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§ 7273. Further of This Statute. - In determining the question of priorities among creditors, the receiver should proceed upon the principle that, after a vote of the directors to close the bank and go into liquidation, any transfer of the assets of the bank to a creditor, whereby he secures a prefer. ence, is presumed to be fraudulent. The receiver must also proceed upon the principle that preferences given by national banks to particular creditors are presumed to be fraudulent, when, at the time of giving the preference, the officers of the bank knew that it was insolvent; and that, where property is transferred by such a bank to a creditor, to avoid paying the amount due him, and thus postpone the failure of the bank, it is none the less fraudulent and void. The stat. ute above quoted does not extend so far as to exclude the right of a bank, which is a customer of a national bank, to assert its banker's lien upon funds collected for the national bank. When, therefore, a bank, holding paper deposited by a national bank for collection, accepted a draft drawn on the national bank, and the national bank thereafter failed and went into the hands of a receiver, - it was held that the accepting bank might retain, for its own reimbursement, the proceeds of such paper of the national bank, although the moneys may have been collected subsequently to the failure of the national bank. By accepting the draft drawn on the national bank, the collecting bank made itself the principal debtor in respect of that draft, and this gave it a lien upon the funds and securities in its hands belonging to the payee of the draft, which lien ran from the date of the acceptauce.'

· National Security Bank v. Price, 22 Fed. Rep. 697; Case v. Citizens' Bank, 2 Woods (U. S.), 23; 8. c. affirmed, 100 U. S. 446; 2 Nat. Bank Cas. 47; Re Silverman, 4 Nat. Bank. Reg. 523; 8. c. 1 Sawy. (U. S.) 410; Sawyer v. Turpin, 2 Lowell (U. S.), 29, 33. For a transier which was held not to be made after a commis

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§ 7274. Statuto Prohibits Attachments after Insolvency. Under this section it has been adjudged that a creditor cannot acquire a lien upon the property of a national bank, after it has become insolvent, by an attachment of its property, although no receiver of the bank has been appointed; and that such an attachment should be vacated upon the application of a receiver subsequently appointed, because it would be subversive of the policy of the statute to permit the attaching creditor thus to obtain a preference over other creditors."

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§ 7275. Further of Attachments against National Banks. The National Banking Act, after providing for suits against national banking associations in the courts of the State and of the United States, contained a further provision that "no attachment, injunction, or execution shall be issued against any such association or its property, before final judgment in any such suit, action, or proceeding, in any State, county, or municipal court.”? This proviso was held to relate only to actions against such banks commenced in the venue where the national bank is situated, and not to attachments against such banks or their funds in other States. In other words, it did not apply to foreign attachments against such banks. This construction, which was at obvious variance with the policy of the statute, seems to have preceded an amendment of it; so that, as it wow stands in the Revised Statutes, the word "such" before "attachment” is omitted, and it reads as follows: “No attachment, injunction, or execution shall be is. sued against such association or its property, before final

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' National Bank v. Colby, 21 Wall. (U. S.) 609; 8. C. 1 Nat. Bank Cas. 109; Harvey v. Allen, 16 Blatchf. (U. S.) 29; 8. c. 2 Nat. Bank Cas. 439. Funds held by national bank as depositary of bankruptcy court not subject to garnishment, because in custodia legis: Havens v. National City Bank, 8 Thomp. & C. (N. Y.) 346; 8. C. 1 Nat. Bank Cas. 783.

: Act. Cong. June 3, 1864, ch. 106, $ 57; as amended by Act of 1873, 3d sess., ch. 269, 92.

