« SebelumnyaLanjutkan »
holder in an insolvent national bank, brought by the receiver appointed for the bank by the comptroller of the currency. -(U. S. D. C., Mo., 1890) Stephens v. Bernays, 41 Fed. 401, affirmed (C. C.
1890) 44 Fed. 642; (Mo. Sup. 1890) Id., 24 S. W. 46, 119 Mo. 143. [b] (U. S. D. C., Mo., 1890) Such jurisdiction is not taken away by Act Cong. July 12, 1882, § 4 [U. S. Comp. St. 1901, p. 3458], and Act Cong. Aug. 13, 1888, § 4 [U. S. Comp. St. 1901, p. 514), which take away the special jurisdiction of the district courts over suits in which a national bank is a party.-Stephens v. Bernays, 41 Fed. 401, affirmed (C. C. 1890) 44 Fed. 612.
[c] (U. S. C. C., Ill., 1888) The receiver of a national bank in liquidation, having received his appointment from the comptroller of the currency, under the national banking laws, is an officer of the United States, and as such may sue in the circuit court, without regard to citizenship or the amount involved, under Rev. St. $ 629, cl. 3 (U. S. Comp. St. 1901, p. 503), conferring on that court jurisdiction "of all suits at common law where the United States, or any officer thereof, suing under authority of any acts of congress, are plaintiffs.”—Armstrong v. Ettlesohn, 36 Fed. 209.
[d] (U. S. C. C., Mass., 1883) A receiver of a national bank, being appointed pursuant to an act of congress to execute duties prescribed by that act, is in the execution of those duties an agent and officer of the United States, and actions brought by him to recover assessments duly laid upon stockholders, and necessary to provide for the payment of the debts of the bank, are suits at common law, brought by an officer of the United States, under the authority of an act of congress, of which the circuit court has concurrent jurisdiction with the district court, without regard to the amount sued for. Rev. St. $ 629, cl. 3 (U. S. Comp. St. 1901, p. 503]; Rev. St. § 563, cl. 4 [U. S. Comp. St. 1901, p. 456).-Price v. Abbott, 17 Fed. 506.
[e] (U. S. C. C., Mo., 1890) Rer. St. § 563 (U. S. Comp. St. 1901, p. 455), gives the district courts jurisdiction of "all suits at common law, brought by the United States, or any officer thereof authorized by law to sue." Act Cong. Aug. 13, 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 514), confers the same jurisdiction on the district courts, and declares (section 4) that for jurisdictional purposes national banks shall be deemed citizens of the state in which they are located, but that this provision shall not affect the jurisdiction of the federal courts “in cases commenced by the United States, or by the direction of any officer thereof, or cases for winding up the affairs of any such bank." Held, that the district court has jurisdiction of an action by the receiver of an insolvent national bank to collect assessments on stock. -Stephens v. Bernays, 44 Fed. 642, affirming (D. C. 1890) 41 Fed. 401.
[f] (U. S. C. C., Neb., 1895) A receiver of a national bank, appointed by the comptroller of the currency, is an officer of the United States, and entitled to sue in the federal courts, by virtue of Rev. St. 629 [U. S. Comp. St. 1901, p. 503).—Thompson v. Pool, 70 Fed. 725.
[g] (U. S. C. C., Neb., 1896) A suit, brought against the receiver of an insolvent national bank, as such, to establish a claim of the plaintiff as a depositor in the bank, is a case arising under the laws of the United States, of which the United States circuit court has jurisdiction, irrespective of the citizenship of the parties.-Bartley v. Hayden, 74 Fed. 913.
[h] (U. S. C. C., Ohio, 1888) Act Cong. March 3, 1887, § 4 [U. S. Comp. St. 1901, p. 514), declares that national banks are, for the purpose of actions, to be deemed citizens of the states in which they are respectively located, but “the provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank." Held, that a receiver of a national bank may still sue on a claim due the bank in the circuit court, without reference to the citizenship of the parties or to the amount involved.—Armstrong v. Trautman, 36 Fed. 275.
si] (U. S. C. C., Ohio, 1888) The federal courts have the same jurisdiction of suits by and against the "agents” of national banks appointed under the national banking acts of congress, when the "receivers” of an insolvent bank have been displaced by such “agents," as they have of suits by and against the “receivers." each being in the same sense officers of the United States, and each representing in precisely the same relation the bank in its corporate capacity; and this without regard to citizenship of the parties or amount involved.—McConville v. Gilmour, 36 Fed. 277, i L. R. A. 198.
