Platt v. Crawford.

bank, and as such, a private act simply. And the rule is well settled, that private acts are not judicially noticed, but they must be alleged and proved, as other facts in the case are required to be.

The allegations contained in these complaints must be considered, therefore, in view of the provisions of the act of Congres enacted for the organization of banking associations.

This act provides that the comptroller of the currency not only may, but that it shall be his duty to, appoint receivers for the associations formed under it, when either of the emergencies, mentioned in the act upon which the appointment is to be made, shall arise. And it falls within the province of that officer to decide and determine whether the emergency, on which the appointment is to be made, has arisen or not. And whenever he decides and determines that it has, and accordingly makes the appointment, that determination must, from the nature of the case, be conclusive upon the debtors of the association affect d by it, even though it may not be so upon the association itself.

But in this case the association does not appear to question the proceeding taken against it by the comptroller of the currency. On the contrary, it has so far concurred in the act as to permit the plaintiff, as its receiver, to acquire possession of all its assets, including the demands involved in these actions.

But the defendants insist that the appointment must be shown to have been legally made before they can be compelled to make payment to him. As a legal proposition this is undoubtedly correct, but as no particular steps or proceedings are required to precede the appointment by the act, unless it be such as are required to precede the determination of the comptroller to make it, none can be required to be alleged or proved.

The adjudication of the comptroller, either that the association has permitted its capital to fall below the amount required by the law, or that it has failed to N.S.-VOL. VIII-20

Platt v. Crawford.

keep its reserve of lawful money up to the amount required of it, or that it has failed to select and appoint a proper redemption agency, or improperly retained its own stocks acquired by the security or payment of debts previously owing to it, or failed to redeem or pay its circulating notes on demand, is the only circumstance which the law requires to precede and warrant the appointment of the receiver; when he determines that a default in either of those respects has been made, then, without any further proceeding whatsoever, the receiver is to be appointed by him.

The fact of appointment, therefore, so far as the debtors of the association are concerned, when the association itself has yielded to it, as it has in this instance, is all that it can be strictly necessary to allege. That the emergency had arisen, and the adjudication establishing it, which the law requires to precede and authorize the appointment, had been made, is not required to be alleged or proved as between the receiver and the debtors of the association, further than the proof afforded of it by the act of appointment itself, followed by an acquisition of the assets of the association.

This is clearly all that is indispensably necessary, under the principle maintained by the authorities cited in support of the demurrers. In Stewart o. Bebe, 28 Barb., 35, it was held to be sufficient for the complaint to show the mode in which the appointment was made.

And that is shown by the complaint in this action, by the allegation that it was made by the comptroller of the currency, in accordance with the provisions of the act of Congress referred to.

In Gillet o. Fairchild, 4 Den., 80, 83, it was substantially conceded that the declaration would have been suflicient if it had shown the appointment of the receiver to have been made by an order or decree of the court of chancery, and the time and place when the order or decree was made. And the rule, as it was de

Platt v. Crawford.

clared in the case of White v. Joy, 13 N. Y. [3 Kern.], 83, 86, does not in reality require more than that.

The complaints in these actions would have been more artistic and complete if they had contained a direct averment, showing the precise cause ascertained by the comptroller, on account of which the appointment of the receiver was made.

Argumentatively, they do show that it was for one or more of the causes provided for by the statute. For it is averred that the appointment was made in accordance with the provisions contained in the act of Congress, which would not be true, unless it were for one or more of such causes.

This averment is certainly an informal one; but as long as it affirms the fact, though informally, the demurrer cannot be maintained because the fact has not been alleged.

As the complaint should be construed, therefore, it does in substance allege that the appointment itself was made by the comptroller, under the provisions of this act of Congress, for one or more of the causes empow ering him to make it, and that the association which was affected by it has so far acquiesced in its legal propriety as to allow the appointee under it to acquire the possession of all its assets. Under these circumstances, no injustice can be done to the defendants; and no embarrassment will be occasioned to the practice of the courts by holding that the receiver has shown a sufficient title to the demands in controversy to enable him to maintain these actions for the recovery of the amounts due upon them.

The defendants will be clearly exonerated from their liability, upon the payment of the amounts they are justly liable for to the plaintiff, and that is all that they have any legal right to demand. And as that is found to be the case, they should not be permitted to defeat the purposes the law designed to accomplish by

Platt v. Crawford.

the appointment of the receiver, by the mere extension of a technical rule of practice.

The rights of creditors require that the debtors should be compelled to pay the demands due to the association, wherever it can fairly be seen that they can do so with entire safety to themselves.

The objection that the receiver cannot maintain actions in this court for the recovery of the demands he may in that capacity have acquired title to, has no substantial foundation for its support.

The object intended to be accomplished by his appointment, which was the collection of the debts due to the association, and the conversion of its assets and property into money, for the payment of the debts owing by it, would necessarily be of itself sufficient to confer upon him the incidental authority to bring and maintain actions at law and in equity, whenever that might be an appropriate means of contributing to that result, even if there were no direct authority to be found in the statute empowering him to do it. But the statute has not left this part of the receiver's duties unprovided for.

It has expressly and explicity made it his duty to collect all the debts, dues and claims belonging to the association that may prove to be collectable (13 U. S. Stat. at L., 115, § 50),* which very clearly confers upon him the power to maintain such actions as may be required for the complete and efficient performance of this duty.

* The provision referred to is as follows: $ 50. "Who, under the direction of the comptroller, shall take possession of the books, records and assets of every description, of such association; collect all dues and claims belonging to such associa tion, and, upon the order of a court of competent jurisdiction, may sell or compound all bad or doubtful debts. And such receiver

shall pay over all moneys so made to the treasurer of the United States, subject to the order of the comptroller of the currency, and also make a report to the comptroller of the currency of all his acts and proceedings."

Fisk v. Albany & Susquehanna R. R. Co.

The plaintiff must, therefore, have judgment upon the demurrers, with leave to the defendants to answer in twenty days, on payment of costs.

The defendants appealed to the court at general term, where the order was affirmed in May, 1870, no further opinion being written.

FISK against THE ALBANY AND SUSQUEHANNA RAILROAD COMPANY.

Supreme Court, First District; Special Term, May, 1870.

SUPPLEMENTAL PLEADING.-LEAVE TO FILE.

Under the Code of Procedure, leave to file a supplemental complaint may be granted ex-parte,

It is not usual to require notice of motion for such leave to be given, unless an injunction or some other special relief is sought upon the matter of the supplemental complaint.

Motion for leave to file supplemental complaint.

This action was brought by James Fisk, Jr., against the Albany & Susquehanna Railroad Company, Joseph H. Ramsey, and numerous other individual defendants. The plaintiff, a stockholder in the railroad company, sued on behalf of himself and all other stockholders who might come in, to compel payment for the ben fit of the corporation, and its creditors, &c., of stock alleged to have been issued by certain of the defendants, as officers of the corporation, to other defendants, or to themselves, or subscribed for in fraud of the rights of other stockholders.