Wright v. The Merchants' National Bank. National banks owe a duty to the public to observe the limitations of the act of Congress in respect of the rate of interest; limitations wisely imposed, but in many of the Western States, at least, very frequently disregarded. They have privileges enough, without usurping others. They have powers enough, without exerercising those not conferred, or transcending the limits of their charters. They ought not to become usurers; and if they do, public policy is promoted by an enforcement of the penalties which the statute has denounced. It should be borne in mind that the statute confirms the action to the person who has paid the illegal interest, or to his legal representative, thus showing that it was in part its purpose to repair this loss or reimburse his estate - there being superadded the further purpose of preventing such violations of the law, the infliction of a penalty of twice the amount of interest paid. This penalty was, doubtless, supposed by Congress to be no more than would be reasonably sufficient to cover the excess of interest over the legal rate, and costs and expenses of litigation, and at the same time make it more profitable to the banks to obey the law than to violate it. Judgment will be entered for the plaintiff for $2,219.92, that being twice the full amount of interest paid on the usurious transactions set out in the petition, nor barred. Judgment accordingly. WRIGHT V. THE MERCHANTS' NATIONAL BANK. (3 Cent. Law Jour. 351.) Appointment of receiver of National bank by the court. The provisions of the General Banking Law for winding up National banks under the direction of the Comptroller of the Currency, are not exclusive and were not intended to oust the courts of their power to appoint a receiver upon a judgment-creditor's bill.* (Circuit Court, Sixth Circuit, Western District of Tennessee.) D EMURRER to judgment-creditor's bill. The bill sets forth in substance that complainant had recently obtained judgment of ten thousand dollars against defendant in * See Irons v. Manufacturers' Nat. Bank, ante, p. 204; also Re Manufacturers' Nat. Bank, ante, p. 192. Wright v. The Merchants' National Bank. the State court; that she was unable to obtain payment of the same; that the bank had closed its doors, discontinued business, and was insolvent; and that, in contemplation of such insolvency, it had conveyed and transferred all its assets to one creditor, a correspondent bank in the city of New York, which was also a large stockholder in the defendant corporation; that this preferred creditor is appropriating all the assets to its own debt; that nothing will be left for the plaintiff, or can now be collected by legal process, and she, therefore, prayed for an injunction and receiver. Demurrer was taken to the bill upon the sole ground, that under the provisions of the National Banking Law, a receiver could only be appointed by the Comptroller of the Currency. Messrs. Welsh, T. W. Brown and W. Y. C. Humes, for complainant. Mr. Beard, for defendant. BROWN, J. The power and duty of a court of equity to appoint a receiver upon the application of a judgment-creditor, is too well established to admit of doubt. Edwards on Receivers, 396; Hadden v. Spader, 20 Johns. 553; Taylor v. Jones, 2 Atk. 600; Edgell v. Haywood, 3 id. 352; Candler v. Pettit, 1 Paige, 168; Weed v. Pierce, 9 Cow. 722; Lewis v. Zouche, 2 Sim. 388; Bloodgood v. Clark, 4 Paige, 574; Ogilvie v. Knox Insurance Co., 22 How. 380; Parkhurst v. Kinsman, 2 Blatchf. 78. There is no allegation in the bill that execution has been issued and returned unsatisfied, but as no demurrer is interposed upon that ground, and as the point was not made upon the argument, I shall notice it no further. Indeed, it was practically conceded that a case for a receiver was made out, unless the power of appointing receivers of National banks was exclusively vested in the Comptroller of the Currency. Title 62 of the Revised Statutes, relating to the organization of banks, provides for the appointment of a receiver by the Comptroller of the Currency to wind up their affairs, only in the following cases: First, for not keeping good a surplus. § 5151. Second, for not keeping stock at minimum. § 5141. Third, for not keeping good its reserve. § 5191. Fourth, for not selecting a place for the redemption of its notes. § 5195. its own stock over six months. § 5201. Fifth, for holding Sixth, for non-pay Wright v. The Merchants' National Bank. ment of its circulating notes. § 5234. Seventh, for improperly certifying a check. § 5208. Eighth, for failing to pay up capital stock, and to allow the same to become, and to remain, impaired by losses. § 5205. If a judgment-creditor may not invoke the aid of a court of equity he is powerless to enforce his claim, unless he can persuade the Comptroller of the Currency to interfere in his behalf. Section 5242 provides that a "transfer of notes, bills of exchange, bonds or other evidences of debt owing to any National banking association, or of deposits to its credit, all assignments or mortgages, sureties on real estate, or of judgments or decrees in its favor, all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors, and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void." No method, however, is provided of winding up a bank guilty of any of the acts mentioned in this section, nor is the power given to the Comptroller of the Currency apparently designed to reach these cases. It is at least doubtful whether he would have power, upon the application made by this bill, to interfere and appoint a receiver. That the winding-up provisions of the act were not designed to be exclusive, it seems to me is fairly to be inferred from section 5241, which provides, that "no association shall be subject to any visitorial powers other than such as are authorized by this title, or are vested in the courts