
    LIVINGSTON a. THE BANK OF NEW YORK.
    
      Supreme Court, First District;
    
    
      Special Term, October, 1857.
    Banks.—Suspension of Specie Payments.—Remedies of Creditors.—Injunction and Receiver.
    The provisions of law relative to proceedings in an action by a creditor against a bank of circulation,—stated.
    An affidavit “ upon information and belief” that a bank is insolvent, is not evidence to authorize an injunction and appointment of a receiver, especially when contradicted by regular official reports of the bank, made under oath.
    Amidst a general suspension of specie payments by banks, the mere fact of suspension by a bank of circulation, is not proof of insolvency.
    Within the meaning of the act of 1849, a bank is to be regarded as solvent, under such circumstances, which has property enough to satisfy all its liabilities.
    The provisions of 2 Revised Statutes, 464, §§ 39-47, are superseded by the act of 1849, as to all cases provided for by the latter act. .
    Whether under the federal constitution, and the provisions of section 6 of article 8 of the New York constitution of 1846,—prohibiting the passage of any law sanctioning the suspension of specie payments by any person, association, or corporation issuing bank notes of any description,—the Legislature may authorize a suspension by such association or corporation on its debts other than bank notes,— Query ?
    
    Application for an order to show cause why an injunction should not be granted and a receiver appointed.
    The facts are sufficiently stated in the opinion. -
    
      John, Livingston, for the application.
   Roosevelt, J.

—The plaintiff being, as he alleges, the owner of two “ circulation notes” of the Bank of Hew York, each of the denomination of $100, on the afternoon of the 13th of October, between the hours of one and two o’clock, presented them to the paying-teller of the bank, demanding specie for them, and was refused. He further alleges, on information and belief, that the bank is insolvent; and therefore prays that it may be dissolved, that it may be enjoined from exercising any of its corporate functions, from collecting its debts, from paying out or transferring its money and effects, and that its assets may be appropriated to pay its liabilities “ according to law.”

As a preliminary to a final decree, he now moves, ex poMe, on the sworn statements of his complaint, for an order of the court requiring the bank to show cause, at an early day, why a receiver should not be appointed “ to take charge (in the interim) of its property and effects and the immediate question is, Is such an order, on the case made, a matter of strict legal right ? and if not, is it nevertheless, under all the circumstances, fit and proper, as a matter of mere legal discretion ?

The plaintiff, no doubt, is entitled to the same remedy, by the ordinary suit at law and judgment and execution, against the bank, as against any other debtor. He has the advantage, too, in such action, of greater dispatch than an ordinary creditor. He is freed from the common obstruction of a sham defence. In twenty days after the first step taken, the law declares peremptorily that “judgment shall he rendered for such demand with interest and costs, unless the judge shall be satisfied by affidavit, setting forth the facts, that there is a good defence, on the merits, to the demand, and shall thereupon direct a stay of the judgment until a trial can be had.” And even in that case—a case seldom likely to occur—the issue joined, whether of fact or law, “ shall have preference over all other causes.” Appeals, too—another mode of procrastination—are restricted, by requiring the certificate of a judge “ that there is probable error,” and satisfactory security for the payment of the demand, in the event of final judgment, “ with interest at the rate of ten per cent., and costs.”

These strong provisions to insure a speedy recovery, are applicable “ to any proceeding for the recovery of any demand” against a bank “ issuing any kind of paper credits to circulate as money.” And it will thus be seen that, as against that class of banks, every depositor, as well as every bill-holder, may ordinarily obtain an execution in twenty days from the time of demand and refusal of specie (which execution, by the terms of the Code, may be made returnable within the further period of sixty days), and that the time of payment may accordingly, by legal resistance, be postponed in that manner for three months, or thereabouts, and no longer.

Whether these summary requirements of the act of 1849 were intended to apply to the higher courts alone, may admit of some douht. It is clear, however, that they do not take from the creditor of a bank his ordinary remedy in the minor courts for sums of $500 and under—a remedy which, without going into details, it is presumed, is at least as prompt as any in the Supreme Court.