[j] (U. S. C. C., Pa., 1891) A receiver of a national bank may sue in the circuit court to recover an indebtedness owing to the bank, without regard to the amount involved.—Yardley v. Dickson, 47 Fed. 835.
[k] (U. S. C. C., Pa., 1892) The federal courts have jurisdiction of suits by receivers of national banks, to collect the assets thereof, without regard to the citizenship of plaintiff.–Fisher v. Yoder, 53 led. 565.
 (U'. S. C. C., Vt., 1886) Plaintiff was appointed receiver of an insolvent national bank in Vermont, and obtained an order from the circuit court for the district of Vermont for the sale of certain bonds pledged to the bank as security for a debt due the bank by defendant railroad company in Canada, which brought suit in the Canadian court to recover the bonds, whereupon plaintiff filed a bill in the circuit court for the district of Vermont for an injunction against the further prosecution of the suit in Canada. Held, that the circuit court had jurisdiction, and that the injunction should be granted.Hendee v. Railroad Co., 26 Fed. 677.
[m] (U. S. C. C., Wash., 1891) An action to secure the application to plaintiff's claim against an insolvent national bank of funds in the hands of a receiver of the bank, appointed by the comptroller of the currency, is within the jurisdiction of the federal circuit court, as being one "arising under the laws of the United States," since the object of the suit is to control the official conduct of the receiver, appointed under the national banking laws, and his defense must rest on the interpretation of those laws.-Grant v. Bank, 47 Fed. 673.
[n] (U. S. D. C., N. J., 1882) A receiver of a national bank is an officer of the United States, and as such may sue in the federal courts in the district in which such bank is located.-Frelinghuysen v. Baldwin, 12 Fed. 395.
[o] (U. S. D. C., N. Y.) Receivers of national banks appointed by the comptroller of the currency under the national banking act (Act June 3, 1864, $ 31), are officers of the United States, within Act March 3, 1815, giving federal courts jurisdiction of actions by officers of the United States, and he may sue in such courts to collect a claim which was due to the bank at the time of his appointment.-(1808) Platt v. Beach, Fed. Cas. No. 11,215 [2 Ben. 303]: (1876) Stanton v. W’ilkeson, Id. 13,299 [8 Ben. 357].
[p] (U. S. D. C., X. Y., 1867) Under the provision of the national banking act allowing a receiver of a national bank to compromise doubtful claims on order of a court of record of competent jurisdiction, the federal district court has jurisdiction of a petition by such receiver.-In re Platt, Fed. Cas. No. 11,211 [1 Ben, 534).
IV. JURISDICTION OF STATE COURTS. [a] (Mo. App. 1888) Money placed in the hands of the cashier of an insolvent national bank to indemnify him as surety on an attachment bond is a trust fund, although mingled with the bank's funds, so that it went into the receiver's hands with the general assets; and a state court has jurisdiction to enter a decree establishing it as a preferred claim against the funds of the bank in the hands of the receiver.-Road Cart Co. v. Stephens, 32 Mo. App. 341.
[b] (N. Y. App. 1882) Where no proceeding is pending under the national bank law for forfeiture of the charter of a bank, its receiver may, in a state court, maintain an action against its directors to recover damages sustained through their gross neglect of their duties, allowing its funds to be lost or wasted.-Brinckerhoff v. Bostwick, 88 N. Y. 52.
(c) (N. Y. Sup. 1886) Where a national bank suspends before a draft sent to it for collection is paid, an action for its recovery can be maintained against its receiver, and the state courts are not deprived of jurisdiction thereof by sections 5234, 5212, Rev. St. L'. S. [U. S. Comp. St. 1901, pp. 3507, 3517].--Bank v. Blye, 2 N. Y. St. Rep. 112.
[d] (N. Y. Sup. 1890) The receiver, appointed by the comptroller of the currency, for a national bank located in another state, is not a foreign receiver, and may sue in the courts of New York for an assessment levied on shareholders of the bank, without regard to the doctrine of comity.-Peters r. Foster, 10 N. Y. Supp. 389, 56 Hun, 607, 18 Civ. Proc. R. 380.
