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diction of the State courts in the cases under consideration, is impliedly conferred by the statute of 1882, already considered," limiting and restraining the jurisdiction of courts of the United States in these cases. For instance, a State court has jurisdiction of an action founded on a contract brought by a resident of the State of the forum against a national bank located in another State, provided, of course, that service of process can be procured. There is a Federal holding to the effect that

a a creditor of a national bank has no right of action against the receiver. Said the court: “The receiver has no control over the assets, except to pay their proceeds to the Treasurer of the United States, and would therefore not be liable to the plaintiff in any form of action.” The creditor's right of action was against the bank only."

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§ 7321. No Relief against the United States in Actions against the Comptroller or Receiver.— When it is consid

proper action in a State court. The sion of disastrous evils to the counfact that a State court derives its ex- try." Claflin v. Houseman, 93 U.S. istence and functions from the State 130, 137. In the particular case the laws, is no reason why it should not court held that, under the late bankafford relief; because it is subject also ruptcy law, an assignee in bankruptcy to the laws of the United States, and might sue in a State court to recover is just as much bound to recognize assets of the bankrupt, no exclusive these as operative within the State as jurisdiction having been given to the it is to recognize the State laws. The courts of the United States. two together form one system of juris- Ante, $ 7270. prudence, which constitutes the law ; Robinson 0. National Bank, 58 of the land for the State; and the How. Pr. (N. Y.) 306. This was an courts of the two jurisdictions are not action in the Supreme Court of New foreign to each other, nor to be treated York against a national bank, located by each other as such, but as courts in North Carolina. The action was of the same country, having jurisdic- commenced by attachment; and a valid tion partly different and partly con

attachment was, of course, necessary current. The disposition to regard to support the jurisdiction. But it has the laws of the United States as ema

been seen that such an attachment nating from a foreign jurisdiction is is prohibited by the language of the founded on erroneous views of the na- National Banking Act: ante, $ 7274. ture and relations of the State and 8 Chemical Nat. Bank v. Bailey, 12 Federal governments. It is often the Blatchf. (U, S.) 480; 8.c.1 Nat. Bank cause or the consequence of an unjus- Cas. 260, 262, per Wallace, J. tifiable jealousy of the United States

* Ibid. government, which has been the occa

8

ered that the United States, in their political character, are sovereign, and hence cannot be sued without their consent, and then only in the forum, and for the cause, and under the conditions expressed in that consent, it must follow that, in the winding up of an insolvent national bank, the United States cannot be drawn into the litigation in any form of pro. ceeding without its consent, — the Court of Claims being the only tribunal which is authorized to adjudicate and establish demands against the United States. It would scarcely be thought necessary to make these suggestions, if it were not for the fact that the Supreme Court of the United States found itself obliged so to hold, in a case appealed to it from the Circuit Court of the United States for the District of Louisiana. Certain creditors filed a bill against the receiver of a national bank, the Comptroller of the Currency of the United States, and two citizens of Louisiana, praying, among other things, that certain debts due to the United States from the bank be ascertained; that the United States be charged with certain sums, and required to account for them; and that a writ of injunction issue, restraining the Comptroller from making a dividend of the funds of the bank until the account be adjusted. The receiver and Comptroller appeared and answered the bill, and the receiver stated in his answer that “he submits, on behalf of the United States, to the deci. sion of the court, the claims of the United States to priority of payment over the allowed claims of the creditors of said bank that are not disputed." The only substantial relief was a decree against the United States, in favor of the creditors of the bank, for the sum of over $200,000, which decree directed that no claim of the United States should have any priority in the distribution of the funds of the bank, except as to the bonds pledged to secure its circulation. On the appeal of

. the Comptroller and receiver, this decree was reversed. The

That actions do not lie against (U. 8.) 484; The Siren, 7 Wall. (0.8.) the United States, see De Groot v. 152; The Davis, 10 Wall. (U. S.) 15; United States, 5 Wall. (U. S.) 419; Case v. Terrell, 11 Wall. (U. S.) 199; United States v. Eckford, 6 Wall. 8. C. 1 Nat. Bank Cas. 67.

court held that neither the Comptroller nor the receiver, by appearing and answering such a bill, could draw the United States into the controversy, since neither of them represented the United States for the purpose of subjecting it to the jurisdiction of the court. The receiver represented the bank, its creditors and stockholders, and did not in any sense represent the government; nor could such authority be conceded to the Comptroller of the Currency. If the government was liable and its liability was denied by its proper accounting officer, or payment refused, the Court of Claims had jurisdiction, and no other court had.'

§ 7322. What Actions Lie against the Comptroller. - An ordinary action at law, by a creditor of the bank, will not lie against the Comptroller of the Currency. It was said that if an action could be maintained against him, it would be one to enforce a proper distribution of the fund; and it was accordingly held that an action of assumpsit would not lie against him, for it was not an appropriate remedy for that purpose.

