The proof shows, and the fact is found by the jury, that the nature of the -interest of plaintiff was not known to defendant prior to the fire. It was a secret interest, and there is nothing in the evidence tending to show that the knowledge on the part of defendant of the nature of plaintiff's interest ought to be inferred. May, Ins. § 506; Finley v. Ins. Go. 30 Pa. St. 311; Fal'ten v. Ins. Go. 9 Cush. 490; Allen v. Ins. Go. 12 Cush. 366. Motion for new trial overruled. LOVE, D. J'J concurs.
HARVEY, Receiver, etc., v.
(fJ'trcuit UOU1't, N. D. Illinois.
January 4, 1882.)
BANKS- VOLUN'l'ARY LIQUIDATION-CREDITOR'S BILL-VEXATIOUS LITlGATION-PLEA IN ABATK\lENT.
A creditor's bill was filed against a national bank, before the passage of the act of congress of June 30, 1876, (19 St. at Large, 63,) and a receiver was appointed, who took possession of the property of the bank. An amended bill was filed in the cause, aner the passage of that act, to secure the benefits of the act, to which all the stockholders were made parties. Subsequently the comptroller of the currency appointed a receiver to wind up the affairs of the bank, and this suit was brought by him against one of the stockholders. Held, on demurrer to a plea in abatement, which set forth these facts, that the defendant is entitled to judgment on the ground that, as the stockholder's liability can be completely enforced in the suit in equity, the general rule applies that a debtor shall not be vexed by two suits in the same jurisdiction for the same causc of action. 2.
SA\fE-AUTHORITY OF COMP1oROLI,ER OF CURRENCY-VOLUNTARY LIQUIDATION -ltECEIVERS.
Wh'ether the comptroller of the currency is authorized to appoint a receiver for a national bank, which is in voluntary liquidation, after a court of compotent jurisdiction has appointed a receiver and instituted proceedings under a creditor's bill to enforce the liability of the stockholders, qur.ere.
On Demurrer to a Plea in Abatement. :Mason d: Mason, for plaintiff. F. H. Kales and H. B. Hurd, for defendant. BLODGETT, D. J. This a suit at law brought by Harvey, as receiver of the Manufacturers' National Bank of Chicago, against Thomas Lord, to enforce his liability as a stockholder of the bank. To this suit the defendant has pleaded in abatement that on the third day of FebI'uary, 1875, one James Irons, who was then a judgment creditor oitha
HARVEY V. LORD.
Manufacturers' National Bank, filed in this court Or creditor's bill to enforce payment of his judgment; that such proceedings were taken in the case that Joel D. Harvey was appointed receiver of all the property and effects of the bank, and entered upon the discharge of the duties of his office and took possession of the property of the bank; afterwards, on the fifth of October, 1876, an amended bill was filed in said cause, to which all the stockholders of the bank were made parties, by which the complainant sought, in behalf of himself all other creditors, to enforce the liability of the stockholders of the bank for the purpose of discharging the indebtedness of the bank; that the defendant in this suit, as one of the stockholders of the bank, was made a party to the Irons suit; that said suit in chancery is still pending, and this suit at law ia brought for the same cause, and to e:qforce the same liability, which the creditor's bill by Irons se.eks to enforce as against this defendant; and therefore he prays an abatement of this suit. At the time the original bill was filed by Irons there was no express provision in the national banking law for the enforcement of a stockholder's liability by the machinery of Or creditor's bill, and the had decided that supreme court, in Kennedy v. Gibson, 8 Wall. be enforced through a receiver the stockholder's liability could only appointed by the comptroller of the currency. But on June 30,1876, congress passed an act amendatory of the national banking law which provided by the second section as follows:
"When any national banking association shall have gone into liquidation under the provisions of section 5220 of said statute, the individual liability of the shareholder provided for by section 5151 of the said statute may be enforced by any .creditor of such association, by bill in equity in the nature of a creditor's bill brought by such creditor on behalf of himself and all other creditors of the association against the shareholders thereof in any court of the United States haVing original jurisdiction in equity for the district in which said association may be located or established. "
The amended and supplemental bill was filed by Irons after. the passage of this amendment, and was intended to bring all the stockholders of the Manufacturers' National Bank before the court, and to enforce their liability through the agency of the receiver appointed by the court in that case. This defendant is a party to and has answered in that suit. About a year ago, and long after the amended and supplemental bill of Irons was filed, the comptroller of the currency appointed a receiver to wind up the affairs of this bank, and named the same person whom thia court had appointed in the Irons
