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sult of proceedings had while the national bankruptcy law was operative and would have been applicable to his case, is entirely inoperative and constitutes no defense to an action subsequently brought against him by a domestic creditor. Shears v. Solhinger (N. Y. 1870) 10 Abb. Prac. N. S. 287; Cassard v. Kroner (Md.) 4 N. B. R. 569. An assignee under the state law has no title or claim to the property of the debtor such as will enable him to maintain an action for its recovery against a third person, the existence of the bankruptcy law, which would be applicable to the debtor, being a full defense to such an action; and this, although no proceedings under the federal statute are ever had against the insolvent. Griswold v. Pratt (Mass. 1845) 9 Metc. 16. Compare Shryock v. Basehore (1876) 82 Pa. 159, 15 N. B. R. 283. The trustee in insolvency acquires no such interest in the insolvent's estate as will entitle him to maintain an action to set aside a fraudulent and preferential conveyance, although no adjudication of bankruptcy has been had against the insolvent in the federal courts. Ketcham v. McNamara (1900) 72 Conn. 709, 46 Atl. 146, 50 L. R. A. 641. The invalidity of proceedings had under a state insolvency law, including the invalidity of the pretended title of the assignee under such law, by reason of the existence at the time of a national bankruptcy law, may be asserted, with effect, in a contest between attaching creditors and such assignee. Rowe v. Page (1874) 54 N. H. 190, 13 N. B. R. 366; Shryock v. Basehore (1876) 82 Pa. 159, 15 N. B. R. 283. Compare Cook v. Rogers (1875) 31 Mich. 391, 13 N. B. R. 97; Reed v. Taylor (1871) 32 Iowa, 209, 4 N. B. R. 710, 7 Am. Rep. 180.

Numerous cases hold that proceedings may be had and jurisdiction exercised under the state laws until their authority is called in question by the bankruptcy courts; that judicial action taken, and titles accruing, under the insolvency laws are voidable at the most; and that they are not to be avoided unless proceedings in bankruptcy are instituted, and then only at the instance of the trustee in bankruptcy. Carling v. Seymour Lumber Co. (1902) 113 Fed. 483, 51 C. C. A. 1, 8 Am. Bankr. Rep. 29; Boston Mercantile Co. v. Ould-Carter Co. (1905) 123 Ga. 458, 51 S. E. 466; Patty-Joiner & Eubank Co. v. Cummins (1900) 93 Tex. 598, 57 S. W. 566; State v. Superior Court of King County (1899) 20 Wash. 545, 56 Pac. 35, 45 L. R. A. 177; Jensen-King-Byrd Co. v. Williams (1904) 35 Wash. 161, 76 Pac. 934; Lavender v. Gosnell (1875) 43 Md. 153, 12 N. B. R. 282; Steelman v. Mattix (1873) 36 N. J. Law, 344; Reed v. Taylor (1871) 32 Iowa, 209, 4 N. B. R. 710, 7 Am. Rep. 180; Cook v. Rogers (1875) 31 Mich. 391, 13 N. B. R. 97; Ebersole v. Adams (Ky. 1873) 10 Bush, 83, 13 N.

B. R. 141; Maltbie v. Hotchkiss (1871) 38 Conn. 80, 5 N. B. R. 485, 9 Am. Rep. 364. Notwithstanding the existence of a bankruptcy law which would be applicable to the case the parties interested may, by consent, use the state law as a means of collecting and distributing the debtor's estate. Should proceedings in bankruptcy be instituted and the federal court claim the administration of the estate, the state courts would yield; but in the absence of such a claim, the mere fact that a federal law is in existence, under which proceedings might be taken, is no objection to the jurisdiction of the state court. Maltbie v. Hotchkiss (1871) 38 Conn. 80, 9 Am. Rep. 364. Where a state insolvency law gives priority of payment out of insolvents' estates to a certain class of debts, the same debts will be entitled to priority of payment out of bankrupts' estates. In re Worcester County (1900) 102 Fed. 808, 42 C. C. A. 637, 4 Am. Bankr. Rep. 496. Where the main purpose of a suit is to foreclose a mortgage, and there is also an incidental prayer for relief appropriate to insolvency proceedings, a receiver's possession of the property mortgaged will not be affected by a subsequent adjudication in bankruptcy. Nelson v. Spence (1907) 129 Ga. 35, 58 S. E. 697.

