
    COURT OF APPEALS.
    William H. Robinson agt. The National Bank of New Berne.
    
      Jurisdiction of state courts—Attachments against national la/nks or their property.
    
    A state court has jurisdiction of an action on contract brought by a resident of the state against a national bank incorporated under title 63 of the Revised Statutes of the United States located in another state.
    The last clause of section 5343, United States Revised Statutes, forbidding an attachment, injunction or execution to be issued against a national bank before final judgment in any proceeding in a state court applies only to such banks as have committed or are contemplating an act of insolvency.
    An attachment can, therefore, issue against a national bank, except under the above circumstances, from a state court as provided by the Code of Civil Procedure (Affirming, 8. O., 58 How., 306).
    
      May, 1880.
    
      A. B. Dyebb, for appellant.
    
      T. C. Cronim,, for respondent.
   Danforth, J.

This ease comes here upon appeal by defendant from an order made by a general term of the supreme court of the fourth department upon the following facts: The plaintiff resides in this state and is a creditor .of the defendant. The defendant is a banking association organized under the laws of the United States (title LXII, U. S. R. S.) and is located at New Berne, North Carolina. Upon affidavits showing these and other facts sufficient to bring the case within the provisions of the Code of Civil Procedure, in force in this state, an attachment was granted by one of the justices of the supreme court and levied upon property of the defendant in the city of New York. The defendant moved at a special term to vacate the attachment, but the motion was denied and the order there made was affirmed at general term. It is from the order, of affirmance that this appeal is taken. The defendant seeks to sustain the appeal upon two grounds: First. That the supreme court had no jurisdiction over the action. Second. If otherwise it had no power to grant the attachment. But, notwithstanding the ingenious argument of the learned counsel for the appellant, I think neither position can be sustained. First, as to jurisdiction ; it is not necessary to consider whether congress might have conferred upon the Federal courts exclusive jurisdiction over actions against national banks and prohibited the state courts from entertaining them; but this could be done, if at all, only by express language or provisions consistent only with that construction (Houston agt. Moore, 5 Wheat., 1, and other cases cited, infra). In its absence a state court would have the same power and jurisdiction in suits, to which a national bank was a party, as if it was an individual (Bower agt. First National Bank of Medina, 34 How. Pr., 409; Cooke agt. State National Bank of Boston, 52 N. Y., 96). I do not find such language or provisions in the act under which the defendant is organized. Nor is its existence claimed by the learned counsel for the appellant who has submitted this case in an exhaustive oral and printed argument. In the latter he say's: “And congress has not only nowhere deprived the state courts of jurisdiction of actions agamst national banks but has expressly conferred it, at the same time conferring a similar jurisdiction upon the Federal courts, but in both cases requiring actions and proceedings against them to be brought in the state where they are located and protecting them from attachment and similar process before ¡judgment? and asserts “ that the plaintiff has all the remedy to which he has any just claim in an action against the defendant in the state or Federal courts of North Carolina.”

