to insolvency, this language might be limited to cases in which a national bank is insolvent, or at least on the verge of insolvency. Secondly, regardless of the bank's financial circumstances, it might be construed to prohibit any prejudgment seizure of bank assets. Most broadly, it might be given a completely literal reading and applied not merely as a shield for the bank's assets but also as a prohibition against prejudgment orders protecting the assets of third parties, including debtors of the bank.

Although there is support for the narrowest reading in the history of the statute, both that reading and the broadest literal reading have been rejected by this Court's prior cases. Before discussing those cases, we shall review the available information about the origin and revisions of the statute.

3

II

The National Currency Act of 1864 authorized the formation of national banks. Section 52 of that Act contained the first part of what is now 12 U. S. C. § 91. It prohibited any transfer of bank assets in contemplation of insolvency or with a view to preferring one creditor of the bank over another. The 1864 statute did not, however, include the prohibition against the issuance of prejudgment writs now found in 12 U. S. C. § 91.

That prohibition was enacted in 1873 as § 2 of “An Act to require national Banks to restore their Capital when impaired, and to amend the National-currency Act." 17 Stat. 603. If the prohibition had been added to § 52 of the 1864 Act, the

3 13 Stat. 99, 100-101. The full title of the statute was "An Act to provide a National Currency, secured by a Pledge of United States Bonds, and to provide for the Circulation and Redemption thereof," but subsequent amendments refer to it as the "National Currency Act." See 17 Stat. 603. The 1864 statute replaced the National Banking Act of 1863, 12 Stat. 665.

The only difference would be that the provision on prejudgment writs would be preceded by the phrase "And provided further, That . . . .”

amended section would have been virtually identical with the present 12 U. S. C. § 91. It was, however, added to § 57 of the 1864 Act, which authorized suits against national banks in the state courts. Petitioner therefore infers that the amendment was intended to qualify the jurisdiction of state courts over national banks and that the amendment should be given its full, literal meaning.

There is no direct evidence of the reason for the amendment. It was passed without debate, Cong. Globe, 42d Cong., 3d Sess., 870, 2117-2118 (1873), and does not seem to have been recommended by the administration. However, the historical context in which the bill was passed may offer some clue as to its purpose. We may take judicial notice of the historical fact that 1873 was the year of a financial panic. Moreover, a number of reported cases involved attachments against national banks and attempts by creditors to obtain a preference by attaching assets of an insolvent bank."

When the first edition of the Revised Statutes of the United States was prepared in 1873, the prohibition against prejudgment writs was combined with the provision concerning preferential transfers and acts in contemplation of insolvency to

5 It was not mentioned in the Reports of the Comptroller of the Currency for 1872 or 1873.

"One, First Nat. Bank of Selma v. Colby, 46 Ala. 435 (1871), later reached this Court, 21 Wall. 609. See n. 8, infra. Colby was typical in that it involved an attempt by creditors to obtain a preference by attaching assets of an insolvent bank. This attempt was successful in the Alabama courts, and similar attempts had met with success in New York. See Allen v. Scandinavian Nat. Bank, 46 How. Pr. 71, 82-83 (Sup. Ct., General Term, 1873); Bowen v. First Nat. Bank of Medina, 34 How. Pr. 408 (Sup. Ct., General Term, 1867). See also Cadle v. Tracy, 4 F. Cas. 967 (No. 2,279) (SDNY 1873). Moreover, Bowen and another. case, Cooke v. State Nat. Bank of Boston, 50 Barb. 339 (Sup. Ct., Special Term, 1867), raised the possibility that bank assets would be routinely attached by creditors. These cases allowed attachment on the basis that a national bank, wherever it does business, is by definition a "foreign corporation."

Opinion of the Court

form § 5242, which is now 12 U. S. C. § 91.

432 U.S.

Respondents

argue that this revision placed the provision in the context which was originally intended.

For the past century the prohibition against prejudgment writs has remained in the preferential-transfer section.

III

This Court has construed this prohibition only three times. In two cases, the Court held that assets of a national bank could not be attached; in the third, the Court held that property of a third party in the custody of the bank was subject to attachment by a creditor. None of the three involved a preliminary injunction.

