The national banks in Philadelphia organized, for their
convenience, a Clearing House Association, with rules for its
business set forth in detail in the statement in the opinion below.
Among these rules, one provided for the deposit of securities in
fixed amounts by each bank as collateral for their daily
settlements, and another for the hours in the day in which
settlements were to be made, and the mode of making the exchanges.
The Keystone Bank made its deposit in conformity with the rule,
but, having become indebted to the clearing house by reason of the
receipt of clearing house certificates to a large amount, the
securities deposited by it were surrendered, and were redeposited
by it as security for the payment of the certificates. In the
clearing of March 19, 1891, the Keystone Bank presented charges
against other banks to the amount of $155,136.41, and the other
banks presented charges against it for $240,549, making the
Keystone Bank a debtor in the clearing for $75,359.08. In
accordance with the rule, the Keystone Bank between the hours of
eleven and twelve paid the $75,000 in cash or its equivalent, and
gave its due bill to the manager of the clearing house for the
fractional sum of $359.08, which was deposited by the manager and
checked against by him as cash. In the runners' exchange of that
day, the Keystone Bank owed a balance of $23,021.34, which balance
it settled by giving its due bill to the manager for deposit in
accordance with the system above stated. In operating the clearing
on the morning of March 20, the Keystone Bank, through its runner,
delivered to the respective clerks of the various banks packages
containing claims held by the Keystone Bank amounting to
$70,005.46, and the settling clerk of the Keystone Bank received
from the runners of the other banks packages containing
$117,035.21, leaving the Keystone Bank debtor in the clearing for
$47,029.75. The packages containing the demands which the Keystone
Bank held against other banks, and which had been delivered to the
agent of each of those banks, were by them taken away at the
termination of the clearing. The packages containing the charges
presented against the Keystone Bank, which in the aggregate
amounted to $117,035.21, instead of being taken away by its
settling clerk, were, under the arrangement which we have stated,
turned over by him to the
Page 167 U. S. 345
manager of the clearing house, to be retained until at the hour
named the Keystone Bank paid the balance due by it. Before the hour
for making the payment, however, the Keystone Bank, by order of the
Comptroller of the Currency, was closed, and subsequently was
placed in the hands of a receiver. On the failure of the Keystone
to make the payment of $47,029.75, the committee of the association
instructed the manager to call on the banks by whom claims had been
presented against the Keystone "to redeem the packages against the
Keystone Bank." The manager thereupon gave the proper notification,
and the various banks notified sent their checks and redeemed the
packages in question. Among the obligations for $117,035.21,
however, were due bills amounting to $41,197.36. These due bills
came from the fractional amounts arising by the settlement made on
the morning of the 19th, to-wit, $359.08; for the due bill given at
the runners' settlement on the morning of the 19th, $23,031.44, and
for due bills given to various banks during the course of business
on the 19th, amounting to $17,806.84. Thereupon, and as part of the
same transaction, the manager paid from the $70,005.36, which by
his settlement sheet appeared to the credit of the Keystone as
owing from other banks to the Keystone Bank for the checks
surrendered by that bank, the amount of the due bills referred to,
viz., $41,197.36. This left to the credit of the Keystone
the sum of $28,808.10, and this amount was by the manager, acting
under direction of the committee of the association, credited on
the loan certificate account of the Keystone Bank with the
association. In a suit by the receiver of the bank to determine the
rights of the parties,
Held (1) that the claim of the
receiver that the Keystone Bank was entitled to be paid $70,005.36
of credit irrespective of the outstanding due bills which it had
been expressly agreed between the parties were to be paid by way of
set-off in the clearing, was without foundation; (2) that the
Clearing House Association, having been in possession of the
$28,808.10 as the fiduciary agent of the Keystone Bank without a
lien or right upon it, its appropriation of the same after the
insolvency of the Keystone Bank to the debt owing for loan
certificates was obviously a preference within the inhibition of
the statute against preferences in the cases of insolvent banks,
Rev.Stat. § 5242.
