and not simply such an act as authorizes the comptroller to appoint a receiver.1

Remedies After. 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 by a receiver of the bank subsequently appointed. Nor can an injunction issue before judgment against the receiver of a national bank. And a tax levied on the property of a national bank subsequent to its insolvency is subordinate to the rights of a receiver appointed after such levy.4

4. Preferences In General.-The provision of the National Bank act which prohibits all transfers by any national banking association made after the commission of an act of insolvency, or in contemplation thereof, with a view to the preference of one creditor to another, is directed to a preference, and not to the giving of security when a debt is created; and if the transaction be free from fraud in fact, and is intended merely to adequately protect a loan made at the time, the creditor can retain property transferred to secure a loan until the debt is paid, though the debtor is insolvent, and the creditor has reason at the time to believe that to be the fact. But it is sufficient to invalidate such a transfer, that it

facturers' Nat. Bank v. Continental Bank, 148 Mass. 553. Also Philadelphia Nat. Bank v. Dowd, 38 Fed. Rep. 172.

1. Irons v. Manufacturers' Nat. Bank, 6 Biss. (U. S.) 301; s. c., 1 Nat. Bank Cas. 203. See also to the effect that the word "insolvency," in such connection, is synonymous with the same word as used in the bankrupt act, Case v. Citizens' Nat. Bank, 2 Wood (U. S.) 23; s. c., I Nat. Bank Cas. 276. As to what is sufficient evidence of insolvency, see Wheelock . Kost, 77 Ill. 296; s. c., 1 Nat. Bank Cas. 406.

2. First Nat. Bank v. Colby, 21 Wall. (U. S.) 609; s. c., 1 Nat. Bank Cas. 109. See also Harvey v. Allen, 16 Blatchf (U. S.) 29; s. c., 2 Nat. Bank Cas. 439.

Attachment. Indeed, according to a recent ruling of the Supreme Court of the United States, it seems that there can be no attachment of a national bank before judgment, whether it be insolvent or otherwise. Pacific Nat. Bank v. Mixter, 124 U. S. 721; s. c., as Butler v. Coleman, 3 Nat. Bank Cas. 291. Compare previous rulings in Market Nat. Bank v. Pacific Nat. Bank, 30 Hun (N. Y.) 50; s. c., 3 Nat. Bank Cas. 672; National Shoe etc. Bank v. Mechanics' Nat. Bank, 89 N. Y. 467; s. c., 3 Nat. Bank Cas. 601; Raynor v.

Pacific Nat. Bank, 93 N. Y. 371; s. c., 3.
Nat. Bank Cas. 624.

3. Warner v. Armstrong (Cin. Super. Ct.), 21 W. L. Bull. 124.

4. Woodward v. Ellsworth, 4 Colo. 580. No Priority to United States.-See Cook Co. Nat. Bank v. United States, 107 U. S. 445; s. c., I Am. & Eng. Corp. Cas. 533; s. c., 3 Nat. Bank Cas. 68; reversing (9 Biss. (U. S.) 55, or 2 Nat. Bank Cas. 128. Consult also Jackson v. United States, 20 Ct. of Cl. 298. But compare Schmidt v. First Nat. Bank, 22 La. An. 314; s. c., 1 Nat. Bank Cas. 505.

Set-off of Deposits.-See under DEPOSITS.

Control of Insolvent National Bank.— See Jackson v. United States, 20 Ct. of Cl. 298, 305.

5. The object sought to be accomplished by the provision is the distribution of the assets of the bank fairly and without preferences. Corn Exchange Bank v. Blye, 101 N. Y. 303; s. c., 3 Nat. Bank Cas. 634. See Robinson v. National Bank, S1 N. Y. 385; s. c., 37 Am. Rep. 508.

