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tional Bank, and that, in particular, it had ordered to be made to the defendant, were received on January 23, 1893, five thousand made in the ordinary and accustomed cours dollars from the Packers' Nacional Bank, of business between the defendant and the and two thousand dollars from the Schuster Capital National Bank, and when received Hax National Bank, and divers other sums by the defendant were by it placed to the from others, on that day and since; that the credit of the Capital National Bank. defendant had refused to account for and pay The answer admitted that it had received over to the complainant the said collections. the sums of $2,935.60, $815.79, $735, $5,000, Wherefore it was prayed that an accounting and $2,000 on the 23d day of January, 1893; be had, and that the defendant be ordered that the said sums of $2,935.60 and $815.79 to pay over what might be thereby found were remitted to the defendant on or about due.

the 19th day of January, 1893, and the said The defendant bank answered, admitting sum of $735 on or about the 20th day of

the preliminary allegations of the bill, but January, 1893, by the said Capital National (612; denying its knowledge of the *insolvency of Bank, which, on said respective days, de

the Capital National Bank on or prior to posited and delivered the same in the United January 21, 1893, but averring that up to States mail, in letters addressed to the dethe 23d day of January, 1893, it was in: fendant, in the usual and accustomed course formed and did believe that the said Capital of business, and before said Capital National National Bank was entirely solvent, and Bank had suspended payment or stopped dealt with it and gave it credit as a solvent business, and before it was taken charge of bank.

by the receiver; that the said sum of $5,000 The answer denied that on and after Janu. was remitted to the defendant on or about ary 21, 1893, it had ceased to pay and re the 19th day of January, 1893, by the Pack. fused to pay all drafts drawn upon the de- ers' National Bank, and the said sum of $2,fendant by the Capital National Bank, but 000 was remitted to this defendant by the admitted that on the 23d day of January, Schuster National Bank on or about January 1893, because of information then for the 19, 1893, by being by said banks respectively first time received of the struggling condi: deposited in the United States mail, in lettion of said bank, the defendant bank did ters addressed to the defendant, in the usual refuse to pay the drafts of the Capital Na- course of business, and before the Capital tional Bank, which was then indebted to the National Bank suspended payment or stopped defendant in the sum of at least $13,992.93 business, and before it was taken charge of on balance of account, besides large amounts by the receiver. And the answer alleged, on of negotiable paper, indorsed by the Capital" information and belief, that said remittances National Bank, then held by and previously to it by the Packers' National Bank and the purchased or discounted by the defendant Schuster National Bank respectively were bank, and the proceeds of which had been made in virtue of orders and directions pre credited to the account of the Capital Na- viously given to them by said Capital National Bank—all of which transactions were tional Bank on or about January 18, 1893, averred to have been made in the usual m the usual course of business between them course of business between the banks and and the Capital National Bank. without any knowledge, notice, or belief on A replication was filed and evidence put the part of the defendant bank that the Capl. in on behalf of the respective parties. It tal National Bank was insolvent or in dan was stipulated that the Capital National ger of becoming so.

*Bank continued to transact the usual and[614] The answer denied that the defendant had, ordinary business of a national bank up to since January 22, 1893, received many and the close of banking hours on January 21, large sums of money belonging to and for 1893; that the ordinary mail time between account of the Capital National Bank, but Lincoln, Nebraska, and the city of New admitted that since January 21, 1893, it had York is fifty hours; between Lincoln and received certain remittances and payments in South Omaha, Nebraska, where the Packers' the form of checks or drafts, for account of National Bank is situated, is two hours the Capital National Bank, all which it had and forty minutes; between South Omaha placed to the credit of the Capital National and New York City, forty-eight hours and Bank, which had left the Capital National thirty-seven minutes; between Lincoln and Bank' indebted to the defendant bank in a St. Joseph, Missouri, where the Schuster large sum, in the form of balance of account Hax National Bank is located, is seven and negotiable paper indorsed to the defend- hours and twenty-eight minutes, and beant by the Capital National Bank; and the tween St. Joseph and New York City is fifty answer alleged, on information and belief, hours and fifty-five minutes. The complainthat said remittances and payments were made by the Capital National Bank, or by ant put in evidence an account or statement, other banks and bankers, by the direction furnished by the defendant to the complain. and order of said Capital National Bank, ant, showing the transactions between the

