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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.1

§ 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.

2 Rev. Stats. U. S., § 5234; ante, § 7264.

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

Ibid.

tendence of the court from which the receiver procured the order of sale; and, although the rights of the purchaser at such a sale are subject to the action of the court, yet it has been justly said that such action must depend upon the general principles and usages of law. But where the receiver, having made a sale, petitioned the court for an order to set it aside after it had been confirmed, and showed to the court that he had received a subsequent offer of an advance over the bid of the owner to whom it had been struck off, and a previous sale had been set aside for inadequacy of price, — it was held that the court ought not to set the sale aside.1

§ 7327. Replevin of Property in Custody of Receiver.The party claiming title to property in possession of a receiver of an insolvent national bank, which has come into the possession of such receiver, with other property of the bank, may, on the refusal of the receiver to deliver the same, maintain an action of replevin to determine his title and right of possession thereto. Such an action is not prohibited by section 5242 of the Revised Statutes of the United States, because the word "attachment," as everywhere used, implies that the title is in the person against whom the suit by attachment proceeds. But the action of replevin is exactly the reverse. It proceeds

1 Re Third Nat. Bank, 4 Fed. Rep. 775. In giving his advice to the District Judge against setting the sale aside, Mr. Circuit Judge Drummond said: "Let us see in what position this places the court. After the court has ordered a sale, and it is made, and the purchaser asks that it shall be confirmed, and the court has decided that a certain advance is not sufficient, they then bid upon the action of the court. In other words, it becomes a sort of auction in the court as to the price at which the property should sell. I do not think this is a proper way to make judicial sales; nor will it tend to make par

ties come forward with an assurance that, if they bid in good faith for property offered at a judicial sale, they will be protected in their rights; nor will it cause property to bring what it is actually worth. The very fact that people believe that a sale amounts to nothing, or that the court will, of course, set it aside, prevents property from bringing its true value; and nothing, it seems to me, can more effectually destroy the sanctity, so to speak, of a judicial sale-nothing more injuriously affects such a sale-than to allow a practice of this kind."

2 Ante, § 7271.

upon an assertion of the fact that the title is in the plaintiff in the action, and not in the defendant who holds possession of the property. Such an action is not a disturbance of the rightful custody of the receiver, because he has no rightful custody of property except such as belonged to the bank, and "no law makes him the inevitable stake-holder, pending the litigation."1

§ 7328. Effect of Appointment upon the Statute of Limitations. The appointment of a receiver does not start the running of the statute of limitations against the claim of one who holds a certificate of deposit of the bank. The reason is that a certificate of deposit, from its very nature, being payable to the order of the depositor, on its return to the bank, is not due or suable until demand made on the bank and refusal to comply with the same. Besides, there was a statute of Pennsylvania excluding insolvent corporations from the operation of the statute of limitations."

1 Corn Exch. Bank v. Blye, 101 N. Y. 303; 8. c. 3 Nat. Bank Cas. 634; affirming 8. c. 37 Hun (N. Y.), 473.

Riddle v. First Nat. Bank, 27 Fed. Rep. 503.

'See McGough v. Jamison, 107 Pa. St. 336. That the statute of limitations does not run against the holder

of a certificate of deposit until a demand has been made, see Smiley v. Fry, 100 N. Y. 262; s. c. 3 N. E. Rep. 186; Branch v. Dawson, 33 Minn. 399; s. c. 23 N. W. Rep. 552. Compare Tripp v. Curtenius, 36 Mich. 494; 8. c. 24 Am. Rep. 610.

2 Purd. Pa. Stat. 1067, pl. 24.

5830

SECTION

CHAPTER CLXXVI.

FOREIGN RECEIVERS.

7334. Receivers have no extra-territorial power.

7335. Cannot sue in a foreign juris

diction except by comity.

7336. This comity generally recognized except as against domestic citizens.

7337. This comity does not extend to the prejudice of the State's own citizens.

7338. Foreign judicial assignments
invalid as against domestic
creditors.

7339. Actions permitted when not in
derogation of domestic rights.
7340. For what purposes non-resident
receivers permitted to sue.
7341. May sue to repossess himself of
property removed into the
domestic jurisdiction.
7342. Illustrations of this principle.
7343. Real property situate in the for-
eign jurisdiction does not vest
in receiver.

