it was held that his decision was conclusive whim soughPto be
attacked collaterally by that the letters were not issued to such relatives. Inasmuch as, under the allegations of the 'complaint,the authority of the executors of Berney's will depends upon the law of France, and it must be assumed from the averments that they had no power to dispose of the bonds in it is not necessary to discuss the effect of a sale under a power of attorney from the executors according to the law of this country. . ' The demurrer is overruled. Defendants' may answer within 20 days on payment of costs of demurrer.
FBELINGHUYSEN, Receiver, etc.,
BALDWIN and others.
(Di8tmCt Oourt, D. N61JJ Jer861/. June 3, 1882.)
.JURISDICTION-RECEIVERS AS OFFICERS 'OJ' UNITED STATES.
A receiver of a national bank is an officer of the United States, and 8lI1luch may sue in the.federal courts in the district in which such bank is located.
Demurrer to Plea. A. Q. Keasbey, U. S. Dist. Atty., for receiver. Oourtlandt et R. Wayne Parker, for defendants. NIXON, D. J. This ease arises upon demurrer to a plea. Frederick Frelinghuysen, the receiver of the Mechanics'National Bank of Newark, has brought suit against Oscar L. Baldwin, the late cashier, and 'his sureties upon' their bond to the corporation conditioned for the faithful discha.rge of his duties as cashier. The plea demurred to avers that all the parties to the bond are citizens of the state of New Jetsey, and that the court has no jurisdiction in such a case. By the provisions of the national banking act the comptroller of the currency is authorized, with the concurrence of the secretary of the treasury, under certain circumstances not necessary to be her.e stated, to appoint a receiver to wind up the affairs of the association.' Sec. tion 5191 of the Revised Statutes. Such receiver, after giving the takes possession of bond and security required' by the the books, records, ll.nd assets of every description of the association; collects all debts, dues, and claims belonging to it; and under' the directionaf a court of competent jurisdiction. mliy sell or compound all bad or doubtful debts, and dispose of all' the' real and personal
property; and, when necessary to pay the debts of the association, may enforce the individual liability oI the stockholders. His duties are to convert all the assets into money and to pay the same to the treasurer of the United States, subject to the order of the comptroller, and to make. report to that officer of aU his proceedings. Section 5234. He is thus the agent of the United States for the performa;nce of specified duties, and by section 380 of the Revised Statutes all his suits be conducted by the district attorney of the United States for the district in which they are pending. The discharge of these duties necessarily implies the right of appealing to some court for aid; .and the question raised by the demurrer is whether he may go in his own name into the district or circuit court of the United States for the' collection of the debts or claims of the association. The fourth subdivision of section 563 of the Revised Statutes confers upon the district courts jurisdiction of all suits at comin6rilaw brought by 'the UnitedBtates,6r by any officer thereof authorized bya'law of congress to sue. ,This is a substantial re-enactment of the fourtl;uection ,of the act of Ma,rch 3, 1815. The present suit is one at common law,; instituted by, a receiver, who is authorized by law to sue," He is clearly within thajstatute, if he is, in any proper sense, an officer of the government. Receivers. are always regarded as officers of some sort·. When appointe(l, by a court they are the officers. of the court.. 'When by lawful authority to do the work which congress chafged the go.vernment to perform, why should they not be consi4ered of the government'? sub(iivision of second sectiop of the sec.ond c9nstitution of the United States haa reference to the app()intment of officers of the United States, and the last cill-use autllOrizcs by law to vest. the appointment of such infeI'io,r o:ff;i.cers as think proper in the president alone, ill the of law, o.r in the heads of departments. The secretary of the treasury is the head of the treasury department. Section 233. Bysection 3.24 the corp.ptrolle-, 9f the currency is ,the ohief; offioer of a bureall of the treasury department, charged. with, the execu.tion pf all lawS' by congress relating to the issueand'regulationof aJ)ft,tiQnai cllrrency, secpred, Qy Uni,tedStates' bon:ds. Tpis officer, in clloses·of the .insolvency ,of the. !l-lJ,Sociation,appointB arec,eiver, through whose the aBsetsare turned in.to ,the of thf3 United States;, bllt the corp.ptrollerperforms this,!loB well as all other dllties, q:nder,the general directio,n Qf t4e sepretaryof the tJ;easury..
