Schmidt v. The First National Bank of Selma.

Budd and Grover, for plaintiffs and appellee.

E. Pearson, for defendant and appellant.

TALLAFERRO, J. The plaintiffs, being holders of two drafts or checks drawn upon the Louisiana National Bank by the First National Bank of Selma, in Alabama, and their payment being refused, brought suit in New Orleans against the Selma Bank, proceeding by attachment and process of garnishment. The Louisiana National Bank answered, through its officers, that there were funds of the Selma Bank in their custody, but that they had been notified by the government, prior to the notice served on them, of seizure by the plaintiffs, that it claimed a lien upon all the assets in their hands, belonging to the Selma Bank, and ordered that they be held subject to the claim of the United States. Cadle, who had been ap pointed receiver of the First National Bank of Selma, appeared and filed an exception to the plaintiffs proceeding, on the ground, that, at the time of the institution of the plaintiffs' suit and long prior thereto, the Selma Bank was in liquidation; that he had been duly appointed receiver thereof, and that the court before which the plaintiffs brought their action, is without jurisdiction. A curator ad hoc was appointed, who subsequently filed an exception of similar import, and these exceptions being overruled, the curator answered by general denial. A judgment was rendered in favor of the plaintiffs with privilege upon the property attached.

This judgment was signed in the lower court on the 19th of June, 1868. An execution was issued, and the receiver came in as third opponent, claiming that he was entitled to be put into possession of all the assets of the Selma Bank in controversy, in preference to any and every lien or privilege set up by Schmidt & Ziegler, averring his privilege to be established by the Currency Act of Congress, approved June 3, 1864; and that on or about the 17th of April, 1867, the First National Bank of Selma, having failed to redeem its notes as required by law, the Louisiana National Bank, the garnishee in this case, was duly notified thereof, and that the government of the United States had, and claimed a lien upon all the assets of the Selma Bank in possession of the Louisiana National Bank, and that it was ordered to hold all such funds and assets subject to the claim and lien of the United States.

To this third opposition the plaintiff opposed the plea of res judi

Schmidt v. The First National Bank of Selma.

cata, alleging that the same matter now set up in the opposition had been presented in this case by defendant before judgment rendered, and were decided by that judgment adversely to him.

A judgment was rendered on this third opposition, on the 29th of June, 1869, by the judge of the Seventh District Court of New Orleans, the case having been transferred to that court from the Third District Court. The judgment was in favor of the plaintiffs, and the defendant, on the 2d of July, 1869, took an appeal from both judgments; the appeal being devolutive as to the judgment on the 19th of June, 1868, and suspensive as to that of 2d of July, 1869. The plaintiff opposes prescription in bar of the opponent's right to appeal from the judgment rendered on the 19th of June, 1868.

This cannot avail him, the opponent not being a resident of the State, may appeal within two years. The plaintiff acquired no right as against the United States by attaching the assets of the Selma Bank, or the Louisiana National Bank, of New Orleans.

It is expressly provided by the act of Congress, approved the 3d of June, 1864, entitled "An act to provide a National currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof," in regard to the associations for banking purposes authorized by that act, "that for any deficiency in the proceeds of the bonds pledged by such association when disposed of as hereinafter specified, to reimburse to the United States the amount so expended in paying the circulating notes of such association, the United States shall have a first and permanent lien upon all the assets of the association, and such deficiency shall be made good out of such assets in preference to any and all other claims whatever, except the necessary costs and expenses of administering the same."* This law enacted in the public policy of the country by the Congress of the United States none can be presumed to be ignorant of. It is shown that previous to notice to the Louisiana National Bank of the plaintiff's seizure in its hands of the assets of the Selma Bank, the Louisiana National Bank had been notified of the lien claimed by the government upon these assets, and ordered to hold the same subject to the claim of the United States.

The right of the receiver of the Selma Bank to the possession

*This language is substantially repeated in Rev. Stats., § 5230.

State v. Gasting.

and control of the assets in question, we think fully made out, and conclude that the judgment of the lower court is erroneous. It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant and opponent, and that he, in his capacity of receiver of the First National Bank of Selma, have and be put into possession and control of all the assets of the Selma Bank in the Louisiana National Bank of New Orleans, and which constitute the subject-matter of this controversy. It is further ordered that the plaintiffs and appellees pay all costs of this suit.

