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Opinion of the court.

in case it should be determined that “the said appeal was wrongfully obtained.”

The citation, dated the 14th June, summons the party to appear pursuant to a motion for appeal.

Mr. P. Phillips, in support of the motion to dismiss :

1st. The order for executory process is not a “final judgment” which can be reviewed by writ of error.

2d. The proceeding being ou the law side of the court an appeal does not lie, even if there were a final judgment.

The case of Levy v. Fitzpatrick,* decided in 1841, and which was a case coming from the same court as the present, shows that a writ of error will not lie on an order for executory process.

Mr. T. J. Durant, contra.

The CHIEF JUSTICE delivered the opinion of the court.

As the Code of Practice requires that three days' notice be given to the debtor, and the judge is required to examine and decide whether the instrument unites all the requisites of the law necessary to authorize this summary proceeding, his decision is a judgment or decree, and an appeal lies from it; for it may be erroneously made on evidence not warranting the issuing of the executory process. It is in substance a decree of foreclosure and sale, which has repeatedly been held to be a final decree. I

In the case before us it seems there was an appearance by the defendants, who tiled their objections, which were overruled. Some further proceedings were had, and an appeal was allowed by this court to operate as a supersedeas.

If there were any doubt as to the finality of the original order, there can be none that it became final when the answer and objections were overruled. That order seems to

* 15 Peters, 167.
+ Harrod v. Voorhies's Administratrix, 16 Louisiana, 256.

Ray v. Law, 3 Cranch, 180; Whiting v. Bank of the United States, 13 Peters, 15; Bronson v. Railroad Co., 2 Black, 524.

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VOL. XVII.

Opinion of the court.

have been made contradictorily with the debtors. Their opposition was overruled and their property decreed to be seized and sold to pay their debts.* This case is quite distinguishable from that of Levy v. Fitzpatrick.f In that case there was an order for executory process upon a mortgage where the debtors resided in different States, but having signed and acknowledged the mortgage, were presumed, according to the law of Louisiana, to be before the judge. This court would not entertain an appeal from a judgment rendered by the Circuit Court against any defendant who had not been actually served with process and had entered po appearance,

Incidentally, it is true, the court held the order not to be a final judgment according to the laws of Louisiana. But this was said of the original order, without the three days' notice and without any act on the part of the debtors.

In the present case the debtors appeared by their opposition, which was overruled and the original order made final. In such a case, the opinion of the court shows that the writ of error would have been sustained, apart from the objections growing out of the want of service of parties. We have held, however, in the case of Walker v. Dreville, that no writ of error lies, where the proceeding below, in its essential nature, is a foreclosure of a mortgage in chancery. If this case had been brought here by writ of error, as the case of Levy v. Fitzpatrick was, it must have been dismissed. The only proper mode of bringing it here was by appeal.

From what has been said it follows that the motion in the present case must be

DENIED.

* Martin, J., dissenting, in Grant o. Walden, 6 Louisiana, 635.
† 15 Peters, 170.

12 Wallace, 440.

Syllabus.

RYAN v. Koch.

A judgment affirmed because the plaintiff in error had filed no assignment

of errors or brief, as required by the rules of court.

In this case a writ of error to the Circuit Court of the United States for the District of Michigan (Mr. J. G. Sutherland, for the plaintiff in error; Mr. G. T. Edmunds, contra) had been filed on the 27th of November, 1871, but the plaintiff in error had filed no assignment of errors or brief as required by the rules of the court. And for those reasons (Mr. Justice CLIFFORD announcing the decision of the court) the judgment was

AFFIRMED.

BANK V. KENNEDY.

