risdiction for the appointment of a receiver may proceed and settle up all the affairs of the bank in one action." He is an officer of the United States, and hence may sue in the courts of the United States without regard to citizenship." He may bring an action without any authority from the comptroller.23

§ 335. Claims and assets. All the property of the bank at the time of its suspension becomes fixed as a fund for distribution among the general creditors.' The receiver, acting for the comptroller, allows the various claims or disallows them, as he deems right. If he allow a claim, the claim stands upon the footing of a judgment.? All other judg-, ments against the bank for money are upon the same level.' If he disallow a claim, suit may be brought against the corporation or against the receiver. If judgment be recov ered, the judgment should direct that the claim, if the judgment is for money, be certified to the comptroller, not that it be paid by the receiver. But the claim is allowed only for its amount at the date of the failure of the bank, not at the date of the judgment. A claim for a special deposit is

6 Merrill v. First Nat. Bank, 75 Fed. R. 148 (C. C. A.). See Flint Road Cart Co. v. Stephens, 32 Mo. App. 341, for a preferred claim.

7 White v. Knox, 111 U. S. 784. This case fully justifies Lord Ba

3 Irons v. Manufacturers' Nat. con's dictum that the courts are Bank, 27 Fed. R. 591.

4 Nat. Pahquioque Bank v. First Nat. Bank, 36 Conn. 325; First Nat.

sometimes like the bush whereunto the sheep flies for refuge, but is sure to lose a large part of his fleece.

a provable claim. A demand for rent accrued before the suspension is entitled to share in the distribution. The creditor is entitled to prove his full claim without regard to any collections made upon collaterals. The costs of the plaintiffs in a creditors' bill, where the action has been beneficial to the bank, may be ordered paid by the receiver," but not the costs of a reversal obtained by them." But the receiver cannot contract to pay part of a recovery as an attorney's fee without authority from the court. He cannot exchange, barter or trade the assets of the bank; he may compromise doubtful claims of the character allowed by statute by the authority of the court,15 but if the debts are not doubtful the order is invalid and the compromise ineffectual.16 But a compromise will not be disturbed after a long lapse of time." Nor can the receiver agree to a rescission of the bank's sale of its own stock, even though the sale were fraudulent.18

14

§ 336. Preferences and attachments.-The strenuous efforts made by the New York courts' to maintain their jurisdiction over a foreign corporation doing business with citizens of the state caused it to hold that a national bank before insolvency could be reached by a writ of attachment, provided it were solvent at the time of the levy; but if it

8 Turner v. First Nat. Bank, 26 . Iowa, 562.

9 Chemical Nat. Bank v. Hartford Deposit Co., 161 U. S. 1.

10 Chemical Nat. Bank v. Armstrong, 59 Fed. R. 512, 16 U. S. App. 465; Merrill v. National Bank, 173 U. S. 131. And see § 331, note 6. 11 McElhenny v. First Nat. Bank, Fed. Cas. No. 8779. But see next note.

12 Irons v. Manuf. Nat. Bank, 36 Fed. R. 843; reversed, 121 U. S. 27. 13 Barrett v. Henrietta Nat. Bank, 78 Tex. 222.

was authorized to sell and dispose of assets.

15 In re Platt, Fed. Cas. No. 11,211. 16 Price v. Yates, Fed. Cas. No. 11,418.

17 Henderson v. Myers, 11 Phila. 616.

18 Wallace v. Hood, 89 Fed. R. 11. 1 See Bank of Montreal v. Fidelity Nat. Bank, 1 N. Y. Supp. 852, 112 N. Y. 667, overruling its former decisions in accordance with Pacific Bank v. Mixter, 124 U. S. 721.

2 Robinson v. National Bank, 81 N. Y. 385: People's Bank v. Me

14 Ellis v. Little, 27 Kan. 707. He chanics' Nat Bank, 62 How. Pr. 422

were insolvent at the date of levy the attachment was not good. Some countenance was obtained for this rule by expressions of the Supreme Court of the United States,' but now it has been settled that an attachment, prior to final judgment, against a national bank is wholly void, whether the process is issued by a state or a federal court. Not only is this true of a direct levy, but it is true also of an indirect levy by garnishment upon the property of the bank not capable of manual caption, although, of course, the national bank can be garnished for its debt to a third party. No jurisdiction is obtained by such a levy against a non-resident national bank as to the property taken under attachment. Being void, the receiver's title is not affected by it." He need not move to set the attachment aside; nor will a levy be enjoined, because there is no necessity for injunction against a void thing." Hence no preference can ever be gained as against a national bank by an attachment. Other fraudulent preferences given by national banks it is the

(the burden being on the assertor of insolvency to show it clearly). Contra, Cadle v. Tracy, 11 Blatch. 101; McDonald v. First Nat. Bank, 41 Ill. App. 368. One case erroneously held that the bank waived the right to object by traversing.. Norris v. Merchants' Nat. Bank, 30 Ill. App. 54. New York held that the receiver could not move to vacate until he was made a party by order. Tracy v. First Nat. Bank, 37 N. Y. 523. But the code changed this rule. National Bank v. Mechanics' Nat. Bank, 89 N. Y. 440.