thrcugh the United States mails, and were Capital National Bank and the Chemical (613]so ordered, made, and remitted * before the ap- National Bank from January 3, 1893, to

pointment of any receiver for said Capital January 27, 1893, showing a balance on the
National Bank, and before it ceased to pay last day of $13,317.94, against the Capital
its obligations or had suspended its usual National Bank and in favor of the Chemical
and ordinary banking business, and that National Bank.
said remittances by said Capital National The complainant likewise put in cvilence
Bank, or by other banks and bankers, by it a draft drawn on January 13, 1893, by the

Capital National Bank on the Chemical dismissed for want of equity, there being no National Bank for $5,000, to the order of T. allegation of any act of insolvency, nor of inM. Barlow, cashier; and a protest of said tent to preser, nor of intent to prevent the draft for nonpayment on January 17, 1893; application of assets. also a statement of various drafts drawn by Case v. Citizens' Bank, 2 Woods, 23; the Capital National Bank on the Chemical Hayes v. Beardsley, -136 N. Y. 299; Roberts Natio Bank, at different times, in favor v. Hill, 23 Fed. Rep. 311; Dutcher v. Imof third parties, and protested for nonpay- porters' & T. Nat. Bank, 59 N. Y. 5; Utley ment on and after January 24, 1893. These v. Smith, 24 Conn. 310, 63 Am. Dec. 163; protested drafts amounted to $44,264.66. Tiffany v. Lucas, 15 Wall. 410, 21 L. ed. 198.

The defendant called as a witness its Title vests by deposit in the United States cashier, William I. Quinlan, who testified mail. that when the draft for $5,000 to the order The deposit of drafts or checks in the postof T. M. Barlow, cashier, was presented and office to be carried to the Chemical National payment refused, the Capital National Bank Bank was such a delivery as to vest the title had no deposits or funds on deposit with the in that bank. Chemical National Bank out of whicii such Johnson v. Sharp, 31 Ohio St. 611, 27 Am. draft could be paid, and that the account of Rep. 529; M'Kinney v. Rhoads, 5 Watts, the Capital National Bank had been over-343; Kirkman v. Bank of America, 2 Coldw. drawn for some time. The defendant put 397; Buell v. Chapin, 99 Mass. 594, 97 Am. in evidence a letter dated January 19, 1893, Dec. 58; Morgan v. Richardson, 13 Allen, from the Packers' National Bank, inclosing 410; United States v. Jackson, 29 Fed. Rep. its draft for $5,000 on the Fourth National 503; United States v. Jones, 31 Fed. Rep. 725. Bank of New York, to be placed to the credit

It is not sufficient that the payment did of the Capital National Bank, and letter, operate as a preference. There must be the (015]dated January 18, 1893, *from the Schuster actual commission of an act of insolvency, or

Hax National Rank, inclosing its draft for the payment must be made in contemplation $2,000 on the Chemical National Bank, to of insolvency, or with the intent to prefer. the credit of the account of the Capital Na- Jones, Corp. § 23; Bergen v. Porpoise tional Bank.

Fishing Co. 42 N. J. Eq. 397. Further evidence was put in by the respective parties, which it does not seem

*Mr. Justice Shiras delivered the opinion (615!

of the court: necessary to state. On March 16, 1897, after argument, upon “Nebraska, was organized as

The Capital National Bank of Lincoln, the pleadings and proofs, the circuit court

a banking as. dismissed the bill of complaint with costs. sociation under the laws of the United States An appeal was taken from this decree to the in June, 1884, and continued to transact the circuit court of appeals for the second cir- usual and ordinary business of a national cuit, and on January 31, 1898, that court bank up to the close of banking hours on affirmed the decree of the circuit court. And January 21, 1893. On January 22, 1893, a from the decree of the circuit court of ap- after, about February 6, 1893, 9 receiver

bank examiner took possession, and there peals an appeal was taken and allowed to this court.

was duly appointed.

