Imágenes de páginas

on, or if no newspaper is there published, in the newspaper published nearest thereto; at which meeting the shareholders shall elect an agent, voting by ballot, in person or by proxy, each share of stock entitling the holder to one vote.

And when such agent shall have received votes representing at least a majority of the stock in value and number of shares, and when any of the shareholders of the association shall have executed and filed a bond to the satisfaction of the Comptroller of the Currency, conditioned for the payment and discharge in full of any and every claim that may hereafter be proved and allowed against such association by and before a competent court, and for the faithful performance and discharge of all and singular the duties of such trust, the Comptroller and the receiver shall thereupon transfer and deliver to such agent all the undivided or uncollected or other assets and property of such association then remaining in the hands or subject to the order or control of said Comptroller and said receiver, or either of them. And for this purpose, said Comptroller and said receiver are hereby severally empowered to execute any deed, assignment, transfer, or other instrument in writing that may be necessary and proper; whereupon the said Comptroller and the said receiver shall, by virtue of this act, be discharged and released from any and all liabilities to such association, and to each and all of the creditors and shareholders thereof. And such agent is hereby authorized to sell, compromise, or compound the debts due to such association upon the order of a competent court of record, or of the United States Circuit Court for the district where the business of the association was carried on. Such agent shall hold, control, and dispose of the assets and property of any association which he may receive as hereinbefore provided, for the benefit of the shareholders of such association as they, or a majority of them in value or number of shares, may direct, distributing such assets and property among such shareholders in proportion to the shares held by each; and he may, in his own name or in the name of such association, sue and be sued, and do all other lawful acts and


things necessary to finally settle and distribute the assets and property in his hands. In selecting an agent as hereinbefore provided, administrators or executors of deceased shareholders may act and sign as the decedent might have done if living, and guardians may so act and sign for their ward or wards." It has been held that the courts of the United States have the same jurisdiction of suits by and against the "agent" of national banks, appointed under this statute, which they have of suits by and against receivers of such banks, - each being in the same sense officers of the United States, and each representing in the same relation the bank in its corporate capacity; and that this jurisdiction attaches without regard to diversity of citizenship or amount involved. If an action has been commenced by the receiver of such a bank, and, pending the action, the receiver is displaced by an “agent” under the provisions of the statute, the agent may be substituted upon motion as plaintiff of record in place of the receiver.

[ocr errors]

87306. Receiver Authorized to Purchase Property in Which Bank has Equities. — By the act of Congress of March 29, 1886,4 the receiver of national banks is authorized, subject to the approval of the Comptroller of the Currency, to purchase property in which the bank has equities. The statute confers upon the receiver the power, under the superintendency of the Comptroller, to redeem property which has been mortgaged, pledged, or otherwise assigned by the bank, whenever the redemption of such property would be to the advantage of the trust. It is not thought necessary to set out the statute in terms.

8 7307, Notice to Present Claims to Receiver. - The National Bank Act provides: "The Comptroller shall, upon appointing a receiver, cause notice to be given, by advertisement

· Act Cong. June 30, 1876, $ 3; 19 U. 8. Stats, at Large, 63; Supp. to Rev. Stats. U. S. (2d ed.), p. 107.

· McConville v. Gilmour, 36 Fed. Rep. 277.

8 Ibid.

* 24 U. 8. Stats. at Large, 8; 1 Supp. to Rev. Stats. U. 8. (2d ed.), p. 488.

in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same, and to make legal proof thereof."

8 7308. Proof of Claims by Creditors. “The claims of creditors may be proved before the Comptroller, or established by suit against the association. Creditors must seek their remedy through the Comptroller in the mode prescribed by the statute; they could not, prior to the act of 1876, proceed directly in their own names against the stockholders or debtors of the bank."?

8 7309, Dividends by Comptroller in Liquidation, - The National Bank Act also provides that: “From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money, so paid over to him by such receiver, on all such claims as may have been proved to his satisfaction, or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held.”