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
The Clearing-House Association of Philadelphia is a voluntary
organization, created by the cooperation of national banks
Page 167 U. S. 346
doing business in that city. Its affairs are governed by rules
and regulations adopted by agreement between the banks forming the
association, and the general direction of its operation is under
the control of a president, secretary, and manager, and of a
committee selected by the members of the association. As the name
of the association implies, it is intended to afford a uniform and
convenient method by which daily settlements of balances can be had
between the banks entering into the association. In addition to the
function of affording a means for the daily clearing of balances,
the Clearing-House Association, by agreement among its members,
issued at periods when it was deemed best to do so, clearing-house
certificates. These certificates were delivered, under the
discretion of the managers, when applied for by a member of the
association, and were secured by the pledge of bills receivable or
assets taken from the portfolio of the bank obtaining the
certificates. These certificates were available as cash in
settlements between the banks, and for other purposes, and the
object of issuing them was, in times of panic or stringency, to
create, to the extent of the certificates, solidarity of
responsibility between the banks, as each bank was liable for a
proportionate share of the certificates in case of default in their
payment, thus fortifying the credit of one by the credit of all.
Moreover, the certificates afforded a means by which a bank with
good assets could use them in order to obtain certificates which
were, for banking purposes, the equivalent of cash, when, from any
stringency or panic, the assets themselves, although entirely
sound, could not be readily convertible into current money.
Article 2 of the Constitution of the Clearing-House Association
provided as follows:
"Art. 2. Its object shall be to effect at one place the daily
exchanges between the several associated banks, consisting of a
morning exchange and a runners' exchange, and the payment at the
same place, of the balances resulting from such exchanges. The
responsibility of the association for such exchanges is strictly
limited to the faithful distribution by the manager, among the
creditor banks for the time being, of
Page 167 U. S. 347
the sums actually received by him, and, should any losses occur
while the said balances are in the custody of the manager, they
shall be borne and paid by the associated banks in the same
proportion as the expenses of the clearing house, as hereinafter
provided for."
Article 11 said:
"Art. 11. Should any of the associated banks fail to appear at
the clearing house at the proper hour, prepared to pay the balance
against it, the amount of that balance shall be immediately
furnished to the clearing house by the several banks exchanging at
the establishment with the defaulting bank in proportion to their
respective balances against that bank resulting from the exchanges
of the day, and the manager shall make requisitions accordingly, so
that the general settlement may be accomplished with as little
delay as possible. The respective amounts so furnished the clearing
house on account of the defaulting bank will, of course, constitute
claims on the part of the several responding banks against that
bank,
provided that the amount of the duebill given by the
defaulting bank in settlement of its debit balance in the runners'
exchange of the previous day, and deposited by the clearing house
in its depository bank, shall be deducted from the total charge of
such bank, and shall be the first claim against the securities
deposited by the defaulting bank, under article 17."
Article 17 was as follows:
"Art. 17. Each bank, member of the Clearing-House Association,
shall deposit securities with the clearing-house committee as
collateral for their daily settlements, in the following percentage
or assessment on capital:"
"1st. Banks with capitals of $800,000 and over, ten percent"
"2d. Banks with capitals of $500,000 and under $800,000,
fourteen percent, but not to be required to deposit over
$80,000."
"3. Banks with capitals over $250,000 and under $500,000, twenty
percent; but not to be required to deposit over $70,000. "
Page 167 U. S. 348
"4. Banks with capitals of, and under, $250,000, shall deposit
not less than $50,000."
"The committee shall apply the deposit of any defaulting bank to
the payment of the balance due by such bank at the clearing house,
or to the reimbursement,
pro rata, of the several banks
furnishing said balance, under article 11, and the surplus, if any,
shall be held as collateral security for other indebtedness to
members of this association."
By article 9 of the constitution, the hour for making the
morning exchange at the clearing house was fixed at 8:30 o'clock,
and the hour for making the runners' exchange at half past 11. By
the same article, it was provided that a bank becoming a debtor by
the morning clearing must pay the sum debited to it to the clearing
house between the hours of 11 and 12 o'clock that day, and at 12:30
o'clock of the same day the bank, being a creditor in the daily
clearing, should receive from the manager of the clearing house the
sum of the credit to which it was entitled. The settlement at the
runners' exchange was made by due bills, and these duebills were
deposited by the manager of the clearing house in his bank account,
kept with one of the banks belonging to the association, and were
checked against by him as if the duebill were cash. Such duebill,
when so received on deposit by the bank and treated by it as cash,
became a credit item, presented by it in the clearing of the
following morning. In addition, where claims were presented by the
runner of one bank for payment to another bank during the course of
a business day, the bank by whom the money was to be paid, to
obviate the risk of carrying it, instead of handing over money,
gave to the runner a duebill for the amount, which, on its face,
was stipulated to be payable in the clearing of the next day.
