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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 bank. ing 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."4

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$ 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

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



Rev. Stats. U. S., 8 3466.

Cook County Nat. Bank v. United
States, 107 U. S. 445; reversing 8. c. 25
Int. Rev. Rec. 266; 2 Nat. Bank Cas.
128; 9 Biss. (U. S.) 55.

• Act of Cong. June 3, 1864, ch.

106, § 51; 13 U. S. Stats. at Large, &
115; Rev. Stats. U.S., 85238.

o Chemical Nat. Bank v. Bailey, 12
Blatchf. (U. S.) 480.

6 National Bank v. Mechanics' Nat. Bank, 94 U. S. 437; 8. 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.” 1

§ 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

" Act Cong. June 3, 1864, ch. 106, $ 47; 13 U. S.Stats. at Large, p. 114; Rev. Stats. U. S., 85229. 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; 8. 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.”ı

§ 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,

a 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, Ordway v. Central Nat. Bank, 47 $50; 13 U. S. Stats. at Large, 114; Md. 217; 8. C. 28 Am. Rep. 455; 2 Rev. Stats. U. S., 85237.

Nat. Bank Cas. 559; ante, 9 7268. • Bank of Bethel 0. Pahquioque · Turner v. First Nat. Bank, 26 Bank, 14 Wall. (U. 8.) 383, 386, 400; Iowa, 562; 8. C. 1 Nat. Bank Cas. 454. Green o. Walkill Nat. Bank, 7 Hun * Rev. Stats. U. S., 85202. (N. Y.), 63; 8. C. 1 Nat. Bank Cas. • Weber v. Spokane Nat. Bank, 64 786.

Fed. Rep. 208; reversing 8. c. 50 Fed.

8 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, —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.

8 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 in- to an illegal contract." It may be curred for furniture to be used in added, by way of comment upon this, the bank, and was evidenced by three that most business men would be very promissory notes made by one Hus- glad if they could know the financial sey, and indorsed by the bank before condition of corporations, and espedelivery, and the sale was in fact cially banking corporations, to which made to Hussey, and the furniture did they give credit; and many business not pass into the hands of the receiver men would be obliged to judges who as assets of the bank. The court propound such doctrines, if they below proceeded upon the doctrine would inform them in what manner that contracts of corporations creat- they can make themselves acquainted ing debts in excess of limitations fixed with the financial condition of such by their charters, are void, and such corporations; and it is very little condebts are not collectible by law''; solation to them, when they reflect citing Crampton v. Zabriskie, 101 U. upon

the fact that their ignorance is, S. 601; Daviess Co. v. Dickinson, 117 in most cases, absolutely unavoidable, U. S. 657; Litchfield v. Ballou, 114 that the law makes it, in a sense, U. S. 190; 7 Am. & Eng. Corp. Cas. criminal. The opinion of the Circuit 378. Hanford, J., added : “Business Court of Appeals, by Gilbert, J., very men are presumed to know the finan- clearly shows the inapplicability of cial condition of corporations to whom the above decisions, which related to they give credit, and if one volunta- municipal corporations. rily becomes a creditor for an addi- i Rev. Stats. U. S., & 5234. tional amount, after a statutory limit ' Ibid., 5236. has been reached, his position in a s Ocean Nat. Bank v. Carll, 5 Hun court of law is no better than that of (N. Y.), 237; 8. C. 1 Nat. Bank Cas. one who knowingly becomes a party 792.

diction of the courts of both governments, to administer the statute law enacted by the legislature of either government, the courts of the States have jurisdiction of actions by and against national banks and their receivers, in all cases where such jurisdiction is not excluded by the governing act of Congress, in express terms or by necessary implication. This conclusion results from the principles touching such jurisdiction which were laid down in the Supreme Court of the United States in the following language, in its opinion by Mr. Justice Bradley: “ The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State, - concurrent as to place and persons, though distinct as to subject matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind of rights, and not restrained by its constitution in the exercise of such jurisdiction. Thus, a legal or equitable right acquired under State laws may be prosecuted in the State courts, and also, if the parties reside in different States, in the Federal courts. So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the State courts, competent to decide rights of the like character and class; subject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the Federal courts exclusive jurisdiction.”The juris

i Claflin v. Houseman, 93 U. 8. 130, 136; citing observations of Mr. Jugtice Field in The Moses Taylor, 4 Wall. (U. 8.) 411, 429; those of Mr. Justice Story in Martin v. Hunter, 1 Wheat. (U. S.) 304, 334; and those of Mr. Justice Swayne in Ex parte McNiel, 13 Wall. (U. S.) 236. Mr. Justice Bradley added the following judicious

observations: “This jurisdiction is sometimes exclusive by express enactment, and sometimes by implication. If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a

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