6. See Casey v. La Société de Credit Mobilier, 2 Wood (U. S.) 77; s. c., I Nat. Bank Cas. 285.

7. Armstrong v. Chemical Nat. Bank, 41 Fed. Rep. 234, 238-39.

is made in contemplation of insolvency, and either with a view to prevent the application of the assets of the bank in the manner prescribed by the statute, or with a view to the preference of one creditor to another.1

Party Who Must Know or Contemplate Insolvency.-Yet to make transfers, assignments, deposits and payments void, under the National Bank act, it is only necessary that the insolvency should be in the contemplation of the bank making the transfers, etc., and not that it should also be known to or contemplated by the party to whom they are made.2

5. Claims Against Suspended Bank--Not Confined to Strict Debts. -The claims against an insolvent national bank on which a dividend may be declared, are not limited to debts in any strict sense, but include the claim of a person who has left United States bonds on special deposit for safekeeping, and has not been able to obtain them again.3

Amount Paid on Claim.-The payment of a creditor of an insolvent national bank by the comptroller must be based on the amount due on the adjudicated claim at the date of the failure, and not on the amount due when the claim is adjudicated.4

XVI. SUITS AND REMEDIES-1. Jurisdiction Over Suits or Proceedings. The jurisdiction of the federal courts over actions concerning national bank, has been upheld in the case of a suit to quiet title to land brought by such a bank,5 but not in an action brought by assignors of national bank against a receiver of the bank, because they had been compelled to contribute as owners of such

As to cashier's transfer of securities held a bona fide purchase and not a preference, see Tuttle v. Frelinghuysen, 38 N. J. Eq. 12; s. c., 3 Nat. Bank Cas. 576.

1. National Security Bank v. Butler, 129 U. S. 223; s. c., 3 Nat. Bank Cas. 320. As to transfers to national bank by its insolvent cashier by way of preference, see Witters v. Sowles, 32 Fed. Rep. 762. One creditor held not entitled to preference over the rest, where fraudulent wrecking of bank by its of ficers. Citizens' Nat. Bank v. Dowd, 35 Fed. Rep. 340. As to when depositor of draft with national bank which becomes insolvent may recover proceeds from collecting agent of bank, see Craigie v. Smith, 14 Abb. N. C. (N. Y.) 409. Mortgage of all his property by cashier and stockholder of insolvent national bank to secure a depositor, as amounting to a preference. Gatch v. Fitch, 34 Fed. Rep. 566, 569-70. As to allegations concerning transfers by bank, not open to objection as stating merely conclusions of law, see Brown v. Carbonate Bank of Leadville, 34

Fed. Rep. 776, 778. As to set-off by depositor's assignee, as amounting to a preference, see Venango Nat. Bank v. Taylor, 56 Pa St. 14; s. c., 1 Nat. Bank Cas. 842.

2. Case v. Citizens' Bank, 2 Woods (U. S.) 23; s. c., 1 Nat. Bank Cas. 276. But compare Roberts v. Hill, 24 Fed. Rep. 571.

3. Turner v. First Nat. Bank, 26 Iowa 562, 565; s. c., 1 Nat. Bank Cas. 454, 457-8.

As to when action lies against receiver of suspended national bank by pledgee of stock for refusal to transfer it on books of bank, see Case v. Bank, 100 U. S. 446, 456; s. c., 3 Meyers' Fed. Dec. 231, 236; s. c., 2 Nat. Bank Cas. 47, 56.

4. White v. Knox, 111 U. S. 784; s. c., 3 Nat. Bank Cas. 128, 129. Concerning interest on claims, see National Bank v. Mechanics' Nat. Bank, 94 U. S. 437; S. C., I Nat. Bank Cas. 133; Chemical Nat. Bank v. Bailey, 12 Blatchf. (U.S.) 480; s. c., I Nat. Bank Cas. 260.

5. Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405; s. c., 3 Nat. Bank Cas. 131.

stock toward the liabilities of the bank, on account of the failure to fill in the name of the assignee in the transfer book of the bank.1

2. Parties and Pleadings--Parties.-In regard to actions by and against national banks, as in the case of other actions, the courts have been concerned with questions, not generally involving matters peculiar to the present subject, respecting necessary and proper parties,2 real and nominal parties, and joinder of parties.4 Pleadings. Similarly in regard to pleadings in actions by and against national banks, the courts have passed upon the sufficiency of the allegations of the complaint, the mode of making such allegations, the denials in the answer and the right of set-off or counterclaim.8

3. Maintenance of Actions-In General.-A State statute is not in conflict with the National Banking act where it authorizes the State banking institutions to become national banks and to continue to use their corporate names for the purpose of protecting and defending suits instituted by and against it.9

Actions by National Banks.-And a national bank may maintain an action in its own name against an endorser of a promissory note of which it is the purchaser or holder, irrespective of the question whether it was authorized to acquire title to notes by purchase or not,10

Actions Against National Banks.—But an assignee in bankruptcy cannot maintain an action against a national bank for the

1. Le Sassier v. Kennedy, 123 U. S. 521; s. c., 3 Nat. Bank Cas. 288.

Against National Bank Officers.-For note of the conflicting decisions in regard to the jurisdiction of State or Federal courts over offences committed by, see under OFFICERS IN GENERAL, discussion of their criminal liabilities.

As to jurisdiction of State court over an indictment for forgery against a book-keeper in a national bank, see Hoke v. People, 122 Ill. 511; s. c., 3 Nat. Bank Cas. 372.

Receiver's Relation to.-The receiver of a national bank in process of liquidation, is an officer of the United States, so as to be entitled to sue in the federal courts. Armstrong v. Ettlesohn, 36 Fed. Rep. 209. Nor does a receiver of a national bank estop himself from questioning the jurisdiction of the court by causing himself to be substituted as defendant in an action against the bank. Cadle v. Tracy, 11 Blatchf. (U. S.) 101. s. c., 1 Nat. Bank Cas. 230.

2. See Cleveland v. Shoeman, 40 Ohio St. 176; s. c., 3 Nat. Bank Cas. 701; Brinckerhoff . Bostwick, 88 N. Y. 52; s. c., 3 Nat. Bank Cas. 591; Tur

ner v. First Nat. Bank, 26 Iowa 562; s. c., I Nat. Bank Cas. 458.

3. Foss v. First Nat. Bank, 1 McCrary (U. S.) 474; s. c., 2 Nat. Bank Cas. 104.

4. Kennedy v. Gibson, 8 Wall. (U. S.) 498; s. c., 1 Nat. Bank Cas. 17.

5. Farmers & Mechanics' Nat. Bank v. Rogers, 17 N. Y. St. Rep. 381; s. c.. 3 Nat. Bank Cas. 683; Bunday v. Cocke, 128 U. S. 185; s. c., 3 Nat. Bank Cas. 316; Movius v. Lee, 30 Fed. Rep. 298; Third Nat. Bank v. Teal, 5 Fed. Rep. 503.

6. Schuyler Nat. Bank v. Bullong, 24 Neb. 821; s. c., 3 Nat. Bank Cas. 558. 7. National Bank v. Orcutt, 48 Barb. (N. Y.) 256.

8. Welles v. Stout, 38 Fed. Rep. S07; Louis Snyder's Sons Co. v. Armstrong, 37 Fed. Rep. 18; Armstrong v. Warner, 21 W. L. Bull. (Cin. Super. Ct.) 136.

9. Thomas v. Farmers' Bank, 46 Md. 43; s. c., 2 Nat. Bank Cas. 248. See also Atlantic Nat. Bank v. Harris, 118 Mass. 147; s. c., 2 Nat. Bank Cas. 454

10. National Pemberton Bank v. Port

er, 125 Mass. 333; s. c., 28 Am. Rep. 235; s. c., 2 Nat. Bank Cas. 266. Com

value of shares of its stock belonging to the bankrupt, which the bank, under claim of lien against the bankrupt, refused to transfer to the assignee.1

Abatement of Actions.-A suit against a national bank to enforce the collection of a demand is abated by a decree dissolving the corporation, and forfeiting its rights and privileges.2

