debited, as the fact might be, upon the books It is true that, in the course of the trial,
of each of said banks to a new account, and it appeared that, on the 17th day of Janu-
the prior accounts thereby and in that man-ary, 1893, the Chemical National Bank re-
ner adjusted and settled."
fused to pay a check for $5,000 drawn on it
by the Capital National Bank to the order
of T. M. Barlow, and it is contended that
such refusal by the Chemical National Bank
is to be regarded as an act of insolvency on
the part of the Capital National Bank. It is
difficult to see any foundation for this con-
tention in the mere fact that the Chemical
National Bank refused, on January 17, to
make further advances on the credit of the
Capital National Bank. Such refusal may
have been occasioned by a shortage of money
on the part of the bank in New York, and
because its funds on that day were needed
for other purposes, and was entirely consist-
ent with the absolute solvency of the Ne-
braska bank.

"All transfers of the notes, bonds, bills of
exchange, or other evidences of debt owing
to any national banking association, or of
deposits to its credit; all assignments of
mortgages, sureties on real estate, or of
judgments or decrees in its favor; all depos-
its of money, bullion or other valuable thing
for its use or for the use of any of its share
holders or creditors; and all payments of
money to either, made after the commission
of an act of insolvency or in contemplation
thereof, made with a view to prevent the ap-
plication of its assets in the manner pre-
scribed by this chapter or with a view to the
preference of one creditor to another except
in payment of its circulating notes, shall be
utterly null and void; and no attachment,
injunction, or execution shall be issued
against such association or its property be-
fore final judgment in any suit, action, or
proceeding in any state, county, or munici-
ipal court."

were

*Nor can a finding that the payments and[618] remittances made to the Chemical National Bank on the dates above mentioned made in contemplation of insolvency and with an intent to prefer that bank be based on the mere allegation that the Capital National Bank was actually insolvent, and that its insolvency must have been known to its officers. It is matter of common knowledge that banks and other corporations continue, in many instances, to do their regular and ordinary business for long periods, though in a condition of actual insolvency, as disclosed by subsequent events. It cannot surely be said that all payments made in the due course of business in such cases are to be deemed to be made in contemplation of insolvency, or with a view to prefer one creditor to another. There is often the hope that, if only the credit of the bank can be kept up by continuing its ordinary business, and by avoiding any act of insolvency, affairs may take a favorable turn, and thus suspension of

It appears in evidence that on January 18, 1893, the account of the Capital National Bank with the defendant bank was overdrawn to the amount of $84,486.19, and that, by sundry remittances made, the amount overdrawn stood, on January 21, 1893, at the sum of $25,515.32. It further appears that on January 18, 1893, the [617]Schuster Hax National Bank of St. Joseph, Missouri, remitted by mail $2,000 to the defendant for the credit of the Capital National Bank; on January 19 the Packers' National Bank of South Omaha, Neb.. remitted by mail to the defendant $5,000 for the cred-payments and of business be avoided. it and advice of the Capital National Bank; In the present instance there was not only on January 20 the Capital National Bank re no allegation of payments made in contemmitted to the defendant by mail a package plation of insolvency, or with a view to preof small items amounting to $735 and a fer the Chemical National Bank, but there package amounting to $2,935.60, and on the was no evidence that, up to the closing hours 21st a similar package amounting to $833.- of January 21, 1893, the Capital National 64. On January 23 the defendant received Bank had failed to pay any depositor on dethe remittance of $2,000 of the 18th, and of mand, or had not met at maturity all its ob$5.000, $815.79, and $2.935.60 of the 19th, ligations. And the evidence fails to disclose and the remittance of $735 of the 20th; and any intention or expectation on the part of on the 24th of January it received the remit-its officers to presently suspend business. It tance of $833.04. With these remittances rather shows that, up to the last, the operacredited the account of the Capital National tions of the bank and its transactions with Bank stood, on January 24, 1893, overdrawn the Chemical National Bank were conducted $13,317.94. in the usual manner. It may be that those of its officers who knew its real condition must have dreaded an ultimate catastrophe, but there is nothing to justify the inference that the particular payments in question were made in contemplation of insolvency, or with a view to prefer the defendant bank. The Chemical National Bank was no more preferred by these remittances several days before suspension than were the depositors whose checks were paid an hour before the doors were closed. Indeed, it is stipulated that the Capital National Bank continued to transact its usual and ordinary business up

The complainant's case depends, under the evidence, on an application of the provisions of section 5242 of the Revised Statutes, which is as follows:

The claim of the complainant is to recover all the sums received by the defendant bank on January 23 and 24 as having been transferred and received contrary to the statute. The bill of complaint contains no allegation of any act of insolvency prior to January 22, 1893, or of any payment made in contemplation of insolvency, or of any payment made with a view to prevent the application of the bank's assets in the manner prescribed in the statute or of any payment made with a view to the preference of one creditor to another.

to the close of banking hours on January 21, | in the nature of payments on general ao

1893. [619] *The view of the courts below was that these payments and remittances were not made in contemplation of insolvency, or with a view to prefer the Chemical National Bank, and our examination of the evidence has led us to the same conclusion.

