: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be begun; and all laws and parts of laws of the United States inconsistent with this proviso be and the same are hereby repealed."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·
510
FEDERAL REPORTER.
signee. The assignee has moved to dismiss the appeal for this cause, among others; and the motion has been heard by consent of parties, which was required before hearing, although this case is not within the terms of the statute in relation to hearing appeals from a district court by a district judge. TIev. St. § G14. The failure to give notice of the appeal to the adverse party, as required by section 4981, Rev. St., is fatal to it, and good ground fOl" moving to dismiss it. Wood v. B'lilcy, 21 Wall. G40. Unless the moving creditor in the district court is tbe adrerse party, within the meaning of section 4981, this appeal mnst, on the authority of that case, be dismissetl. The provisions of that section mnst be read with the others on the same subject for a correct understanding of them. The precetling section allows appeals in equity, and \\Tits of error at law, when the debt or damages claimed amount to more than $500, and gives an appeal to "any supposed creditor whose claim is wholly or in part rejected, or an assignee \\'110 is dissatisfied with the ance of a claim. " This section requires the notice to be given "to tlle assignee or creditor, as the case may be." The assignee represents the estate, and is the adverse party to all claimants against the estate. He is the party who, hy section 4984, mnst plead or answer to the declaration of the claimant, and against whom, by section 4985, costs are to be taxed as "the ach-erse party," if the claimant prevails. A creditor applying for and procuring tlle examination of a claim does no more tlum, the court may do of its o\\'n notion, and does not !Jecome a party to that particular claim. Section 5081. Such creditor morely sets the machinery in motion to have the claim adjudicated by the court; the defense of the claim must al\\'ays be in the name and hehalf of the assignee. There are no pl'oyisions for making such mo\'ing creditor any otherwise a party. The 'words "assignee or creditor, as the case may be," must mean assignee ,,'hen the creditor appeals, al1l1 creditor ,,'hen the assignee appeals. ,\'hen the creditor appeals, the assignee is the one who must plead and make defense, and the one who needs notice of the appeal to act upon. He is the adverse party, in the sense of section 4D81. Motion granted and appeal dismissed.
STATES
(Circuit Cuurt, D. Jlass·lc!Ws,tts. 1. YE1:IFICATIOX OF SC)DUllY Pl'DLIC,
August
S, 1553.) HIGrr SEAS-XOTAR'
FOr. OFFEXSE
In case of a 'sunllllrrn' campla int for rrn offense on "11 serrs the oath must !,P- taken before th" cOlirt or judge. 0r elerk of court, or son{'e commissioner, who, llltlle a;,setlee of the judge, 1ll:IY be applied to for a ,varmut or SUmtllOllS; and
