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do no act without special instructions. His very appointment makes it his duty to collect the assets and debts of the association. With regard to ordinary assets and debts, no special direction is needed; no unusual exercise of judgment is required. They are to be collected of course; that is what the receiver is appointed to do." But stockholders are not ordi. nary debtors of the bank, and the receiver cannot enforce their liability without the direction of the Comptroller.?

8 7280. In whose Name Action Brought by Receiver.The receiver may sue either in his own name or in the name of the bank to his own use. Such actions are generally and more appropriately prosecuted by the receiver in his own name.

7281. Power of Receiver to Compromise Debts. — Section 5234 of the Revised Statutes of the United States, which provides for the appointment of a receiver by the Comptroller of the Currency and defines his powers and duties, among other things, provides that he may, "upon the order of a court of record of competent jurisdiction, sell or compound all bad or doubtful debts," etc. The act does not state what shall be a court “of competent jurisdiction,” and such receivers are in the constant habit of applying to the complacent judges of the State courts for such orders, which, it is believed, have been often procured corruptly. It is perceived that the only debts

I Bank o.

Kennedy, 17 Wall. • Kennedy V. Gibson, 8 Wall. (U. 8.) 19; 8. C. 1 Nat. Bank Cas. (U. S.) 498; 8. c. 1 Nat. Bank Cas. 17. 89, 89.

Compare ante, 99 3570, 6970. ' Ibid.; Kennedy v. Gibson, 8 Wall. • Stanton v. Wilkeson, 8 Ben. (U. 8.) 498; 8. c. 1 Nat. Bank Cas. (U.S.) 357 ; 8. C. 2 Nat. Bank Cas. 162. 17. In such an action, an allegation . Ante, 9 726 ). It will be perceived that, on a day named, the Comptroller that this section is a jumble on the of the Currency appointed the plain- part of the draughtsman. In the tiff receiver of the bank, in accord- first part it states, by reference to ance with the provisions of the act of preceding sections, the circumstances Congress, and the plaintiff has taken under which the Comptroller may possession of the assets, including appoint a receiver, and then it takes the demand in suit, is a sufficient alle- up a totally different subject, the gation of appointment. Platt v. Craw- powers which the receiver shall exerford, 8 Abb. Pr. (N. 8.) (N. Y.) 297. cise, who is so appointed.

which the statute authorizes the receiver thus to compound are “bad or doubtful debts.” It was held by Mr. Circuit Judge McKennan, that the personal liability of a shareholder to be assessed to the extent of the par value of his shares, under the statute, for the benefit of creditors, is not a “bad or doubtful debt,” within the meaning of this provision; and hence that a compromise with such a shareholder under the sanction of a State court is ineffectual, for want of power in the court to direct or sanction it. The Comptroller of the Currency has no power to compound or settle claims of a national bank against its debtors, since that requires the authority of a court of competent jurisdiction, under the above statute. It has been held that a compromise of a suit made by such a receiver, with the assent of bis counsel, who was also attorney for the United States, will not be opened after a delay of seven years, no fraud being shown. A District Court of the United States is “a court of record of competent jurisdiction,” within the meaning of this statute, and may, consequently, authorize such a receiver to compromise bad or doubtful debts. After such a banking association has been dissolved by the judgment of a court of competent jurisdiction, no action can be prosecuted against it."

8 7282. Whether Receiver Succeeds to Larger Rights of Action than the Corporation Possesses. — We have already considered this question in another relation, where it is seen that there is a conflict of authority upon the question whether a receiver stands as the representative of creditors in such a sense that he may assert rights of action which the corporation itself would have been estopped by its contract or conduct from asserting. The receiver of an insolvent national bank is a statutory trustee, and it is nowhere disputed that he

6

1 Price v. Yates, 19 Alb. L. J. 295; 8. C. 2 Nat. Bank Cas, 204.

: Case v. Small, 10 Fed. Rep. 722; 1. C. 4 Woods (U. S.), 78.

