Butler Receiver v. Coleman Same

All of these cases involve the same general question, and they may properly be considered and decided together. From the records it appears that the Pacific National Bank of Boston was an association for carrying on the business of banking, organized under the national bank act. On the 20th of November, 1881, it became embarrassed, and was placed in charge of a bank examiner, in whose control it remained until March 18, 1882, when its doors were opened for business with the consent of the comptroller of the currency. By statute, in Massachusetts civil actions are begun by original writ, which 'may be framed either to attach the goods or estate of the defendant, and, for want thereof, to take his body; or it may be by original summons, with or without an order to attach the goods or estate.' Pub. St. Mass. 1882, c. 161, §§ 13, 14. 'All real and personal estate liable to be taken on execution * * * may be attached upon the original writ in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may recover.' Section 38. 'A person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment by giving bond with sufficient sureties, * * * with condition to pay to the plaintiff the amount, if any, that he may recover within thirty days after the final judgment in such action.' Section 122. At the time the bank resumed business, it was indebted to George Mixter in the sum of $15,000; to Henry M. Whitney also in the sum of $15,000; to Daniel L. Demmon in the sum of $25,000; and to Calvin B. Prescott in the sum of $5,000. On the 24th of March, 1881, Mixter and Prescott each began a suit against the bank in the circuit court of the United States for the district of Massachusetts, by writ directing an attachment, to recover the amounts due them respectively. Demmon also began a suit in the same court and in the same way on the 28th of March, to recover the amount due him, and Whitney another on the 28th of April, upon the claim in his favor. At the time these suits were begun, the bank had money on deposit to its credit in the Maverick National Bank and in the Howard National Bank, and the necessary steps were taken to subject these deposits to the attachments which were issued in the several suits. The bank arranged with Lewis Coleman and John Shepard to become its sureties upon bonds to dissolve attachments in any actions that might be brought against it, and placed in their hands a certificate of depost in the Maverick National Bank for $100,000, to be held as their protection against all liabilities which should be thus incurred. This certificate was afterwards exchanged for $121,000 of the bonds of the Nantasket Company, $20,000 of the bonds of the Toledo, Delphos & Burlington Railroad Company, and $15,000 of the bonds of the Lebanon Springs Railroad Company. Immediately after each of the attachments in the above actions had been made, the bank executed a bond to the plaintiff in a penal sum suited to the amount of the claim, with Coleman and Shepard as its sureties, reciting the attachment, and that the bank 'desires to dissolve said attachment according to law,' and conditioned to be void 'if the Pacific National Bank of Boston shall, within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein named the amount, if any, which he shall recover in such action.' Upon the execution of the bond in each case, the attachment was dissolved. After this the bank closed its doors a second time, and on the 22d of May, 1882, a receiver was appointed by the comptroller of the currency in accordance with the provisions of section 5234 of the Revised Statutes, and at once took possession of its assets and proceeded to wind up its affairs. When the receiver was appointed he found the several suits which had been commenced still pending. In the Cases of Mixter, Whitney, and Demmon he appeared, answered for the bank, filed motions to discharge the attachments, and motions to dismiss the suits. His motions were all overruled, and, his defenses not being sustained, judgments were rendered against the bank in each of the cases for the amounts found to be due the several plaintiffs respectively. For the review of the action of the court in these cases the writs of error which are now under consideration were brought. The suit of Prescott still remains undisposed of in the circuit court. Failing in his motions and in his defenses at law, the receiver filed a bill in equity in the circuit court against the several attaching creditors, and the sureties on the bonds given to dissolve the attachments, the object of which was to reduce to his possession the securities which were held by the sureties for their protection against liability, and to restrain the several attaching creditors from enforcing the attachment bonds on the ground, among others, 'that the attachments made in said actions were unauthorized, illegal, and void.' This bill was dismissed by the circuit court, (22 Fed. Rep. 694,) and from that decree the appeal which is now one of the subjects of consideration was taken.

A. A. Ranney, for appellant and plaintiff in error.

Joshua D. Ball, for appellees Mixter and Prescott.

Alfred D. Foster, for appellee Whitney.

Henry Wheeler, for appellee Demmon.

Richard Stone for appellees Coleman and Shepard.

WAITE, C. J.