It is difficult to perceive on principle why appointmep.ts. thus' made are not appointments by the head of a department of the government, and why persons thus designated and charged with the performance of such duties should not be regarded as officers of the United States. The decisions of the supreme court, under analogous statutes, passed years before the one under consideration was enacted, afford us material aid in determining the question. , By the twenty-first section of the act of March 2, 1799, (section 2621 of the Revised Statutes,) the collectors of customs are authorized, with the approbation of the secretary of the treasury, to employ proper persons as "weighers, gaugers, measurers, and inspectors," and the courts have uniformly held that the congress, by such an enactment, was exercising its constitutional power of vesting by law in the head 9f a department the of officers of the government. U. S. v.Sea,rs, 1 Ga11. 221; U. S. v. Bachelder, 2 Gall. 15; Sanford .y. Boyd, 2 Cranch, C. 78; tJ. S. v. .Barfqn,,'Gilp. the ury act of August 6, 1846, congress empowered thepresident'to nominate and appoint four assistant treasurers of the United Stlttes,one'of whom was t(l be located at the city of Boston, in the stat'El. of chusetts. By the general appropriation act of July 1886,:such assistant treasurer was authorized to appoint, with the' 'approbatithi of the secretary of the treasury, certain clerks in the office for the safe-keeping, transferring, and disbursing the public moneys. It was held by the supreme court in U. S. v. Hartwell, 6 Wall. 385, that such clerks were officers of the United .states, and were subject to all the penalties prescribed by the law against officers for the loaning to thifd persons any portion of the public moneys entrusted to them for safellrnalogies of keeping. But in the presentcas6 we are J+ot left to other acts. It has been expressly decided, in every instance where the question has been raised and discussed, that receivers appointed under the national banking act are officers of the. government, and as such are entitled under the epecific provisions of law to f;lue. Thuli in Platt V. Beach, 2 Ben. 303, after full argument and due delibe'tation, Judge Benedict, of the eastern district of New York, came to the conclusion that the receiver was an officer of the United hence was competent to maintain actions, at comman law in tha 'federal courts for the collection of claims due to the association at '.the 'date of hisappoiniment. He has been followed by. Judge. Blatchford, in the southern district, in the case of Stanton v.Wilkeson" 8 Ben.·,3fi7.. · In Kennedy v. Gibson, 8 Wall. 498, the plaintiff resided in New Y:ork, and wall the of the Merchants'N.ationa.l, Bank. of
Washington, and brought his suit against certain stockholders in the circuit court of the United States for the district of Maryland. It is conceded that the case turned upon other matters, and that the question involved here was not necessarily before the court in that case. But Mr. Justice Swayne, speaking for the whole court, in the conclusion of the opinion says: ., The fifty-ninth section directs that ·all suits and proceedings arising out ot
the provisions of this act, in which the United States or its officers or agents shall be parties, shall be conducted by the district attorneys of the sev&al districts, under the direction and supervision of the solicitor of the treasury: Considering this section in connection with the succeeding section, the implication is clear that receivers also may sue in the courts of the United States by virtue of the act, without reference to the locality 0/ thei1' personal citizen. ship." . I'
Two years afterwards the late Justice Clifford, in delivering the opinion of ,the same court in the Bank oj Bethel v. Pahquioque Bank, 14 Wall. 401, took occasion, as it would seem unnecessarily, to go (lut of his way to allude to and reiterate the correctness of the rule thus stated. The demurter to the plea is sustained, with c6sts. The defendants have leave to plead within twenty days.
CHICAGO THBOLOGICAL SEMINARY
(Circuit Oourt, N. D. IlZiMi,. May 15, 1882.)
TAXEB-En'o:aOEMEN'i' 01' TO VALIDITY.
The proceeding to enforce the payment of taxes by a sale of the lots Is, ina certain sense, a proceeding in r61fl, against the property, but the owner has a right to be heard at the time the judgment is asked for; but if he fails to appear and make known his objections, he is concluded by the jUdgment. 2.
When a tax-payer hlLll been cited, and has had his day in court to say why judgment should not be rendered against his land, he cannot afterwards attack the judgment collaterally.
David Fales,fot complainant. A. N. Gage, for defendant. BLODGETT, D. J. This bill was1iled on the twenty-second day of April; 1880, to set aside a tax sale, as a cloud upon complainant's "title. The bill alleges that complainant is. owner in fee of certain Jots in this city, described in: the bill; that in 11374 state, county,