bank. The law will not compel a payment or transfer which it prohibits a debtor from making. Venango National Bank v. Taylor, 56 Penn. St. 14.

28. The Comptroller of the Currency has no power to compound or settle claims of a national bank against its debtors; that requires the authority of the court under this section. Davis v. Stevens, 17 Blatchf. 259, Fed. Cas. No. 3,653, 99 U. S. 628, 25 L. ed. 448.

29. A receiver of a national bank is a federal officer, and may sue in his own name to enforce assessments against stockholders, and for that purpose he may bring separate actions at law against the several stockholders. Stanton, Receiver, t. Wilkeson, 8 Ben. 357, Fed. Cas. No. 13,299; Bailey, Receiver, v. Sawyer, 4 Dill. 463, Fed. Cas. No. 744.

30. The residuary interest of a national bank in bonds pledged as security for its circulating notes is an asset of the bank, which, if not transferred before its insolvency, is thereafter to be applied by the receiver under this section to the payment of its debts. There is no other provision in the act for the disposition of the moneys arising out of such residuary interest. Van Antwerp r. Hulburd, 8 Blatchf. 282, Fed. Cas. No. 16,827.

31. There is no provision in the act authorizing the Comptroller or Treasurer to dispose of the residue or surplus proceeds of such bonds in payment of the debts of the bank, or otherwise, and, as it is only of the moneys paid over by the receiver, under this section, that the Comptroller is authorized to make a dividend, therefore, until such surplus has passed into the hands of the receiver and has by him been paid over to the Treasurer, subject to the order of the Comp troller, the latter has no power to make any distribution thereof in payment of the general debts of the bank. See also notes 2 and 3, section 5159 [U. S.

Comp. Stat. 1901, p. 3469].

Id.

32. The United States Circuit Court, in rendering a judgment against an insolvent national bank in charge of a receiver, may provide for its payment by order ing therein, that it (the judgment) be paid by the receiver, or certified by him to the Comptroller to be paid in due course of administration.

U. S. 446, 25 L. ed. 695.

Case v. Bank, 100

33. Receiver of national bank may enforce in his own name or in the name of the bank, against the directors for the benefit of stockholders and creditors, any claim for non-performance or negligent performance, that the bank might have enforced. Movius, Receiver, v. Lee et al., 30 Fed. Rep. 298.

34. A receiver of a national bank appointed by the Comptroller of the Currency is not responsible in equity to owner of real estate for rent, received officially and paid into United States Treasury. Hitz v. Jenks, 123 U. S. 298, 31 L. ed. 156, 8 Sup. Ct. Rep. 143.

35. The expenses of a receivership occasioned by a creditor's suit, are not chargeable to stockholders but to the creditors. Richmond v. Irons, 121 U. S.

27, 30 L. ed. 864, 7 Sup. Ct. Rep. 788.

36. The assessment made by the Comptroller of the Currency is conclusive upon the stockholders, and an action at law may be maintained by the receiver therefor. At least it is only necessary in the complaint to allege that the Comptroller deter mined that it was necessary to enforce the liability of the stockholders, and did levy the assessment. Young . Wempe, 46 Fed. Rep. 354.

37. It is by no means clear that the statutory liability of the stockholder is a

debt, within the meaning of this section, and it is therefore doubtful whether the court has the power to authorize the compounding of the statutory liability of a stockholder in a national bank. In re certain stockholders of California Nat. Bank, 53 Fed. Rep. 38.

38. A married woman is liable in equity to be assessed under this section when by the law of the place of her residence she can become a stockholder. Bundy v. Cocke, 128 U. S. 185, 32 L. ed. 397, 9 Sup. Ct. Rep. 242. They are also liable in Keyser v. Hitz, 133 U. S. 138, 33 L. ed. 531, 10 Sup. Ct. Rep. 290.

law.

39. Where stock was sold to pay assessment caused by misconduct of directors in making worthless loans. Held, that stockholder damaged by such forced sale may sue such directors, for himself and others similarly situated. Hanna v. People's Nat. Bank, 35 Misc. 517, 71 N. Y. Supp. 1076.