• Henderson v. Meyers, 11 Phila. (Pa.) 616; 8. c. 2 Nat. Bank Cas. 759.

• Petition of Platt, 1 Ben. (U. S.) 534; 8. c. 1 Nat. Bank Cas. 181.

• National Bank v. Colby, 21 Wall. (U. S.) 609; 8. C. 1 Nat. Bank Cas. 109.

. Ante, 3562 to 3566, 6945, et seq.

may assert all the rights of action which the corporation itself might have asserted; but whether he can go further and undo contracts into which the corporation has been drawn through the fraud of its directors or managing officers, is the question now to be considered. It was held by Mr. Circuit Judge Jackson (afterwards Mr. Justice Jackson) that the receiver of an insolvent national bank can assert no rights against the subscribers to its shares which the bank itself could not have asserted.' The reason given for this conclusion is that the corporate management, while in charge of its business, represents all the interests of creditors as well as stockholders, as much as the receiver represents them after his appointment.” And if the doctrine that the assets of a corporation are a trust fund for its creditors has any substantial value, this must be the correct conception. At the same time, the following concession is made: “In a certain class of cases, a receiver may assert rights which the corporation could not. Thus, he may disaffirm illegal and fraudulent transfers of corporate property, and may recover its funds and securities which have been misapplied. The governing officers of a corporation cannot, for example, release a stockholder or a subscriber for its stock from his obligation to pay, to the prejudice of creditors. They cannot return to stockholders the capital stock of the corporation, which constitutes a trust fund for the benefit of creditors, to the injury of such creditors. They can make no fraudulent disposition of the corpo rate property for their private benefit, or for the benefit of the stockholders, leaving creditors unprovided for. These, and like transactions involving the misapplication or fraudulent disposition of corporate property, a receiver may disaffirm,

1 Winters

v. Armstrong, 37 Fed. rie, 2 Barb. (N. Y.) 294; Webster 0. Rep. 508; citing Cutting v. Damerel, Upton, 91 U. S. 65; and Pullman v. 88 N. Y. 410. So doubtful is the de- Upton, 96 U, S. 329. It should also cision in Cutting v. Damerel, that no be noted that in Cutting v. Damerel, less than five previous decisions, re- 88 N. Y. 410, the Court of Appeals of garded as authority in that State, were New York reversed the same case as “distinguished.” These were Adderly reported in 23 Hun (N. Y.), 339. o. Storm, 6 Hill (N. Y.), 624; Rosevelt · Jackson, J., in Winters v. Arm9. Brown, 11 N. Y. 148; Mann v. Cur- strong, supra.

and recover such assets for the benefit of creditors, when the corporation might not be in a position to do so." I

§ 7283. His Right of Action against the Directors. - The effect of the National Currency Act is to vest in the receiver all rights of action which the corporation itself possessed against any and all persons, however the rights may have arisen, for the benefit of whomsoever may be entitled to the avails of such actions; which rights of action may be enforced by him, by action brought either in his own name or in the name of the national bank whose receiver he is, and whose corporate existence is, in technical theory, continued for that purpose. Perhaps it is a better way of stating the same principle to say that all rights of action possessed by the bank vest in the receiver for the benefit of its creditors and stockholders, and that the franchise, possessed by the bank as a corporation, of suing as a person to enforce its rights, passes to the receiver, and may be exercised by him, either in his own name or in the name of the corporation, according to the course of the court in which the action is brought. Such a receiver may therefore bring an action in a court of the United States, where the other circumstances exist to give jurisdiction, either in his own name or in the name of the bank, to enforce against its directors, for the benefit of its creditors and stockholders, any right or claim resting on the non-performance or negligent performance of their duties, which the bank itself could have enforced;' or he may bring such an action in a State court. Whether such an action