Where the debtor refuses to file his voluntary petition in bankruptcy, and yet refrains from committing any act of bankruptcy on which his creditors could proceed, there is no possibility of conflict between courts; and proceedings under the state law, even though compulsory in their nature, may be sustained for the purpose of securing an equal distribution of the debtor's property among his creditors. Appeal of Geery (1876) 43 Conn. 289, 21 Am. Rep. 653.

109. Pending proceedings under state laws. The bankruptcy law does not deprive the state courts of the jurisdiction necessary to the final administration of the estate of an insolvent against whom, or by whom voluntarily, proceedings under the state insolvency law had been instituted before the passage of the federal statute, but the state court may proceed with the case to its final conclusion, and its action in the matter will be as valid as if no national bankruptcy law had been enacted. First Nat. Bank v. Ware (1901) 95 Me. 388, 50 Atl. 24; Hood v. Blair State Bank (1902) 3 Neb. (Unof.) 432, 91 N. W. 701; Osborn v. Fender (1903) 88 Minn. 309, 92 N. W. 1114; Meekins v. Creditors (1867) 19 La. Ann. 497, 3 N. B. R. 511; Martin v. Berry (1869) 37 Cal. 208, 2 N. B. R. 629; Lavender v. Gosnell (1875) 43 Md. 153, 12 N. B. R. 282; Longis v. Creditors (1868) 20 La. Ann. 15; In re Holmes (D. C. 1842) Fed. Cas. No. 6,633; In re Horton (C. C. 1842) Fed. Cas. No. 6,708. When a state insolvency law provides that the insolvent, on being convicted

of fraud, shall be "forever" deprived of the benefit of laws passed in favor of insolvent debtors in the state, the most that can be adjudged against an insolvent in this situation is to deprive him of the benefit of the particular state law under which the proceedings are had, that is, to deny him a discharge. Longis v. Creditors (1868) 20 La. Ann. 15. The pendency of proceedings in insolvency under a state law, on the debtor's voluntary petition, begun before the passage of the bankruptcy act, will not be ground for dismissing the debtor's subsequent voluntary petition in bankruptcy, although he has contracted no new debts, where it appears that one or more of the creditors scheduled by the bankrupt are citizens of other states than that in which the insolvency proceedings were instituted, because in this case the bankruptcy law can afford the debtor a more extensive relief than

he could obtain under the state law. In re Mussey (D. C. 1900) 99 Fed. 71, 3 Am. Bankr. Rep. 592. Where proceedings in insolvency against a partnership and the individuals composing it were begun in a state court, before the passage of the bankruptcy act, and remained pending at the time one of the partners was individually adjudged bankrupt, but no discharge had been granted or applied for under the state law, it was held that a debt of the partnership was provable in the bankruptcy proceedings, notwithstanding the fact that it had been proved and allowed in the insolvency proceedings and that there were assets of the firm for distribution in the state court; but such debt could not share in the individual assets of the bankrupt until his separate creditors had been paid. In re Bates (D. C. 1900) 100 Fed. 263, 4 Am. Bankr. Rep. 56.

§ 9655. (Act July 1, 1898, c. 541, § 71, as amended, Act Feb. 5, 1903, c. 487, § 17.) Bankruptcy records; duty of clerks to keep; inspection.

The clerks of the several district courts of the United States shall prepare and keep in their respective offices complete and convenient indexes of all petitions and discharges in bankruptcy heretofore or hereafter filed in the said courts, and shall, when requested so to do, issue certificates of search certifying as to whether or not any such petitions or discharges have been filed; and said clerks shall be entitled to receive for such certificates the same fees as now allowed by law for certificates as to judgments in said courts: Provided, That said bankruptcy indexes and dockets shall at all times be open to inspection and examination by all persons or corporations without any fee or charge therefor. (32 Stat. 800.)