[e] (Pa. Com. Pl. 1898) A national bank or its receiver may be summoned as garnishee in an attachment execution in a state court, issued after a judgment against the defendant, although Rev. St. U. S. & 5242 [U. S. Comp. St. 1901, p. 3517), provides that no attachment, injunction, or execution shall be issued against such bank in any action in any state, county, or municipal court.-Conway v. Schall, 42 Wkly. Notes Cas. 328.
[f] (S. D. Sup. 1891) Though a receiver of a national bank may sue in the federal circuit courts, under Rev. St. U. S. $ 629, cl. 3 (U. S. Comp. St. 1901. p. 503], giving such courts jurisdiction of all suits at common law, when the United States, or any officer thereof, serving under authority of any act of congress, is a party, yet he may also sue in the state courts, since Rev. St. U. S. $ 711 [U. S. Comp. St. 1901, p. 577], specifying the cases in which federal courts shall have exclusive jurisdiction, does not mention such cases, and since 24 Stat. U. S. c. 373, 8 1 [U. S. Comp. St. 1901, p. 514], gives the federal circuit courts original cognizance, "concurrent with the courts of the several states," of all suits of a civil nature where the matter exceeds $2,000, and arising under the constitution and laws of the United States.—Thompson v. Schaetzel, 50 N. W. 631, 2 S. D. 395.
[g] (Vt. Sup. 1889) A suit by the receiver of an insolvent national bank to foreclose a mortgage given to it is not within any of the classes of cases in which the federal courts have exclusive jurisdiction, and may therefore be instituted in any court having jurisdiction in other respects.-Witters F. Sowles, 18 Atl. 191, 61 Vt. 366.
V. REMOVAL OF CAUSE FROM STATE COURT TO FEDERAL COURT. [a] (U. S. C. C., La., 1874) A receiver of a national bank has no right, by virtue of his being receiver, to remove from a state to a federal court an action against him for refusing to surrender property alleged to belong to plaintiff. -Bird v. Cockrem, Fed. Cas. No. 1,429 [2 Woods, 32).
[b] (U. S. C. C., La., 1874) Receivers of national banking associations have not the privilege, as such officers, of being sued only in the federal courts; and suits against them in state courts will not, on that ground alone, be removed to the federal courts.—Bird v. Cockrem, Fed. Cas. No. 1,429 [2 Woods, 32).
[c] (U. S. C. C., X. Y., 1889) An action between a receiver of an insolvent national bank and a depositor, involving only the right of set-off of deposits against notes due by the depositor, does not present a federal question, under Rev. St. U. S. $ 5242 [U. S. Comp. St. 1901, p. 3517], avoiding preferences to creditors of such an insolvent bank.-Tehan v. Bank, 39 Fed. 577.
[a] (U. S. C. C., S. D., 1894) A suit to compel the receiver of a national bank to pay a certain claim out of the bank assets is removable as being a suit arising under the laws of the United States within acts of March 3, 1887 [U. S. Comp. St. 1901, p. 514), and August 13, 1888 (U. S. Comp. St. 1901, p. 5111, defining the jurisdiction of federal courts.—Hot Springs Independent School Dist. No. 10 v. First Nat. Bank, 61 Fed. 417.
[e] (U. S. C. C., Vt., 1890) A suit to recover property acquired by the removing defendant, as receiver of a national bank, by authority of the laws of the United States, arises under the laws of the United States, within the meaning of the removal act of 1888, 25 Stat. 434 [U. S. Comp. St. 1901, p. 511). — Sowles v. Witters, 43 Fed. 700.
[f] (U. S. C. C., Vt., 1891) A suit against a national bank to reach property held as a par: of its assets by its receiver, appointed by the comptroller of the currency, trises under the laws of the United States, and may be remored from the state court into the federal court.--Sowles v. Bank, 46 Fed. 513.