The Keystone National Bank was a member of the Clearing-House
Association. It deposited with the association, in accordance with
the rules, securities to guaranty its obligation to meet its daily
clearing. It had obtained, moreover, from the Clearing-House
Association, clearing-house certificates to a large amount, and in
December, 1890, by an agreement
Page 167 U. S. 349
between the association and the Keystone Bank, the securities
deposited by the Keystone Bank to guaranty its liability to pay any
balance arising from the daily clearing were returned to that bank,
and were by it deposited anew with the Clearing-House Association
as security for clearing-house certificates. It resulted from this
transaction that the Keystone Bank did not have in the hands of the
Clearing-House Association any security to guaranty its obligation
to meet its daily clearing. At the time, however, when the
securities were withdrawn and used by the Keystone for the purpose
of securing clearing-house certificates, an agreement was made
that, in order to secure the performance of any obligation which
might arise from the daily clearing, the Keystone Bank would leave
in the hands of the manager of the clearing house the vouchers
presented by other banks against it at the time the clearing was
made, to be held by the manager until the balance shown to be due
by it in the clearing was paid in accordance with the agreement.
From December, 1890, until the 20th of March, 1891, in execution of
this agreement, whenever in the daily clearing the Keystone Bank
owed a balance, it did not take away the vouchers delivered to its
settling clerk, but they were turned over to the manager of the
clearing house to be held until the obligation of the Keystone Bank
resulting from the clearing was made good.
The operation of making the clearing was accomplished by the
following method: at the hour named, a runner and a settling clerk
representing each bank met at the clearing house. These
representatives of the respective banks brought with them in
separate sealed packages the checks which the banks they
represented held against other banks. The runner of each bank
thereupon delivered to the settling clerk of the others these
packages, taking receipts therefor, so that, at the common place of
meeting, the clerk of each bank received from every other bank the
checks drawn against the bank he represented. The making up of
these packages for exchange is thus provided for in the rules:
"Rule III. Sealed packages, well gummed and sealed with wax and
endorsed with ink or indelible pencil, shall be used
Page 167 U. S. 350
exclusively in the morning exchange and in the runners'
exchange, and the amounts stated thereon shall be the basis of
settlement. These packages, with the seals unbroken, shall be
delivered by the messengers of the several banks to their
respective institutions; otherwise no responsibility shall attach
to the sender."
After these packages had been received, the settling clerk of
each bank made up from the endorsements on the packages delivered
to him the debits, and stated the credits arising from the sum of
the packages delivered by the runner of his bank to the settling
clerks of the other banks. The sheets thus made up were then turned
over to the manager of the clearing house, by whom they were
verified and consolidated. The manager's balance sheet hence
necessarily contained a statement itemizing the aggregated debits
and credits of all the banks concerned in the clearing. Where any
fractional sum was due by a bank in consequence of the clearing,
this fractional sum was paid to the manager by a duebill, the
manager treating this duebill as cash, deposited it in the bank
where his account was kept, and the sum of this duebill became a
credit item in favor of the bank holding it in the clearing of the
next morning.
In the clearing of the 19th of March, 1891, the Keystone Bank
presented charges against other banks to the amount of $155,136.41,
and the other banks presented charges against it for $240,549,
making the Keystone Bank a debtor in the clearing for $75,359.08.
