Opinion of the Court.

in case of insolvency such deposit should be preferred. If the law of the State is to be read into the contract, then, of course, the law of Congress should also be read into it. We should thus have to consider all the deposits as made with an implication that they were subject to the Federal law, and hence the conflict between the two laws would become evident, and the Federal law, being paramount, would prevail.

The New York statute does not profess, however, to change the legal relation which results from a deposit made in a bank. The deposit of money by a customer with his banker is one of loan, with a superadded obligation that the money is to be paid when demanded by a check. Scammon v. Kimball, 92 U. S. 362; Marine Bank v. Fulton Bank, 2 Wall. 252. The argument, therefore, of implied contract, not only is contrary 10 the letter of the New York statute, but also destroys the very essence of the legal relation resulting from the dealings between the parties. Nor is the repugnancy between the state statute and the act of Congress removed by the contention that inasmuch as ratable distribution applies only to that which belongs to the bank, therefore there is no conflict between the state statute and the act of Congress. This argument can only mean that the effect of the state statute is to make the Savings Bank, in the event of insolvency of the National Bank, the owner of a sum equivalent in amount to the sum of money which was by it deposited. But to say this aggravates the conflict between the state law and the act of Congress. If the state statute is to be read as saying that whenever the persons named therein deposit money with a national bank they shall be treated as the owners of an equal sum of the assets of the bank when it becomes insolvent, then the state statute precludes, in a most flagrant way, the possibility of the ratable distribution ordered by the act of Congress. True it is that where, by state law, a lien is made to result from a particular contract, that lien, when its existence is not incompatible with the act of Congress, will be enforced. True, also, where a particular contract is made by a national bank which from its nature gives rise at the time of the contract to a claim on a specific fund, such claim, if not violative

Opinion of the Court.

of the act of Congress will be allowed. To that effect are the authorities relied on.

Thus it was said by this court in Scott v. Armstrong, 146 U. S. 499, when dealing with the question of set-off: "The requirement as to ratable dividends is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor, does not belong to the bank." So in the case of San Diego County v. California Nat. Bank, 52 Fed. Rep. 59, it was decided that the funds received by a national bank, which the party depositing had no authority of law to deposit, were not part of the assets to be "ratably distributed," but must be returned in full to the rightful owner. And, again in Massey v. Fisher, 62 Fed. Rep. 958, which was a case where an endorser paid the amount of a note to a bank and took a receipt, but before he took the note from the bank the bank failed, the substance of the decision was, that the money did not belong to the bank, but was held by it in trust; and, of course, in that case, it was not part of its assets.

None of these cases are apposite here. On the contrary, by an affirmative, pregnant with a negative, they deny the preference which is now advanced. This clearly results from the context of the opinions in these cases. They all reason to demonstrate that from the particular facts stated the relation was not that of an ordinary creditor, but was one giving rise to a specific lien or right resulting from the contract, and which was in being before the insolvency took place. Here there is no such condition; there is simply an ordinary creditor asserting the right to a preference arising from an insolvent law. This distinction is well illustrated by Scott v. Armstrong, supra, cited and relied on in the opinion of the court below. In that case the facts as to the set-off, which was allowed, are thus stated: "The credits between the banks. were reciprocal and were parts of the same transaction, in which each gave credit to the other on the faith of the simultaneous credit, and the principle applicable to mutual credits applied."

The difference between Scott v. Armstrong and the pres

VOL. CLXI-19

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ent case is this: There this court was called on to determine whether a claim which had been extinguished, by operation of law, prior to the insolvency was still due after the insolvency, but here the question is whether a claim existing at the time of the insolvency and up to that date unsecured shall, by the operation of an insolvent statute, be converted after the insolvency into a preferred claim to be paid by preference over all other creditors. This distinction between the two questions was clearly stated in Scott v. Armstrong, where, speaking through Mr. Chief Justice Fuller, this court said: "The state of case where the claim sought to be off-set is acquired after the act of insolvency, is far otherwise for the rights of the parties become fixed as of that time, and to sustain such a transfer would defeat the objects of these provisions (the act of Congress). The transaction must necessarily be held to have been entered into with the intention to produce its natural result, the preventing of the application of the insolvent assets in the manner prescribed. Venango National Bank v. Taylor, 56 Penn. St. 14; Colt v. Brown, 12 Gray, 233."