1. A receiver of a national bank, appointed by the comptroller of the cur

rency under the 50th section of the National Banking Act, may sue for demands due the bank in his own name as receiver, or in the name of

the bank. 2. A receiver, in order to sue for an ordinary debt due the bank, is not

obliged to get an order of the comptroller of the currency. It is a part

of his official duty to collect the assets. 3. The case of Kennedy v. Gibson (8 Wallace, 506), distinguished from this

case; as having been a suit against the stockholders of the bank, which

required the direction of the comptroller. 4. Conversations occurring during the negotiation of a loan, or other trans

action, as well as the instruments given or received, being pa. of the res gesta, are competent evidence to show the nature of the transaction, and the parties for whose benefit it was made, where that fact is material. They are not adduced for the purpose of proving facts stated or affirmed in the conversations, but to prove the conversations themselves as facts;

and are not hearsay, but original evidence. 6. Where the cashier of a bank effects a loan, and it bécomes material to

ascertain whether it was made for his own account or for the use of the bank, evidence of the negotiation and circumstances may be given for that purpose, whatever may be the form of the securities given or re

ceived, when the latter are introduced only collaterally in the cause. 6. When papers or documents are introduced collaterally in the trial of a

purpose and object for which they were made, and the reason why they were made in a particular form, may be explained by parol evidence.

cause, the

General statement of the case.

7. The purpose or quality of an act may be stated by a witness who was

present and cognizant of the whole transaction, as whether the delivery

of money by one man to another was by way of payment or otherwise. 8. What one party to a contract understands or believes is not to govern its

construction unless such understanding or belief was induced by the

conduct or declarations of the other party. 9. Evidence or statements of fact not contained in the bill of exceptions, nor

made a part thereof, though appended thereto, will not be regarded by the court.

ERROR to the Supreme Court of the District of Columbia.

Kennedy, receiver of the Merchants’ National Bank, brought suit in the court below against the National Bank of the Metropolis, to recover the balance alleged to be due on a check for $50,000, dated May 1st, 1866, drawn by one Robinson on the said Bank of the Metropolis, in favor of the said Merchants' Bank, and duly presented for payment. On presentation of the check the Bank of the Metropolis admitted its obligation to pay it, but as part payment thereof, delivered to the messenger of the Merchants’ Bank a note of C. A. Sherman, cashier of that bank, for $20,000, dated February 27th, 1866. The Merchants’ Bank declined to receive this note as payment, and sent it back demanding the cash. But the Bank of the Metropolis refused to take back the note, insisting that although it was signed by Sherman, individually, it was given for account of the Merchants’ Bank, and for a loan made. to it. The principal controversy in the case arose upon the question whether the note was given by Sherman on his own account or on account of the Merchants' Bank.

Certain preliminary questions, however, were raised with reference to the authority of the receiver to bring the action.

Verdict and judgment, under the rulings as to evidevce, and under the charge, were given for the plaintiff'; and the defendant, the Bank of the Metropolis, brought the case here. This court disposed of the different points raised, considering them in the order of the several assignments of error.

Messrs. Hubley Ashton and W. D. Davidge, for the plaintiff's in error; Messrs. R. T. and W. M. Merrick, contra.

Opinion of the court on the first and second errors assigned.

Mr. Justice BRADLEY delivered the opinion of the court.

The first and second errors assigned are that the plaintiff, who is a receiver appointed by the comptroller of the currency under the fiftieth section of the National Banking Law, is not entitled to bring suit without the authority or direction of the said comptroller-which is not alleged or shown in this case; and that the action cannot be maintained by the receiver in his own name as such.

These objections are based upon the language of the act referred to, as well as the general nature of the receiver's office. The statute* enacts:

"That on becoming satisfied, as specified in this act, that any association has refused to pay its circulating notes as therein mentioned, and is in default, the comptroller of the currency may forth with appoint a receiver, and require of him such bond and security as he shall deem proper, who, under the direction of the comptroller, shall take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to such association, and upon the order of a court of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders provided for by the twelfth section of this act; and such receiver shall pay over all money so made to the treasurer of the United States, subject to the order of the comptroller,” &c.

We have already decided in the case of this very receiver that he may bring suit in his own name or use the name of the association.The subject was also lately discussed in the case of The Bank of Bethel v. The Pahquioque Bank,I and the same views were held; the action in that case being brought against the insolvent bank. This disposes of the question as to the legal right of the receiver to sne.

It remains, therefore, to determine whether it is necessary

* Section 50, 13 Stat. at Large, 114.
+ Kennedy v. Gibson, 8 Wallace, 506.

| 14 Wallace, 383

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