VI. DEFENSES AND COUNTERCLAIMS. [a) (U. S. Sap., Kan., 1901) Fraudulent representations by which a person is induced to become a stockholder of a national bank constitute no defense in an action at law by a receiver of the bank to enforce the statutory liability of the stockholders, as the defense is of an equitable nature, and must
be asserted, if at all, in equity.-Lantry v. Wallace, 21 Sup. Ct. 878, 182 U. S. 536, 45 L. Ed. 1218, aflirming judgment (1899) 38 C. C. A. 510, 97 Fed. 865.
[b] (U. S. Sup., Md., 1869) The stockholders in an action brought by a receiver of a national bank to enforce their individual liability cannot defend the suit upon the ground that it is prosecuted by private counsel, instead of the district attorney, as directed by the act. That is a question between the United States and its officers, and does not affect the rights of the defendants.-Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476.
[c] (U. S. C. C. A., Kan., 1899) In an action by the receiver of a national bank against a stockholder to recover an assessment, the defendant cannot set up, by way of counterclaim, a claim for damages against the bank for fraudulent representations made to induce his purchase of the stock.-Lantry v. Wallace, 38 C. C. A. 510, 97 Fed. 805.
[d] (U. S. C. C. A., Mo., 1901) Under Rev. St. § 5151 [U. S. Comp. St. 1901, p. 3465), providing that the shareholders of every national banking association shall be held individually responsible equally and ratably for all contracts and debts of the association, to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares, the contract of a shareholder of a national bank with the bank and its creditors as to its debts is that, to an amount not exceeding the par value of his shares of stock and not exceeding his equal and ratable proportion, he shall pay, in such amounts as the comptroller of currency shall demand, the debts of the bank; and hence a judgment in favor of the receiver of an insolvent national bank for the recovery of an assessment made by the comptroller on a shareholder does not preclude him from maintaining a second action against the same shareholder for another assessment which had not been made when the first action was commenced.-Deweese v. Smith, 45 C. C. A. 408, 106 Fed. 438.
[e] (U. S. C. C., Kan., 1898) In an action by the receiver of a national bank to enforce an assessment against a stockholder, the latter cannot maintain a cross petition in the nature of a counterclaim to recover the purchase price of his stock on the ground of the alleged fraud of the bank inducing its purchase by defendant. The proper proceeding in such case is by an independent bill in equity against both the receiver and the bank for a rescission, making tender of the stock.- Wallace v. Hood, 89 Fed. 11.
[f] (U.S. C. C., Mass., 1885) The Pacific National Bank of Boston was organized in October, 1877, with a capital of $230,000, with the right to increase it to $1,000,000. In November, 1879, its capital was raised to $500,000; September 13, 1881, the directors voted to increase the capital to $1,000,000. On November 18, 1881, the bank suspended. On December 13. 1881, the directors voted that as $38,700 of the increase of capital stock had not been paid in, the capital be fixed at $961,300, and the comptroller of currency was notified to that effect, and he notified the bank, under Rev. St. $ 5205 [U. S. Comp. St. 1901, p. 3195), to pay a deficiency on its capital stock by an assessment of 100 per cent. At the annual meeting the assessment was voted, and on March 18, 1882, with consent of the comptroller and the approval of the directors and the examiner, the bank resumed business, and continued until May 20, 1882, when it again suspended and was put in the hands of a receiver. Prior to May 20, 1882, $742.800 of the voluntary assessment had been paid in. Complainant was the owner of 25 shares of stock on September 13, 1881, and, after the vote to increase the stock, took 25 shares, for which he paid $2,500, on October 1, 1881, and received a certificate. He voted for the assessment at the annual meeting, and in February, 1882, paid the assessment on the old and new stock, and subsequently sought to enjoin the suit at law against him by the receiver, to enforce his individual liability as a stockholder, under Rev. St. 8 5151 [U. S. Comp. St. 1901, p. 3165), on the ground that the increase of capital was illegal and void, and that the voluntary assessment under Rev. St. § 5205 (U. S. Comp. St. 1901, p. 3195), relieved the stockholders of individual responsibility. Held, that he was not entitled to relief, and the bill should be dismissed.-Morrison v. Price, 23 Fed. 217, affirmed in Delana v. Butler (1886) 7 Sup. Ct. 39, 118 U. S. 634, 30 L. Ed. 260.