Nothing, of course, in this opinion is intended to deny the operation of general and undiscriminating state laws on the contracts of national banks, so long as such laws do not conflict with the letter or the general objects and purposes of Congressional legislation. Much was said in argument as to the public policy embodied in the law of the State of New York and the wisdom of upholding it. Our function is judicial and not legislative. Did we, however, consider motives of public policy, we should not be unmindful of the wise safeguard, in favor of all the people of the United States, resulting from the provision which secures to every one dealing with a national bank a ratable distribution of the assets thereof, thereby stimulating confidence and uniformity of treatment. Judgment reversed and case remanded to the Court of Appeals of the State of New York with instructions to remit the cause to the court in which it originated with directions to dismiss the action.

Statement of the Case.

LEIGHTON v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 413. Argued November 12, 13, 1895. - Decided March 2, 1896.

The party who, under the provisions of § 4 of the act of March 3, 1891, c. 538, 26 Stat. 853, elects to reopen before the Court of Claims a case under that act heard and determined by the Commissioner of Indian Affairs, thereby reopens the whole case, irrespective of the decision by the Commissioner, and assumes the burden of proof.

The jurisdiction conferred upon the Court of Claims by the first jurisdictional clause in the first section of that act is confined to property taken by Indian tribes in amity with the United States; and as it appears in this case that the Indians who committed the injury to the claimant were at the time engaged in hostilities against the United States, the Court of Claims was without jurisdiction to render a judgment against the United States, even though the hostilities were carried on for the special purpose of resisting the opening of a military road.

The same result is reached practically if the claim is regarded as within the jurisdiction of that court under the second jurisdictional clause of the first section of that act.

There is nothing in the legislation prior to the act of 1891 which binds the government to the payment of this claim.

THIS case is before us on appeal from a judgment of the Court of Claims, dismissing the claimant's petition. The amended petition on which the case was tried, after stating the facts of the depredation, the citizenship of the claimant, and the amity of the Indian tribe, alleged that the claim had been filed in the Interior Department, allowed on December 5, 1873, for $3025, and reported to Congress, March 27, 1874; and, again, on November 29, 1887, allowed for $2500, and reported to Congress. It further alleged that the property was worth $5005, and for that sum prayed judgment.

After the commencement of the suit in the Court of Claims the claimant filed this election to reopen :

"Now comes the claimant, Alvin C. Leighton, and elects to reopen the claim set forth in the petition in this cause and try the same before the court.

"And he avers that the allowance made in said claim was

Statement of the Case.

erroneous in this respect, that the Commissioner of Indian Affairs and the Secretary made an allowance of $2500 by fixing the value of the mules, on account of which claim is made in said petition, at $125 and of the horses at $100 each, whereas the allowance should have been for $5005, the value of the mules being $255 each and of the horses $185 each.

"And the claimant refers to the evidence taken under the rules of this court as well as that presented to the Interior Department in support of this allegation of error.

"The claimant does not seek to disturb the findings or award of the Commissioner of Indian Affairs and Secretary of the Interior in any other respect than as above set forth, but admits that the same are correct in all other respects."

This was done under authority of the last part of section 4 of the act of March 3, 1891, c. 538, 26 Stat. 851, 853, which reads: "All unpaid claims which have heretofore been examined, approved and allowed by the Secretary of the Interior, or under his direction, shall have priority of consideration by such court, and judgments for the amounts therein found due shall be rendered, unless either the claimant or the United States shall elect to reopen the case and try the same before the court, in which event the testimony in the case given by the witnesses, and the documentary evidence, including reports of department agents therein, may be read as depositions and proofs."

The United States having filed a traverse, the case was submitted to the Court of Claims, by which court findings of fact were made, and among them that the property was taken and carried away by Indians belonging to the Ogallalla band of the Sioux tribe; that at this time the Ogallalla band “ was in separate treaty relations with the United States, under treaty dated October 28, 1865, proclaimed March 17, 1866, 14 Stat. 747, and were receiving annuities thereunder;" and that such band "under its principal chief, Red Cloud, was at the time of said depredation in armed hostility against the United States in resisting the military authorities in the opening of a military road, and the establishment thereon of military posts, and maintaining the same along what was known