In accordance with the rule, the Keystone Bank, between the hours
of eleven and twelve, paid the $75,000 in cash or its equivalent,
and gave its duebill to the manager of the clearing house for the
fractional sum of $359.08, which was deposited by the manager and
checked against by him as cash. In the runners' exchange of that
day -- that is, the 19th of March -- the Keystone Bank owed a
balance of $23,021.34, which balance it settled by giving its
duebill to the manager for deposit in accordance with the system
above stated. In operating the clearing on the morning of March 20,
the Keystone Bank, through its runner, delivered to the respective
clerks of the various banks packages
Page 167 U. S. 351
containing claims held by the Keystone Bank amounting to
$70,005.46, and the settling clerk of the Keystone Bank received
from the runners of the other banks packages containing
$117,035.21, leaving the Keystone Bank debtor in the clearing for
$47,029.75. The packages containing the demands which the Keystone
Bank held against other banks, and which had been delivered to the
agent of each of those banks, were by them taken away at the
termination of the clearing. The packages containing the charges
presented against the Keystone Bank, which in the aggregate
amounted to $117,035.21, instead of being taken away by its
settling clerk, were, under the arrangement which we have stated,
turned over by him to the manager of the clearing house, to be
retained until at the hour named the Keystone Bank paid the balance
due by it.
Before the hour for making the payment, however, the Keystone
Bank, by order of the Comptroller of the Currency, was closed, and
subsequently was placed in the hands of a receiver. On the failure
of the Keystone to make the payment of $47,029.75, the committee of
the association instructed the manager to call on the banks by whom
claims had been presented against the Keystone "to redeem the
packages against the Keystone Bank" -- in other words,
"to redeem the amounts which they had been credited with on the
manager's balance sheet in settlement of the account of checks
drawn on the Keystone Bank."
Not being able from his records to ascertain what banks to call
upon to make the payment of $117,035.21, the manager sent to the
Keystone Bank and received from that institution their settlement
and package sheets for that day. On receipt thereof, the manager
thereupon gave the proper notification, and the various banks
notified sent their checks and redeemed the packages in question.
Among the obligations for $117,035.21, however, were duebills
amounting to $41,197.36. These duebills came from the fractional
amounts arising by the settlement made on the morning of the 19th,
to-wit, $359.08 for the duebill given at the runners' settlement on
the morning of the 19th, $23,031.44, and for duebills given to
various banks during the course of
Page 167 U. S. 352
business on the 19th, amounting to $17,806.84. Thereupon, and as
part of the same transaction, the manager paid from the $70,005.36,
which by his settlement sheet appeared to the credit of the
Keystone as owing from other banks to the Keystone Bank for the
checks surrendered by that bank, the amount of the duebills
referred to,
viz., $14,197.36. This left to the credit of
the Keystone the sum of $28,808.10, and this amount was by the
manager, acting under direction of the committee of the
association, credited on the loan certificate account of the
Keystone Bank with the association. The result of the transaction
was a reduction of the claims which had been originally made
against the Keystone Bank in the exchanges of the 20th of March,
1891, from $117,035.21 to $41,197.36, and a return to the various
banks of $75,837.85 of checks and drafts received from their
customers. While the record does not affirmatively show the fact,
it is fairly inferable from it that these checks, etc., aggregating
$75,837.85, were immediately charged back by the banks by whom they
had been received, and were returned to the depositors from whom
they had received them, and therefore reached ultimately the
drawers, who were depositors in the Keystone Bank, thus leaving the
Keystone Bank liable for their amount in its deposit account with
its depositors.
On February 19, 1894, the receiver of the Keystone Bank filed
his bill in this cause in the Circuit Court of the United States
for the Eastern District of Pennsylvania, setting forth the
relations between the Keystone Bank and the clearing house and
detailing the transactions of the 20th of March, 1891,
substantially as we have stated them, alleged an appropriation by
the association to its own use, after the insolvency of the
Keystone Bank, and in violation of the statutes of the United
States, of the checks and drafts which had been surrendered at the
clearing house by the Keystone Bank on the morning of the 20th of
March, as hereinbefore stated, and also alleging an appropriation
and application to the use of the association of bonds of the
Baltimore Traction Railway Company of the par value of $100,000,
which it was claimed had been specifically deposited by the
Keystone Bank as security
Page 167 U. S. 353
for the payment of any balance which might be owing by it in the
daily clearing. It was averred that demand had been made on the
association, and that it had refused to account to the receiver for
the said checks, drafts, and bonds. A discovery was asked and
relief prayed that the association surrender the checks, drafts,
and bonds, or, in the alternative, that the association be decreed
to pay the amount collected thereon, with interest. The answer of
the association detailed most of the facts heretofore recited, and
averred the lawfulness of the appropriation made of the $70,005.36.
