Harvey v. Allen. the commission of an act of insolvency by the Scandinavian Bank, and with a view to prevent the application of its assets, as prescribed in said Act, and to prefer Allen, Stephens & Co., by securing to them their claim in full from such assets in preference to other creditors, or the ratable proportion of said assets that might be found due to them under said Act, the said attorney desired to move, in behalf of the defendant, to vacate said order of publication and warrant of attachment, and to stay the proceedings in said action. On said. affidavits, and on an affidavit by said attorney, that one of the circulating notes of the bank was protested on December 10th, for non-payment and non-redemption, and that such fact was duly certified to the Comptroller of the Currency, a motion to the above effect was made before the State Court, on the part of the defendant, by counsel who appeared for it for the purpose of the motion. The Court, on the 5th of March, 1873, denied the motion, at special term, holding, that, so far as the defendant was concerned, the attachment was properly granted, and that, in accordance with the decision of the Court of Appeals of New York, in Tracy v. First National Bank of Selma, (37 N. Y., 523,) it must be held, that the receiver had no status in the action to make a motion to vacate the attachment, but must assert his title in some other manner. The point of the decision in the Tracy case was, that the receiver, not being a party to the suit, could not make any motion in it. The Scandinavian Bank, then, by the said attorney, who appeared for it for that purpose, took an appeal to the general term of the State Court, from the order denying such motion. On the 16th of May, 1873, the general term affirmed the order appealed from. The receiver did not make himself a party to the suit in the State Court, but, in May, 1873, he filed the bill in this suit. An amended bill was filed in June, 1873. It sets forth the substance of the matters above stated. It alleges, that, when the Scandinavian Bank became insolvent, the Broadway Bank had in its possession "certain assets" of the former bank, "and, among the same, the sum of about fifteen hundred dollars, VOL. XVI.-3 Harvey . Allen. more or less, in currency, or otherwise," which the plaintiff, as receiver, and in behalf of himself and said comptroller, was entitled to demand and receive from the latter bank, and that the same has been demanded, but the latter bank has refused to deliver the same to the plaintiff or to said comptroller, or to make any disposition of the same that will enable the plaintiff to pay the same into the treasury of the United States. It alleges that the claim made under said attachment is contrary to law. It prays that an injunction may be issued, restraining the Broadway Bank from paying over said moneys to any one but the plaintiff; that Allen, Stephens & Co. and said sheriff be enjoined from proceeding on said attachment, or entering any judgment or order in said suit, or on their said claim, save in the way of presenting the same to the plaintiff as receiver, as claims entitled to no preference over those of the general creditors of the Scandinavian Bank; that the Broadway Bank pay to the plaintiff, to be by him paid into the Treasury of the United States, the said sum of $1,500, "be the same more or less," with interest; and that a receiver of said moneys, during the pendency of this suit, be appointed. Allen, Stephens & Co. answered, in October, 1873, setting up their claim, and said attachment and the proceedings in said suit in the State Court. Their answer also set forth, that, on the 13th of September, 1873, a judgment was recovered in said suit, against the Scandinavian Bank, for $829 84; that, on the same day, an execution was issued on said judgment, to said sheriff; that said sheriff collected on said execution, and under said attachment, from said Broadway Bank, and paid to Allen, Stephens & Co., on the 20th of September, 1873, $820, in full satisfaction of said judg ment and of all claim of theirs under said attachment; and that Allen, Stephens & Co. claim no interest in any indebtedness of the Broadway Bank to the Scandinavian Bank or in any of the assets of the latter bank. The sheriff answered, in October, 1873, setting up the proceedings in the suit in the State Court and the attachment Harvey v. Allen. and its levy and the judgment and execution, and the collection of the money and of fees and expenses from the attached property. The Broadway Bank answered, in October, 1873, setting up the attachment and the proceedings in the suit in the State Court, and the judgment and execution, and the taking by the sheriff from the attached moneys in the hands of the Broadway Bank, of sufficient to satisfy the execution; that said bank has in its possession $568 51 of said deposits of the Scandinavian Bank, and no more, subject to the order of the bank, or its legal representatives or assigns; and that said bank has not refused to pay any of said deposits to the plaintiff, except such as were so attached by the sheriff, amounting to $876 94. On the 9th of January, 1873, the plaintiff, directed the Broadway Bank to credit itself in account with $153 20, for a collection made by the Scandinavian Bank. On the 17th of January, 1873, the plaintiff wrote to the Broadway Bank as follows: "Your favor of 14th