This section was added, as a new section, to the Bankruptcy Act of July 1, 1898, c. 541, by amendment by Act Feb. 5, 1903, c. 487, § 17, cited above. Section 19 of said amendatory Act Feb. 5, 1903, c. 487, 32 Stat. 801, provided that the act should not apply to bankruptcy cases pending when it took effect, but that such cases should be adjudicated and disposed of conformably to the provisions of the original act.

§ 9656. (Act July 1, 1898, c. 541, § 72, as amended, Act Feb. 5, 1903, c. 487, § 18, and Act June 25, 1910, c. 412, § 13.) Restriction of compensation of referees, receivers, marshals, and

trustees.

Neither the referee, receiver, marshal, nor trustee shall in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized and prescribed in this Act. (32 Stat. 800.. 36 Stat. 842.)

This section was added, as a new section, to the Bankruptcy Act of July 1, 1898, c. 541, by amendment by Act Feb. 5, 1903, c. 487, § 18, cited above. The amendment of this section by Act June 25, 1910, c. 412, § 13, last cited above, included receivers and marshals in the restriction of compensation, the provision originally enacted having been applicable to referees and trustees only.

Section 19 of said first amendatory Act Feb. 5, 1903, c. 487, 32 Stat. 801, provided that the act should not apply to bankruptcy cases pending when it took effect, but that such cases should be adjudicated and disposed of conformably to the provisions of the original act.

Section 14 of said second amendatory Act June 25, 1910, c. 412, 36 Stat. 842, also provided that the act should not apply to bankruptcy cases pending when it took effect, but that such cases should be adjudicated and disposed of conformably to the provisions of the original act as previously amended.

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9657. The "national-bank act." 9658. Formation of national banking associations.

9659. Requisites of organization certificate.

9660. How certificate shall be acknowledged and filed.

9661. Corporate powers of associations. 9662. Change of name or location. 9663. Effect of change of name on debts,

liabilities, etc.

9664. Liabilities and suits not affected by change of name.

9665. Extension of period of corporate succession.

9666. Procedure.

9667. Examination and issue of certifi

cate of approval by Comptroller. 9668. Corporate powers upon extension of period of succession; jurisdiction of suits by or against national banks.

9669. Withdrawal of dissenting shareholders.

9670. Redemption of circulating notes issued prior to extension of period of succession. 9671. Dissolution of banks not extending period of succession. 9672. Reservation of power to amend, alter or repeal act.

9673. Additional extension of period of corporate succession.

9674. Power to hold real property. 9675. Requisite amount of capital. 9676. Shares of stock and transfers.

Sec.

9677. How payment of the capital stock must be made and proved.

9678. Proceedings if shareholder fails to pay installments.

9679. Increase of capital stock.
9680. Increase of capital stock.
9681. Reduction of capital stock.
9682. Right of shareholders to vote.
9683. Election of directors.

9684. Requisite qualifications of directors.

9685. Oath required from directors. 9686. Filling vacancies.

9687. Proceedings where no election is held on the proper day. 9688. Election of president of the board. 9689. Individual liability of shareholders; effect of transfer of shares. 9690. Executors, trustees, etc., not personally liable. 9691. Duties and liabilities when designated as depositaries of public moneys. 9692. Provisions relating to reserves of national banks not to apply to deposits of public moneys in designated depositaries. 9693. Rate of interest on special and additional deposits in national banks designated as depositaries.

9694. Organization of State banks as national banking associations. 9695. State banks having branches. 9696. Reservation of rights of associations organized under act of 1863.

§ 9657. (Act June 20, 1874, c. 343, § 1.) The "national-bank act." The act entitled "An act to provide a national currency secured by å pledge of United States bonds, and to provide for the circulation and redemption thereof," approved June third, eighteen hundred and sixty-four, shall hereafter be known as "the national-bank act." Stat. 123.)

(18

This was the first section of the Currency Act of 1874, entitled "An act fixing the amount of United States notes, providing for a redistribution of the national-bank currency, and for other purposes."

Section 2 of the act, providing that the amount of lawful-money reserve to

be kept on hand by the banks should be determined by the amount of their deposits, is set forth post, § 9748.