As to the traction bonds, it was averred that they were deposited
as security for loan certificates, and that they had been sold, and
the proceeds duly accounted for in the account as to such
certificates. The claim of the receiver as to these bonds was
subsequently abandoned.
A decree was entered in the circuit court adjudging that the
receiver recover from the defendants $70,005.36, with interest from
March 20, 1891. 58 F. 746. On appeal, the circuit court of appeals
reversed that decree and remanded the cause to the trial court,
with directions to dismiss the bill of complaint. 62 F. 645. From
this latter decree an appeal was taken to this Court. The opposing
judgments rendered by the circuit court and by the circuit court of
appeals well define the conflicting contentions of the parties,
since the conclusion of the circuit court entirely sustained the
position taken by the complainant, while the court of appeals
justified the rights asserted by the defendants.
The receiver of the Keystone Bank argues that the result of the
transactions at the clearing house on March 20, 1891, after the
failure of the bank, was to wholly dismiss the Keystone Bank from
the clearing, and leave it with a claim of $70,000 against the
clearing house, which it is entitled to have paid in full without
reference to all or any of the debts due by it, which otherwise
would have been properly chargeable in the clearing. In other
words, the Keystone Bank, although it put into the clearing only
claims against other banks sufficient to partially discharge its
obligations, and failed subsequently to perform the duty, owing by
it, to pay
Page 167 U. S. 354
in cash a sum adequate to make up the difference -- that is, to
discharge all its debts resulting from the clearing -- asserts that
as a consequence of its failure to pay all, it has been absolved
from thereafter paying anything whatever in the clearing. Or,
stated in another form, the argument is this: as the banks which
held checks on the Keystone Bank, when they received these checks
from the clearing house, charged them back to their depositors, and
therefore made them obligations due by the Keystone Bank on its
deposit account with its depositors, these banks elected to
consider the Keystone Bank as no longer connected with the clearing
house, and hence also lost their right to compensate the credit of
the Keystone Bank by such other obligations, outside of the checks,
which were properly entitled to, and had actually figured in the
clearing, such as duebills, etc., which these banks had not charged
back, because they were not of the nature to be so charged as they
were when presented in the morning clearing held by the banks for
their own account. It is clear, then, that the claim of the
receiver of the Keystone Bank is that, by the default of that bank,
its liability to have its claim in the clearing compensated by its
duebills held by other banks was cancelled, and hence that it was
in a much better position by its failure than it would have been if
it had not suspended, and had furnished the funds to pay all the
claims presented against it in the clearing.
On the other hand, the claim of the Clearing-House Association
is that it owes nothing, and that, by the default of the Keystone
Bank, the clearing house became entitled to appropriate the balance
of the credit due the Keystone Bank in the clearing to debts due to
the clearing house, although such debts were not of a nature to
have authorized them to be charged against the clearing if the
failure had not taken place -- that is, the clearing house also
contends that the effect of the failure was to give it rights
against the Keystone Bank which it would not have had if the
failure had not taken place.
The claims of both parties, therefore, when analyzed, amount to
the assertion, as a proposition of law, that they both have greater
rights in consequence of the insolvency than they
Page 167 U. S. 355
would have had if the insolvency had not taken place. The
self-evident error of this proposition points to the unsoundness of
the claims of both parties to the controversy.
We will demonstrate that this is the case by considering the
situation of the parties in order thereby to determine their
respective rights against and obligations towards each other. A
clear ascertainment of the legal status of the parties will be at
the outset greatly facilitated by first considering a matter much
discussed in argument --
viz., what, if any, bearing the
payment of $117,035.21 to the manager of the clearing house by
sundry members of the association has upon this controversy.
In the manager's settlement sheet of the daily clearings between
the banks, made up from the data contained in the settlement sheets
prepared by the settling clerk of each bank at the close of the
clearing, there was set out in the center of the sheet, running
from top to bottom, a list of banks, each bank being given a number
ranging from 1 to 43. In a column to the left of the number and
name of each bank, there was a list of debit items, each item
indicating that the sum stated was owing from the bank opposite to
which it was placed for checks and drafts and duebills which had
been presented against that bank by other banks in the association.
