumed to be made with the concurrence or approval of the Secretary of the Treasury, and is, therefore, in theory, made by the head of a department, within the meaning of section 2 of urticle II. of the constitution of the United States. Such a receiver is therefore an agent or officer of the United States, and an action brought by him in his representative capacity is an action at common law, brought by an officer of the United States, under the authority of an

* Ibid.

| National Bank v. Insurance Co., and that Frank F. Case, receiver, do 104 U. S. 54.

recognize the said Citizens' Bank of * Rev. Stat. U. S., 85236.

Louisiana as creditor; .... and • Eastern Township Bank v. Ver- that he do pay the same, or certify mont Nat. Bank, 22 Fed. Rep. 186, 189. the same to the Comptroller, to be

paid in due course of administration • Case v. Bank, 100 U. S. 446, 456.

and that the Citizens' Bank of The judgment ran as follows: “That Louisiana do receive, before further the Citizens' Bank of Louisiana do payment to creditors, its due proporhave and recover of the Crescent City tion of dividends, pro rata with those National Bank, Frank F. Case, re- already paid to the creditors of the ceiver, $4,000 and interest, etc.; . Crescent City National Bank."

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