The contention then is, that outside of the state where the •bank is located neither Federal nor state courts have jurisdiction, and that redress for any cause of action must be there sought; and as it has been held that the statute referred to extends to actions by as well as against these corporations (Kennedy agt. Gibson, 8 Wall., 498) it would follow that the bank must confine its operations to the limit of its own state or be deprived of. legal or judicial aid to enforce its rights. This construction seems to be unwarranted by the very conditions of its being. The defendant was endowed with certain powers and privileges, in the exercise of which it might be brought into relation with citizens of different states, and' we might, therefore, expect that its liabilities arising therefrom could be enforced in the same manner and to the same extent as if it was a natural person and not a creation of the law. It was to loan money and discount commercial paper, and although located in North Carolina its transactions might extend into other states, for its interest would follow the person of its debtors, and it would be concerned in the disposition of his property wherever situated. (“ It is, therefore, provided that it may purchase and hold such real estate as may be mortgaged to it in good faith by way of security for debts previously contracted, or such as shall be. conveyed to it in satisfaction of similar debts contracted in the course of its dealings, or such as it shall purchase at sales under judgment, decrees or mortgages held by it, or shall purchase to secure debts due it ” [Sec. 5137, sub. 23, U. S. Rev. Stat.]). It is obvious, then, that it might have occasion to sue its debtor in any state and resort to the courts therein for protection in the enjoyment of the property which it is thus permitted to acquire; as the owner of property it might also incur liability to citizens of the state or municipality where it was situated; and we also find that it may incur a statutory liability to its borrower, and that if it violates the law relating to interest, he may recover back twice the amount of excessive interest paid by him. Against' it, therefore, the individual might find it necessary to put in motion the machinery of the courts, and from these powers and liabilities a right on either side to do so might be implied. But this is not left to implication. The statute declares that the defendant may “sue and be sued ” in any court of law and equity as fully as a natural person (Sec. 5136, sub. 4). Now such a person, a citizen of North Carolina, might sue in any state where he could find his debtor, or the property of his debtor, and he was liable to be sued in any state where he might happen to be or where his property could be found, and- the proceeding would, in the courts of the state, be according to the jurisdiction given to them by the state; and suits might also be brought in the courts of the United States, provided the contending parties were not citizens of the same state. If they were it could not have been until the passage of the national banking act of 1864 (sec. 57, amended March 3,1873, vol. 17, U. S. Stat. at Large, chap. 269, sec. 2; sec. 5198, U. S. Lev. Statutes), where it was, among other things, enacted that suits, actions and proceedings against any association under this act may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established.” The evident object of this provision was to give the Federal courts jurisdiction without regard to the citizenship of the plaintiff (11 Blatchford, 102). But the same section further provides “ that-such suit, &c., may also be had in any state, county or municipal court in the county or city in which such association is located, having jurisdiction in similar cases.” And, as above stated, this section has been construed so as to permit suits by as well as against the corporation (Kennedy agt. Gibson, 8 Wall., 498). It is this clause upon which the appellant relies in support of the proposition we are now considering. It has, however, been already declared in this court that these words cannot" be construed as taking away the jurisdiction of the courts of this state over associations similar to this defendant (Cooke agt. State Nat. Bank of Boston, 52 N. Y., 96), and the argument on which that case rests need not be repeated. It finds confirmation, however, in the consequences likely to result from a different doctrine. In or can we suppose that the general power and liability to sue and be sued, given by statute as above stated, was intended to be repealed or modified in this indirect manner. The general liability subjects them to an action in any court in which an individual in like circumstances might be sued, and the subsequent enumeration of particular courts without words of exclusion, cannot have the effect to deprive other courts of jurisdiction (Owens agt. Woosmam, 3 Q. B. [L. R.], 469). If it was otherwise then a citizen of this state having claim upon land in which a banking, association located in another state had an adverse interest would be compelled to go there to assume his rights against.it. Yet the contrary has been held by the supreme court-of the United States in a recent case decided October term, 1879 (Casey, Recr., agt. Adams, &c., 21 Albany Law Journal, 376). Referring to section 5198, above cited, the court holds that it applies to transitory actions only and not to such as are by law local in their character, Waite, Oh. J., saying: “Section 5136 subjects the banker to suits at law or in equity as fully as natural persons, and there is nowhere in the banking act any evidence of an intention on the part of congress to exempt bankers from the ordinary rules of law affecting the locality of actions founded on local things. The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws which prescribed generally where one should be sued, included such suits as were local in their character, either by statute or the common law, unless it was expressly so declared. Local actions are in the nature of suits ■m rem, and are to be prosecuted where the thing on which they are prosecuted is situated. To give the act of congress a different construction would be, in effect, to declare