Harvey v. Allen. property of the bank. On the 17th its president absconded. On that day Colby sued out an attachment, in a State Court of Alabama, against the bank, on a contract debt, which was levied on its property. An examination into the affairs of the bank, on that day, showed a deficiency in its cash account, of $200,000, and, on the 30th of April a receiver of the bank was appointed by the Comptroller of the Currency. On the 22d of May, Colby filed a declaration in the suit. On the 1st of June, the bank was dissolved by a decree of the District Court of the United States. In March, 1869, the suit in the State Court was tried. The receiver did not make himself a party on the record to that suit, but he appeared by counsel, on the trial, and was allowed, without objection, to make proof of said facts, and to produce his appointment as receiver and the decree of dissolution. He thereupon moved the State Court to dissolve the attachment and discharge the levy and that the suit abate. The motion was overruled. The receiver then, without objection, offered the same evidence to the jury, and requested the Court to instruct them, that, if they believed the evidence, the suit could not be maintained, and they must find for the defendant. The instruction was refused, and there was a verdict for the plaintiff and a judgment for $5,632 33 and costs. The case was then taken by appeal to the Supreme Court of Alabama, and it (46 Ala., 435,) affirmed the judgment. It is stated in the opinion of that Court, that "the record does not show that the defendant, said bank, pleaded any plea in defence of said action." A part of the judgment which was affirmed authorized the issue of a venditioni exponas, to sell the property levied on under the attachment. The Supreme Court of Alabama held that the insolvency of the bank did not dissolve its liability to be sued by attachment. The case was then taken by a writ of error to the Supreme Court of the United States, and is the case so reported in 21 Wallace, 609. That Court reversed the judgment and remanded the cause to the State Court, with directions to discharge the attachment levied on the property of the bank. The Supreme Harvey v. Allen. Court held that the suit in the State Court abated by the decree dissolving the bank. But it further held, that the property of a national bank, attached at the suit of an individual creditor, after the bank has become insolvent, cannot be subjected to sale for the payment of his demand, against the claim for the property, of the receiver of the bank, subsequently appointed. In the opinion of the Court, comment is made on §§ 50 and 52 of the Act of June 3d, 1864, and it is said, that they manifest a clear design, on the part of Congress, to secure the assets of the insolvent bank for ratable distribution among its general creditors, and that no preference in the application of its assets can be obtained by adversary proceedings, so as to defeat such design. It is further said, that all objection to the right of the receiver to appear in the State Court and move for the discharge of the attachment and the abatement of the suit, or to contest the case at the trial, was waived, because such right was not objected to at the time. The Court add: "But, independently of this consideration, we are of opinion, that it was a proper proceeding on the part of the receiver to apply to the Court below to discharge the attachment, on proof of the facts presented by him and the production of his appointment and the decree dissolving the injunction. Invested with the rights of the bank to the possession of the property, by his appointment, it was his duty to take the necessary steps to remove the levy. That levy was void as against his claim to the property; and, in our judgment, it was error for the Court to refuse to discharge it on his application." In the present case, the receiver applied to the State Court to vacate the attachment, and his application was refused, on the ground that he had no status in the action, to make such an application. He was told that he must assert his title in some other manner. Two ways were open. One was to be made a party defendant to the suit, in place of the bank. The other was to bring this suit. He brought this suit promptly, the bill being filed five days after the order of the general term was made, affirming the order denying the Harvey v. Allen. motion to vacate the attachment. In the Colby case, the receiver was treated by the State Court and by the Supreme Court of the United States as if he were a party to the suit, and his rights as against those of the attaching creditor were adjudicated directly in the suit brought by the attaching creditor. In the present case, the receiver, before anything of substance had been done in the suit in the State Court, towards a judgment, except to issue and serve the attachment and publish the summons, filed the bill in this suit, making all parties interested defendants, setting up all the facts, and praying proper relief. The bill seeks a determination of the conflicting claims. It presents a case of equitable cognizance. On the facts set forth, the plaintiff was entitled, on final decree, to the relief prayed, except in respect of the injunctions asked for. It must be assumed, that the application for a preliminary injunction and for a receiver was refused because it was not shown that the fund was in peril, as respected the Broadway Bank, and because the Court felt