suit, and' under that appointment, acting under the advice of counsel, he has brought suits at law against the stockholders. The only question is whether the suit which had been brought by Irons, and which had been amended to adapt it to the provisions of the act of June 30, 1876, can be pleaded in abatement to this suit at law which has been instituted by the receiver under the authority or sanction of the comptroller. After the filing of the original Irons bill the powers of the court under such bill were materially enlarged by the act of congress just quoted. That bill was pending when this law took effect, and Irons undoubtedly had the right by amendment to make a case which would enable the court to administer these enlarged powers with which it had been clothed pendente lite. Story, Eq. PI. 336; Mix v. Beach, 46 Ill. 311. It seems to me that there is no room to doubt that this stockholder's liability can be completely enforced in the Irons case; and if it can, then I see no reason why the general rule that a debtor shall not be vexed by two suits in the same jurisdiction for the .same cause of action is not clearly applicable. I may also Bay in the same connection that I have great doubts whether the coD;lptroller had any authoritytoappoint a receiver for a bank which was in voluntary liquidation, after the court had appointod a receiver and taken steps under a creditor's bill to enforce the stockholders' liability. The statute gives the comptroller authority to appoint a receiver in certain cases, and then in another section of the same statute provides expressly, where. a bank has gone into voluntary liquidation and is in process of winding up its affairs, any creditor may enforce the liability of the stockholder by a creditor's bill; and if the comptroller had not acted and appointed a receiver for the purpose of enforcing the stockholders' liability, I have no doubt but what the action of the court supersedes the right of the comptroller to act in the premises, an.d gives the authority solely to the court to enforce the individuallia.bility of the stockholders. . It cannot, I think, be maintained that congress intended by the'act of June 30, 1876, to leave the comptroller any anthority over the assets of a national bank which has gone into voluntary'liquidation under section 5220, after a court of competent jurisdiction had, under a creditor's bill, appointed a receiver and taken possession .of the assets, and initiated proceedings to enforce the liability of stockholders, because that would bring about a conflict between the officers of the court and those of the comptroller. The grant of power to enforce the liability of the stockholders is plenary and ample, and I
ORUNO YUNE V. SRURTLEFB.
aee no need fO,r any function of the comptroller when the affairs of the bank are once properly in the hands of the courL The demurrer to the plea in abatement. is oVtlrruled, ll.nd menli rendered on the demurrer.
(£Mou;' 001JA't, D. O'l'lgofl.
February 1S, 1882.)
DUTIE!l-LnnTATIoN OJ' ACTION TO RBCOVER-NoTICB TO IMPORTER Otl' DBVISION OJ' SECRETARY.
Under section 2931 of the Revised Statutes the importer is not entitled to notice of the decision of the secretary upon an appeal from the collector, and the limitation of 90 days within which the importer may commence an action under said section to recover duties alleged to have been illegally exacted commences to run from the date of said decision. and not. flom the time the importer may have knOWledge of it.
Action to Recover Duties. W. Scott Beebe, for plaintiff. Rufus Mallory, for defendant. DEADY, D. J. Chung Yune, a Chinese firm of this city, bring this action to recover from defendant, the collector of customs at this port, the sum of $1,034.84, alleged to have been illegally exacted as the duty upon 372 boxes of sago flour, entered here for consumption. from The importer duly appealed to the secretary of the the decision of the collector as to whether the goods were dutiable. or not, and on September 27, 1881, the secretary affirmed the action of the collector, but the same was not brought to the knowledge of the plaintiff until October 9, 1881. The action was commenced on De: cember 27, 1881, the ninety-first day after the decision of the secretary. The defendant demurs to the complaint, for that it appears therefrom that the action was not commenced within ninety days from the decision of the secretary, as required by statute. Section 2931 of the Revised Statutes (section 14 of the act of June 30, 1864.; 13 St. 214) provides that the decision of the secretary of the treasury, on an appeal from a decision of a collector of "as to the rate and amount of duties to be paid" on merchandise entered at his port, shall be final and conclusive, and such merchandise s.uit shall be brousht "shall be liable to duty accordingly,
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