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." § 7312. When United States not a Preferred Creditor.It has been held that, in the winding up of a national bank 1 United States v. Knox, 111 U. S. 784, 787; 8. c. 3 Nat. Bank Cas. 128. The act of June 30, 1876, § 3, which we have already set out (ante, § 7305), provides in detail for the return by the Comptroller of any surplus after the payment of all claims, to an agent to be elected by the shareholders, who shall have power to close up the affairs of the bank and distribute such surplus. National Bank v. Mechanics' Nat. Bank, 94 U. S. 437; s. c. 1 Nat. Bank Cas. 133. • Bank of Bethel v. Pahquioque Bank, 14 Wall. (U. S.) 383; s. c. 1 Nat. Bank Cas. 77. National Bank v. Colby, 21 Wall. (U. S.) 609; s. c. 1 Nat. Bank Cas. 109; ante, § 7274, et seq. and in the distribution of its assets, the United States is not a preferred creditor, under the general act of Congress which gives the United States a first preference in the distribution of insolvent estates,' for the reason that the question is governed by a special statute, namely, the National Bank Act, and the special statute creates no such preference. Nor can the United States take to itself a preference by claiming payment of its demand out of the surplus moneys remaining in its treasury accruing from proceeds of the bonds deposited as security for the circulating notes of the bank. 7313. Fees and Expenses of the Winding up and Receivership. The National Bank Act also provides as follows: "All fees for protesting the notes issued by any national banking association shall be paid by the person procuring the protest to be made, and such association shall be liable therefor; but no part of the bonds deposited by such association shall be applied to the payment of such fees. All expenses of any preliminary or other examinations into the condition of any association shall be paid by such association. All expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof." 7314. Creditors Entitled to Interest.-The Comptroller, in making the distribution, should allow interest on the claims of creditors during the period of the administration before appropriating the surplus to the stockholders. Where a national bank held deposits, refusing to pay the same on demand, and thereafter a receiver was appointed, it was held that a depositor was entitled to interest from the date of his demand. 1 Rev. Stats. U. S., § 3466. 'Cook County Nat. Bank v. United States, 107 U. S. 445; reversing s. c. 25 Int. Rev. Rec. 266; 2 Nat. Bank Cas. 128; 9 Biss. (U. S.) 55. Ibid. 'Act of Cong. June 3, 1864, ch. 106, § 51; 13 U. S. Stats. at Large, p. 115; Rev. Stats. U. S., § 5238. Chemical Nat. Bank v. Bailey, 12 Blatchf. (U. S.) 480. 6 National Bank v. Mechanics' Nat. Bank, 94 U. S. 437; s. c. 1 Nat. Bank Cas. 133. § 7315. Redemption of Circulating Notes.-The National Bank Act provides: "Immediately upon declaring the bonds of an association forfeited for non-payment of its notes, the Comptroller shall give notice, in such manner as the Secretary of the Treasury shall, by general rules or otherwise, direct, to the holders of the circulating notes of such association, to present them for payment at the treasury of the United States; and the same shall be paid as presented in lawful money of the United States; whereupon the Comptroller may, in his discretion, cancel an amount of bonds pledged by such association equal at current market rates, not exceeding par, to the notes paid." § 7316. Enjoining Proceedings by Comptroller and Receiver. The National Bank Act provides: "Whenever an association against which proceedings have been instituted, on account of any alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section 5227, apply to the nearest Circuit, or District, or Territorial court of the United States, to enjoin further proceedings in the premises; and such court, after citing the Comptroller of the Currency to show 1 Act Cong. June 3, 1864, ch. 106, § 47; 13 U. S. Stats. at Large, p. 114; Rev. Stats. U. S., § 5229. By section 5230 it is provided that when the Comptroller becomes satisfied, under section 5226, or section 5227, of the bank's failure as there stated, he may, instead of canceling its bonds, sell the necessary amount of them at auction in New York City upon thirty days' notice to the bank; and that, for any deficiency in reimbursing the United States for redeeming its circulation, the United States has a paramount