The banks which had presented these checks, drafts, and duebills
were given credit therefor on the credit side of the sheet, in a
column to the right of the name of each bank, as being claims in
their favor against the debit items due from other banks. The
aggregate of the debit items was therefore the fund from which the
aggregate of the credit item was to be paid. The two necessarily
balanced each other.
If, as the result of the failure of the Keystone Bank and the
return to the banks which had presented them of the packages in
question, the sum of $117,035.21 had been stricken from the debit
side of the manager's sheet, the effect necessarily would have been
that the totals on the credit side would have been just that much
greater than the total of the debit side, and therefore there would
have been a shortage of that amount in the execution of the
clearing. It follows that, in paying the aggregate credits, the
manager of the clearing house would
Page 167 U. S. 356
have been short that much money. In other words, to have paid
the banks who had presented the checks against the Keystone Bank
the sum of their claims against all the banks in the association,
as shown by the credit side of the manager's sheet, the manager
necessarily would have had to make good the shortage by paying less
to that amount to the banks who had received an increased credit
because of the expected payment of the debit item charged against
the Keystone. That is to say, the deficiency on the credit side
which would have resulted from taking out the $117,035.21 debit due
by the Keystone would have caused the loss to fall on the banks
which had presented the claims against the Keystone, because they
would have received that much less on the aggregate amount due to
them from the entire clearing -- that is, from all the other banks.
Instead of doing this, however, and in order to render his
settlement regular in form, the manager called upon the banks who
had presented the claims against the Keystone Bank to substitute
money for these claims, so that this money, paid in by them in
response to the call, might take the place of the amount of
$117,035.21, and thus cause the debit and credit side to agree, and
enable him to carry out the clearing just as it had been made in
the early morning. The effect of this was not to change the
situation at all, since if the $117,035.21 had not been paid in,
the loss would have fallen on the banks who had received credit,
because they had presented claims against the Keystone amounting to
$117,035.21. It results that, by paying in the amount called for
and having it put fictitiously on the sheet in lieu of the
$117,035.21 due from the Keystone Bank, the banks paying in the
amount neither gained nor lost, since they immediately received
back the amount when the clearing was carried out. While the
transaction then assumed the form of a payment of $117,035.21 by
the banks called upon, it was in reality no payment at all, for it
simply enabled the money paid in to be considered as on one side of
the account in order to be handed back to them on the other. This
is the inevitable result of the transaction, which, besides, is
clearly shown by the testimony of Mr. Boyd, the manager of the
clearing house, who
Page 167 U. S. 357
says that the payment of the $117,035.21 was a mere matter of
bookkeeping.
When it is understood that the payment in of the money in
consequence of the call made upon the banks was in reality no
payment at all, since it was but the giving on the one hand to the
manager of a sum of money to be handed back by him on the other in
order that his settlement sheet might balance, it becomes perfectly
clear that the result was in no way to change or destroy the credit
of $70,005.36 standing on the clearing sheet in favor of the
Keystone Bank. This latter amount was the sum of checks which the
Keystone Bank had surrendered at the morning exchange to the
settling clerks of the banks upon which such checks were drawn. As
a result of such surrender, the Keystone Bank was entitled to
receive out of the debits paid by other banks the sum named. The
banks which owed that sum were charged in the debits as owing that
amount to the clearing house, and when, as they did, they settled
their indebtedness to the clearing house, the manager thereof
necessarily received that sum for account of the Keystone Bank. The
banks which, for mere bookkeeping purposes, had paid in a sum of
money and at once received it back certainly cannot be permitted to
claim that the effect of this transaction was to destroy the rights
of the Keystone Bank on the credit side of the clearing, which
rights of necessity resulted from the paying into the clearing
house of the aggregate debits.