The Chemical National Bank of New Mr. Edward Winslow Paige, for ap- York, a banking association organized unpellant:

der the laws of the United States and doing After the Comptroller of the Currency, business as such in the city of New York, through his examiner, had taken possession, carried on, for some years, a large business no creditor could keep anything.

intercourse with the Capital National Bank. First Nat. Bank v. Colby, 21 Wall. 609, The receiver filed the bill in this case, 22 L. ed. 687; White v. Knox, 111 U. S. 784, seeking to make the Chemical National 28 L. ed. 603; Scott v. Armstrong, 146 U. S. Bank account for certain moneys received 499, 36 L. ed. 1059.

by it after the suspension of the Capital The fact that the other remittances were National Bank. mailed before the bank examiner took pesses- The nature of the intercourse between the sion does not make them the property of the two banks was thus described in a paragraph Chemical National Bank as of the date of of the bill: mailing.

*“Ever since the second day of June, 1884.(616) Canterbury v. Bank of Sparta, 91 Wis. there have been mutual and extensive deal." 53, 30 L. R. A. 845; Johnson v. Sharp, 31 ings between the two banking associations Ohio St. 611, 27 Am. Rep. 529; M'Kinney above named, in which each was acting for v. Rhoads, 5 Watts, 343; Dargan v. Richard- the other, as correspondent banks do, for the son, Cheves, L. 197; Kirkman v. Bank of making of collections and the crediting of America, 2 Coldw. 397; Mitchell v. Byrne, 6 the proceeds thereof and transmitting acRich. L. 171.

counts of the same, including costs of pro. The remittances were mailed after the test and other expenses, and the Capital commission of an act of insolvency, as well National Bank also kept an active deposit as in contemplation of insolvency.

account with the defendant, and that settle. Brown v. Montgomery, 20 N. Y. 287, 75 ments on the basis of such accounts were Am. Dec. 404.

made at periodic times during all said Messrs. George H. Yeaman, and George period, and any balance, after the correction C. Kobbé, for appellee:

of errors, mutually agreed to be charged or The bill of complaint should have been 'credited, was at such periods credited or


debited, as tne 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 Januthe prior accounts thereby and in that man- ary, 1893, the Chemical National Bank rcner adjusted and settled."

fused to pay a check for $5,000 drawn on it The complainant's case depends, under the by the Capital National Bank to the order evidence, on an application of the provisions of T. M. Barlow, and it is contended that of section 5242 of the Revised Statutes, such refusal by the Chemical National Bank which is as follows:

is to be regarded as an act of insolvency on “All transfers of the notes, bonds, bills of the part of the Capital National Bank. It is exchange, or other evidences of debt owing difficult to see any foundation for this conto any national banking association, or of tention in the mere fact that the Chemical deposits to its credit; all assignments of National Bank refused, on January 17, to mortgages, sureties on real estate, or of make further advances on the credit of the judgments or decrees in its favor; all depos- Capital National Bank. Such refusal may its of money, bullion or other valuable thing have been occasioned by a shortage of money for its use or for the use of any of its share on the part of the bank in New York, and holders or creditors; and all payments of because its funds on that day were needed money to either, made after the commission for other purposes, and was entirely consistof an act of insolvency or in contemplation ent with the absolute solvency of the Ne thereof, made with a view to prevent the ap- braska bank. plication of its assets in the manner pre- *Nor can a finding that the payments and[618) scribed by this chapter or with a view to the remittances made to the Chemical National preference of one creditor to another except Bank on the dates above mentioned in payment of its circulating notes, shall be made in contemplation of insolvency and utterly null and void; and no attachment, with an intent to prefer that bank be based injunction, or execution shall be issued on the mere allegation that the Capital Naagainst such association or its property be- tional Bank was actually insolvent, and that fore final judginent in any suit, action, or its insolvency must have been known to its proceeding in any state, county, or munici- officers. It is matter of common knowledge ipal court.”