Section 3 of the act, relating to deposits in the Treasury of the United States for redemption of circulating notes, is set forth post, § 9751.

Section 4 of the act, authorizing the withdrawal of circulating notes in whole or in part, is set forth post, § 9707.

Section 5 of the act, requiring the charter-number of each association to be printed on each of its notes, is set forth post, § 9715.

Section 6 of the act, limiting the circulation of United States notes, is set forth ante, § 6563.

Section 7 of the act repealed part of R. S. § 5179, and provided for the withdrawal of a certain amount of the circulating notes to secure an equitable distribution thereof around the several states; section 8 thereof provided for the sale of bonds deposited to secure the circulation in case of a refusal or neglect to comply with the requisitions made by the Comptroller for the withdrawal of circulating notes as provided by § 7; and section 9 thereof provided for a redistribution of the currency withdrawn. Said sections 7-9 were superseded by the repeal of provisions for withdrawal and redistribution of national-bank currency, and other provisions made by the Resumption Act of Jan. 14, 1875, c. 15, § 3, post, § 9720.

Act June 3, 1864, c. 106, 13 Stat. 99, mentioned in this section and designated by it "the National-Bank Act," was entitled "An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof." It was incorporated, with subsequent amendatory and additional provisions relating to national banks, into this Title of the Revised Statutes which included sections 5133-5243 thereof. Notes of Decisions

Construction and operation of act.This act does not repeal or affect section 6572 et seq., ante, making the coins of the United States legal tender (1881) 17 Op. Atty. Gen. 144.

Cited without definite application, Austin v. Boston (1868) 7 Wall. 694, 699, 19 L. Ed. 224; Leather Manufacturers' Nat'l Bank v. Cooper (1887) 7 Sup. Ct. 777, 120 U. S. 778, 30 L. Ed. 816.

§ 9658. (R. S. § 5133.) Formation of national banking associations.

Associations for carrying on the business of banking under this Title may be formed by any number of natural persons, not less in any case than five. They shall enter into articles of association, which shall specify in general terms the object for which the association is formed, and may contain any other provisions, not inconsistent with law, which the association may see fit to adopt for the regulation of its business and the conduct of its affairs. These articles shall be signed by the persons uniting to form the association, and a copy of them shall be forwarded to the Comptroller of the Currency, to be filed and preserved in his office.

Act June 3, 1864, c. 106, § 5, 13 Stat. 100.

The conversion of national gold banks into currency banks, authorized by this section, was provided for by Act Feb. 14, 1880, c. 25, post, § 9727.

Notes of Decisions

Construction and validity of act.Congress has power to incorporate a bank. McCulloch v. Maryland (1819) 17 U. S. (4 Wheat.) 316, 4 L. Ed. 579.

The constitutionality of the act of 1864 is unquestioned, and rests on the same principle as the act creating the second Bank of the United States. Farmers' & M. Nat. Bank v. Dearing (1875) 91 U. S. 29, 33, 23 L. Ed. 196.

A construction of the act of 1864 establishing national banks, which would bring it in conflict with state laws, would render it unconstitutional. First Nat. Bank v. Lamb (1872) 50 N. Y. 95, 10 Am. Rep. 438.

When bank becomes corporation.— From the time the comptroller of the

currency issues the certificate to the bank, certifying to its constitution, it becomes a body corporate with the powers of the banking institution, and its shares of capital stock become subject to sale, the purchasers of which thereby become shareholders of the bank, and the payment of 50 per centum of the capital stock is an act subsequent to the organization of the bank. Wallace v. Hood (C. C. 1898) 89 Fed. 11, 19, affirmed (1899) 97 Fed. 865, 38 C. C. A. 510.

A national bank does not become a corporation until the articles and organization certificate are filed. Regester v. Medcalf (1889) 18 Atl. 966, 71 Md. 528.

Cited without definite application, First Nat. Bank v. Lanier (1870) 11 Wall. 369, 376, 20 L. Ed. 172; Bullard v. National Eagle Bank (1873) 18 Wall. 589, 21 L. Ed. 923; Briggs v. Spaulding (1891) 11 Sup. Ct. 924, 928, 141

U. S. 132, 35 L. Ed. 662; Commercial
National Bank v. Weinhard (1904) 24
Sup. Ct. 253, 256, 192 U. S. 243, 48
L. Ed. 425; Earling v. Emigh (1909) 30
Sup. Ct. 672, 674, 218 U. S. 27, 54 L.
Ed. 915.