Petitioner contends that the earliest of the three, Pacific Nat. Bank v. Mixter, 124 U. S. 721, "squarely controls" this case. Brief for Petitioner 13. Actually, however, the holding in Mixter was quite narrow. The question before the Court was "whether an attachment can issue against a national bank before judgment in a suit begun in the Circuit Court of the United States," 124 U. S., at 724. Although the statutory prohibition was not directly applicable to federal suits, the federal courts were authorized to issue attachments only as provided by state law. The Court concluded:

"In our opinion the effect of the act of Congress is to deny the state remedy altogether so far as suits against national banks are concerned, and in this way operates as

Section 5242 was included in c. IV entitled "Dissolution and Receivership." The legislative history is sketched in Pacific Nat. Bank v. Mixter, 124 U. S. 721, 724-726.

8 National Bank v. Colby, 21 Wall. 609, was decided after the passage of the 1873 amendment, but the attachment had been issued before the amendment. The Court invalidated the attachment without relying on the amendment. It based its decision, instead, on the ban against preferential transfers and the paramount lien given the United States in the assets of insolvent national banks. Id., at 613-614.

Iwell on the courts of the United States as on those of the States. Although the provision was evidently made to secure equality among the general creditors in the division of the proceeds of the property of an insolvent bank, its operation is by no means confined to cases of actual or contemplated insolvency. The remedy is taken away altogether and cannot be used under any circumstances." Id., at 727.9

The statement in Mixter that the remedy of attachment cannot be used against a national bank "under any circumstances" makes it clear that the statutory prohibition is applicable to solvent as well as insolvent national banks. The financial circumstances of the bank are not of controlling importance. That Mixter did so hold was settled by this Court's most recent decision concerning this statute, Van Reed v. People's Nat. Bank, 198 U. S. 554:

"Since the rendition of that decision [Mixter] it has been generally followed as an authoritative construction of the statute holding that no attachment can issue from a state court before judgment against a national bank or its property. It is argued by the plaintiff in error that

9 The Court then added:

"It was further said that if the power of issuing attachments has been taken away from the state courts, so also is the power of issuing injunctions. That is true. While the law as it stood previous to the act of July 12, 1882, 22 Stat. 163, c. 290, § 4, gave the proper state and federal courts concurrent jurisdiction in all ordinary suits against national banks, it was careful to provide that the jurisdiction of the federal courts should be exclusive when relief by attachment or injunction before judgment was sought." 124 U. S., at 727.

This was simply dictum, as no injunction was involved in Mixter. Moreover, in Mixter the Court was not presented with a situation in which the requested relief related to assets not belonging to the bank. The Mixter dictum is therefore not controlling now that "the very point is presented for decision." Cohens v. Virginia, 6 Wheat. 264, 399. See generally Barrett v. United States, 423 U. S. 212, 223.

the decision in the Mixter case, supra, should be limited to cases where the bank is insolvent; but the statement of facts in that case shows that at the time when the attachment was issued the bank was a going concern and entirely solvent so far as the record discloses. The language of Chief Justice Waite, above quoted, is broad and applicable to all conditions of national banks, whether solvent or insolvent; and there is nothing in the statute, which is likewise specific in its terms, giving the right of foreign attachment as against solvent national banks." Id., at 559 (citations omitted).

Between Mixter and Van Reed, this Court rendered its only other decision in this area, Earle v. Pennsylvania, 178 U. S. 449. In that case, the Court held that an "attachment sued out against [a] bank as garnishee is not an attachment against the bank or its property, nor a suit against it, within the meaning of that section." Id., at 454 (emphasis omitted). The holding in Earle forecloses a completely literal reading of the statute.10 It also demonstrates that the "under any circumstances" language in Mixter had reference to the financial condition of the bank, rather than to any possible case in which a prejudgment writ issues against a national bank.

Speaking for the Court in Earle, the first Mr. Justice Harlan stated that the ban on prejudgment writs must "be construed in connection with the previous parts of the same section" concerning preferential transfers. 178 U. S., at 453. This statement was consistent with the Court's earlier comment in Mixter:

"The fact that the amendment of 1873 in relation to attachments and injunctions in state courts was made a

10 In support of its literal reading of the statute, petitioner relies heavily on Mr. Justice Holmes' opinion in Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N. E. 865 (1894); but that opinion preceded Earle, in which this Court adopted a contrary approach.