i Winters 0. Armstrong, 37 Fed. (U. S.) 498; 8. c. 1 Nat. Bank Cas. Rep. 508, 521; citing Wood v. Dum- 17; Bank 8. Kennedy, 17 Wall, mer, 3 Mas. (U. S.) 308; Curran v. (U. S.) 19; 8. c. 1 Nat. Bank Cas. State, 15 How. (U. S.) 304; Burke v. 87; Case v. Terrell, 11 Wall. (U. S.) Smith, 16 Wall. (U. S.) 390; New 199; 8. c. 1 Nat. Bank Cas. 67; Movius Albany v. Burke, 11 Wall. (U. S.) 96; v. Lee, 30 Fed. Rep. 298; 8. C. 24 Sawyer v. Hoag, 17 Wall. (U. S.) 619, Blatchf. (U. S.) 291. - as illustrations of cases in which re- • Movius v. Lee, 30 Fed. Rep. 298; ceivers may assert rights which the 8. C. 24 Blatchf. (U. S.) 291. corporation or corporate management • Brinkerhoff v. Bostwick, 88 N. Y. could not enforce.

52. • Kennedy 0. Gibson, 8 Wall.

abates by the death of the director must, it has been held, be determined by the law of the State within which the national bank is situated and where the director died. Where the national bank was situated in Vermont and the director died in that State, it was held, under the decisions in Vermont, that the action abated by the death of the director, and could not be revived against his administrator."

8 7284. His Right of Action against Shareholders. — The receiver may bring an action against shareholders of the bank of which he is receiver, to charge them, not only in respect of what may remain unpaid upon their share subscriptions, but also in respect of their superadded individual liability imposed by the statute;' and formerly he alone could bring such actions. But the act of Congress of 1876. provides that the individual liability of shareholders of an insolvent national bank“may be enforced by any creditor of such association by bill in equity, in the nature of a creditors' bill, brought by such creditor on behalf of himself and all the other creditors.” Under the operation of this and other statutes, a mortgage made by the cashier of such a bank, who is also a stockholder therein, of all his individual property, after

.634;

1 Witters o. Foster, 26 Fed. Rep. Casey u. Galli, 94 U. S. 673; 8. c. 1 737; citing Henshaw 0. Miller, 17 Nat. Bank Cas. 142; Butler v. AspinHow. (U. S.) 212.

wall, 33 Fed. Rep. 217; Delano v. ButWitters v. Foster, supra. Analo- ler, 118 U.S. Richmond v. Irons, gous decisions in Vermont were: Bar- 121 U. S. 27; Welles v. Larrabee, 36 rett o. Copeland, 20 Vt. 244; Winhall Fed. Rep. 866; Welles v. Stout, 38 9. Sawyer, 45 Vt.. 466.

Fed. Rep. 807; Case v. Small, 4 * Rev. Stat. U.S., 85234. For ex- Woods (U. S.), 78. Case where the amples of such actions, see Witters action was brought to restrain the t. Sowles, 32 Fed. Rep. 130; 8. c. 32 prosecution, by the receiver, of such Fed. Rep. 767; 25 Fed. Rep. 168; 35 an action, and where the bill was disFed, Rep. 640; Hobart v. Johnson, missed, see Morrison v. Price, 23 8 Fed. Rep. 493; 8. C. 19 Blatchf. Fed. Rep. 217. Compare ante, 9 3549, (U.S.) 359; Irons o. Manufacturers' Nat. Bank, 17 Fed. Rep. 308; 8. C. 36 * Kennedy v. Gibson, 8 Wall. Fed. Rep. 813; Price v. Whitney, 28 (U. S.) 498; 8. C. 1 Nat. Bank Cas. Fed. Rep. 297 ; Price v. Abbott, 17 Fed. 17. Rep. 506; Kennedy v. Gibson, 8 Wall. Act Cong. June 30, 1876; 19 U. 8. (U. S.) 498; 8. c. 1 Nat. Bank Cas. 17; Stat. at Large, 63.

et seq.

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