this preferred creditor was appropriating all the assets to the satisfaction of its own debt; and that nothing would be left for the plaintiff, and that nothing could then be collected by legal process. It was held that this bill exhibited a proper case for the appointment of a receiver, subject possibly to the appointment being superseded by the action of the Comptroller of the Currency. Where a judgment had been rendered in a State court against a national bank, and an execution had been returned nulla bona within the county where the bank was located, and the bank had ceased to discharge its functions as a fiscal agent of the United States, and was disposing of its assets among its stockholders, it was held that a State court would, on a bill filed by the judgment creditor, grant the usual injunction and appoint a receiver." § 7264. Appointment of Receiver by Comptroller of the Currency under Revised Statutes of the United States. - Until the act of 1876, quoted in the next section, this subject was governed by the following sections of the Revised Statutes of the United States: "Whenever any national banking association fails to redeem, in the lawful money of the United States, any of its circulating notes, upon demand of payment duly made during the usual hours of business, at the office of such association, or at its designated place of redemption, the holder may cause the same to be protested, in one package, by a notary public, unless the president or cashier of the association whose notes are presented for payment, or the president or cashier of the association at the place at which they are redeemable, offers to waive demand and notice of the protest, and, in pursuance of such offer, makes, signs, and delivers to the party making such demand, an admission in writing, stating the time of the demand, the amount demanded, and the fact of the non-payment thereof. The notary public, on making such protest, or upon receiving such admission, shall forthwith forward such admission or notice of protest to the 1 Wright v. Nat. Bank, 1 Flip. (U.S.) 583; 8. c. 3 Cent. L. J. 351; 1 Nat. Bank Cas. 321. • Merchants' &c. Bank v. Trustees, 63 Ga. 549; 8. c. 2 Nat. Bank Cas. 220. 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." "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 1 Act Cong. June 3, 1864, ch. 106, § 46; 13 U. S. Stat. at Large, 113; Rev. Stat. U. S., § 5226. Act. Cong. June 3, 1864, ch. 106, 47; 13 U. S. Stat. at Large, p. 114; Rev. Stat. U. S., § 5227. Act Cong. June 3, 1864, § 46; 13 U. S. Stat. at Large, p. 113; Act Cong. Feb. 18, 1875, ch. 80; 18 U. S. Stat. at Large, p. 320; Rev. Stat. U. S., § 5228. The phrase in this section, "deliver special deposits," implies the power to receive such deposits. National Bank v. Graham, 100 U. S. 699; s. c. 2 Nat. Bank Cas. 64; affirming s. c. Thomp. Nat. Bank Cas. 775. pay its circulating notes as therein mentioned, and is in default, the Comptroller of the Currency may forthwith 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." § 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 unpaid for the space of thirty days; or whenever the Comptroller 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, 50; Act Cong. June 30, 1876, ch. 156, §§ 1, 3; 19 U. S. Stat. at Large, p. 63; Rev. Stat. U. S., § 5234. Act Cong. June 30, 1876, § 1; 19 § 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 501 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. § 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." 1 Rev. Stat. U. S., § 5237. Cadle v. Baker, 20 Wall. (U. S.) 650; 8. c. 1 Nat. Bank Cas. 108; Platt v. Beebe, 57 N. Y. 339; 8. c. 1 Nat. Bank Cas. 725; affirming Platt v. Crawford, 8 Abb. Pr. (N. 8.) (N. Y.) 297; Young v. Wempe, 46 Fed. Rep. 354. 'Young v. Wempe, 46 Fed. Rep. 354. Rev. Stat. U. S., § 5234; ante, § 7264. Platt v. Beebe, 57 N. Y. 339; s. c. 1 Nat. Bank Cas. 725; Platt v. Crawford, 8 Abb. Pr. (N. s.) (N. Y.) 297. That the Comptroller's certificate is evidence of the due organization of a national bank,-see Thatcher v. West River Nat. Bank, 19 Mich. 196; s. c. 1 Nat. Bank. Cas. 622; Tapley v. Martin, 116 Mass. 275; 8. c. 1 Nat. Bank Cas. 611. Compare ante, § 219, et seq. § 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 powers. For example, it may receive and keep all money belonging 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, complain 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 commenced 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." 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. S. Stat. at Large, 99. National &c. Bank v. First Nat. Bank, 36 Conn. 325; s. c. 4 Am. Rep. 80; 14 Wall. (U. S.) 383; Kennedy v. Gibson, 8 Wall. (U. S.) 498; Green v. Walkill Nat. Bank, 7 Hun (N. Y.), 63; Turner v. First Nat. Bank, 26 Iowa, 562; National Bank v. Insurance Co., 104 U. S. 54. Bank of Bethel v. Pahquioque Bank, 14 Wall. (U. S.) 383, 386, 400, per Clifford, J. That an action may be maintained against a national bank after the appointment of a receiver of its assets by the Comptroller of the Currency, -see Green v. Walkill Nat. Bank, 7 Hun (N. Y.), 63; 8. c. 1 Nat. Bank Cas. 786. Rev. Stat. U. S., § 5220. 862 5777 |