inst., enclosing. acc't current, received. I have had it compared with the books of this bank and find it correct. You will please send me your check for balance, less amount of the two attachments and sufficient to cover costs, say about $100 in each case. The U. S. Dist. Atty. in New York has been instructed from Washington to defend these suits, and, until decided, of course you will retain sufficient to indemnify you." On the 18th of January, 1873, the Comptroller of the Currency wrote to the Broadway Bank as follows: "I am informed that you have on deposit, to the credit of the Scandinavian National Bank of Chicago, $2,669 35 in gold, and $2,461 14 in currency, and that suits of attachment have been brought against the bank-one for $650 and the other for $441 95. This bank having been placed in the hands of a receiver, you will, on the receipt of this letter, forward the balance due the Scandinavian National Bank, less the amount which has been attached, to this office, which amount will be deposited with the treasurer, in trust, subject to my order, for the benefit of Harvey v. Allen. its creditors, as provided by the National Currency Act." On the 21st of January, 1873, the Comptroller wrote to the Broadway Bank as follows: "I have received your letter of the 20th, enclosing your certificate of deposit for $2,664 35 gold, being balance of coin account of the Scandinavian National Bank; also your certificate of deposit for $1,015 69, being balance of currency account, less the sum of $1,445 45, retained to abide the result of two attachments and probable costs thereon. Please inform me of the amount of those attachments and the amount retained for costs." The $1,415 45 was the balance of account made up with interest to December 9th, 1872, but not later. The amount paid to the sheriff by the Broadway Bank, September 20th, 1873, was $876 94. The second attachment referred to in the correspondence was one by McKim, Brothers & Co. The record does not show how it was disposed of, but it is not set up by any of the defendants. McKim, Brothers & Co. were originally made parties defendant to this suit, but the suit was discontinued as to them. The Broadway Bank and the sheriff appeared in this suit on the 5th of July, 1873, and Allen, Stephens & Co. appeared on the 7th of July, 1873. A motion was made, on notice to all the defendants, for an injunction to restrain the Broadway Bank from paying over to any person but the plaintiff the moneys mentioned in the bill, and for the appointment of a receiver to hold said moneys until the final determination of this suit, and for an injunction to restrain all the defendants from interfering with such disposition of said moneys pending the determination of this suit, but such motion was denied by this Court by an order filed September 18th, 1873. The case has now been brought to final hearing on pleadings and proofs. It is contended for the Broadway Bank, that the proceedings in the suit in the State Court are binding on the plaintiff, and are a bar to the relief asked by the bill in this suit; that the State Court had jurisdiction of the suit brought in it, and properly issued the attachment; that the bringing of this suit did not divest the State Court of the Harvey v. Allen. jurisdiction it so acquired; that that Court had authority to proceed in such action, and render and enforce judgment therein, so long as no defence was interposed, and so long as the insolvency of the Scandinavian Bank was not brought to the knowledge of that Court in any manner of which it could take cognizance; that the plaintiff, on motion to the State Court, could have been substituted as defendant in such action, and could then have moved to vacate the attachment, or could have defended the action; that, as the plaintiff did not intervene in that action, but allowed it to proceed to judg ment, and allowed the judgment to be enforced against the attached property, he cannot maintain this suit and obtain relief which could have been obtained by him in that action, especially when the effect of such relief will be to nullify the judgment in that action and the proceedings under it; that the sheriff was required by the State law to execute the attachment and the execution; and that the Broadway Bank could not resist the processes. The argument on behalf of Allen, Stephens & Co. is addressed principally to a questioning of the correctness of the decision of this Court in Cadle v. Tracy, (11 Blatchf. C. C. R., 101,) to the effect, that a State Court has no jurisdiction of a suit against a national bank, where the bank is not located in such State, such jurisdiction being forbidden by § 57 of the Act of June 3d, 1864, (13 U. S. Stat. at Large, 116, 117.) It is also contended for them, that, if the State Court had jurisdiction to render the judgment which it did render, this Court cannot, in this suit, re-examine the matters settled by that judgment. The decision of the Supreme Court of the United States in National Bank v. Colby, (21 Wallace, 609,) disposes of the main question in this case. In the Colby case, the First National Bank of Selma refused payment, on the 15th of April, of a treasury draft of the United States. The bank did not open for business on the 16th, and on that day the military authorities of the United States, under instructions from the Secretary of the Treasury, took possession of the |