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strued as to destroy & right of set-off existing at the time when the receiver was appointed, since that would give it a construction which would make it operate to destroy vested rights. Under any theory of the subject which the courts have adopted, the principle obtains which has been elsewhere noted,' that a debtor to the bank cannot, by purchasing claims against it subsequently to the appointment of & receiver, acquire a right of set-off as against the receiver.' One test by which to determine whether there is a right of set-off is to consider whether the claim sought to be used as an offset is of such & nature that the creditor demanding the right of set-off would be entitled to stand as a preferred creditor in respect of such claim.'

8 7301. The Same Subject Continued. Cases are found which concede this right of set-off where the debt of the depositor to the national bank did not mature until after the appointment of the receiver; but they are not in accordance with sound principle, because they operate to give the depositor a preference over other creditors of the bank, and to convert his simple deposit into something in the nature of a trust fund. Of course, a depositor who has no right of set

1 Ante, I$ 3797, 6967.

where the plaintiff, as receiver, took * To illustrate this, take a Penn- possession of the bank on September sylvania case where A. owed a national 5, 1867, and the defendant had on bank $35,000, and where B. had in deposit to his credit at that date, the bank a deposit of $44,000 at the $571.21, but the bank at that date time when the bank stopped payment held his note for $800, to become due by reason of insolvency, and where on the 5th of November, 1867,- two on the next day B. assigned his de- months after the receiver, in fact, posit to A. Here it was held that A. took possession. The depositor paid could not set off the deposit as against the amount of his deposit, and the his indebtedness to the bank, as it receiver sued for the balance, and it would operate to give a preference to was held that he could not recover, one creditor over the others in contra- as the depositor had a right to have vention of the act of Congress (Ven- his deposit set off against the note. ango Nat, Bank v. Taylor, 56 Pa. St. The court proceeded upon the view 14)— conclusion which is perfectly that such was the statute law of New plain.

York, and that there was nothing in • Welles v. Stout, 38 Fed. Rep. 807. the National Bank Act making a dif

. Among these cases is Platt o. ferent rule. See, to the same effect, Bentley, determined in one of the de- New Amsterdam Sav. Bank v. Garter, partments of the Supreme Court of 54 How. Pr. (N. Y.) 385. But the New York (11 Am. Law Reg. (N. 8.) Supreme Court of Errors of Connec171; 8. C. 1 Nat. Bank Cas. 758), ticut, proceeding upon the sound

off at the time when the bank passes into the hands of the receiver, cannot create such a right by assigning his deposit to a debtor of the bank; and this, on the principle that one cannot, by buying up claims of an insolvent person or corporation, after it has ceased to be a going concern, acquire a right of set-off, such as will give him a preference over its other creditors. A demand which the debtor of such a bank may have against it for the repayment of usurious interest which he may have paid to it, cannot be availed of by him in an action against him by its receiver, to secure a set-off.? Indeed, such a set-off is not available against the bank while it continues to be a going concern. The reason is that, the

a statute having prescribed as a penalty for the taking of usurious interest by a national bank that the person paying unlawful interest, or his legal representative, may, in any action of debt against the bank, recover back twice the amount so paid, - the remedy to recover the penalty is exclusive, and he can resort to no other mode or form of procedure to right himself.' The case refers itself to the well-known principle that where a statute creates a new right or offense and prescribes a specific remedy or punishment, such remedy or punishment is alone applicable, and to that extent the statute is exclusive."

8 7302. Continued.- Where the action of the receiver is against a stockholder to collect an assessment, or to enforce his individual liability under the National Banking Act, and the stockholder is also a creditor of the bank, he cannot use his

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view, held that, upon the insolvency v. Byrne, 43 Conn, 155; 8. C. 21 Am. of a savings bank, a depositor cannot Rep. 641. set off his deposit against the debt Venango Nat. Bank v. Taylor, 56 due from him to the bank, unless Pa. St. 14; 8. C. 1 Nat. Bank Cas. possibly, in the case where the de- 842; ante, 99 3797, 6901, 6967. posit was made for the purpose of be- · Hade v. McVay, 31 Ohio St. 231; ing applied on the indebtedness, and 8. c. 2 Nat. Bank Cas. 353. the bank officer knew the fact. And • Barnet v. National Bank, 98 U.S. this would seem clear; for, in such a case, the set-off would be executed by • Farmers' &c. Nat. Bank Dear the agreement of the parties. Osborn ing, 91 U. 8. 29.

555.

Ibid.