that banks and other corporations continue, It appears in evidence that on January 18, in many instances, to do their regular and 1893, the account of the Capital National ordinary business for long periods, though Bank with the defendant bank was over- in a condition of actual insolvency, as disdrawn to the amount of $84,486.19, and closed by subsequent events. It cannot surethat, by sundry remittances made, the ly be said that all payments made in the due amount overdrawn stood, on January 21, course of business in such cases are to be 1893, at the sum of $25,515.32. 1: further deemed to be made in contemplation of insol

appears that on January 18, 1893, the vency, or with a view to prefer one creditor 17] Schuster Hax National Bank of St. *Joseph, to another. There is often the hope that, if

Missouri, remitted by mail $2,000 to the de- only the credit of the bank can be kept up by
fendant for the credit of the Capital Nation continuing its ordinary business, and by
al Bank; on January 19 the Packers’ Na- avoiding any act of insolvency, affairs may
tional Bank of South Omaha, Neb., rerritted take a favorable turn, and thus suspension of
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 contem-
mitted to the defendant by mail a parkage plation of insolvency, or with a view to pre-
of 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 de-
the 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 opera-
credited 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

in the usual manner. It may be that those The claim of the complainant is to recover of its officers who knew its real condition must all the sums received by the defendant bank have dreaded an ultimate catastrophe, but on January 23 and 24 as having been trans. there is nothing to justify the inference that ferred and received contrary to the statute the particular payments in question were The bill of complaint contains no allegation made in contemplation of insolvency, or with of any act of insolvency prior to January 22, a view to prefer the defendant bank. The 1893, or of any payment made in contempla- Chemical National Bank was no more pretion of insolvency, or of any pryment made ferred hy these remittances several days bewith a view to prevent the application of the fore suspension than were the depositors bank's assets in the manner prescribeil in whose checks were paid an hour before the the statute or of any payınent made with a doors were closed. Indeed, it is stipulated view to the preference of one creditor to an that the Capital National Bank continued to other.

transact its usual and ordinary business up

to the close of banking hours on January 21, | in the nature of payments on general so 1893.

count. (619) *The view of the courts below was that Nor can it be conceded that, except on some

these payments and remittances were not extraordinary occasion and on evidence satmade in contemplation of insolvency, or with isfactory to the postoffice authorities, a letter a view to prefer the Chemical National Bank, once mailed can be withdrawn by the party and our examination of the evidence has led who mailed it. When letters are placed in us to the same conclusion.

a postoffice they are within the legal custody It remains to consider another proposition of the officers of the government and it is the very strongly pressed on behalf of the ap duty of postmasters to deliver them to the pellant, and that is, that the moneys and persons to whom they are addressed. United checks remitted to the defendant bank which states v. Pond, 2 Curt. C. C. 265; Buell v. did not reach it till after the bank examiner Chapin, 99 Mass. 594 [97 Am. Dec. 58); had taken possession could not, in law, be- Morgan v. Richardson, 13 Allen, 410; Taycome the property of the defendant bank, but loe v. Merchants' F. Ins. Co. 9 How. 390 (13: remained part of the assets of the insolvent 187]. bank, for which the defendant must account However, it is not pretended in this case to the receiver in order that the proceeds that the checks were destroyed or proved may be ratably divided among the creditors. worthless, or that the Capital National Bank

It is said that the taking possession of either withdrew the remittances or counterthe bank by the Comptroller of the Currency manded their delivery. is a distinct declaration of insolvency, and We think that the courts below well held cases are cited in which it has been said by that, under the facts of this case, the mailing this court that the business of the bank must of these checks and remittances was a deliv. stop when insolvency is declared (White ery to the Chemical National Bank, whose v. Knox, 111 U. S. 784 (28: 603?); and that property therein was not destroyed or imbe offset is acquired after the act of "insol. paired by a subsequent act of bankruptcy. vency, cannot sustain such a transfer, be, be as to the remittances received through

st is finally urged that, however it may cause the rights of the parties become fixed the mail on January 23, 1893, yet that the as of that time.

