506
FEDERAL REPORTER.
PmCE, Receiver, v.
ABBOTT ·
. SAllIE V. COLSON.
(Circuit Court, D. Massad/mlts. 1.
June 22,1883.)
RECEIVERS OF NATIONAL BANKS-ApPOINTMENT.
Appointments of receivers of national banks, made by the comptroller of the currency as provide'! by law, are to he presumed to be made with the concurrence or approval of the secretary of the trcasury, and are made by the head of a department, within the meaning of section 2 of article 2 of the constitution of the United States. SAME-SUIT By-JURISDlr:TION OF CmCUIT
2.
A receiver of a national bank, being appointed purslIlant to nn act of congress to execute duties prescribed by that act, is in the execution of those duties an agent and olllcer of the United titates, and actions brought by him to recover asse'Sl1lcnts duly laid upon stockholders, and neccssary to provide for the payment of the dehts of the bank, arc suits at common law, brought by an oltker of the United States, under the authority of an act of congress, of which the circuit court has concurrent jllri:3diction with the district court, without regard to the amount sued fOT. Rev. St. 9 6:W, cl. 3; 9563, cl. 4. OF 1875-PURPOSE OF.
3.
The act of 1875 was intended to define the jurisdiction ot the circuit courts, as between them and the courts of the states; not to alter the distribution of jurisdiction, as between the circuit court and the district court, of eases which, by reason of their subject-matter, have been committed by congrcss to the de! ermination of the fedl'ral courts; nor to repcal the special provisions of former laws conferring on the circuit and districts CO:lrts junsllictiun of such cases, withont regard to the amount in dispnte. 4. SAME-ACT OF 1882, c. 9 4. The only subject to which the proviso in the act of 188:2, c. 290, 4, relates, is the jurisdiction of suits brought by or against national banks, and its purpose is to leave such suits, <; except suits between them and the United States, or its ollico's and agents," to the jurisdiction of the state courts, unless tIre domicile of the parties is such as to give the fellernl courts jurisdiction. 5. bA)IE-SUITS BY RECEIVER OF NATIOSAL IhsK. Suits brought against private persons r.fter a national bank has been found to be insolvent, and ior the exclusive belletH of its creditors. by a l'Ccei\'er, in whom its whole property has been vested by operation of law, do fiOt come within thc letter or the reason of this proviso.
At Law.
S. B. Ires, Jr., for defenrlants. A.. A. Ram!c}', for plaintiff. Before GRAY and JJ. GRAY, Justice. These are two of a large numl.icr of actions brought, by direction of the comptroller of the currency, by the plaintiff, (a citizen of New Jersey,) as the receiver of the Pacific National Bank of Boston, (a corporation organized under the act of congress of June 3, 186-1, c. 106, and having its banking-house at Boston,) appointed under the act of congress of June 30, 1876, c. 156, by the comptroller of the currency, upon being satisfied of the insolvency of the bank, against sundry citizens of :\Iassachusetts, stockholders in tlle bank, to reeo,er their shares of an aS5essment, to the amount of 100 pel' centum on the par value of the shares, made by the comptroller- of
,PRICE. V. ABBOTT··
501
the currency. to provide the money necessary to pay the debts and liabilities of the bank, under, section 5151 of the Revised Statutes. The amount of the assessment sued for in the first action is $2,000; and in the second action, $300. Each of the defendants has moved to dismiss for want of jurisdiction: First, because the plaintiff sues only in the capacity of receiver of a national bank, organized under the laws of the United States, and heretofore doing business within the commonwealth and district of Massachusetts; second, because the plaintiff brings the action, as receiver for and in behalf of the bank, to enforce an alleged liability of the defendant to the bank, and has no personal or individual interest in the action, or in the cause of action; third, because the action is by the bank, and is not a suit by or between the bank and the United State3, or any of its officers or agents; and, by force of the act of congress of J uly 1882, c. 290, § 4, the jurisdi.etion of the action is confined to the courts of the commonwealth of Massachusetts. We are of o])inion that the motions cannot be supported upon either III the grounds assigned. The congress of the United States is authorized by tlle constitution to vest the appointment of such inferior officers as it may think proper in the president alone, in the courts of law, or in the heads of departments. Article 2, § 2. By tlle statutes of the United States the secretary of the treasury is the head of the department of the treasury, and the comptroller of the currency is the chief officer of a bureau in that department, charged with the execution of all laws passed by congress relating to tl18 issue and regulation of a national currency secured by United States bonds, and he performs his duties under the general direction of the secretary of the troasury. Rev. St. §§ 233, 324. Appointments of receiYcrs of national banks, made by the comptroller of the currency, as prodded by those laws, are to be presumed to be made the concurrence or approYal of the secretary of the treasury, and are made by the head of a department, within the meaning of the con'ltitution. By those laws a receiYer of a national bank is required, under the direction of the c':lmptroller of the currency, to take possession of all the property, boo:,s, and records of the bank, and to collect all dAbis oue to it; is authorized, upon the order of a court of record of competent jurisdiction, to sell or compound bad or doubtful debts, and to sell all the real and personal property of the bank, "and may, if necessary to pay the deLts of such association, enforce the individual liability of the stockholders;" and he is required to "pay oyer all money so made to the treasurer of the United States, suLject to the order of the comptroller," and to make report of all his doings to the comptroller, by whom the money is to be divided among tlle creditors of the bank. Rev. St. §§ 5231, 5230. The receiver, indeed, in one aspect represents the bank, its stockholders, and its creditors; and neither he nor the comptroller of the