But these banks who had paid in their money under the call and
received it back, while they were not in a position, in consequence
of having done so, to enable them to assert that the credit of the
Keystone had disappeared, were certainly not thus put in a position
by which they could not exercise their lawful claims upon the
credit of the Keystone. The claims which, as we have seen, by the
rules of the clearing house and the contracts between the parties,
were to be mutually compensated, in the clearing, one with the
other, were the duebills and the items of bankers' exchange checks,
drafts, etc. The $117,035.21 against the Keystone Bank contained
$75,837.99 of checks and drafts, and the remainder
Page 167 U. S. 358
consisted of duebills. These checks and drafts, on the failure
of the Keystone Bank, were charged back by the banks who held them
to those who had deposited them, and in consequence, presumably,
ultimately reached the hands of the depositors of the Keystone by
whom the checks were drawn. The right of the bank holding a check
against the Keystone Bank, on the failure of that bank, to charge
back the checks was unquestionable. Indeed, it was not only to the
interest but it was the duty of the banks towards their
stockholders to do this, for, if they had held the checks without
charging them back, they would have become responsible for them,
and therefore would have assumed a debt which they were under no
obligation to assume. Having exercised the right to return the
checks, there arose a resulting obligation on the banks not to
continue to present against the Keystone Bank, for payment out of
its credit in the clearing, obligations for which there was no
longer a right to make a claim. Deducting, therefore, the
$75,837.99 of checks, it left only the duebills, $41,197.26, which
were paid by the manager of the clearing house out of the
$70,005.36, to the credit of the Keystone Bank. This payment, of
course, extinguished the duebills, and reduced the credit of the
Keystone Bank ($70,005.36) to the extent of the payment of
$41,197.26, leaving therefore a balance to the credit of the
Keystone Bank of $28,808.10, unappropriated by anything resulting
from or entering into the clearing. This sum the Clearing-House
Association at once appropriated in reduction of an indebtedness
due it by the Keystone Bank upon the loan certificate account -- an
account which had arisen from loan certificates which the Keystone
Bank had previously obtained from the clearing house, secured by
collaterals, as already stated.
From the foregoing it obviously results that the claim of the
receiver that the Keystone Bank was entitled to be paid $70,005.36
of credit, irrespective of the outstanding duebills which it had
been expressly agreed between the parties were to be paid by way of
set-off in the clearing, is without foundation. This conclusion
leaves only for consideration the question whether the
Clearing-House Association possessed the
Page 167 U. S. 359
right to appropriate and impute the $28,808.10 of balance in its
hands, and due to the Keystone Bank, towards the payment of the
indebtedness of the Keystone Bank for loan certificates.
It is undisputed that there was no agreement between the
clearing house and the Keystone Bank by which the sums due to the
latter in the clearing could be applied to the loan certificate
account. It is obvious that the Clearing-House Association was an
agent and fiduciary representative of all the banks forming the
association. When the nature of the loan certificates and the
relation of the Clearing-House Association to its members is thus
understood, the question whether the Clearing-House Association had
a right to take, as it did, the clearing credit of the Keystone and
apply it to the debt in question in reason answers itself. As said
in
Reynes v. Dumont, 130 U. S. 354,
130 U. S.
391:
"A general lien does not arise upon securities accidentally in
the possession of a bank, or not in its possession in the course of
its business as such, or where there is a particular mode of
dealing, inconsistent with such general lien."
The Clearing-House Association having been, therefore, in the
possession of the $28,808.10 as the fiduciary agent of the Keystone
Bank, without a lien or right upon it, its appropriation of the
same, after the insolvency of the Keystone Bank, to the debt owing
for loan certificates was obviously a preference within the
inhibition of the statute against preferences in the cases of
insolvent banks. Rev.Stat. § 5242.