What occasion is there, then, for any extraordinary measures, beyond those already referred to, in favor of the present plaintiff or against the present defendants ? The bank, we are told, is insolvent; but how is that shown ? The plaintiff’s “ information and belief” is surely no evidence; especially when in direct contradiction to the regular official reports of the bank, which, being made under oath, and published by express direction ot law, are, it is presumed, entitled to at least as much weight judicially, as the unknown and unsworn informant of the plaintiff.

We are left, then, to the mere legal inference of insolvency resulting from the suspension of specie payments by a bank of issue.

Is such the necessary inference from suspension, no matter what the bank’s assets may amount to, in cases where suspension is general, and nearly universal, throughout the State and every other section of the Union ? It seems to me that it is not. The statute of 1849, which, being subsequent in time, and especially directed to the ease of banks of issue, and covering precisely the same ground, would seem to supersede on these points the older enactments—this statute provides that upon proof by the abortive return of an execution, or by other satisfactory evidence before it is returned, that an execution for “ any debt or liability exceeding $100” cannot be satisfied out of any property of the bank thus sued, the judge “ shall at once make an order declaring the insolvency of such corporation or associationto be followed, of course, by the. appointment of a receiver to wind up its business. Under another section, however, a creditor, without waiting the first twenty days, or the subsequent sixty days, if his demand exceed $100, may, at any time after ten days from the refusal of payment, apply for an order enjoining the bank and declaring it insolvent; and on such application the judge, “ if in his opinion on the facts presented it be expedient, in order to prevent fraud or injustice,” may grant an order for a temporary injunction. After which, on hearing of the parties on short notice, he shall determine whether the bank be “ clearly solvent or otherwise.” And even if he determine it to be clearly solvent, he is required to continue the temporary injunction, if one have been granted, until full payment of the debts and costs. But if he determine that it is “ not clearly solvent,” he must not only continue the injunction, but appoint a receiver.

Beading these provisions, can any one say that, by a true interpretation of the law of which they form a part, the mere suspension of specie payments of itself, and by itself, settles the question of insolvency ? If so, why require, under one section, the issuing of an execution and proof of inability to satisfy it; and under another, first a delay of at least ten days, and then a hearing on further notice, and an examination of the “ officers’ books, papers, accounts, assets, and effects ?” Banks of issue in this State are the creatures of the law. The same law assumes that, while accommodating the public, they will yield an income to the stockholders; and how is such income to be realized unless they are allowed to loan, not only their capital, but a portion at least of their deposits ; and that, too, not returnable on demand, but on time ? It assumes, therefore, in the very organization of such institutions, that in case of a panic or sudden rush, the banks, although amply able and clearly solvent, may not have specie enough on hand immediately to satisfy all claims. Hence the act of 1849, instead of authorizing a permanent injunction, upon a mere refusal to pay in specie, expressly requires further “ proof satisfactory to a justice of the Supreme Court,” that the demand of the plaintiff “ cannot be satisfied out of any property of the defendant,” or that, after a full hearing of the parties, it shall appear, and be so determined, that the institution is “ not clearly solvent.”

In the present case, it is now admitted that the bank has properly not only sufficient, but in every respect more than sufficient to satisfy all demands. Within the meaning of the statute, therefore, it is “ clearly solvent,” and of course not a subject for the extraordinary decree prayed for in the complaint. For that reason, as well as for the reason that no “ fraud or injustice” is alleged or pretended, it is, in my “ opinion, on the facts presented,” not only not “ expedient,” but, on the contrary, highly inexpedient to grant a “ temporary injunction,” or an order to show cause why such an injunction should not be issued.