of justice." There is certainly an implication here that the courts may exercise a visitorial power, and as this power is usually if not always exerted through the agency of a receiver, I should regard the language of this section as justifying the appointment of one. But even if the power had been given to the Comptroller of the Currency to appoint a receiver in cases like the present, in the absence of restrictive language, it is at least doubtful whether it should be regarded as forestalling the jurisdiction of the courts. The general rule with regard to the election of remedies is stated in Sedgwick on Statutory Law, pages 93-401. "Where a right originally exists at common law, and a statute is passed giving a new remedy without any negative, express or implied, upon the old Wright v. The Merchants' National Bank. common law, the party has his election either to sue at common law or to proceed upon the statute; the statutory remedy is merely cumulative." A clause in a railroad act authorizing the directors to exact a forfeiture of the stock and previous payments, as penalty for non-payment of installments, does not, before forfeiture has been declared, impair the remedy of the directors to enforce payment by action at common law. Northern Railroad Co. v. Miller, 10 Barb. 260. These principles have been applied to the winding-up act of English corporations, and have uniformly been held as not exclusive of the ordinary remedies provided by law. nership, 861. Lindlay on Part In Jones v. Charlemont, 16 Sim. 271, a bill was filed for the purpose of winding up the affairs of a railroad company. The defendant demurred upon the ground that plaintiffs might have obtained their object under the special act of 9 and 10 Vict., to facilitate the dissolution of railway companies, and that that act had ousted the court of its jurisdiction in cases clearly within its operation. The vice-chancellor, however, declined to hear counsel for the complainant, and overruled the demurrer. The same question again before the court in the case of Clements v. Bowes, 17 Sim. 167, which was a bill by a shareholder in a company on behalf of himself and others, praying an account of receipts and payments of defendants on behalf of the company. Defendants were members of a finance committee who were alleged to have exclusive control over the money affairs of the corporation. They demurred on the ground that the Legislature having provided a method of winding-up and dealing with the affairs of a railway company, the court ought to refuse to a party the right of coming to have the accounts taken. The court observes: To oust the jurisdiction of a court of chancery in such a case, the Legislature should have so declared. It is plain where a court of equity has jurisdiction in such a case, an act of giving further relief does not by that oust the title of the court of equity, without express terms being used to put an end to the jurisdiction which is inherent in the court." 6. Similar views were expressed by the Court of Chancery in 1853, in the case of Fripp v. The Chard Railway Co., 21 Eng. Law and Eq. 53, which was an application by a mortgagee for the appointment of a receiver. A provision in the act that any mortgagee whose Wright v. The Merchants' National Bank. interest was in arrears for twenty-one days might have a receiver appointed upon application to two justices, was held to oust the jurisdiction of the court to appoint a receiver with the usual powers. Counsel for defendant cited to the court upon the argument the case of Smith v. Manufacturers' Bank, 9 B. R. 122 (same case under name of In re Manufacturers' Nat. Bank, ante, p. 192), in which Judge BLODGETT, of the Northern District of Illinois, held that the Bankrupt Act was not intended to apply to National banks, and that the provision made by Congress for their winding-up, when insolvent, was exclusive. Although the two cases are not exactly analogous, the reasoning of the court in that case undoubtedly applies to the one at bar. Having intimated an opinion upon the argument before this case was cited, and that the winding-up provisions were not exclusive, I felt bound on hearing the case, in deference to the views of the learned judge, to withhold my decision until I had made a more careful examination of the law. From correspondence with him I am informed that he has modified, to some extent, the views expressed in that opinion, and that in the subsequent case of Irons v. The Manufacturers' National Bank (ante, p. 204), he appointed a receiver of the same bank upon the application of a judgment-creditor. He there observes: "It would seem that the Comptroller only has the right to appoint a receiver upon the existence of the facts which clothe him with that power, and that he rightfully declines to act in this case. I can see nothing in the law itself, nor in the decision of the courts upon the law, so far as they have gone, to exclude the idea that a corporation created as this is, under an act of Congress for certain specified purposes, does not come within the general provision of the law regulating the remedies of creditors the same as any other corporation, except where there are specific provisions to the contrary." It is not intended in this case to decide whether the court would be authorized to appoint a receiver upon the happening of the contingencies authorizing such apppointment by the Comptroller of the Currency. I am clearly of the opinion, however, that when the act does not provide for the introduction of the Comptroller, a judgment-creditor is entitled to the aid of a court of equity. I see nothing in the case of Gibson v. Kennedy, 8 Wall. 498 (ante, p. 17), which conflicts with these views. Nothing was decided in that case, except that it is for the Comptroller to determine when it is necessary to institute proceedings against the stockholders to enforce their |