508
currency represents the government, so far as to have to waive its exemption from liability to suit. Case v. Terrell, 11 'Vall. 199. But being appointed pursuant to an act of congress to execute duties prescribed by that act, he is, in the execution of those duties, an agent and officer of the United States; and actions brought by him to recover assessments duly laid upon stockholders, and necessary to provide for the payment of the debts of the bank, are suits at common law brought by an officer of the United States suing under the authority of an act of congress, of which this court has concurrent jurisdiction with the district conrt, without regard to the amount sued for. Hev. St. § 629, cl. 3; § 563, cl. 4. This view of the case is supported by the direct adjudications of Judge BENEDICT in Platt v. Beach, 2 Ben. 3U3, and of Judge Br,ATcHFORD in Stanton v. Wilkeson, 8 Ben. 357; and by the opinions of the supreme court in Kennedy v. Giuson, 8 Wall. 498, in Bank v. Kennedy, 17 Wall. It), and in U. S. v. Hartwell, 6 Wall. 385. The defendants contend that the jurisdiction of this court, at least over the second action, in which less than $500 is sued for, has been taken away by the act of March 3, 1875, c. 137, § 1, by which it is enacted "that the circuit courts of the United shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states," etc. But the purpose of the act of 1875 is to define the jurisdiction of the circuit courts, as between them and the courts of the stater:.; not to alter the distribution of jurisdiction, as between the circuit court and the district court, of cases which, by reason of their subject·matter, have been committed by congress to the determination of the federal courts; nor to repeal the special provisions of former laws conferring on the circuit and d'.3trict courts jurisdiction of cases without regard to the amount in dispute. The construction contended for would, as has been observed by Judge LOWELL, deprive the federal courts of jurisdiction of suits upon patents and copyrights, and of a great variety of other cases arising under the laws of the United States, whenever the matter in dispnte does not exceed $500. U. S. v. JIoolley, 11 FED. HEr. 476. The ,1efendants further contend that this court has no jurisdiction of these actions, since congress has provided by the act of July 12, 1882, c. 290, § 4, that----.. "'the jurisdiction for suits hereafter brought by or against any association established under auy law providing for national banking associations, except suits between them and the united States, or its olficers and agents. shall be the sallle as, and not other than, t!le jurisdiction for suits by or against
:MEA.D V. PLA.TT.
509
banks not organized under any laW' of the United States, which do or might do banking bnsiness where such national banking associations may be doing business when such suits may be begun; and all laws and parts of laws of the United States inconsistent with this proviso be and the same are hereby repealed."
But the actions before us do not come within the letter or the reason of this proviso. They are not suits brought by or against a national bank doing business in this state and district; but they are suite brought against private persons, after the bank has been found to be insolvent, and for the exclusive benefit of its creditors, by a receiver in whom its whole property has been vested by operation of law. The only subject to which the proviso relates is the jurisdiction of suits brought by or against national banks; and its purpose is to leave such suits, "except suits between them and the United States, or its officers and agents," to the jurisdiction of the state courts, un· less the domicile of the parties is such as to give the federal courts concurrent jurisdiction. No intention can be implied to oust the federal courts of jurisdiction of suits brought by an officer of the United States, under the authority of the laws of the United States, to recover of the stockholders of an insolvent national bank mane)' which, when recovered, the plaintiff is required to pay over to the treasurer of the United States for the benefit of the creditors of the bank. Motions to dismiss overruled.
YEA.D,
Ex'x v.
PUTT,
Assignee. August 2, 1883.' ST.
(CirCUit (}lYUrt, 8. D. New York.
BANKRUPTCy-ApPEAL FROM DISTRICT COURT-NOTICE TO
H 4980. 4981. 4984. 5081. The failure to give notice of an appeal from the disallowance by the district court of a claim llgainst an estate in hankruptcy to the assignee is fatal to it, and good ground for moving to dismiss it; for in such case the assignee is the "adverse party," in the sense of Rev. St. § 4981.
In Bankruptcy. William W. Ladd, Jr., for plaintifI. Coleridge A. Hart, for assignee. WHEELER, J. This is an appeal by the plaintiff from the disal· lowance by the district court, held by Judge BROWN, of her claim against the estate in bankruptcy of which the defendant is assignee. The claim was examined on application of Mary E.Travis, a creditor, and contested by her. Notice of the appeal was given to her within ten days from the entry of the decision, but not to the as·
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