that a national bank could not be sued at all in a local action where the thing about which the suit was brought was not in the judicial district of the United States within which the bank was located; such result could never have been contemplated by congress.” We may construe the words of section 5198, which confer power to bring suits in certain specified courts as permissive merely and not mandatory, and, therefore, not limiting the general rule which permits civil cases arising under the laws of the United States to be prosecuted and determined in the state courts unless exclusive jurisdiction of them has been vested in the Federal courts, or unless congress has prohibited the state courts from entertaining jurisdiction of such cases (Claflin agt. Houseman, Assignee, 93 U. S. Rep., 130; 1 Kent's Com.,pp. 395, 396 ; Bank of U. S. agt. Devereux, 5 Cranch, 85; Osborne agt. U. S. Bank, 9 Wheat., 738; Teale agt. Fulton, 1 Com., 537). In Houston agt. Moore (5 Wheat., 1) Mr. justice Washington, in delivering judgment, says (page 27): “ I hold it to be perfectly clear that congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, although the state courts may exercise jurisdiction in cases authorized by the laws of the state and not prohibited by the exclusive jurisdiction of the Federal courts;” and that case also holds that the mere assignment of jurisdiction to a particular court does not necessarily render it exclusive. It may very well be that when the right in controversy is created by an act of congress, and the remedy is prescribed to be by suit in the Federal courts, the state courts have no jurisdiction. But that is not this case, nor are these words of exclusion. If we look into other laws enacted by congress, and in which provision is made for proceedings before one court rather than another, we shall find a marked difference in language implying clearly a different interest. In title 13, chapter 12, United States Revised Statutes, concerning the judiciary, eight cases of suits and proceedings and litigants of particular character are specified, and as to them it is said: “ The jurisdiction vested in the' courts of the United States * * * shall be exclusive of the courts of the several states.” We cannot doubt that language equally explicit would have been used had a similar purpose been entertained in regard to matters of controversy under the banking law. It was not, and for this and other reasons above stated I am of the opinion that the supreme court had jurisdiction of the matter involved in this action. Second. Is the attachment prohibited? To determine this we must look at the whole section relating to it. It is section 5242 of the United States Revised Statutes (edition of 1878), and is in these words: Section 5242. All transfers of the notes, bonds, bills of exchange or evidence of debt owing to any banking association or of deposits to its credit; all assignments of mortgages, sureties on real estate or of judgment or decrees in its favor; all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders 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 application of its assets in the manner prescribed by this chapter, or with the 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 before final judgment in any suit, action or proceeding in any state, county or municipal court.” It is found in title 62, chapter 4, entitled Dissolution and Receivership; ” and although in ordinary cases it, is said that the title of an act of congress is entitled to little, if any, weight (Hadden agt. The Collector, 5 Wallace, 107), yet when it occurs in the revision of the statutes it cannot be entirely disregarded. It would seem, in such a case, to indicate with great certainty what was in the mind of the legislature. The subject-matter of the section is the transfer of property by a banking association made “ after the commission of an act of insolvency, or in contemplation thereof,” when made under the circumstances therein stated, such transfer, it says, shall be utterly null and void, and no attachment * * * shall be issued against such association or its property before final judgment in any suit, action or proceeding in any state, county or municipal court.” We concur with- the general term in the opinion that these words of prohibition must be deemed to have the same relation as the other things prohibited and apply only to insolvent corporations, or one about to become so; and that the object of the entire section is to prevent one creditor of a corporation, whose assets are insufficient to meet its liability, from obtaining a preference, whether it is sought through a voluntary assignment or transfer, or payment, or the form of a legal proceeding. It is plain that this is not the case before us; nor is the cause of action created by the act; nor does it arise in consequence of the violation of any of its provisions. It is for breach of contract, a remedy for which by action exists at common law, and for the enforcement of which against the property of a non-resident the statute has given the suit in question. It is a proceeding m rem, merely, not in personam, for that purpose the court neither has nor does it assume to have jurisdiction (People agt. Baker, 76 N. Y., 87). It must therefore, like other proceedings m rem, be prosecuted where the thing on which it is founded is situated (Casey, Recr., agt. Adams, supra). The attachment is not to bring the defendant into court, -its object is to give the plaintiff execution against the thing attached (Kilbourn, agt. Woodworth, 5 Johns., 37). It does not go beyond it. It is not to compel the pay- - ment of debts but to make the property of absentees liable for their debts. Execution can go no further, neither against the property nor the person. It 'is confined to the property taken, and if it cannot be maintained the plaintiff is remediless unless he goes out of his own state and into the place where the debtor is located; for, as we have seen, according to the appellant’s theory the state court has jurisdiction only in that place; and the same statute which confers it in like manner restricts the jurisdiction of the Federal courts.

The order appealed from should be affirmed, with costs.

All concur.  