40. Stockholder's liability. Comptroller's decision conclusive. Receiver of insolvent bank. The decision of Comptroller of Currency that it is necessary to begin proceedings against stockholders to enforce personal liability, is conclusive; by his decision the liability of a stockholder becomes a definite liquidated claim. Section 5234, U. S. Rev. Stat., U. S. Comp. Stat. 1901, authorizing receiver to enforce personal liability of stockholders is not a personal trust which bars its transfer to assigne of claim. Waldron v. Alling, 73 App. Div. 86, 76 N. Y. Supp. 250.

41. Statute requiring enforcement of amount of assessment on national bank stock against next of kin or distributive share so far as such share goes, is not in conflict with federal law. Matteson t. Dent, 176 U. S. 530, 44 L. ed. 576, 20 Sup. Ct. Rep. 419.

42. A transfer of stock properly delivered to officer of the bank although there is a failure to enter it, will operate as a proper transfer. Matteson v. Dent,

supra.

43. A national bank, receiving shares of another as collateral, will be presumed not to intend to become owner, and if sued for assessments on such shares may set up lack of power. Robinson v. Southern Nat. Bank, 180 U. S. 309, 45 L. ed. 541, 21 Sup. Ct. Rep. 383.

44. The duty of Comptroller under this section empowers him to make a further assessment if necessary, and if previous one is not sufficient to exhaust par value of shares. Studebaker v. Perry, 184 U. S. 261, 46 L. ed. 530, 27 Sup. Ct.

Rep. 463.

45. Receiver is not liable to suit by stockholders for fraud of bank officers in inducing him to buy stock. Lantry v. Wallace, 182 U. S. 554, 45 L. ed. 1227, 21 Sup. Ct. Rep. 878.

46. Receiver of national bank appointed by Comptroller is not an officer of the court but the officer of the United States. In re Chetwood, 165 U. S. 458, 41 L. ed. 787, 17 Sup. Ct. Rep. 385.

§ 5235. [U. S. Comp. Stat. 1901, p. 3508.] The Comptroller shall, upon appointing a receiver, cause notice to be given, by advertisement in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same, and to make legal proof thereof.

Proof of claim under this section must be as the claim exists at the time proof is made, and not at the time or date of the suspension of the bank, so that where after the suspension and before filing proof of his claim a creditor of the bank realizes on securities held by him as collateral to the loan he must deduct the amount so received from the amount of his claim. Chemical Nat. Bank v. Armstrong, 50 Fed. Rep. 798.

§ 5236. [U. S. Comp. Stat. 1901, p. 3508.] From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives in proportion to the stock by them respectively held.

See Act of June 30, 1876, § 3, as amended March 2, 1897, post.

1. The claims of creditors may be proved before the Comptroller, or established by suit against the association. Creditors must seek their remedy through the Comptroller in the mode prescribed by the statute; they cannot proceed directly in their own name against the stockholders or debtors of the bank. Kennedy v. Gibson, 8 Wall. 506, 19 L. ed. 479; Bank of Bethel v. Pahquioque Bank, 14 Wall.

383, 20 L. ed. 840.

2. The claims, when proved to the satisfaction of the Comptroller, are upon the same footing as if they had been reduced to judgments. National Bank of Com monwealth v. Mechanics' National Bank, 94 U. S. 437, 24 L. ed. 176.

3. Claims disallowed by the Comptroller may be presented in a court having jurisdiction in such cases. Bank of Bethel v. Pahquioque Bank, Id.

4. But judgment, when recovered, will not, in any case, give the creditor any lien on the property of the delinquent association, nor secure to the judgment creditor any preference over other creditors, whose claims are proven before the receiver. All alike must await the action of the Comptroller of the Currency, and be content with a just and legal distribution of the proceeds of the assets collected by the receiver, and liquidated by the Comptroller according to the Act of Congress in such case made and provided. Id.

5. Claims proved to his satisfaction are to be paid by the Comptroller, as debts proved against an insolvent are to be paid by his assignee; and in the one case. as in the other, the interest is an incident of the debt or claim, and to be paid before distribution of the surplus, without regard to the fact whether the debts are those upon contract conditioned for the payment of interest, or not. Chemical National Bank . Bailey, 12 Blatchf. 480, Fed. Cas. No. 2,635.