Scott v. Armstrong, 146 U.
S. 499 [36: 1059).

payment or remittance of $833.64, received The law is doubtless as thus stated, but on January 24, was a payment made after does it apply to the present case?

the declaration of insolvency, and must there It is conceded in his brief by the learned fore be accounted for by the defendant bank. counsel of the appellee that if the drafts

*It is claimed that there was no evidence[621 and checks had been deposited in the mail that this remittance came by mail, and that pursuant to any agreement or even if the all there is in the case is the admission by defendant had known anything about them, the defendant bank of its receipt of that sum they might have been regarded as the prop

on January 24, 1893. erty of the Chemical National Bank as of the

But it is to be observed that no mention is date of mailing. But he urges that this was made in the bill of this particular item, only the case of a bank sending the checks of though the other litigated items are speci. other parties to its agents for collection and fied, and to the latter only was the proof dideposit; that it could have sent them to any rected. In the absence of evidence as to any other agent had it pleased, and that after it other method of transmission, and in view had once put them in the mail it could have of the fact that all the other payments were taken them out again. And queries are put made by mail, it would seem to be a reasonas to which bank would have suffered the able inference that such was the case of this loss if the checks had been destroyed in tran- remittance. The record discloses that the sit, or if they had proved to be worthless.

cashier of the Chemical National Bank tes. But here we have the case, not of a casual tified in the case. He had furnished the

remittance, but of remittances sent from complainant with a statement of the ac(620]time to time, and frequently, during a *long counts between the banks from January 3,

course of business between the banks con 1893, to January 24, 1893, including this cerned. There may have been no special particular item; but he was not cross-exam. agreement as to each particular remittance, ined as to this item. Had he been so exam. but there was plainly a general agreement ined, a more particular statement in respect that remittances were to be made by mail, to it would have been, no doubt, elicited. It and that their proceeds were not to be re

was apparently assumed that the history of turned to the Capital National Bank, but this payment did not differ from that of the were to be credited to its constantly over- others; and the effort now made in respect drawn account.

to it seems to be in the nature of an after. Whose the loss might be, if the packages thought, too late to permit an explanation. were destroyed in transitu, or if the checks proved uncollectible, are not questions that that the decree of the Court of Appeals was

Upon the whole case, we are of the opinion It is sufficient, for present correct, and its decree is accordingly affirmed. purposes, to say that the inference is warranted that it was understood between the parties that these remittances were to be Mr. Justice White, Mr. Justice Peckmade through the mails, and that they were ham, and Mr. Justice McKenna disented.

concern us now.

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INORTHERN PACIFIC RAILWAY COM- | trial, without a jury, that the plaintiff's
PANY, Piff. in Err.,

predecessor was incorporated under the act

of Congress of July 2, 1864, and received a JAMES DE LACEY.

grant of public lands by virtue of § 3 of that

act. (13 Stat. at L. 365, chap. 217.) A fur. (See S. C. Reporter's ed. 622-639.) ther grant was made by virtue of the joint

resolution of Congress, adopted May 31, Railroad lan grant-pre-emption claim-1870. 16 Stat. at L. 378, Resolution No.

resolution of Congress-forfeiture of 67. claim-cvidence.

The company surveyed and definitely lo

cated the line of its *branch road extending[628] 1. The filing of a map of definite location of a from Tacoma to South Prairie, and on March

railroad determines the right of the railroad
company to the land under the land grant acts | 26, 1884, filed its map showing such line of
of Congress.

definite location in the office of the Commis2.

