Cited and principle applied in Davis v. Elmira Sav. Bank, 161 U. S. 285, 40 L. 701, 16 S. Ct. 504, holding, under statutes, that a preference of debt of an insolvent national bank, for a deposit by a savings bank, is invalid; Roberts v. Hill, 23 Blatchf. 314, 319, 24 Fed. 572, 576, holding that transfer was fraudulent; Chemical Nat. Bank v. Armstrong, 59 Fed. 375, 16 U. S. App. 465, 28 L. R. A. 234, holding creditors of insolvent national bank cannot be required to allow credit for collections made after insolvency, on collateral securities; Denton v. Baker, 79 Fed. 192, 48 U. S. App. 241, holding equity cannot compel the allowance of claim by receiver; Harvey v. Allen, 16 Blatchf. 37, 38, F. C. 6,177, and Woodward v. Ellsworth, 4 Colo. 583, holding like cited case; National, etc., Bank v. Mechanics' Nat. Bank, 89 N. Y. 441, holding that receiver may move to vacate attachment without being a party; National, etc., Bank v. Mechanics' Nat. Bank, 89 N. Y. 469, holding attachment cannot issue out of State court against a national bank about to become insolvent.

Distinguished in Price v. Coleman, 22 Fed. 696, 697, where there was nothing to indicate insolvency at time of attachment; Yardley v. Clothier, 49 Fed. 341, holding depositor in insolvent bank, indorsing note discounted by bank, can set off his deposit against the note maturing after the insolvency.

Banks and banking.- Purpose of act of 1864, creating national banks, was to secure the government notes by giving a first lien, and to secure assets for a ratable distribution among creditors; receiver has control of the assets for this purpose, p. 613.

Cited and relied upon in Pacific Nat. Bank v. Mixter, 124 U. S. 725, 31 L. 570, 8 S. Ct. 720, holding no attachment can issue against a national bank before final judgment; Merrill v. National Bank, 173 U. S. 143, 19 S. Ct. 365, holding secured creditor of an insolvent national bank may receive dividends upon his claim; Bailey v. Mosher, 63 Fed. 491, 27 U. S. App. 339, holding creditor of insolvent national bank cannot enforce against officers the personal liability imposed by statute; Hayden v. Thompson, 71 Fed. 65, 36 U. S. App. 361, holding receiver can sue for dividends unlawfully paid; Stuart v. Hayden, 72 Fed. 405, 36 U. S. App. 462, holding receiver proper party to enforce liability of a fraudulent transferrer of stock; Merrill v. National Bank, 75 Fed. 152, 41 U. S. App. 529, in suit against receiver, decree should direct that claim of creditor be certified to comptroller of currency; Denton v. Baker, 93 Fed. 49, holding receiver, though not a party, may contest validity of judgment in State court; Balch v. Wilson, 25 Minn. 303, 33 Am. Rep. 469, holding no lien can be created or preference obtained after appointment of receiver; Stephens v. Schuchmann, 32 Mo. App. 338, holding indorser cannot set off deposits in action by receiver.

Bankruptcy.- Transfers by insolvent bank, after commission of an act of insolvency, or in contemplation thereof, to prefer a creditor, are void, p. 613.

Cited and principle applied in Hayden v. Chemical Nat. Bank, 9 Biss. 61, F. C. 14,853, and Hayden v. National Bank, 84 Fed. 876, 55 U. S. App. 424, holding valid, payment to depositor as a going concern; Armstrong v. Chemical Nat. Bank, 41 Fed. 239, 6 L. R. A. 230, and n., upholding transfer to secure a debt; Bell v. Hanover Nat. Bank, 57 Fed. 821, holding valid, retention of a balance standing to the credit of insolvent bank, with a correspondent; Stapylton v. Stockton, 91 Fed. 330, 331, 63 U. S. App. 420, holding valid. transfer by way of security for a present advance.

Corporations.- Life of corporation may be prolonged by statute for purpose of conducting suits to judgment, p. 615.

Cited and principle applied in Edison E. L. Co. v. Westinghouse, 34 Fed. 233, holding, under statute, that the suit did not abate upon consolidation; Edison E. L. Co. v. New Haven E. Co., 35 Fed. 236. holding assignment by officers of old corporation, conveyed title to the consolidated company; Life Ins. Co. v. Goode, 2 Posey, 416. arguendo, as to what petition in suit against dissolved corporation should show.

Banks and banking.- Suit against a national bank, to enforce collection of demand, is abated by a decree dissolving the corporation, and forfeiting its franchises, p. 615.