Removal of Causes.-This subject has already been considered in discussing location and citizenship, and other topics.3

4. Trials. The litigated matters concerning trials of action by and against national banks include dismissal, verdict, the attorney conducting the suit, and the proof of the bank's corporate existence.7

5. Appeals. In order to give the United States supreme court jurisdiction on appeal from a State supreme court, under the National Banking act, the "title, right, privilege or immunity specially set up or claimed," must be claimed by the plaintiff in error for himself, and not for a third person, in whose title he has no interest.8

6. Remedies By and Against.-The remedies by and against national banks, which have been the subject of adjudication in

pare Ticonic Nat. Bank v. Bagley, 68 Me. 249; s. c., 2 Nat. Bank Cas. 245.

1. Meyers v. Valley Nat. Bank, 18 Bankr. Reg. 34; s. c., 2 Nat. Bank Cas. 156. But compare generally, as to litigation by such assignee. See In re Duryea, 17 Bankr. Reg. 495; s. c., 2 Nat. Bank Cas. 170. The right of a borrower's assignee in bankruptcy to sue for double interest where usury is taken, has already been considered in discussing interest. As to right to maintain action against national bank on claim disallowed by receiver, see Bank of Bethel v. Pahquioque Nat. Bank, 14 Wall. (U. S.) 383; s. c., I Nat. Bank

Cas. 77.

2. First Nat. Bank v. Colby, 21 Wall. (U. S.) 609; s. c., I Nat. Bank Cas.

109.

3. Against right of removal to federal court, of action against United States court commissioners for alleged illegal costs and fees, see Berchley v. Gilbert, 8 Blatchf. (U. S.) 147.

4. Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405; s. c., 3 Nat. Bank Cas. 131.

5. Logan Co. Nat. Bank v. Townsend (Ky. 1887), 3 S. W. Rep. 122; s. c., 3 Nat. Bank Cas. 448.

6. Kennedy v. Gibson, 8 Wall. (U.S.) 498; s. c., I Nat. Bank Cas. 17, 19.

7. Hungerford Nat. Bank v. Van Nostrand, 106 Mass. 559, 560. As to want of power of court to grant to re

ceiver order compelling bank to pay money into court, see Balestier v. Metropolitan Nat. Bank, 43 Hun (N. Y.) 564.

8. Miller v. National Bank, 106 U.S. 542; s. c., 3 Nat. Bank Cas. 52, relying, in support of general principle, upon Owings v. Norwood, 5 Cranch (U. S.) 344; Montgomery v. Hernandez, 12 Wheat. (U. S.) 129; Henderson v. Tennessee, 10 How. (Ŭ. S.) 323; Wynn v. Morris, 20 How. (U. S.) 5; Hale v. Gaines, 22 How. (U. S.) 160; Verden v. Coleman, 1 Black (U. S.) 472, and Long v. Converse, 91 U. S. 105.

Certificate of Division of Opinion.Concerning requisites for certificate of division of opinion to United States supreme court, see Williamsport Nat. Bank v. Knapp, 119 U. S. 357, 360; s. c., 3 Nat. Bank Cas. 184 (s. c., reported below, 15 Fed. Rep. 333), citing Saunders v. Gould, 4 Pet. (U. S.) 392; United States v. Bailey, 9 Pet. (Ü. S.) 267; Weeth v. New England Mortgage Security Co., 106 U. S. 605; California Cut Stone Paving Co. v. Monitor, 113 U. S. 609, and Waterville v. Van Slyke, 116 U. S. 699. For a question held too vague and general to be answered, see United States v. Northway, 120 U. S. 327; s. c., 3 Nat. Bank Cas. 199,

201.