lien upon all its assets. As to this paramount lien, see Schmidt v. First Nat. Bank, 22 La. An. 314; s. c. 1 Nat. Bank Cas. 505. By section 5231 it is provided that the Comptroller may sell the bonds instead at private sale, receiving in exchange therefor, either money or the circulating notes of the bank, but not for less than par nor the market value, and that no sale, either public or private, shall be complete until the bonds are transferred according to the provisions of sections 5162, 5163, and 5164. By section 5232, the Secretary of the Treasury may regulate the disposition, after presentation, of the circulating notes presented at the Treasury for payment; and by section 5233 all such notes must be canceled upon being paid. cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented, in the lawful money of the United States, shall make an order enjoining the Comptroller, and any receiver acting under his direction, from all further proceedings on account of such alleged refusal."1 - § 7317. Actions against National Banks after Commencement of Liquidation. — An action may be maintained against a national bank after the appointment of a receiver by the Comptroller of the Currency. So, an action may be prosecuted against a national bank, although it has resolved to go into liquidation, and has provided for its circulating notes under a statute already set out. And where, after the suspension of a national bank and the appointment of a receiver, an action is brought against it in a State court, the receiver may be joined as a party defendant.* § 7318. Defenses Available to the Receiver against Actions. Where a creditor of a national bank brings an action against the bank and its receiver, upon a note upon which the bank is liable, it is not competent for the defendants to set up, by way of defense, that the note was void under the section of the National Bank Act, which provides that "no association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock, at such time actually paid in and remaining undiminished by losses. or otherwise, except on account of demands of the nature following," the demand which gave rise to the indebtedness on the note not being within any of the exceptions." 1 Act Cong. June 3, 1864, ch. 106, 50; 13 U. S. Stats. at Large, 114; Rev. Stats. U. S., § 5237. • Bank of Bethel . Pahquioque Bank, 14 Wall. (U. S.) 383, 386, 400; Green v. Walkill Nat. Bank, 7 Hun (N. Y.), 63; s. c. 1 Nat. Bank Cas. 786. Ordway v. Central Nat. Bank, 47 Turner v. First Nat. Bank, 26 § 7319. State Courts No Control over Receiver. Since, by the terms of the governing statute, the receiver is to pay over all money which had come into his hands, to the Treasurer of the United States, subject to the order of the Comptroller, and also to make report to the Comptroller of all his acts and proceedings,' and as the dividends to creditors are to be made by the Comptroller of the Currency, and not by the receiver,2-it is plain that a State court has no power to order a receiver appointed by the Comptroller of the Currency, to pay a judgment recovered against the bank before his appointment." § 7320. Jurisdiction of State Courts of Actions by and against Such Receivers.- Under the general principles of American constitutional law touching the duality of our general and State governments and the concurrency of the juris Rep. 735. The indebtedness was incurred for furniture to be used in the bank, and was evidenced by three promissory notes made by one Hussey, and indorsed by the bank before delivery, and the sale was in fact made to Hussey, and the furniture did not pass into the hands of the receiver as assets of the bank. The court below proceeded upon the doctrine that "contracts of corporations creating debts in excess of limitations fixed by their charters, are void, and such debts are not collectible by law"; citing Crampton v. Zabriskie, 101 U. S. 601; Daviess Co. v. Dickinson, 117 U. S. 657; Litchfield v. Ballou, 114 U. S. 190; 7 Am. & Eng. Corp. Cas. 378. Hanford, J., added: "Business men are presumed to know the financial condition of corporations to whom they give credit, and if one voluntarily becomes a creditor for an additional amount, after a statutory limit has been reached, his position in a court of law is no better than that of one who knowingly becomes a party to an illegal contract." It may be 1 Rev. Stats. U. S., § 5234. Ocean Nat. Bank v. Carll, 5 Hun (N. Y.), 237; 8. c. 1 Nat. Bank Cas. 792. |