Hennessey agt. Hennessey. cedure, in 1879, is very broad, it seems such amendment has not removed the restriction heretofore imposed by statute, as to parties to an action for a divorce testifying in their own behalf. LAWRENCE, J. —I am not aware that it has ever been held that, under the provisions of Rule 78, a defendant in an action for divorce can be permitted to testify in her own behalf to contradict the plaintiff, in respect to the matters as to which that rule allows the plaintiff to testify. Nor am I prepared to hold that, under the existing provisions of the Code, either party may testify in their own behalf without restriction. The amendment made to section 831 of the Code of Civil Procedure, in 1879, is very broad, but until it has been determined by an appellate court that such amendment has removed the restriction heretofore imposed by statute, as to parties to an action for divorce testifying in their own behalf, I shall adhere to the former practice and exclude the testimony of the defendant, and only receive that of the plaintiff as to those matters in regard to which the statute and rules permit her to testify. I think that the referee erred, therefore, in receiving the testimony of the defendant. But if I entirely reject the testimony of the defendant, there is still sufficient evidence of condonation by the plaintiff to sustain the report of the referee. Such condonation, by subsequent cohabitation with the defendant, is clearly shown by the evidence adduced by the defendant. Against this evidence there is the uncorroborated statement of the plaintiff himself. The preponderance of the proof is with the defendant on this point, and the report of the referee must, therefore, be confirmed. VOL. LVIII 39 Robinson agt. National Bank of New Berne. SUPREME COURT. WILLIAM H. ROBINSON, respondent, agt. THE NATIONAL BANK OF NEW BERNE. Attachments against national banks or their property — Jurisdiction of state courts-Code of Civil Procedure, sections 636, 707. The last clause of section 5242, United States Revised Statutes, forbidding. an attachment, injunction or execution to be issued against a national bank before final judgment in any proceeding in a state court, applies only to such banks as have committed or are contemplating an act of insolvency. An attachment can, therefore, issue against a national bank, except under the above circumstances, from a state court, as provided by the Code of Civil Procedure. Fourth Department, General Term, January, 1880. APPEAL from an order of the Herkimer special term denying the defendant's motion to set aside a warrant of attachment. The defendant is a national bank, incorporated and organized under title 62 of the Revised Statutes of the United States, and is located in New Berne, North Carolina. The plaintiff is a stockholder in the bank, and entitled to recover certain unpaid dividends. The defendant is a solvent corporation, and has no place of business, or agent within this state. The stock claimed by plaintiff has been sold by the defendant by proceedings in the state of North Carolina against one John Satterlee, and for a merely nominal sum. For further facts see opinion. A. R. Dyett and R. W. Townsend, for appellant, argued that this court has no jurisdiction to issue this attachment, and cited Farmers' &c., Bank agt. Deering (19 U. S., 29), The Chesapeake National Bank agt. First National Bank of Robinson agt. National Bank of New Berne. Baltimore (40 Maryland, 269), Thompson's National Bank Cases, pages, 117, 503). In Southwick agt. First National Bank of Memphis (7 Hun, 96) the general term in the first department held that this court could issue an attachment against a non-resident national bank. But in that case the question arose under section 57 of the national banking act of 1864, as amended by act of March 3, 1873 (U. S. Statute at Large, vol. 17, chap. 269, sec. 2). Subsequently to this case of Southwick agt. First National Bank of Mem phis, in Central National Bank agt. Richland National Bank (52 How. P. R., 136), justice BARRETT, at special term in New York, held, that under section 5242 as now existing, no attachment could be issued against a national bank, and that the case of Southwick agt. First National Bank of Memphis is no longer applicable by reason of the amendment. This decision of Mr. justice BARRETT is approved and the same doctrine announced in Rhoner agt. First National Bank of Pennsylvania (14 Hun, 126) by the same general term which decided Southwick agt. First National Bank of Memphis. The power of congress to protect national banks from attachments and other process before judgment is unquestionable (Farmers', &c., Bank agt. Deering, 19 U. S., 29; Central National Bank agt. Richland National Bank, 52 How. P. R., 136, 137; Crocker agt. Marine National Bank, 101 Mass., 240, 242; Chesapeake Bank agt. First National Bank of Baltimore, 40 Maryland, 269; Cadle agt. Tracy, 11 Blatchf., 102; Osborn agt. Bank U. S., 9 Wheaton, 783; Martin agt. Hunter's Lessee, 1 Wheaton, 304, 336, 337; The Moses Taylor, 4 Wallace, 411, 429). T. C. Cronin, for respondent. The defendant, as a corporation, is liable to attachment as a non-resident corporation, solvent, and with no proceedings pending against it for any act committed under section 5242 of the Laws of the United States, it is clearly subject to the laws of this state regulating Robinson agt. National Bank of New Berne. attachments against non-residents and foreign corporations (Cooke agt. National Bank of Boston, 52 N. Y., 96; Bowen agt. First National Bank of Medina, 34 How., 409; Southwick agt. First National Bank of Memphis, 7 Hun, 96). The change made by the Revised Statutes of the United States, section 5242 and 5198 of the Laws of 1874, does not alter the above rule or apply to any banking corporations except insolvent ones. The attention of the court, in the cases of Rhoner agt. National Bank of Allentown, Penn. (14 Hun, 126), and the Central National Bank agt. Rich land N. B. of M. (52 How. P. R., 136), was not called to the change of sections and the transpositions under another head of the statute and for other and wise purposes. SMITH, J.-The defendant is a banking corporation, created under the national banking law of congress, and located and doing business at New Berne, in the state of North Carolina. Upon an affidavit showing these facts and showing that the defendant is indebted to the plaintiff on contract and has personal property within this state a warrant of attachment was issued by a justice of this court against the defendant before final judgment. The appellant contends that the attachment is void for want of jurisdiction in this court to issue it. The claim is based upon the last clause of section 5242 of the United States Revised Statutes (ed. of 1878), the whole of which section is as follows: "§ 5242. All transfer of the notes, bonds, bills of exchange, or other evidence of debt, owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor, all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders or creditors, and all payments of money to either made after the commission of any act of insolvency or in contemplation thereof made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view Robinson agt. National Bank of New Berne. to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any state, county or municipal court." For the plaintiff, it is contended that the prohibition of the last clause applies only to such national banks as are described in the preceding part of the section, that is to say, such as have committed or are contemplating an act of insolvency. We are inclined to think that construction correct, and that the purpose of the clause is to prevent creditors of insolvent national banks from obtaining preferences before final judg ment. The language certainly admits of that construction, and we should be unwilling to infer, from doubtful and ambiguous language, an intention on the part of congress to divest the state courts of a pre-existing jurisdiction, even as to a provisional remedy merely. But, under our present Code, it would seem that if our state courts have not jurisdiction to attach the property of a foreign, bank within the states, there is no mode in which jurisdiction can be acquired of such bank, unless one of its officers can be found within the state, for the purpose of making personal service. Section 636 provides that a warrant of attachment may be issued against a foreign corporation (sub. 2); and a bank created by act of congress is a foreign corporation (Temp. Act, L. 1876, C. 449, sec. 2, sub. 16). Section 707 provides that where a defendant, who has not appeared, is a foreign corporation, and the summons was served without the state or by publica. tion, the judgment can be enforced only against the property which has been levied upon by virtue of the warrant of attachment at the time when the judgment is entered; so that if the claim under consideration applies to all national banks located without the state, it divests the courts of the state of all jurisdiction over such banks, so long as their officers keep without the limits of the state, a construction lead |