Review on Appeal.-See Prosser v. First Nat. Bank, 106 N. Y. 677; s. c., 3 Nat. Bank Cas. 646, 648; Stanley v

the courts, include those arising on mistake in payment,1 on information for forfeiture of charter,2 or in case of voluntary liquidation, or concerning garnishment or injunction.5

7. Attachment-Against National Banks.-There has been much conflict upon the question of the right to the remedy by attachment against national banks, but the latest view, adopted by the Supreme Court of the United States and so likely to prevail, is that such remedy, since the act of 1873, cannot be invoked in the federal courts any more than in the State courts, and that its denial is not confined to cases of actual or contemplated insolvency on the part of the bank.6

By National Banks.-A national bank has been held entitled to attach the shares of a stockholder therein for his debt due the bank.7

NATIONAL CORPORATIONS--(See CORPORATIONS, vol. 4, p. 184; FOREIGN CORPORATIONS, vol. 8, p. 329; FRANCHISES, vol. 8, p. 584; NATIONAL BANKS; TAXATION)-Creation.-Corporations may be created by act of congress, and, in order to distinguish these from the corporations existing under the laws of the States, the term national corporations has recently come into use. The constitution of the United States confers no direct power on congress to create corporations, but the power is conceded to exist whenever it is deemed an appropriate measure to carry into effect any of the powers expressly given by the constitution.8 This power has been exercised in the creation

Albany Co., 121 U. S. 535; s. c., 3 Nat. 373, and in Bank of Montreal v. FiBank Cas. 268, 273.

Point First Taken on Appeal.-See Fostier v. New Orleans Nat. Bank, 112 U. S. 439; s. c., 3 Nat. Bank Cas. 140, 145.

1. See Manufacturers' Nat. Bank v. Swift, 70 Md. 515; s. c., 14 Am. St. Rep. 381, and note 387. Consult also Oddie v. National City Bank, 45 N. Y. 735; s. c., 6 Am. Rep. 160; National Park Bank v. Seaboard Bank, 114 N. Y. 28. But compare Merchants' Nat. Bank v. National Eagle Bank, 101 Mass. 281; s. c., 100 Am. Dec. 120.

2. Trenholm v. Commercial Bank, 38 Fed. Rep. 323.

Nat.

3. Merchants' etc. Nat. Bank v. Trustees of Masonic Hall, 65 Ga. 603.

4. Havens v. National City Bank, 6 Thomp. & C. (N. Y.) 346; s. c., I Nat. Bank Cas. 783.

5. Shoemaker v. National Mechanics' Bank, 2 Abb. (U. S.) 416; s. c., I Nat. Bank Cas. 169, 170.

6. Pacific Nat. Bank v. Mixter, 124 U. S. 721; s. c., as Butler v. Coleman, 3 Nat. Bank Cas. 291 (1888), followed in Safford v. First Nat. Bank, 61 Vt.

delity Nat. Bank, 49 Hun (N. Y.) 607 mem.; s. c., I N. Y. Supp. 852. But compare contra, previously, Continental Nat. Bank v. Folsom, 78 Ga. 449; s. c., 3 Nat. Bank Cas. 350; Peoples' Bank 7. Mechanics' Nat. Bank, 62 How. Pr. (N. Y.) 422; s. c., 3 Nat. Bank Cas. 672; Raynor v. Pacific Nat. Bank, 93 N. Y. 371; s. c., 3 Nat. Bank Cas. 624; National Shoe etc. Bank v. Mechanics' Nat. Bank, 89 N. Y. 467; s. c., 3 Nat. Bank Cas. 601. The constitutionality of the statutory provision on the subject is upheld in Chesapeake Bank v. First Nat. Bank, 40 Md. 269; s. c., I Nat. Bank Cas. 531.

7. Hagar . Union Nat. Bank, 63 Me. 509, 513; s. c., I Nat. Bank Cas. 5238. 1 Kent Comm. 248; Story Const., § 1259; Hare Am. Const. Law 115.

This principle was maintained in the discussions relating to the granting of charters by congress to the national banks, first in 1791 and again in 1816, and was established by the decision of the Supreme Court of the United States in construing the later of the above acts of incorporation. The earlier act was