$ 7323. Effect of Receiver being Substituted as Defendant. - Where an action is brought in a State court against a national bank, and a receiver of the bank is appointed by the Comptroller of the Currency, and the receiver, on his own application, is substituted as defendant, - this does not estop him from questioning the jurisdiction of the State court."

8 7324. Payment of State Taxes. The status of taxes assessed by the State against national banks upon the property of such banks in the hands of a receiver, will depend upon considerations adverted to in another connection. If, under the taxing laws of the State, not in conflict with the constitution or any of the statute laws of the United States, the tax had become a lien upon the specific property of the

Case v. Terrell, 11 Wall. (U. S.) 199; 8. c. 1 Nat. Bank Cas. 67. : Chemical Nat. Bank v. Bailey, 8 Cadle v. Tracy, 11 Blatchf. (U.S.) 12 Blatchf. (U. S.) 480; 8. c. 1 Nat. 101; 8. c. 1 Nat. Bank Cas. 230. Bank Cas. 260.

* Ante, 92854, et seq.

bank, prior to its passing into the hands of the receiver, such lien will, it may be assumed, attend the property in the hands of the receiver, and the Comptroller of the Currency will be obliged to respect it in making distribution. But where, under the taxing laws of the State, a tax, not having been levied upon specific property of the bank at the time when it passed into the hands of the receiver, was merely a debt due to the State, it stood on the footing of any other debt, and was not entitled to priority of distribution; nor could the taxing officer of the State lawfully seize property belonging to the bank to satisfy such a tax; and where such seizure was made, it was held that the receiver was entitled to an injunction to restrain the same. The personal assets of an insolvent national bank should, in the hands of such a receiver, be exempt from taxation, to the same extent to which they were exempt in the hands of the bank before his appointment.?

§ 7325. Actions against Receiver for Taxes. - We have already had occasion to notice a scheme of taxation adopted by many of the States, under an enabling act of Congress, by which they lay taxes upon the shares of the capital stock of national banks, as distinguished from the capital itself. The only theory which justifies this mode of collection is, that the corporation is in privity with its shareholders, and is, in fact, their trustee for the protection of their rights as share. holders,' and hence, that the corporation may easily reimburse itself from its shareholders, by withholding dividends from them, or by asserting a lien against their shares. But this scheme of taxation can only be justified on the assumption that the shares have some value, out of which the corporation can recoup itself in respect of what it has disbursed in payment of the tax. Construing such a statute, it was held that

I Woodward v. Ellsworth, 4 Colo. 580; s. c. 2 Nat. Bank Cas. 216.

· Rosenblatt v. Johnston, 104 U.S. 462; 8. c. 3 Nat. Bank Cas. 32.

Ante, 99 2813, 2854, et seq., and 2913.

That this is the relation of a corporation to its shareholders, see ante, $ 2486, et seq.

6 The statute was Pub. Stat. Mass., ch. 13, 9$ 8, 9, and 10, which provided that shares of stock in all banks, State

no suit for such a tax could be maintained against the receiver of an insolvent national bank, where the property represented by the shares had disappeared; and this, for the reason that nothing was left out of which the funds in the hands of the receiver could be reimbursed, -- for which reason, the tax, if paid, would fall upon the assets of the bank, which belonged to its creditors, so that the payment of it would violate the rule that a State cannot tax the capital stock of a national bank.'

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§ 7326. Sales by Such Receivers. It will be recalled that the section of the National Bank Act which defines the powers and duties of such receivers, recites that “such receiver, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct," etc.? Where the receiver presented a petition to the United States District Court, and obtained from the court an order permitting him " to sell each and every item of personal property and real estate mentioned and described in said schedule B, attached to his petition, on such terms and in such manner as, in his judgment, may be for the best interests of the creditors, and all interested in said bank and its assets," - it was held that this gave him no power to exchange, barter, or trade the assets. Therefore, the failure of the receiver to comply with the terms of such a contract of barter or exchange, will not support an action to charge the assets of the bank in his hands. A sale by such a receiver is a judicial sale, and remains, it seems, under the superin

and national, should be taxed to the owners thereof, to be paid in the first instance by the bank itself, which, for its reimbursement, should have a lien on the shares, and all the rights of the shareholders in the bank property.

1 Boston v. Beal, 51 Fed. Rep. 306. For the rule that a State cannot tax

the capital stock of a national bank, see ante, 2857.

Rev. Stats. U. S., 85234; ante, § 7264.

8 Ellis v. Little, 27 Kan. 707 ; 8. C. 41 Am. Rep. 434; 3 Nat. Bank Oas. 440.

Ibid.

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