8 Southwick v. First Nat. Bank, 9 Hun (N. Y.), 96; 8. c. 1 Nat. Bank Cas. 789; Robinson v. National Bank, 81 N. Y. 385; 8. C. 58 How. Pr. (N. Y.) 306; 37 Am. Rep. 508; 2 Nat. Bank Cas. 309; Bowen v. First Nat. Bauk, 2 Nat. Bank Cas. 316, n.

judgment in any suit, action, or proceeding in any State, county, or municipal court."1 Subsequently to the introduction of this change in the phraseology of the statute, it was held that an attachment will not lie before final judgnient against the property of a national bank situated in a different State from that in which the bank is located; 2 and that is now the settled meaning of the statute, irrespective of the question whether or not the bank is insolvent.

87276. Continued: Attempted Distinction in Cases where Bank not Insolvent. — The New York Court of Appeals attempted the distinction, that the language of the statute above quoted, even after this amendment, was intended to apply only in cases where the national bank was insolvent, and consequently that it did not prohibit an attachment for the purpose of seizing its funds and effectuating the remedies of a creditor in another State, where it was not insolvent, and where such seizure would not operate to the prejudice of the right of its general creditors to have its assets ratably distributed among them. But where the national bank was insolvent, the court held that an attachment could not be issued by a

· Rev. Stat. U. S., 85242.

9 Rhoner v. First Nat. Bank, 14 Hun (N. Y.), 126; 8. c. 2 Nat. Bank Cap. 331. To the same effect is Сentral Nat. Bank v. Richland Nat. Bank, 52 How. Pr. (N. Y.) 136; 8. C. 1 Nat. Bank Cas. 801.

• Pacific Nat. Bank v. Mixter, 124 U. S. 721 ; 8. C. sub nom, Butler v. Coleman, 3 Nat. Bank Cas. 291, dicta of the court per Waite, C. J.; Safford v. First Nat. Bank, 61 Vt. 373; 8. C. 17 Atl. Rep. 748; First Nat. Bank v. La Due, 39 Minn. 415; 8. C. 40 N. W. Rep. 367. See also Bank of Montreal v. Fidelity Nat. Bank, 1 N. Y. Supp. 852. On the ground that such an attachment was merely void, the Supreme Court of Minnesota refused to enjoin, at the suit of a national bank, a party within its jurisdiction, from attaching its funds in the State of New York. First Nat. Bank v. La

Due, 39 Minn, 415; 8. C. 40 N. W. Rep. 367.

• Robinson v. National Bank, 81 N. Y. 385; 8. c. 58 How. Pr. (N. Y.) 306; 37 Am. Rep. 508; 2 Nat. Bank Cas. 309; Raynor v. Pacific Nat. Bank, 93 N. Y. 371; 8. c. 3 Nat. Bank Cas. 624. See also Peop'e's Bank v. Mechanics' Nat. Bank, 62 How. Pr. (N. Y.) 422; 8. C. 3 Nat. Bank Cas. 670; Market Nat. Bank v. Pacific Bank, 2 Civ. Proc. Rep. (N. V.) 330 ; 8. C. 30 Hun (N. Y.), 50; 3 Nat. Bank Cas. 672. Under this rule, it was held that the receiver of a national bank, situated in another State, might move to vacate such an attachment, although he was not a party to the suit, and that the attachment must be yacated on proof of the insolvency of the bank. People's Bank v. Mechanics' Nat. Bank, 62 How. Pr. (N. Y.) 422; 8. c. 3 Nat. Bank Cas. 670.

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State court.' Pursuing this line of thought, the same court held that where a national bank had committed an act of insolvency, 80 that the attachment was prohibited at the time when it was levied, it was not restored to validity by the subsequent acquisition by the bank of further capital, especially where the resuscitation was of short duration; and, although the bank, after the issuing of the attachment, had paid a large amount of its debts in full, this did not estop it from questioning the validity of the attachment.”