Cited and principle applied in Scott v. Armstrong, 146 U. S. 507. 36 L. 1062, 13 S. Ct. 150, holding that decree of dissolution transfers assets of national bank to the receiver; Kelley v. Miss. Cent. R. R.. 2 Flipp. 589, 1 Fed. 570, holding parties served as representatives of a corporation, can plead its extinction; Grantland v. City of Memphis, 12 Fed. 290, holding scire facias proper remedy on judgment against old corporation, in suing the new; Mason v. Pewabic Min. Co., 66 Fed. 394, 22 U. S. App. 685, holding directors had no authority to bring suit involving controversy between stockholders; Nelson v. Hubbard, 96 Ala. 245, 11 So. 430, 17 L. R. A. 378, holding statute did not authorize suit against a corporation dissolved at instance of stockholders; Ordway v. National Bank, 47 Md. 238, holding there was no final dissolution; Richards v. National Bank, 148 Mass. 191, 19 N. E. 354, 1 L. R. A. 783, and n., holding shares of national bank not transferable after end of period for which it was organized; Life Assn. v. Goode, 71 Tex. 95, 8 S. W. 640, holding like cited case; Giles v. Stanton, 86 Tex. 625, 26 S. W. 617, holding valid, judgment rendered pending an appeal from judgment forfeiting charter; Combes v. Keyes, 89 Wis. 313, 46 Am. St. Rep. 845, 62 N. W. 94, 27 L. R. A. 374, in action against dissolved corporation, it was competent for its secretary to so inform the court; dissenting opinion in State v. Railway Co., 45 S. C. 455. 23 S. E. 380, majority holding that statute did not abate suits. See note, 40 Am. Dec. 738.

21 Wall. 616-635, 22 L. 492, JACKSON v. LUDELING.

Equity. When two or more persons have a common interest in a security, equity will not allow one to appropriate it exclusively to himself or to impair its worth to the others, p. 622.

Cited and principle applied in Ervin v. O. R. & N. Co., 23 Blatchf. 526, 27 Fed. 632, holding majority of stockholders seeking to make profit at expense of minority are guilty of constructive fraud; Lloyd v. Chesapeake, etc., R. R., 65 Fed. 357, directing receiver to pay interest on first mortgage to prevent its foreclosure; Toler v. East Tenn., etc., Ry., 67 Fed. 180, holding trustee not bound to vote according to the wishes of the majority of bondholders; Bound v. So. Car. Ry., 71 Fed. 55, and Bound v. So. Car. R. R., 78 Fed. 55, 42 U. S. App. 353, holding bondholders not represented by the purchasing committee could not claim a priority in the distribution of cash paid by it; Hackettstown Nat. Bank v. Brewing Co., 74 Fed. 112, 38 U. S. App. 681, holding minority not bound by collusive action of majority; Sidell v. Mo. Pac. Ry., 78 Fed. 727, 51 U. S. App. 6, holding that majority of stockholders cannot appropriate the common property for their own advantage; Miner v. Ice Co., 93 Mich. 115, 53 N. W. 224, 17 L. R. A. 418, holding equity can wind up the affairs of a corporation at suit of a stockholder because of gross abuse by an officer; Lang v. Dougherty, 74 Tex. 232, 12 S. W. 32, holding equity will prevent unjust preferences by an insolvent corporation.

Corporations.- Equity will not allow a creditor to destroy the value of property by dissevering from the franchise what is essential to its useful existence, p. 623.

Cited in Yellow River I. Co. v. Wood Co., 81 Wis. 562, 51 N. W. 1006, 17 L. R. A. 95, and n., holding value of flooding-dam, valuable only in connection with franchises of improvement company, should not be included in assessment of land.

Corporations.- Managers and officers of a company are trustees for stockholders and creditors, p. 624.

46

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Cited and principle applied in Wells v. So. Minn. Ry., 1 McCrary, 20, 1 Fed. 272, holding servant and "employee" did not include secretary of railroad; Combination Trust. Co. v. Weed, 2 Fed. 25, F. C. 14,207a, holding that president of corporation must account for property improperly applied to his own use; Coons v. Tome, 9 Fed. 534, holding that directors cannot save themselves at expense of creditors; Lippincott v. Shaw C. Co., 25 Fed. 586, Olney v. Land Co., 16 R. I. 600, 27 Am. St. Rep. 769, 18 Atl. 182, 5 L. R. A. 363, and Mercantile Co. v. Co-op. Inst., 12 Utah, 235 42 Pac. 873, all holding preferences of special advantage to directors of insolvent corporation will be set aside; Mayor, etc. v. Huff, 60 Ga. 229, holding illegal, lease by mayor of public park; Simmons v. Camp, 71 Ga. 60, holding director appropriating sufficient assets of VOL. VIII- 31

company to pay debt for which he is surety, cannot have contribution from co-surety; Forster v. Planing M. Co., 16 Mo. App. 157, holding deed to director to secure a loan, is not necessarily void; Wilkinson v. Dodd, 40 N. J. Eq. 142, 3 Atl. 372, holding that managers are personally liable for their breaches of trust; Hume v. Bank, 9 Lea, 744, holding directors not accepting the office are not liable to creditors; Lamb v. Laughlin, 25 W. Va. 315, query, whether directors of an insolvent corporation can prefer themselves; Lamb v. Pannell, 28 W. Va. 667, holding that director cannot obtain note not yet due, on which he is surety, in payment of deposits due him; Pyles v. Furniture Co., 30 W. Va. 136, 2 S. E. 917, holding that an insolvent corporation can prefer creditors; Cochran v. Ocean Dock Co., 30 La. Ann. 1366, corporation may not appropriate assets for corporate salaries until creditors are paid.