§ 7310. What Claims Entitled to Distribution.—This distribution by the Comptroller is to include all legal liabilities of the bank, whether such liabilities are debts, technically so called, or result from the non-feasance or malfeasance of its officers acting in its behalf, - e. g., from their embezzlement of

[ocr errors]

1 Act Cong. June 3, 1864, ch, 106, $ 50; 13 U. S. Stats. at Large, p. 114; Rev. Stats. U, S., 5235.

• Kennedy v.Gibson, 8 Wall.(U.8.) 498; 8. c. 1 Nat. Bank Cas. 17, 21.

• Act Cong. June 3, 1864, ch, 106, $ 50; 13 U, S. Stats. at Large, 114; June 30, 1876, ch. 156, $ 3; 19 U. 8. Stats. at Large, p. 63; Rev. Stats. U.8., $ 5236.

bonds committed to the bank for safe-keeping. As hereafter stated, the claims of depositors and other crèditors draw interest, because they are in equity entitled to interest before any surplus of the proceeds in the hands of the Comptroller for distribution are handed over to the stockholders. Where the claimant had brought an action to establish his claim, and, several years after the appointment of the receiver, had recovered a judgment, and, in the mean time, the receiver had paid several dividends in liquidation,-it was held that this claimant was not entitled to receive the face of his judgment, but that the receiver was right in calculating the amount due him according to the judgment, as of the date of the failure, and in paying him but sixty-five per cent upon the amount of the judgment. The reason was that the dividends to the other creditors had been calculated in that way, and that all the judgment creditor was entitled to was a share in the proceeds of the assets equal to what had been distributed to others during the pendency of his litigation. In other words, it was the duty of the Comptroller, in paying dividends upon this judgment, to take its value at the date of the appointment of the receiver as the basis of the distribution, because he had taken the value of the claims of the other creditors as of that date as the basis of the dividends which he had previously made; and if interest was to be added upon one claim after that date, before the percentage of dividends was calcu. lated, it should be upon all, otherwise the distribution would be according to different rules, and not ratable, as the law requires. Stated in another way, the dividends are to be paid on the adjudicated claim, and not upon the amount due upon the claim when adjudicated.

“ The judgment established the claim, as a claim against the bank at the time of the insolvency, and the amount due when the judg. ment was rendered. Thus, the claim was adjudicated, and the amount due at the date of the judgment ascertained; but

Turner o. First Nat. Bank, 26 Compare ante, 8 3132, et seq., and Iowa, 562; 8. C. 1 Nat. Bank Cas. 454. 87270. · Post, $ 7314.

for the Comptroller to pay the relator on the amount due him at that time, and the other creditors on the amount due them eight years before, when the insolvency occurred, would certainly not be making ratable dividends from the assets on all claims against the bank.1

§ 7311. Priorities among Creditors in Such Distribution. The claims of depositors, when proved to the satisfaction of the Comptroller under the statute quoted in the preceding section, stand on the same footing as though they had been reduced to judgment. Under this statute, claims presented by creditors may be proved before the receiver, or they may be put in suit in any court of competent jurisdiction, as a means of establishing their validity, and of determining the amount owed by the bank; but the judgment, when recovered, will not give the creditor any lien on the property of the bank, nor secure to the judgment creditor any preference over other creditors whose claims are proven before the receiver. All alike must await the action of the Comptroller, and be content with a just and legal distribution of the proceeds of the assets collected by the receiver and liquidated by the Comptroller according to the statute. After a national bank has been dissolved by the judgment of a court of competent jurisdiction, a creditor cannot, by attaching its assets, secure priority over other creditors, but his attachment must yield to the demand of a receiver subsequently appointed.

8 7312. When United States not a Preferred Creditor.It has been held that, in the winding up of a national bank

[merged small][merged small][ocr errors]
« AnteriorContinuar »