3 Market Nat. Bank v. Pacific Nat. Bank, 93 N. Y. 648; Raynor v. -Pacific Nat. Bank, 93 N. Y. 371.

4 First Nat. Bank v. Colby, 21 Wall. 609.

5 Butler v. Coleman, 124 U. S. 721, construing SS 915 and 5242, Revised Statutes; Pacific Nat. Bank v.

Mixter, 124 U. S. 721; Bank of Montreal v. Fidelity Nat. Bank, 112 N. Y. 667; Planters' Bank v. Colby, 91 Ga. 264. A tax levy was held void as against an insolvent national bank. Woodward v. Ellsworth, 4 Colo. 580.

6 Rosenheim Co. v. Southern Nat. Bank, 46 S. W. R. 1026 (Tenn.); Safford v. First Nat. Bank, 61 Vt. 373.

Conway v. Schall, 42 Wkly. Notes Cas. 328.

8 Garner v. National Bank, 66 Fed. R. 363. Central Nat. Bank v. Richland Nat. Bank, 52 How. Pr. 136, is an instance where the lower court was right.

9 But it may be set aside. Harvey v. Allen, 16 Blatchf. 29.

10 This is self-evident.

11 First Nat. Bank v. La Due, 39 Minn. 415.

duty of the receiver to bring suit to set aside. If he does not do so, either the stockholders or the creditors, by proper averment, may bring the action. 13

§ 337. Payment of interest. In the case of national banks the claims draw interest from the date of the suspension of the bank,' unless they are interest-bearing claims, when doubtless the contract would govern the rate of interest. The rule in regard to state banks is the same. Certificates of deposit and all other demands have been already noticed, except bank bills, which, it has been held, do not draw interest from the date of a general suspension, but only from the date of a demand for payment.3

§ 338. Agent succeeding receiver of national bank.The third section of the act of congress of June 30, 1876, provides that, when the receiver has fully paid all the claims against the bank, the assets may be turned over to an agent nominated by the stockholders. This agent succeeds to all the assets of the bank and is entitled to be substituted in any pending suit.' He, too, is an officer of the United States in the same sense that the receiver is. He is indictable under the laws of the United States for misappropriation or embezzlement of the assets of the bank. If the sharehold

12 See § 337, ante, and note 15 to Fowler, 10 Rob. (La.) 196. See Att§ 334, ante. wood v. Bank of Chillicothe, 10 Ohio, 526.

13 The stockholders would be within the 94th equity rule. The creditors should practically allege the same facts as the rule requires. See Ex parte Chetwood, 165 U. S. 443.

1 National Bank v. Mechanics' Nat. Bank, 94 U. S. 437. But a creditor cannot sue the comptroller for this interest. Chemical Nat. Bank v. Bailey, 12 Blatch. 480.

2 See $159, ante.

3 Crawford v. Bank of Wilmington, 61 N. C. 136; Ringo v. Biscoe, 13 Ark. 563; Bank of Louisiana v.

1 McConville v. Gilmour, 36 Fed. R. 277.

2 Ex parte Chetwood, 165 U. S. 443.

3 United States v. Jewett, 84 Fed. R. 142. It follows that a receiver would also be indictable. It seems difficult to reconcile the statement contained in this case with the doctrine of the last cited case. The court clearly mistakes the sense in which the word "agent" is used in United States v. Northway, 120 U. S. 327.

ers have paid an assessment upon their stock to the comptroller, and the assets after settlement of claims against the bank have been turned over to the agent of the stockholders, a shareholder, who has become such by a purchase for full value from a stockholder who had failed to pay his assessment, is not entitled to share in the assets until those who have paid their assessments are reimbursed. When all the claims against a bank are paid the stockholders succeed to the assets," but not until that time are they entitled to any share in the property of the bank.

6

§ 339. Priorities among creditors and claimants.— It may be said to be a rule without exception that where a creditor enforces his claim against the assets of an insolvent bank, he can gain no priority from filing the suit to enforce his claim. It is true that in some statutory systems the creditor first suing at law a stockholder for the stockholder's liability gains a preference as to that particular stockholder, but in such a case it is needless to observe the stockholder's liability is not an asset of the bank. In all cases, however, where the creditor sues in equity, he must sue on behalf of himself and all other creditors similarly situated, whether he sues to enforce a claim that belongs to the bank, such as the right to pursue the officers of the bank, or a claim of the bank against third parties, or the stockholders' liability. In either case all the general creditors are upon the same level.2 But the so-called creditors

4 Richardson v. Wallace, 39 S. C. of course, they have claims as cred216. itors against the bank, when they come in as creditors. Appeal of Craig, 92 Pa. 396.

5 Bacon v. Robertson, 18 How. 480. Lum v. Robertson, 6 Wall. 277, holds the same doctrine as to a judicial forfeiture. The assets belong to the stockholders subject to the payment of the debts of the bank.

6 Hollister v. Hollister Bank, 2 Keyes, 245; State v. Commercial State Bank, 28 Neb. 677; Dabney v. State Bank, 3 S. C. 124. Unless,

1 Irons v. Manufacturers' Nat. Bank, 27 Fed. R. 591.

2 Richmond v. Irons, 121 U. S. 27; Exchange Bank v. Knox, 19 Grat. 739; Marr v. Bank of West Tennessee, 4 Cold. 471; Robinson v. Gardner, 18 Grat. 509. And see $$ 61, 65, 68, 69, ante, and as to national banks see § 70, ante.