[g] (Neb. Sup. 1900) It is no defense to a stockholder in an insolvent national bank, who is sued by the receiver on his individual liability upon in
assessment ordered by the comptroller of the currency, to say that the receiver has unlawfully disposed of such claim, so that the creditors of the bank will not receive of the proceeds thereof as much as they are entitled to, since the disposition of the fruits of the litigation is not a matter in which the stockholder is concerned.-Schaberg's Estate v. McI nald, 83 N. W. 737, 60 Neb. 493,
D] (Neb. Sup. 1900) Since the receiver of an insolvent national bank has authority to institute suit on the individual liability of stockholders to collect assessments ordered by the comptroller of the currency, and a satisfaction of a judgment in such suit will release the stockholder from further liability, such a stockholder cannot defend on the ground that the receiver has assigned the claim pending the suit.-Schaberg's Estate v. McDonald, 83 N. W. 737, 60 Neb. 493.
VII. OBTAINING LEAVE FROM COMPTROLLER TO SUE. [a] (U. S. Sup., La., 1901) Authorization by the comptroller is not necessary to entitle a receiver of a national bank to bring an action to establish a claim of the bank against an insolvent debtor, and for the sale of collateral held by the bank, since the provision of Rev. St. U. S. $ 5234 (U. S. Comp. St. 1901, p. 3307), to the effect that the receiver shall be under the direction of the comptroller, means only that he shall be subject to such direction, and not that he shall be obliged to get special authority for every act that he does in collecting the assets and debts of the bank.-Turner v. Richardson, 21 Sup. Ct. 295, 180 U. S. 87. 45 L. Ed. 438, affirming judgment Richardson V. Turner (1900) 28 South. 158, 52 La. Ann. 1613.
[b] (U. S. Sup., D. C., 1872) A receiver of a national bank appointed by the comptroller of the currency under the national banking act (section 30) is not required to obtain an order from the comptroller in order to sue for an ordinary debt due the bank. Such is a part of his official duty in collecting its assets, and he may bring the action either in his own name, as receiver, or in the name of the bank.-Bank v. Kennedy, 17 Wall. 19, 21 L Ed. 554.
(c] (U. S. C. C. A., Neb., 1895) A bill by the receiver of an insolvent national bank against the shareholders to recover dividends unlawfully paid out of the capital at times when the bank had earned no net profits may be brought without an express order from the comptroller of the currency.Hayden v. Tliompson, 17 C. C. A. 592, 71 Fed. 60, 36 U. S. Apr. 361.
VUI. TIME TO SUE AND LIMITATIONS. [a] (U. S. Sup., Neb., 1902) The objection that the statute of limitations does not bar the right of the creditors of a national bank, under Act June 30, 1876, $ 2, 19 Stat. 63, c. 156 [U. S. Comp. St. 1901, p. 3509), to enforce the individual liability of its shareholders, prescribed by Rev. St. U. S. § 5151 [U. S. Comp. St. 1901, p. 3465), so long as there are any outstanding claims against the bank, cannot be raised by the receiver of a national bank, in an action brought by him under section 5234 (U. S. Comp. St. 1901, p. 3307), to recover an assessment upon a stockholder, with interest from the date when payable, in which a demurrer to the bill on the ground that it sets forth a cause of action barred by the statute of limitations has been sus. tained.-McDonald v. Thompson, 22 Sup. Ct. 297, 181 U. S. 71, 46 L. Ed. 437.
[b] (U. S. Sup., Neb., 1902) An action brought by a receiver of a national bank under Rev. St. U. S. § 5234 [U. S. Comp. St. 1901, p. 3507), to enforce the individual liability of a shareholder prescribed by section 5151 [U. S. Comp. St. 1901, p. 3165), is not an action upon a “contract or promise in writing," within the meaning of the Nebraska statute of limitations, but is governed by the provision of that statute requiring actions "upon a contract not in writing, express or implied,” or “upon a liability created by statute,” to be begun within four years.- McDonald v. Thompson, 22 Sup. Ct. 297, 184 U. S. 71, 46 L. Ed. 437.
[c] (U. S. C. O., Ky., 1899) A right of action by the receiver of an insolvent national bank against a stockholder to recover an assessment does not arise until the necessity for the assessment has been determined and the assessment made by the comptroller, if it in fact accrues before demand and re