6. An action in assumpsit will not lie against either the Comptroller or receiver to recover such interest, but will lie against the bank. Id.

7. Ordinarily, an action cannot be maintained by a depositor against a bank, until a formal demand has been made; and, of course, no interest can be recovered, except that arising after the demand. The bringing of an action does not amount to a demand in such cases. Payne v. Gardiner, 29 N. Y. 146. But if the bank, by words or contract, denies the depositor's right to his balance, it becomes presently liable to an action, without formal demand, and interest would be recoverable as damages. Such is the case where a bank, by its default, initiates proceedings which result in a transfer of the moneys of its depositors to a receiver, and thus puts it out of its power to pay its depositors when called upon to do so. A demand, under such circumstances, would have been an idle cere mony. The bank cannot be permitted to say that the depositor should have made a demand, when, if made, it would have been nugatory and useless. It has been held, that, in cases of insolvency, where a debt is payable on demand, and no special demand is shown, interest is to be computed from the first publication of the proceedings in insolvency. Brown v. Lamb, 6 Metc. 203. Reason and analogy favor the application of the rule to the case of such depositors. WALLACE, J. Id. In a similar case in the United States Supreme Court (National Bank of Commonwealth t. Mechanics' National Bank, 94 U. S. 437, 24 L. ed. 176, above cited), it was held that a demand for the interest was properly made.

8. If such interest be not paid by the Comptroller at the time of the repayment of the deposit, an action not only lies to recover the former, but, being a liquidated sum at the time, to recover interest thereon also. National Bank of Commonwealth v. Mechanics' National Bank, 94 U. S. 437, 24 L. ed. 176.

9. The United States, as a creditor of a national bank, is not entitled to a priority of payment, out of its assets, over other creditors. Cook County National Bank v. United States, 107 U. S. 445, 27 L. ed. 537, 2 Sup. Ct. Rep. 561. 10. Where a national bank was put into insolvency by the Comptroller of the Currency, and a creditor, whose claim was disputed, recovered judgment, seven years after, for an amount much larger than the amount of his claim at the time of the failure, Held, that the dividend should be calculated and paid upon the amount of his claim at the time of the failure of the bank, and not the amount found due when the same was adjudicated. United States ex rel. White v. Knox, 111 U. S. (3 Davis) 784, 28 L. ed. 603, 4 Sup. Ct. Rep. 686.

11. It is the intent of sections 5234-5236 to throw the entire control of an insolvent bank into the hands of the Comptroller of the Currency for the purpose of winding up its affairs. Jackson, Receiver, v. United States, 20 Court of Claims, 298.

§ 5237. [U. S. Comp. Stat. 1901, p. 3508.] Whenever an association against which proceedings have been instituted, on account of any alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section fifty-two hundred and twenty-seven, apply to the nearest circuit, or district, or territorial court of the United States, to enjoin

further proceedings in the premises; and such court, after citing the Comptroller of the Currency to show cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented, in the lawful money of the United States, shall make an order enjoining the Comptroller, and any receiver acting under his direction, from all further proceedings on account of such alleged refusal.

See, in connection with above, note 6 to section 5133 [U. S. Comp. Stat. 1901, p. 3454], ante.

The action of the Comptroller, in the appointment of a receiver of the bank, cannot be questioned by the debtors of the bank, until set aside by the bank, in contest brought by it as provided for in this section. The Comptroller appoints the receiver, and can, therefore, remove him. Cadle v. Baker, 20 Wall. 650, 22 L. ed. 448.

§ 5238. [U. S. Comp. Stat. 1901, p. 3509.] All fees for protesting the notes issued by any national banking association shall be paid by the person procuring the protest to be made, and such association shall be liable therefor; but no part of the bonds deposited by such association shall be applied to the payment of such fees. All expenses of any preliminary or other examinations into the condition of any association shall be paid by such association. All expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof.

See Act of June 30, 1876, post.

§ 5239. [U. S. Comp. Stat. 1901, p. 3515.] If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this Title, all the rights, privileges and franchises of the association shall be thereby forfeited. Such violation shall, however, be determined and adjudged by a proper circuit, district, or territorial court of the United States, in a suit brought for that purpose by the Comptroller of the Currency, in his own name, before the association shall be declared dissolved. And in cases of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or