Cadle v. Tracy.

reasonable time, to enable the complaining parties to procure the necessary requisition for their delivery to the Executive. of the State from which they have fled; and the practice is also familiar, where persons are charged with crime within the State jurisdiction, and the examination is pending, to adjourn the same from time to time, and, when such persons have been brought up on habeas corpus, they have been remanded, to the end that such examination may be continued to a conclusion. It will, also, be found, that the practice of granting reasonable adjournments has obtained heretofore in all extradition cases; and there is no reason, either of favor to the prisoner, jealousy of the foreign Government, or otherwise, why it should not prevail in those cases as well as in cases of crime alleged to have been committed in violation of our own laws.

What I have said seems to me to embrace, either expressly or by implication, all the grounds upon which the discharge of the prisoner is claimed, and I cannot regard them as sufficient.

Let the prisoner be remanded to the custody of the marshal, to be held under the warrant of arrest and the commitments of the Commissioner, that the proceedings on the inquiry into the criminality of the prisoner may be continued, and let the writs of habeas corpus and certiorari be discharged.

C. CADLE, JR., RECEIVER OF THE FIRST NATIONAL BANK OF SELMA

vs.

BUFORD A. TRACY AND OTHERS. IN EQUITY.

T., a resident of Kentucky, and a creditor of a national bank incorporated under the Act of Congress of June 3d, 1864, (13 U. S. Stat. at Large, 99,) and located in Alabama, brought a suit against it, in the Supreme Court of New York, to recover a debt alleged to be due from the bank to him, and, in such suit, attached certain moneys in the possession of a national bank in New York, as

Cadle v. Tracy.

the property of the Alabama bank. The suit was commenced by attachment and publication of the summons. C., who was appointed receiver of the Alabama bank, under the provisions of the said Act, was, on his own application, substituted as defendant in such suit, in place of the Alabama bank, with the like force and effect as if the suit were continued in the name of said bank, and thereupon put in an answer therein, setting up a want of jurisdiction, in the State Court, over him, as an officer, or over the bank, or over the subject of the action, and other defences. The suit was tried, and a judgment was rendered, that T. recover of C., as receiver of the bank, a certain sum, "to be levied and collected of the moneys and property whereon an attachment has been heretofore levied in this action." Afterwards, C. filed a bill in equity in this Court, against T. and the New York bank, praying for an injunction against T. from proceeding further on his attachment, or on any judgment in the suit in which such attachment was issued, and for the payment to him, C., of the moneys in the hands of the New York bank. The Code of Procedure of New York, (§ 227) provides, that, in an action arising on contract, for the recovery of money only, "against a corporation created by, or under the laws of, any other State, government, or country," the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of such corporation attached, in the manner thereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover. The same Code, (§ 427) provides, that an action "against a corporation created by, or under the laws of, any other State, government, or country," may be brought in the Supreme Court of New York, by a plaintiff not a resident of the State of New York, "when the cause of action shall have arisen, or the subject of the action shall be situated, within the State." The bill proceeded on the ground that the State Court had no jurisdiction of the suit against the Alabama bank, because it could not acquire jurisdiction, in invitum, of a suit against a corporation created under said Act, and also because the cause of action in such suit did not arise within the State of New York: Held,

(1.) That, so far as the provision of § 427 of the Code of New York was concerned, the Supreme Court of New York had jurisdiction over the suit; (2.) That the effect of the provisions of the 57th section of the said Act of June 3d, 1864, was to deprive the State Court of jurisdiction over the suit; (3.) That C. was not estopped, by the proceedings in the suit in the State Court, from questioning the jurisdiction of that Court over him, or its jurisdiction to render against him the judgment which it did render;

(4.) That C. was entitled to the relief prayed for.

A national bank incorporated under said Act can be sued only in the Courts designated in the 57th section thereof,

Whether the cause of action, in the said suit, arose in New York, quere.

In the case of a corporation aggregate, no waiver of an objection to jurisdiction can be produced, by the fact that the corporation appears and pleads by attorney.

(Before BLATCHFORD, J., Southern District of New York, April 23d, 1873.)

Cadle v. Tracy.

BLATCHFORD, J. So far as the bill of Cadle, the plaintiff herein, and the answer of the defendant Tracy, raise issues between those two parties, such issues, and the subject-matter of the controversy created thereby, are the same as in the suit in the Supreme Court of New York, between those two parties.