But want of power in the clearing house to absorb the $28,808.10
belonging to the Keystone necessarily follows even if we eliminate
from view all claim of lien or all question of fiduciary relation
and consider the matter solely under the principles of the general
law of set-off. It is certain that all or any portion of the
$70,005.36 entered on the clearing sheet, and resulting from the
claims presented against other banks by the Keystone Bank in the
clearing of that morning, was a debt due by the clearing house not
to the Keystone Bank, but to the other banks who had presented
claims against the Keystone in excess of the $70,005.36. This is
shown by the
Page 167 U. S. 360
fact that, up to the time of the insolvency, not only did the
Keystone Bank have no claim against the clearing house, but it was
under obligation to pay $47,029.75, the difference between the sum
which it had presented and the sum of the claims presented against
it. Not only, therefore, all of the $70,005.36 presented by the
Keystone Bank in the clearing, but the $47,029.75 which it had to
pay belonged to other banks, and hence, up to the time of the
insolvency, the Keystone was a debtor, and not a creditor. The
credit of $28,808.10 which the clearing house impounded arose as a
result of the transactions between the parties, after the
announcement of the insolvency of the Keystone was made -- that is,
the credit of $28,808.10 was solely caused by the withdrawal, after
the insolvency, by certain banks, of checks and drafts which they
held against the Keystone Bank. It was only when, in consequence of
the failure of the Keystone to pay the sum due by it to the other
banks, and thereupon these banks exercised their undoubted right to
make this withdrawal and charge back to the persons from whom they
had received them the checks and drafts against the Keystone, that
credit in the favor of the Keystone arose. But this withdrawal was
confessedly made after the declared insolvency, and hence the
credit which the withdrawal caused could only have arisen after
that time. The claim of the clearing house therefore is that a fund
put in its hands for account of certain banks having become the
property of the Keystone, after the insolvency of the latter, by a
partial release granted by the banks in whose favor the fund
existed, therefore there instantly arose on the part of the
clearing house a right to set off its certificate account held
against the Keystone by the sum of the fund so created after
insolvency. But obviously the right to set-off, as recognized in
Scott v. Armstrong, 146 U. S. 499, is
to be governed by the state of things existing at the moment of
insolvency, and not by conditions thereafter created. The case,
under this aspect, is directly controlled by
Nashville Security
Bank v. Butler, 129 U. S. 223, and
indeed is governed by the general principle announced in
Davis
v. Elmira Savings Bank, 161 U. S. 275.
Page 167 U. S. 361
While, however, we find the appropriation of the $28,808.10 to
have been unlawful, the record is not in such a shape as to enable
us to dispose finally of the controversy. As we have said, the bill
of the complainant sought not only the recovery of the entire
$70,005.36 credit shown on the manager's clearing sheet, but also
an accounting for certain bonds which it was claimed had been held
by the clearing house as collateral for the payment of the daily
balances in the clearing. The proof having shown that these
collaterals were not held as security for the clearing, but for the
loan certificates, this claim was abandoned. But from the evidence
offered in relation to this item and found in the record, there is
a statement of the condition of the loan certificate account
between the clearing house and the Keystone Bank or its receiver.
This statement shows that, after reducing the loan certificate
account by the $28,808.10 credit, resulting from having
appropriated the balance in the clearing, as above stated, and
after having realized on certain assets held as collateral for that
account, there was a balance of $9,695.62 in cash to the credit of
the Keystone Bank or its receiver. That is to say, after putting
the clearing house in funds to discharge all the loan certificates,
it had in cash nearly $10,000 to the credit of the receiver. The
statement, moreover, shows that, in addition to this cash, there
was in the hands of the clearing house collaterals held for the
loan certificates, and which had not been realized, amounting to
$331.941.47, and besides that there was a balance due on collateral
notes in process of collection amounting to $16,397.72.
Necessarily, if the appropriation made by the clearing house of the
$28,808.10 be stricken from the loan certificate account, the
amount due to the Clearing-House Association by the Keystone or its
receiver will be increased by that amount, and this would absorb
the sum of $9,695.62 credited thereon as shown by the account in
the record, and leave a balance besides against the Keystone. The
uncollected collaterals would, of course, be a guaranty for the
payment of the balance, and the ultimate sum due, after exhausting
all the collaterals, would be a claim against the receiver,
entitled to its distributive share from the
Page 167 U. S. 362
assets of the Keystone Bank. The record fails to disclose
whether the receiver of the Keystone Bank has taken the collaterals
and the balance of cash stated in the account. If he has, the
issues are settled, for plainly he cannot be permitted, after
having taken the collaterals or the cash balance upon the theory
that the loan certificate account has been extinguished by imputing
thereto the $28,808.10, and then in this suit seek to recover by
repudiating the credit.
We conclude, therefore, that the ends of justice require that
the result of the dealings between the parties should be
ascertained and settled before a final decree passes, and that, to
accomplish this purpose,
It will be necessary to reverse both the decrees of the
circuit court of appeals and of the circuit court and to remand the
cause with directions to allow the parties, if necessary, to reform
their pleadings so that their rights may be determined in
conformity with the foregoing opinion, the costs of the circuit
court of appeals to be borne by the receiver, those of this Court
by the appellees, those in the circuit court to abide the final
result, and it is so ordered.