§ 9659. (R. S. § 5134.) Requisites of organization certificate. The persons uniting to form such an association shall, under their hands, make an organization certificate, which shall specifically state: First. The name assumed by such association; which name shall be subject to the approval of the Comptroller of the Currency.

Second. The place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village.

Third. The amount of capital stock and the number of shares into which the same is to be divided.

Fourth. The names and places of residence of the shareholders and the number of shares held by each of them.

Fifth. The fact that the certificate is made to enable such persons to avail themselves of the advantages of this Title.

Act June 3, 1864, c. 106, § 6, 13 Stat. 101.

National banks were authorized to change their names or locations by Act May 1, 1886, c. 73, §§ 2-4, post, §§ 9662-9664.

Notes of Name.-Use of the title "national," see § 9835, post.

Right of bank to adopt any name, see Third National Bank of Baltimore v. Teal (C. C. 1881) 5 Fed. 503.

The stockholders of an expiring association may organize a new one, and adopt for the latter the name of the former (1882) 17 Op. Atty. Gen. 288.

Presumption of organization from use of name, see Slaughter v. First National Bank (1895) 19 South. 430, 109 Ala. 157.

Place. As to domicile, see note under § 9661, post.

"The place where its operations of discount and deposits are to be carried on" means the town or city, and not the office or building. McCormick v. Market Nat. Bank (1896) 162 Ill. 100, 44 N. E. 381, affirming (1895) 61 Ill. App. 33.

Proof of incorporation.-See notes under 9711, post.

Corporate existence may be shown by parol. Yakima National Bank v. Knipe (1893) 33 Pac. 834, 6 Wash. 348; National Bank of Commerce v. Galland (1896) 45 P. 35, 14 Wash. 502.

The certificate of organization is competent evidence of the incorporation. National Bank of Commerce v. Galland (1896) 45 P. 35, 14 Wash. 502.

Pleading.-See, also, note under § 9661, post.

Allegation of organization see Third Nat. Bank of Baltimore v. Teal (C. C. 1881) 5 Fed. 503.

Allegation of place of business, see Farmers' & Mechanics' Nat. Bank of Buffalo v. Rogers (Super. Buff. 1888) 1 N. Y. S. 757.

Decisions

Validity of organization-Estoppel.When person is estopped to deny validity of organization, see Casey v. Galli (1876) 94 U. S. 674, 24 L. Ed. 168; Keyser v. Hitz (1883) 2 (13 D. C.) Mackey, 473; Wheelock v. Kost (1875) 77 Ill. 296; Huffaker v. Nat. Bank of Monticello (Ky. 1876) 12 Bush, 287; Davis' Estate v. Watkins (1898) 76 N. W. 575, 56 Neb. 288; Bank of Metropolis v. Orcutt (N. Y. 1867) 48 Barb. 256; National Bank of Fairhaven v. Phoenix Warehousing Co. (N. Y. 1875) 6 Hun, 71.

National banks in territories.-Under existing legislation relating to the establishment of national banking associations, and in the present condition of Oklahoma (being without a government and system of laws), such banking associations cannot lawfully be authorized and established in the territory known by that name. (1889) 19 Op. Atty. Gen. 315.

The effect of certain provisions in the treaties with the Creek Nation of Indians of August 28, 1856, and August 11, 1866, which render inoperative in the Creek territory the various national banking laws, considered. (1889) 19 Op. Atty. Gen. 342.

A national bank cannot be lawfully established at Muskogee a town in the territory of the Creek Nation. Id.

In view of the provisions of the act of May 2, 1890 (26 Stat. 81), entitled "An act to provide a temporary government for the territory of Oklahoma," etc., there no longer exists any obstacle to the establishment of national banking associations in the Indian Territory. (1890) 19 Op. Atty. Gen. 585. The laws relating to national bank

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