34 How. Pr. 408 | N.Y. Sup. Ct. | 1867
The Code of Procedure contains no express limitation of the time within which a motion must be made to set aside an attachment. For many purposes, the attachment continues to be operative after the judgment has been recovered and the execution has been issued. And if those events limited the period within which such a motion should be made, very great injustice might in some cases be successfully accomplished by means of an irregular attachment. As the legislature has imposed no such limit, and none is necessarily presented by the recovery of the judgment and the issuing of the execution, the party affected by the attachment cannot properly be precluded by them from afterwards - malting the motion. Where the attachment is merely irregular, voidable, but not void, such a proceeding would be found to be indispensable to the maintenance of the rights secured to the party whose property should be seized under it. These attachments are often issued against parties who hear nothing of them, or the proceedings taken under them, for months after the judgment has been recovered and execution has been issued; and if they could not after that move to set them aside, where they were found to be irregular, the law would afford them no redress for the injuries which the attachments had been made the instruments of producing. In the case of Thompson agt. Culver (24 How. 286), this point was presented and considered, and the court entertained no doubt but that the motion could be properly made.
As the receiver succeeded to all the rights and interests of the bank, no good reason can be given for precluding him
This brings up the important point in the case, whether the law will permit the. property of these banking associations to be seized by attachment, upon the ground that they are foreign corporations. They are clearly not foreign corporations, within the common import- of those terms; for they are formed under the laws of the federal government, which are not foreign to the state of New York. Those laws constitute a part of the government of the people of the state, so far as they are constitutionally enacted, as completely as the laws do which are constitutionally enacted by its own legislature; and, within then appropriate sphere, they are paramount to the laws enacted by the authority of the state itself. They are in no sense foreign laws. Neither are the institutions or corporations for which they provide foreign in" their character; for they are provided for by an integral portion of the government of the people existing within the state, though forming no part of its state government. It is done by the national authority, existing and exercising its functions wihin the states; and- no question is presented upon the present appeal in any manner drawing the propriety of this " legislation in controversy. What is now involved is the construction which shall be placed upon the law providing for the issuing of attachments against foreign corporations, not as those terms are popularly understood, but as they have been used by the legislature. Ordinarily, it is to be presumed that the popular sense of the terms used is the sense in which they were used by the authority enacting the laws: but in this instance there is good reason for believing that such was not the case; for, in describing the bodies that are referred
By chapter 1, title 13, of the Code, it is provided that actions may be brought in the supreme court, &c., against corporations created by or under the laws of any other state, government or country, by residents of the state, for any cause of action, and by non-residents, when the cause of action shall have arisen, or the subject of the action shall be situated, within the state. And by chapter 4 of title 7, an attachment may be issued when the action is for the recovery of money, and it is brought against a corporation created by or under the laws of any other state, government or country. These terms, it will be seen, are used designedly in all the laws relating to this subject, and, as before observed, they must have been intended to include all corporations formed under the laws of any other government than the one enacting the law, even though that government should not be the government of another state or country, which would plainly
As thus construed and understood, the national banks formed under the act of congress are foreign corporations, and liable to attachment, within the provisions of the Code; for, though formed under a law enacted by the government constituting a portion of the government of the people of the state, it is still no part of the state government properly so called, and is entirely distinct and separate from that which enacts the state laws.
If these institutions are not liable to proceedings by attachment; under the provisions of the Code, then in many cases persons living within this state would be provided by its laws with no remedy against them; for, as they are not formed under the laws of any other state or country, suits could not be maintained against them, even where they should be organized and transact their ordinary business in another state, and their property should be found within this state, unless that could be done upon the ground that they were formed under the laws of another government. They are not, where they exist in other states, formed under the laws of such states. Neither are they formed under the laws of any other country, as that term is used in the statute, for that was intended to refer to corporations formed under the laws of foreign countries. The only manner in which they can be sued at all in this state, where they are formed and exist in other states, is under this provision of the law which allows proceedings by attachment to be taken against them as corporations formed under another government different
They are rendered liable to actions in the courts of the state by the act of congress under which they are organized; and no restriction whatever is imposed, requiring such actions to be brought in any particular way, or limiting them to the same proceedings as may, under the laws of the state, be taken against the corporations formed under those laws (13 U. S. Stat. at Large, 116, § 57.), but they are made liable generally to suits, actions and proceedings provided by the state, and they must necessarily be commenced and' prosecuted as its laws have designated they may be. In that respect, they are liable to all such proceedings as the laws have provided for rendering the suits that may be commenced against them legally effectual; and as the laws of this state are now formed, that can only be done by holding the national banking institutions liable to proceedings by way of attachment, as corporations formed under the laws of a government distinct and different from that of the state. No difficulty stands in the way of doing this, under the 52d section of the national banking law; for that does not prohibit the seizure of the property and effects of an insolvent banking corporation, by its creditors, when it can lawfully be done by way of attachment proceedings. It merely prohibits the corporation itself from assigning or transferring its property, or paying its debts, after the commission of an act of insolvency, or in contemplation of insolvency, when that shall be done with the intent or design mentioned in the section ; and the succeeding section extends the prohibition to the directors, officers, agents and servants of the corporation. (13 U. S. Stat. at Large, §§ 52, 53, 115, 116.)
Marvin and Davis, Justices, concur.