It remains to consider another proposition very strongly pressed on behalf of the appellant, and that is, that the moneys and checks remitted to the defendant bank which did not reach it till after the bank examiner had taken possession could not, in law, become the property of the defendant bank, but remained part of the assets of the insolvent bank, for which the defendant must account to the receiver in order that the proceeds may be ratably divided among the creditors. It is said that the taking possession of the bank by the Comptroller of the Currency is a distinct declaration of insolvency, and cases are cited in which it has been said by this court that the business of the bank must stop when insolvency is declared (White v. Knox, 111 U. S. 784 [28: 603]); and that the state of case, where the claim sought to be offset is acquired after the act of insolvency, cannot sustain such a transfer, because the rights of the parties become fixed as of that time. Scott v. Armstrong, 146 U. S. 499 [36: 1059].

The law is doubtless as thus stated, but does it apply to the present case?

It is conceded in his brief by the learned counsel of the appellee that if the drafts and checks had been deposited in the mail pursuant to any agreement or even if the defendant had known anything about them, they might have been regarded as the property of the Chemical National Bank as of the date of mailing. But he urges that this was only the case of a bank sending the checks of other parties to its agents for collection and deposit; that it could have sent them to any other agent had it pleased, and that after it had once put them in the mail it could have taken them out again. And queries are put as to which bank would have suffered the loss if the checks had been destroyed in transit, or if they had proved to be worthless.

But here we have the case, not of a casual remittance, but of remittances sent from [620]time to time, and frequently, during a *long course of business between the banks concerned. There may have been no special agreement as to each particular remittance, but there was plainly a general agreement that remittances were to be made by mail, and that their proceeds were not to be returned to the Capital National Bank, but were to be credited to its constantly overdrawn account.

Whose the loss might be, if the packages were destroyed in transitu, or if the checks proved uncollectible, are not questions that concern us now. It is sufficient, for present purposes, to say that the inference is warranted that it was understood between the parties that these remittances were to be made through the mails, and that they were

count.

Nor can it be conceded that, except on some extraordinary occasion and on evidence satisfactory to the postoffice authorities, a letter once mailed can be withdrawn by the party who mailed it. When letters are placed in a postoffice they are within the legal custody of the officers of the government and it is the duty of postmasters to deliver them to the persons to whom they are addressed. United States v. Pond, 2 Curt. C. C. 265; Buell v. Chapin, 99 Mass. 594 [97 Am. Dec. 58]; Morgan v. Richardson, 13 Allen, 410; Tayloe v. Merchants' F. Ins. Co. 9 How. 390 [13: 187].

However, it is not pretended in this case that the checks were destroyed or proved worthless, or that the Capital National Bank either withdrew the remittances or countermanded their delivery.

We think that the courts below well held that, under the facts of this case, the mailing of these checks and remittances was a delivery to the Chemical National Bank, whose property therein was not destroyed or impaired by a subsequent act of bankruptcy. be as to the remittances received through It is finally urged that, however it may the mail on January 23, 1893, yet that the payment or remittance of $833.64, received on January 24, was a payment made after the declaration of insolvency, and must therefore be accounted for by the defendant bank.

*It is claimed that there was no evidence[621; that this remittance came by mail, and that all there is in the case is the admission by the defendant bank of its receipt of that sum on January 24, 1893.

But it is to be observed that no mention is made in the bill of this particular item, though the other litigated items are specified, and to the latter only was the proof directed. In the absence of evidence as to any other method of transmission, and in view of the fact that all the other payments were made by mail, it would seem to be a reasonable inference that such was the case of this remittance. The record discloses that the cashier of the Chemical National Bank testified in the case. He had furnished the complainant with a statement of the accounts between the banks from January 3, 1893, to January 24, 1893, including this particular item; but he was not cross-examined as to this item. Had he been so examined, a more particular statement in respect to it would have been, no doubt, elicited. It was apparently assumed that the history of this payment did not differ from that of the others; and the effort now made in respect to it seems to be in the nature of an afterthought, too late to permit an explanation.

that the decree of the Court of Appeals was Upon the whole case, we are of the opinion correct, and its decree is accordingly affirmed.

Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna disented.

JNORTHERN PACIFIC RAILWAY COM-I trial, without a jury, that the plaintiff's