Distinguished in Booth v. Robinson, 55 Md. 442, to hold directors personally liable for acts willfully fraudulent, constructive proof is insufficient.

Railroads. Foreclosure sale at the instance of local managers of an embarrassed railroad holding but a small portion of the mortgage bonds, at which sale such managers were purchasers at a low price, will not be sustained, p. 631.

Cited and principle applied in Leavenworth Co. v. Chicago, etc., Ry., 134 U. S. 708, 33 L. 1073, 10 S. Ct. 715, sustaining sale under foreclosure of mortgage, where there was no collusion or fraud; Central Nat. Bank v. Fitzgerald, 94 Fed. 19, holding equity will set aside a fraudulent payment by administratrix to one creditor, though estate is still unsettled; Corey v. Wadsworth, 99 Ala. 77, 42 Am. St. Rep. 36, 11 So. 353, 23 L. R. A. 621, holding that officer of an insolvent corporation cannot be a preferred creditor; Boyd v. School Township, 124 Ind. 194, 24 N. E. 661, holding township not bound on certificates fraudulently issued; Bruner v. Brown, 139 Ind. 604, 38 N. E. 319, holding receiver could not recover value of stock unless fraud is proved; Lamb v. San Pedro, etc., Co., 3 N. Mex. 454, 9 Pac. 531, restraining enforcement of fraudulent judgment obtained by conspiracy of trustees; Santa Fe E. Co. v. Hitchcock, 9 N. Mex. 165, 50 Pac. 335, holding there was conclusive evidence of fraudulent conspiracy to defeat mortgagee; Farmers' L. & T. Co. v. New York, etc., R. R., 150 N. Y. 429, 55 Am. St. Rep. 695, 44 N. E. 1048, 34 L. R. A. 83, holding corporation cannot purchase majority of stock in another, and direct it so as to injure the minority. See extensive note, 99 Am. Dec. 335.

Distinguished in Brown v. Furniture Co., 58 Fed. 293, 16 U. S. App. 221, 22 L. R. A. 824, holding valid mortgage securing obligations of directors and stockholders; Kitchen v. St. Louis, etc., Ry., 69 Mo. 273, holding purchase by directors of corporate obligations at a discount, not per se fraudulent.

Judicial sales.- Judgment of homologation under Louisiana act of 1834, whereby sheriff's sale is confirmed, is conclusive only as to matters of form, and not as to whether the purchasers were guilty of fraud, or trustees mala fides for others, p. 633.

Cited in Johnson v. Waters, 111 U. S. 668, 28 L. 557, 4 S. Ct. 634, holding sale made by order of court void for fraud; Warren V. Stinson, 6 N. Dak. 309, 70 N. W. 284, holding order confirming sale settles no question of fact or law as against owner; Kurtz v. Railroad Co., 187 Pa. St. 68, 40 Atl. 991, holding equity will not interfere with judicial sale where there are no averments showing fraud.

Miscellaneous.- Referred to generally in Parsons v. Jackson, 99 U. S. 436, 25 L. 458, and Jackson v. Ludeling, 99 U. S. 513, 514, 25 L. 461. Cited to no point decided in Ridings v. Johnson, 128 U. S. 225, 32 L. 405, 9 S. Ct. 76, and Sheffield, etc., Co. v. Newman, 77 Fed. 794, 41 U. S. App. 766, Byers v. Rollins, 13 Colo. 27, 21 Pac. 896, Chadwick v. Old Colony R. R., 171 Mass. 243, 50 N. E. 630.

21 Wall. 636-640, 22 L. 653, MOORE V. MISSISSIPPI.

Courts. To give Supreme Court jurisdiction on error to State court it must appear that a Federal question was necessarily involved in decision of latter, p. 638.

Cited in Citizens' Bank v. Board of Liquidation, 98 U. S. 142, 25 L. 115, holding Supreme Court without jurisdiction.

Courts. On error from Supreme to State court, if record shows that a Federal question was not necessarily involved, and does not show that one was raised, court will not go elsewhere to ascertain that fact, p. 639.

Reaffirmed in Otis v. Oregon S. S. Co., 116 U. S. 550, 29 L. 720, 6 S. Ct. 524.

Indictment and information.- Plea to whole indictment not meeting the whole case will be bad upon demurrer, p. 639.

21 Wall. 640-642, 22 L. 689, WOOD v. BAILEY.

Bankruptcy.-Under bankrupt act appeal will be disallowed if notice is not served on assignee within ten days of filing of de cree, p. 641.

Reaffirmed in Ex parte Mead, 109 U. S. 232, 27 L. 914, 3 S. Ct. 130, and Mead v. Platt, 17 Fed. 510. Cited and principle applied in Fellows v. Burnap, 14 Blatchf. 64, F. C. 4,721, holding filing by creditor of notice of appeal and statement of claim within ten days are not jurisdictional requisites; In re McEwen, 9 Biss. 371, 4 Fed. 16, holding appeal must be entered at term next after the entering of the order. Cited in Rosenthal v. Walker, 111 U. S. 191, 28 L. 397, 4 S. Ct. 385, without particular application.