In the bill in this suit, the plaintiff, after setting forth his title as receiver of the First National Bank of Selma, in Alabama, under the Act of Congress of June 3d, 1864, (13 U. S. Stat. at Large, 99,) avers, that the Selma Bank became insolvent as early as the 16th of April, 1867; that, when it became insolvent, part of its assets, amounting to $6,972 88, in currency, and $8,409 96, in gold coin, were in the possession of the Ocean National Bank of the city of New York; that the Ocean Bank still has such assets; that the defendant Tracy claims a part of them under an attachment issued in his favor, as a creditor of the Selma Bank, by the Supreme Court of New York, on the 29th of April, 1867; that the Selma Bank, on and before the 12th of April, 1867, was indebted to the United States in more than $250,000; that the United States recovered a judgment, for that amount, against said bank, in the District Court of the United States for the Southern District of New York, on the 20th of August, 1867; and that the United States have a prior lien on the said assets in the hands of the Ocean Bank. The prayer of the bill is, that Tracy may be enjoined from proceeding further on his attachment, or on any judgment in the suit in which such attachment was issued, and that the moneys in the hands of the Ocean Bank may be paid to the plaintiff.

The answer of the defendant Tracy, in this suit, admits, that the Selma Bank became insolvent on the 16th of April, 1867; that the Ocean Bank had in its possession the assets referred to; and that the United States recovered the judgment above mentioned. It then avers, that the Selma Bank, on the 15th of April, 1867, gave to the defendant Tracy eight drafts, drawn by it, on the Ocean Bank, all dated that day, for $8,500 in all, payable to his order; that payment of the

Cadle v. Tracy.

drafts was demanded of, and refused by, the Ocean Bank, on the 27th of April, 1867; that, on the same day, advice thereof was duly given to the Selma Bank; that, on the 29th of April, 1867, an action was commenced on the drafts, by Tracy, against the Selma Bank, in the Supreme Court of New York, by publication of a summons and by attachment; that, on the same day, the attachment was duly levied by the sheriff on the money in the Ocean Bank; that, on the 13th of May, 1868, an order was made in that suit, on the application of Cadle, whereby he, as receiver of the Selma Bank, was substituted as defendant in that suit, with the like force and effect as if that suit were continued in the name of the Selma Bank; that, thereupon, Cadle interposed an answer in that suit; that the suit was tried, and Tracy recovered judgment in it on the 9th of February, 1871, for $11,573 24, to be levied and collected of the moneys attached, being the moneys in the Ocean Bank; that Cadle appealed from the judgment, and the General Term of the Supreme Court affirmed it; that both of the judgments remain in force; that thereby Tracy has a lien on said moneys, which is paramount to the claim of Cadle, and the amount of the judgments ought first to be paid out of said moneys, and the rights of Cadle extend only to the surplus of said moneys; that, Cadle, by his answer, in the suit in the State Court, claimed, as his defence, that the State Court had no jurisdiction either over him, as an officer, or over the Selma Bank, or over the subject of the action; that it was his duty, as receiver of that bank, to make such disposition of its assets as was required by the Act before mentioned; and that, to permit service of process, in that suit, by attachment, to be effective, or to make him amenable to that suit, would be contrary to law and to said Act; that Cadle, by said answer, also set up the said indebtedness of the Selma Bank to the United States, and the said judgment in favor of the United States, and claimed that the United States had a prior lien on said moneys; that, on the trial of that suit, the State Court found, as conclusions of law, that it acquired jurisdiction over the Selma Bank and over Cadle, to the extent of the funds

Cadle v. Tracy.

attached; that it had jurisdiction over the subject of the action; that the cause of action arose in the State of New York; that the said Act contained no provision operating to defeat the attachment in that suit; that the United States had not acquired any prior lien on the funds, and that Tracy was entitled to judgment against Cadle, as such receiver, for $10,766 48, and costs, to be levied and collected of the attached funds; that judgment was rendered therefor, and affirmed, as above stated; that the bill in this suit is for the same matters, and based on the same grounds, as were set up by Cadle in the said suit in the State Court; that all the claims and rights which are asserted by Cadle in said bill, in reference to the moneys in the Ocean Bank, were asserted and litigated in the said suit in the State Court, and were decided adversely to Cadle, and in favor of Tracy, by said judgments; and that the validity of the claim of Tracy, by virtue of the attachment and judgments in the said suit in the State Court, and the right of Tracy to have the same paid out of said moneys, was finally and judicially determined by the State Court, in that suit. The answer then states, that Tracy sets up the said judgments, and prays the same benefit of them, and of the matters alleged in his answer, as if he had specially pleaded the same in bar to the bill, and as an estoppel to the plaintiff, in this suit.

The record of the proceedings in the suit in the State Court is in evidence. On the 23d of April, 1868, an order was made in that suit, continuing it in the name of the Selma Bank, under the provisions of the Act of the Legislature of New York, of April 26th, 1832, (Sess. Laws of 1832, chap. 295, § 4,) until a final judgment should be had, which should have the like effect on the rights of the parties as if the corporation had not been dissolved, such order to have effect as of the 1st of June, 1867. On the 13th of May, 1868, on a motion made in that behalf, by Cadle, as receiver, an order was made in that suit, that Cadle, as receiver, be substituted as defendant therein, with the like force and effect as if the action were continued in the name of the Selma Bank.