SECTION

7344. Cases refusing to extend this
comity.

7345. Foreign receivers preferred in
contest with the debtor and
his privies.
7346. Foreign receiver preferred in
contest with foreign creditor.
7347. Distinction between voluntary
assignments and assignments
in invitum by operation of law.
7348. Where the receiver adopts and
carries out the contract of the
corporation.

7349. Not chargeable as garnishee or
with trustee process.
7350. Attachment in foreign jurisdic-
tion a contempt of court.
7351. Appointing a receiver of prop-
erty situated in a foreign ju-
risdiction.

7352. Auxiliary receivers appointed
as a matter of comity.
7353. Receiver cannot transfer juris-
diction to foreign court.

§ 7334. Receivers have No Extra-territorial Power. — A receiver "has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek."1

Another

1 Booth v. Clark, 17 How. (U. S.) 322, 338.

court has said that "a receiver is but an officer of the court which appoints him, and it would follow upon principle, and which is abundantly sustained by authority, that he cannot act in his official capacity outside the jurisdiction of the court by which he was appointed."'

§ 7335. Cannot Sue in a Foreign Jurisdiction except by Comity. It follows that "outside of the jurisdiction which appoints him, a receiver is not ordinarily entitled to maintain suits except by comity."

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§ 7336. This Comity Generally Recognized except as aganist Domestic Citizens.-Most of the American courts extend this comity so far as to give validity to foreign assignments and to foreign transfers of property, in invitum, in judicial proceedings, especially where the assignment or transfer takes place in another State of the American Union, when to do so will not operate to the prejudice of any rights secured by the local law to their own citizens.3

§ 7337. This Comity does not Extend to the Prejudice of the State's Own Citizens.

1 Moseby v. Burrow, 52 Tex. 396, 403. Other cases affirming this doctrine are:- Farmers' &c. Ins. Co. v. Needles, 52 Mo. 17; Tully v. Herrin, 44 Miss. 626; Catlin v. Wilcox SilverPlate Co., 123 Ind. 477; 8. c. 18 Am. St. Rep. 338; Sercomb v. Catlin, 128 Ill. 556; 8. c. 15 Am. St. Rep. 147; Hunt v. Columbian Ins. Co., 55 Me. 290; 8. c. 92 Am. Dec. 592; Chicago &c. R. Co. v. Keokuk &c. Packet Co., 108 Ill. 317; s. c. 48 Am. Rep. 557; Wilkinson v. Culver, 23 Blatchf. (U. S.) 416; Reynolds v. Stockton, 43 N. J. Eq. 211; s. c. 3 Am. St. Rep. 305; State v. Jacksonville &c. R. Co., 15 Fla. 201; Holmes v. Sherwood, 3 McCrary (U. S.), 405; Kain v. Smith, 80 N. Y. 458; 8. c. 8 Abb. N. Cas. (N. Y.) 426; Kilmer v. Hobart, 58 How. Pr. (N. Y.) 452; Moseby v. Burrow, 52 Tex. 396;

This comity does not extend

Olney v. Tanner, 21 Blatchf. (U.S.) 540; Brigham v. Luddington, 12 Blatchf. (U.S.) 237; Warren v. Union National Bank, 7 Phila. (Pa.) 156; Hope &c. Ins. Co. v. Taylor, 2 Rob. (N. Y.) 278; Willitts v. Waite, 25 N. Y. 577; Kronberg v. Elder, 18 Kan. 150, 152; Bartlett v. Wilbur, 53 Md. 485; Day v. Postal Telegraph Co., 66 Md. 354.

• Olney v. Tanner, 10 Fed. Rep. 101, 104; Humphreys v. Hopkins, 81 Cal. 551; s. c. 15 Am. St. Rep. 76; Sercomb v. Catlin, 128 Ill. 556; 8. c. 15 Am. St. Rep. 147; Hunt v. Columbian Ins. Co., 55 Me. 290; 8. c. 92 Am. Dec. 592; Hoyt v. Thompson, 5 N. Y. 320; s. c. 19 N. Y. 207.

'Mowry v. Crocker, 6 Wis. 326; Cook v. Van Horn, 81 Wis. 291; Iglehart v. Bierce, 36 Ill. 133.

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