§ 7277. This Distinction Repudiated. — Subsequently the Supreme Court of the United States, in considering the question whether the statute operated to prohibit suits by attachment against national banks in the courts of the United States, expressed its opinion that the statute “stands now, as it did originally, as the paramount law of the land, that attachment shall not issue from State courts against national banks, and writes into all State attachment laws an exception in favor of national banks." And the court repudiated the doctrine of the Court of Appeals of New York, in the following language: "Although the provision was evidently made to secure equality among the general creditors in the division of the proceeds of the property of an insolvent bank, its operation

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1 National Shoe &c. Bank v. Me- business until May 22, 1882, when it chanics' &c. Bank, 89 N. Y. 467; 8. C. was placed in the hands of a receiver; 3 Nat. Bank Cas, 601.

and an attachment was issued against Raynor v. Pacific Nat. Bank, 93 it in another State on November 19, N. Y. 371; 8. C. 3 Nat. Bank Cas. 624. 1881, the day after it first closed its The court, however, conceded - what doors; and it appeared that, at that was too obvious for doubt that the time, its assets would have paid its above provision of the National Bank debts and liabilities, exclusive of its Act was not repealed by the act of capital, but that it had refused to pay Congress of July 12, 1882 (ante, 97270), various legal obligations then due; providing that the jurisdiction of suits it was held that it had committed thereafter brought against national "acts of insolvency,” within the prebanks shall be the same as for suits vious portion of this section of the against State banks, and repealing Revised Statutes (post, $ 7281), and laws inconsistent therewith. Ibid. that the attachment should be vaWhere a national bank closed its cated. Market Nat. Bank v. Pacific doors on November 18, 1881; was put Nat. Bank, 2 Civ. Proc. Rep. (N. Y.) in charge of the government bank ex- 330; 8. C. 30 Hun (N. Y.), 50; 3 Nat. aminer and thus continued until Bank Cas. 672. March 14, 1882, when the Comptrol- & Butler v. Coleman, 124 U. S. ler of the Currency allowed it to re- 721, 726; 8. C. 3 Nat. Bank Cas. 291, sume; and it thereafter transacted 296.

is by no means confined to cases of actual or contemplated insol. vency. The remedy is taken away altogether, and cannot be used under any circumstances." I

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§ 7278. Further of Such Attachments. — In like manner, no court of the United States can issue an attachment against an insolvent national bank; and therefore a bond given to release property from such an attachment is void. It fol. lowed that, where the assets of a national bank had been illegally seized under a writ of attachment issuing out of a court of the United States, and a bond had been given, with sureties, for the purpose of dissolving the attachment, and the sureties had received into their possession assets of the bank to indemnify them against loss, and the bank had passed into the hands of a receiver appointed by the Comptroller of the Cur. rency, a bill in equity might be maintained by the receiver to discharge the sureties, and to compel them to transfer their collateral to him. It did not need the aid of the statute to induce the conclusion that after a receiver has been appointed, a levy of an attachment upon the assets of the bank is merely void, so that a sale thereunder will pass no title to the purchaser. The constitutionality of this clause of the National Bank Act was unsuccessfully assailed in the Court of Appeals of Maryland.

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§ 7279. Actions by Receiver to Collect Debts.

The receiver may bring an ordinary action to collect a debt due the bank, without special instructions from the Comptroller of the Currency: "The language of the statute authorizing the appointment of a receiver to act under the direction of the Comptroller, means no more than that the receiver shall be subject to the direction of the Comptroller. It does not mean that he shall

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1 Butler v. Coleman, 124 U. S. 727 ; 3 Nat. Bank Cas. 297.

· Pacific Nat. Bank v. Mixter, 124 U.S. 721; 8. C. sub nom, Butler v. Coleman, 124 U. S. 721; 8. C. 3 Nat. Bank Cas. 201; reversing Price v. Coleman, 22 Fed. Rep. 694.

Ibid. • National Bank v. Colby, 21 Wall. (U. S.) 609; ante, 8 6931.

Chesapeake Bank v. First Nat. Bank, 40 Md. 269; 8. c. 17 Am. Rep. 601; 1 Nat. Bank Cas. 531.

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