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credit by way of set-off,' under principles already fully discussed. In like manner, where the action is brought by the receiver against an indorser of a note maturing after his appointment, the indorser cannot set off his deposit in the bank;; and this in accordance with the best opinion on the subject of the right of set-off as against a receiver, assignee, or other representative of insolvents, under statutes providing for a ratable distribution of their property among their creditors. Thus, in New York, one cannot set off a demand due him from an insolvent bank against a liability that has become fixed since the appointment of the receiver;* for, while the receiver succeeds to the rights of the insolvent, he succeeds only to such rights as existed and were fixed at the time when he took possession. But no new or higher rights can arise against the creditors of the insolvent after his assets are impounded for ratable distribution among them. No subsequent lien can be created, or right of preference obtained, in respect of any such assets, or property, after the appointment of the receiver;' but the rights of the parties must be adjusted with reference to the condition of things which existed when the receiver took charge of the assets. If a note held by the bank was not then due, a deposit held by it cannot be availed of by the depositor as a set-off against the receiver, under principles which have been often acted upon by the courts.' In an action by a receiver against a stock. holder, the latter cannot establish a set-off upon evidence that the property was delivered by him to the bank upon an understanding that it should be applied upon his assessment

1 Hobart v. Gould, 8 Fed. Rep. 57; Sawyer 0. Hoag, 17 Wall. (U. S.) 610. ? Ante, $ 3786, et seg.

Stephens v. Schuchmann, 32 Mo. App. 333; 8. C. 3 Nat. Bank Cas. 540.

* Jordan v. National Shoe &c. Bank, 74 N. Y. 467; 8. C. 30 Am. Rep. 319.

> American Bank v. Wall, 56 Me. 167 ; Miller v. Franklin Bank, 1 Paige (N. Y.), 444; Colt v. Brown, 12 Gray (Mass.), 233.

• See Fry v. Evans, 8 Wend. (N. Y.) 530; Merritt v. Seaman, 6 N. Y. 168.

? Balch v. Wilson, 25 Minn. 299; 8. C. 33 Am. Rep. 467; ante, 99 3797, 6967.

8 United States Trust Co. Harris, 2 Bosw. (N. Y.) 75, 76; Clark v. Brockway, 3 Keyes (N. Y.), 13; Re Middle District Bank, 1 Paige (N. Y.), 585; 8. c. 19 Am. Dec. 452; Clarke v. Hawkins, 5 R. I. 219.

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if the bank should fail. The obvious reason is, that the individual liability of the stockholders of such a bank is in the nature of a statutory guaranty in favor of the creditors of the bank, which guaranty cannot be frittered away by arrangements between the bank and the stockholder.

8 7303. Waiver of Right of Set-off. – The voluntary, payment by the maker of a promissory note, with full knowledge of all the facts, operates as an abandonment or waiver of all right to set off cross-demands or independent debts; and a bill in equity disclosing such facts presents no case for equitable relief by way of an equitable set-off.”

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87304. Voluntary Liquidation of National Banks. The National Bank Act provides that “any association may go into liquidation and be closed by the vote of its shareholders owning two-thirds of its stock.”: A national bank in volun- . tary liquidation does not lose the faculty of suing and being sued in its corporate name for the purpose of closing its business; and a creditor may maintain a suit against it while so in liquidation, upon a disputed claim, although he has filed a bill, under an amendatory act already set out,' to enforce the individual liability of the stockholders. If the bank is reorganized by a majority of the stockholders under a new name, and the assets of the bank in liquidation are sold to the new

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months of the resolve to close, the bank must deposit with the United States Treasurer lawful money of the United States sufficient to redeem its outstanding circulation, which goes to the credit of the bank on redemption account. By section 5223, this de posit is not required from a bank consolidating with another. As to voluntary liquidations by other corporations, see ante, $ 6692, et seq.; with which compare ante, 99 4443 and 4538, et seg.

• Act Cong. June 30, 1876,9 2; ante, 8 7268.

6 National Bank v. Insurance Co., 104 U.S.54 ; 8. C. 3 Nat. Bank Cas. 20.

corporation, a stockholder, who receives dividends in liquida. tion, will be estopped to claim a right to share in the earnings of the new bank. The rights of stockholders cannot be affected by contracts made by the president of the bank after it has gone into voluntary liquidation under this statute;' and where the acting president had made, while the bank was in liquidation, a contract with one of its creditors, by which the bank had been released as a guarantor on certain notes, and at the same time the president had attempted so to frame the contract as to retain the liability of the stockholders of the bank, it was held that the release of the bank released the liability of the stockholders. The fact that a national bank has gone into voluntary liquidation does not prevent the prosecution of actions against it."

8 7305. When Stockholders may Elect Agent to Wind up. — The third section of the act of Congress, June 30, 1876,

. enacts: “That whenever any association shall have been or shall be placed in the hands of a receiver, as provided in section 5234 and other sections of said statutes; and when, as provided in section 5236 thereof, the Comptroller shall have paid to each and every creditor of such association, not including shareholders who are creditors of such association, whose claim or claims as such creditor shall have been proved or allowed as therein prescribed, the full amount of such claims and all expenses of the receivership, and the redemption of the circulating notes of such association shall have been provided for by depositing lawful money of the United States with the Treasurer of the United States, - the Comptroller of the Currency shall call & meeting of the shareholders of such association, by giving notice thereof for thirty days in a newspaper published in the town, city, or county where the business of such association was carried

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First Nat. Bank v. Marshall, 26 m. App. 440; 8. C. 3 Nat. Bank Cas. Ord way v. Central Nat. Bank, 47 401.

Md. 217; 8. c. 28 Am. Rep. 455; 1 • Schrader v. Manufacturers' Nat. Nat. Bank Cas. 559. Bank, 133 U. 8. 67.

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