STATE V. GASTING.

(23 Louisiana Annual, 1609.)

National bank bills are" United States currency."

The notes or bills issued by the National banks of the United States, which are authorized by law to circulate throughout the Union as a medium of trade, are included in the phrase, "United States currency.'

Larceny of such notes is, therefore, larceny of United States currency.

A

PPEAL from the Eleventh Judicial District Court, parish of Union. EGAN, J.

W. W. Farmer, district attorney of the Fourteenth Judicial District, for the State.

J. and J. W. Young, for defendant and appellant.

HowE, J. The defendant was indicted for larceny of ten dollars in "United States currency," ten dollars in gold coin, and ten dollars in silver coin. He was tried, convicted, sentenced to hard labor, and has appealed.

The only question presented is raised by the defendant's bill of exceptions, and is, substantially, whether notes or bills of National banks are included properly in the phrase, "United States currency."

* See Horne v. Green, post.

State v. Gasting.

The act of Congress by which the associations known as National banks were authorized, is entitled "An act to provide a National currency, secured by a pledge of United States stocks, and to provide for the circulation and redemption thereof," and its title seems to be a correct index to its contents. The notes or bills issued are not only receivable at par, in all parts of the United States, in payment of taxes, excises, public lands and all other dues to the United States (except for duties on imports), but also they are a legal tender for all salaries and other debts and demands owing by the United States to individuals, corporations and associations within the United States (except interest on the public debt). Laws of 1863, p. 670, § 20.

They are prepared by the officers of the treasury and bear their engraved signatures and seal. The words "National currency are emblazoned conspicuously upon them, being derived, evidently, from the title of the act. They circulate in all parts of the Union, being everywhere received at par as a medium of trade, without regard to the local domicile of the associations, respectively.

Currency may be properly defined as something which circulates as a medium of trade. It conveys at the present time the idea of paper money, of some sort. National currency is that which is issued under the sanction of a nation. The nation which authorizes the issue of what we term National bank notes is the United States. Considering, therefore, the title and terms of the act of February 25, 1863, above cited, in connection with these familiar definitions, we think it fair to decide that the phrase "United States currency" includes the "National currency" authorized by the United States-declared to be for many important purposes a lawful tender-and designed to circulate as a medium of trade in all parts of our country.

Judgment affirmed.

Adams v. Daunis.

ADAMS V. DAUNIS.

(29 Louisiana Annual, 315.)

Actions against National banks and receivers of National banks,

National banks, like any other corporations, and the receivers of them may sue and be sued in the State courts of their domicile.

The receiver of a National bank is amenable to the jurisdiction of a State court in a parish other than that in which the bank was located and in which he has his domicile.*

A'

PPEAL from the Fifteenth Judicial District Court, parish of Lafourche, BEATTIE, J.

Clay Knobloch, for plaintiffs and appellees.

J. D. Rouse and Andrew J. Murphy, for N. W. Casey, receiver.

MARR, J. On the 24th of February, 1860, Tucker Brothers executed a mortgage, which was recorded on the same day, on a plantation in the parish of Lafourche, in favor of Robert Tucker or any future holder, to secure four promissory notes for five thousand dollars each, of which two only seem to have been used.

The Bank of New Orleans held one of these notes, and Godfrey Barnsley held the other. The bank obtained judgment against Tucker Brothers on the note held by it, with recognition of the mortgage, which was recorded as a judicial mortgage on the 28th of June, 1867. Barnsley brought suit on the note held by him, which was not prosecuted to judgment; and it seems to have been discontinued.

Execution issued on the judgment in favor of the bank, under which the sheriff seized the mortgaged property, and sold it on the 7th of September, 1867, to A. W. Cummings, for cash.

The first mortgage in date bore on part only of the property, and was in favor of Gaubert and Richard, who had obtained judgment against Tucker Brothers for the amount due them, which was recorded as a judicial mortgage on the 14th of July, 1866; and

* See Kennedy v. Gibson, ante, p. 17; Bank of Bethel v. Pahquioque Bank; Cadle v. Tracy, ante, p. 230; Commercial Bank v. Simmons, ante, p. 294; Cook v. State National Bank, post; Crocker v. Marine National Bank, post.