Where there was a pre-emption claim at the siorer of the General Land Office. The land time of the passage of the land grant act of in controversy is within the limits of the 1864, the land would not pass under that grant to the company as defined by this map grant.

of definite location, and is within the limits 3. The grant of land by the act of Congress of the grant under the act of July 2, 1864.

of July 2, 1864, was not blotted out, with The following statement is taken from the
respect to an intervening pre-emption claim, finding of facts by the trial judge:
by the resolution of Congress adopted May "XII. April 9, 1869, one John Flett filed
31, 1870, making a further grant.

declaratory statement No. 1227, declaring
The failure of a pre-emption, claimant to his intention to purchase certain lands which
make proof and payment within the thirty are described in the complaint, under the
months required by U. S. Rev. Stat. $. 2267, laws of the United States authorizing the
forfeits his right without any cancelation on
the records.

pre-emption of unoffered lands. Whether or 6. When no proof and no payment have been not Flett was at this time qualified to enter

made within the time provided for by the law, the land under the pre-emption or homestead
the record will show the fact, and that the laws does not appear.
right of the claimant has expired and the

“XIII. In the fall of 1869 Flett left the claim itself has ceased to exist.

land in controversy and did not thereafter [No. 154.]

reside thereon, although it is recited in the

decision of the Secretary of the Interior in Submitted January 18, 1899. Ordered for a contest between the railroad company, De

reargument March 13, 1899. Leave grant. Lacey, Flett, et al., before the Interior Deed to file brief on behalf of United States partment, involving the land here in controJanuary 9, 1899. Resubmitted April 11, versy, that in September, 1870, Flett went to 1899. Decided May 22, 1899.

the local land office and told the officers that

he had come to prove upon his claim; that N ERROR to the United States Circuit they told him it was railroad land, and that I to review a judgment of that court affirming tually offer to make proof, but acquiesced in the judgment of the Circuit Court of the the advice of the local officers that he was United States for the District of Washing. not entitled to sumbit proof under his filing.” ton, dismissing the complaint of the plain

“XV. The defendant, James De Lacey, tiff, the Northern Pacific Railway Company, settled upon the land in controversy in April, against the defendant, James De Lacey, for 1886. April 5, 1886, he applied to make the recovery of the possession of 160 acres homestead entry, thereon. His application of land in the state of Washington. Judg- was rejected for the reason that the land fell ment of the United States Circuit Court of within the limits of the grant to the railAppeals for the Ninth Circuit reversed and road company on both main and branch lines. case remanded to the United States Circuit From this decision by the register and reCourt for the Western Division, District of ceiver De Lacey appealed to the CommisWashington, for further proceedings.

sioner of the General Land Office. See same case below, 66 Fed. Rep. 450, 44 “XVI. September 7, 1887, John Flett subU. S. App. 257.

mitted proof in support of his pre-emption

claim, founded upon his declaratory state-
Statement by Mr. Justice Peckham: ment filed April 9, 1869.
This is an action of ejectment brought by

*"XVII. Afterward, under the instruc-[624] the plaintiff in error against the defendant tions of the Commissioner, a hearing was to recover possession of 160 acres of land had, at which all the parties, the railroad situated not far from Tacoma in the state of company, James De Lacey, John Algyr, and Washington.

John Flett were present. July 27, 1889, the The land lies within the primary limits receiver of the district land office found that of the land grant both of the main line of the Flett had not voluntarily abandoned the railroad of plaintiff in error, as definitely | land in 1869, and that his entry should be located between Portland and Puget sound, reinstated. From this finding all the par. and the Cascade branch, as definitely located ties but Flett appealed to the Commissioner between the point where the railroad leaves of the General Land Office, and December 5, the main line and crosses the Cascade moun. 1889, the Commissioner sustained the find tains to Puget sound.

ing of the receiver. Thereafter the other It appears from the facts found upon the parties to the contest appealed to the Sec174 U. S.


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