itself restrained by positive statute from enjoining the proceedings of Allen, Stephens & Co. in the State Court. The answers do not set up that there is a plain, adequate and complete remedy at law. The plaintiff was not a party to the suit in the State Court. The answers do not set up the pendency of the suit in the State Court in bar of this suit. The rights of the plaintiff must be adjudicated as they stood when this suit was brought. The defendants, when served with process in this suit, were notified of the plaintiff's claim. Such process was served on Allen, Stephens & Co. and the Broadway Bank on the 22d of May, 1873. The original bill contained, in substance, the allegations found in the amended bill, except that it did not contain a prayer for an injunction against the Broadway Bank, nor any prayer for the appointment of a receiver. The amended bill prays "that the conflicting claim to said moneys, set up by the several defendants herein, may be forever foreclosed and determined by the decree herein, and that complainant may be adjudged entitled to said moneys, to the use of his said office." That Harvey v. Allen. prayer in that form is not found in the original bill. The original bill made McKim, Brothers & Co. parties, with proper averments as to their attachment, but the amended bill drops them as parties and omits such averments. The plaintiff did not, in any manner, submit himself to the jurisdiction of the State Court, in such wise as to be bound by the judgment in the attachment suit, nor did he submit his rights to the adjudication of that Court. When he applied to that Court to vacate the attachment he was told. that he had no standing to so apply, and that he must make himself a party to the suit, and submit his rights to adjudication therein, before he could be heard therein. He then came into this forum, before anything more was done in the suit in the State Court, and brought into this Court all the parties to the controversy. He took the proper step to establish his trust as respected the fund in the hands of the Broadway Bank, by coming into this Court of equity. The principle of the case of Eyster v. Gaff, (1 Otto, 521,) has no application to a case like the present. The attachment levy being void as against the receiver's claim to the fund, and the State Court having erroneously refused, on his application, to vacate the attachment, and having refused to adopt views such as are asserted in National Bank v. Colby, the receiver was under no obligation to become a party to the suit in the State Court, even though he might ultimately have the adverse judgment of the highest State Court reversed by the Supreme Court of the United States, as was done in National Bank v. Colby. The moment he came into this Court with the other parties to the controversy, there could no longer be any pretence that anything afterwards done in the suit in the State Court could affect his rights. From that time the defendants went on at their peril, in disposing of the fund in the Broadway Bank, and the plaintiff is entitled to an adjudication of his rights here, as of the time he brought the defendants into this Court, even though there was no preliminary injunction granted nor any receiver appointed. It is contended, for the Broadway Bank, that, if it be held Harvey v. Allen. that the plaintiff is entitled to the relief he asks for in this suit, the Court should proceed and adjust the equities between that bank and Allen, Stephens & Co., and that such adjustment should be an adjustment of all matters contained in the pleadings and the testimony, without regard to whether such matters occurred before or after the commencement of this suit; that the proceedings which were subsequent to the commencement of this suit are set forth in the three answers, and there is no dispute about those facts; that the defendants cannot object to an adjudication being had upon facts which they themselves plead; that, at the commencement of this suit, the Broadway Bank was a mere stakeholder; that the payment to the sheriff was made under the pressure of legal process, and cannot be deemed a voluntary payment; that, if the Court should decide in favor of the plaintiff, it should decree that Allen, Stephens & Co. pay to the plaintiff the amount which the Broadway Bank paid to the sheriff, and that the Broadway Bank pay to the plaintiff the $568 51, or, if a decree be given against the Broadway Bank for the full amount in its hands at the commencement of this suit, there should also be a decree in favor of said bank against Allen, Stephens & Co. for the $876 94; and that the satisfaction of the judgment of Allen, Stephens & Co. against the Scandinavian Bank should be cancelled, and the plaintiff, as receiver, be ordered to pay the proper dividend on such judg ment to Allen, Stephens & Co. or to the Broadway Bank, whichever may appear, according to the other provisions of the decree; to be entitled to such dividend. On behalf of Allen, Stephens & Co. it is contended, that no decree can be made in this suit compelling Allen, Stephens & Co. to refund any part of the money which was paid to them under the judgment; that the identical money attached did not belong to the Scandinavian Bank; that the co-defendants of Allen, Stephens & Co. do not, in their answers, make any claim for affirmative relief against Allen, Stephens & Co.; that, if the Broadway Bank was merely a stakeholder, it could have gone into a Court of equity, have |