Chatham Nat Bank of New York v. Merchants' Nat. Bank of West Virginia. the removal of the cause into the Circuit Court of the United States, even though it may have been withheld where each of the parties to the action is shown to be a foreign corporation. Ayres v. Western Railroad Co., 48 Barb. 132. These associations have been held liable to the attachment laws of this State, although existing and transacting their business within its boundaries, because the remedy they provide for includes such associations, on account of the circumstances of their creation under the laws of another government than that of the State. Bowen v. First National Bank of Medina, 34 Howard, 408. But that does not justify the conclusion that they are foreign corporations within the ordinary signification of those terms. That, certainly, cannot properly be said to be their character; for, when they are organized and located within this State, they are as completely citizens of the State, within the signification of the act of Congress providing for the removal of causes into the Circuit Court, as though they were incorporated exclusively under its laws. The act of Congress upon this subject constitutes, under the Constitution of the United States, a portion of the laws of the State, paramount even to those enacted by its own Legislature. It exists through and extends over the State as completely and entirely as any legislation can by possibility do; and it is a portion of the positive law required to be observed and maintained by all its citizens and inhabitants. When an association for banking purposes is formed within the boundaries of the State for the purpose of being located and transacting business within its limits, it necessarily becomes an inhabitant of the State. This is clearly implied by the provision of the act requiring the certificate under which the association may be formed to state the place where its operations of discount and deposit are to be carried on, designating not only the State, territory or district, but the particular county and city, town, or village. 13 U. S. Statutes at Large, 101, § 6, subd. 2. Besides that, the names and residences of the shareholders are also required to be stated; and the general power is to be conferred upon it of suing and of being sued in any court of law and equity, as fully as natural persons; and its usual business is required to be transacted at an office or banking-house located in the place stated in its organization certificate. Id., § 3, subd. 3, also § 8. The association, when formed, has no other residence or domicile than that designated under the provisions of the act in the certificate, and that substantially and effectually renders

Chatham Nat. Bank of New York v. Merchants' Nat. Bank of West Virginia. it a corporation of the State within which it may be located, formed under that portion of its laws which, under the Constitution, have been enacted for its inhabitants by the general government. As such, it is to be presumed, under the construction given to the act of Congress providing for the removal of causes, to be created and formed by citizens of the State in which it may exist, and for that reason to be a citizen of the State within the meaning of that act. Louisville, etc., R. R. Co. v. Letson, 2 How. (U. S.) 497; Stevens v. Phoenix Ins. Co., 41 N. Y. 149, and cases referred to in the opinion.

The act of Congress of July 27, 1868, does not deprive the defendant, although itself a banking association organized under the United States Banking Laws, of its right to insist upon the removal of the cause. That act provides for the removal of actions brought against corporations organized under a law of the United States, or any of their members in a new class of cases not within the other provisions of congressional legislation on this subject. And it permits that to be done when the defendant states in the petition that a defense exists, arising under or by virtue of the Constitution or any treaty or law of the United States. From this priv ilege banking associations organized under the laws of the United States are excluded by an exception contained in the act. 15 U. S. Statutes at Large, 256, 257. But the exception by its terms extends no farther than the subject-matter of the act in which it is contained, and consequently can have no effect upon the provision made for the removal of causes in other cases by the preceding law. It simply left these associations unaffected by its provisions, and entitled to the privileges provided in this respect for suitors by other acts of Congress. And among them the right of removing the action into the Circuit Court of the United States, when the circumstances of the case appear to be such as are required to justify that proceeding.

By the act under which the application was made in this case, the petition was required to be filed at the time of entering the defendant's appearance in the action (1 U. S. Statutes at Large, 79, § 12), and that, it is claimed, was not done in this case. Other objections of a mere formal nature were relied upon by way of answer to the application. They were predicated upon defects in the copies of the papers served upon the plaintiff's attorneys; but as they did not exist in the papers themselves, on which the application was made, they were very properly disregarded upon the

Chatham Nat. Bank of New York v. Merchants' Nat. Bank of West Virginia. hearing. The more substantial objection was placed upon the circumstance that a notice of the defendant's appearance was served in the action on the 15th day of December, 1873, while the petition itself was not presented until the 7th of the following January; and upon that reason the court denied the application for the removal of the cause, holding that the appearance was entered within the meaning of the terms used in the law at the time when the notice itself was served.