The Revised Statutes on this subject, I have said, would seem to have been superseded by the later provisions of the statute of 1849. This position requires some qualification. The late statute is confined to demands'" exceeding one hundred dollars,” and to “ corporations and joint-stock associations issuing banknotes whereas, the previous statutes were applicable to “ any creditor” of any amount, and to amy loan, banking, or insurance “ corporation,” whether issuing notes or not. It must be obvious, however, that where a statute says that a certain thing may be done after twenty days, or after sixty and twenty days, or after ten days and a full hearing of both parties, precisely the same thing cannot be done under a previous statute ex parte, and without waiting eighty, twenty, ten, or any number of days. There is an obvious repugnance operating to that extent as an implied repeal.

The present application, therefore, in that view also, must be dismissed. The plaintiff’s demand exceeds $100—it is founded, not on a deposit, but on two circulating notes—and yet it is made, instead of ten days after the refusal of payment, in less than twenty-four hours. The law, it is true—and the statute of 1849 is certainly not an exception to the principle—aids the vigilant and not the slothful; it is possible, nevertheless, even in such a case to rise too early.

Banks of issue, it will thus be seen, where they are acting in good faith and are “ clearly solvent,” have a little time to breathe, after suspension, although not very long. On all except small demands they must have twenty days, and, with the approbation of the sheriff, may have sixty more. And as against all their creditors, except note-holders, if certain views of the constitution are correct, the Legislature, should they deem the public good to require it, may extend the indulgence still further. On this point, however, I express no opinion—further than to say that any legislation to be valid must conform first to the federal constitution prohibiting all the States from passing any law “ impairing the obligation of contracts and, secondly, to the State constitution, prohibiting the Legislature, whatever may be the true interpretation of the prohibition, from passing any law “ sanctioning in any manner, directly or indirectly, the suspension of specie payments by any person, corporation, or association, issuing bank-notes of any description.” 
      
       Almost immediately after the suspension of specie payments by the Wew York banks, in October, 1857, a meeting of the Justices of the Supreme Court of the first and second districts was held, for the purpose of determining the proper course to be pursued in respect to proceedings that might be instituted against banks.
      The following minute of their proceedings is of interest in connection with the above decision. The application of Livingston, it may be added, was made just after the meeting of the judges.
      At a meeting of the justices of the Supreme Court, held for the purpose of determining a uniform course of action among themselves—
      Present, Justices Strong, Emott, Birdseye, Mitchell, Boosevelt, Davies, Clerke, and Peabody,—the following opinions were unanimously concurred in :
      In all cases in which the act of 1849 is applicable, it is deemed to supersede the provisions of the Bevised Statutes (2 Rea. Stats., 464, §§ 39-47). Accordingly, no creditor of a bank who may have relief under that act, can have it under the Be-vised Statutes. That act gives the creditor a right to apply to a justice of the Supreme Court only, after the expiration of ten days from the refusal of a bank to pay its debts or liabilities.
      Even then a temporary and immediate injunction can be granted only if in the opinion of the judges it be expedient in order to prevent fraud or injustice.
      After both parties shall be heard before the judge, he is to determine whether the bank is clearly solvent or not.
      A bank is clearly solvent which is clearly able to pay all its debts, although it may have suspended specie payments for a time. In the case of the Worth American Trust and Banking Company, this principle was held by the Supreme Court (Curtis v. Leavitt, 17 Barb., 309, see p. 327) and the Court of Appeals.
      When a bank is clearly solvent, and its officers are acting in good faith, no receiver should be appointed.
      Where the act of 1849 does not apply, if the part of the Bevised Statutes above referred to does apply, it is discretionary on the part of the Supreme Court to grant an injunction or not. That discretion is controlled by legal rules, and the injunction should never be granted if the bank is clearly solvent.
      An ex parte order for an injunction should not be granted even after a suspension of specie payments, unless it satisfactorily appears to the judge that it is necessary to prevent fraud and injustice.
      The mere fact of suspension of specie payments (when it is general) is not of itself sufficient proof of fraud or injustice to authorize such injunction.
      As a general rule, it is not expedient to grant an injunction against a bank without previous notice.
      It was also resolved that Justice Mitchell be requested to furnish a copy of these opinions to each of the justices of the Supreme Court in the other districts, with a request that they respectively communicate to him their views on the same points.
     