But this was a mistaken view of the provision requiring the petition for the removal of the cause to be filed at the time of entering the defendant's appearance; for the mere notice of appearance was not the entering of an appearance required by the act of Congress. That by Rule 7 of this court is something more than the mere service of a notice. It contemplates an act to be performed on the filing of the notice with proof of its service. Upon that being done, the rule authorizes the defendant's appearance to be entered as of the time when the notice itself was served. The notice was simply a notice of the defendant's appearance, without an entry of it; and was no more than the notice of retainer, which, under the preceding practice, the defendant was authorized to serve in the action, which was held insufficient to constitute the entry of appearance required by the act of Congress providing for the removal of causes into the United States Circuit Court, on the ground on which the right is claimed in this action. Norton v. Hayes, 4

Denio, 245.

No other act appeared to have been performed on the part of the defendant, before the filing of the petition, from which it could be claimed that an appearance of the defendant had been entered, while the petition contained the statement that it then entered its appearance, and had not done so before; and the order requiring the plaintiff to show cause why the application should not be granted recited the fact that the defendant, on the day of its date, had entered its appearance, and at the same time filed its petition for the removal of the cause, and offered the security required by the act, by a bond then filed; and as there was no contradiction of this statement, it should be accepted as true, as long as the mere service of the notice was not the entry of an appearance. Porter v. Bronson, 20 How. 292; Rugg v. Spencer, 59 Barb. 388.

No appearance appeared by the papers to have been previously entered, and this statement, as well as the other to the same effect

Security Bank of New York v. National Bank of the Commonwealth.

contained in the petition, sufficiently showed its entry at the time when the order was made, to constitute a performance of what the act of Congress required to be done in that respect.

But if it did not, procuring the order and making the motion were equivalent to the entry of an appearance, within the technical meaning of those terms, for by such acts the defendant of necessity appears in court. They could not be performed without an appearance in court, as well as an appearance in the action. This was substantially held in the case of Ayres v. Western R. R. Co., 48 Barb. 132, where obtaining an order extending the time to answer was considered to be the entry of an appearance, and for that reason sufficient to justify the denial of a motion afterward made for the removal of the cause. See, also, Cooley v. Lawrence, 12 How. 176.

The provisions of the act of Congress were complied with in all other particulars, and an order should, therefore, have been directed for the removal of the cause. The order appealed from should be reversed, with costs, and an order entered directing the removal of the cause into the Circuit Court of the United States. DAVIS, P. J., concurred.

SECURITY BANK OF NEW YORK V. NATIONAL BANK OF THE COMMONWEALTH.

National bank

(4 Thompson & Cook, 518.)

· Action against, after appointment of receiver

An action may be brought against a National bank notwithstanding a receiver of it has been appointed.*

A

PPEAL from an order at Special Term denying a motion to open a judgment against defendant entered by default. The action was brought by the Security Bank of the city of New York against The National Bank of the Commonwealth, to recover for a loan. A judgment was entered by default, and this motion was made upon the application of the receiver of the defendant, appointed under the National Currency Act to open the same.

* See Green v. Walkill National Bank, post, p 786.

Security Bank of New York v. National Bank of the Commonwealth.

H. Edwin Tremain, for appellant.

Arnoux, Ritch & Woodford, for respondent.

DANIELS, J. A receiver was appointed, under the National Currency Act (13 U. S. Stat. at Large, 115), of the books, assets and records of the defendant, as an insolvent National banking association, in September, 1873, and he entered upon the discharge of his duties in that capacity. After that, and on the 4th of March, 1874, the summons in this action was served upon George Ellis, the defendant's president. And he, to use his own language concerning his singular and extraordinary conduct following the service, supposing that his connection with the bank ceased by the appointment of the receiver, "took no notice of any papers that were served upon him, as an officer thereof, and did not do so in regard to the summons herein, nor did he inform said receiver of said service." This is the sworn statement of the defendant's president. And it so completely describes his utter want of moral, as well as official sense of accountability, as to dispense with all further attempts at characterizing his conduct. The consequence of this inexcusable neglect to inform the receiver of the service of the summons was, that on the 17th of April, 1874, a judgment was entered in favor of the plaintiff, and against the defendant, for nearly $57,000, and the receiver swears that his first knowledge of its recovery, or of the commencement of the suit, was on or about the 21st day of April, 1874, when a transcript of the judgment was presented to him by the plaintiff's attorney.

On the 11th day of May, 1874, an order was procured at the instance of the receiver, and some of the defendant's directors, who were actuated by a different sense of duty from that which impressed its delinquent president, for the plaintiff to show cause why "the judgment should not be set aside and the defendant have leave to answer the complaint," and on the 26th of that month the motion was heard and denied, with liberty to renew it, on further affidavits. It was renewed again, on additional affidavits, on the 16th of June, 1874, and then finally denied.

The present appeal is from the order then made, and it is resisted strenuously, on the ground, among other reasons, that the order is not appealable.

[The court decided that the order was appealable and other questions of practice, and continued.]