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section 5221, affidavits of the publishers to that effect should be sent to the Comptroller of the Currency, together with a slip containing notice from one issue of each paper.
is closing its affairs. All note holders and other creditors of the association are therefore hereby notified to present the notes and other claims for payment.
President or Cashier.
107. LIQUIDATING AGENT-APPOINTMENT AND POWERS.
When a national bank has been placed in voluntary liquidation the settlement of its affairs devolves by law upon its shareholders.
The national-bank act contains no provision stating the specific manner in which the affairs of a national bank shall be liquidated, and no reference is made in the law to the appointment of an agent or trustee in liquidation, except when a national bank has been placed in the hands of a receiver and the claims of all creditors other than shareholders have been satisfied.
Quite frequently the shareholders in voting to place the bank in liquidation, also appoint a liquidating agent or committee, whose powers are not always clearly defined.
The United States Circuit Court of Appeals has held (Jewett v. United States, 100 Fed. Rep., 832) that while no such office as an agent in liquidation was known to the statutes, yet it was one that has long been recognized as permitted by law.
Questions have been raised as to the extent of the authority of the liquidating agent or committee and whether the appointment of such agent or committee divests the directors of their general power and control over the management of the bank.
Judge Lacombe, of the United States Circuit Court for the Southern District of New York, held in 1899, in the case of the liquidation of the Franklin National Bank of New York, that the vote to liquidate and the appointment of a committee by the shareholders to liquidate the bank did not divest the directors of their general power and control over the management of the bank. This case, however, has never been officially reported.
In recent years this office has submitted to banks proposing to liquidate a form of resolution which, after providing for the appointment of a liquidating committee, provides that liquidation shall be conducted in accordance with the laws of the State and under the general supervision of the board of directors. This form of resolution also provides that the liquidating agent or committee shall render quarterly reports to the Comptroller during the progress of liquidation.
108. FORMS OF REPORTS TO BE RENDERED BY LIQUIDATING AGENTS. [Form of first report required to be submitted by the liquidating agent or committee of a national bank in liquidation, showing assets and liabilities on the day prior to which transfer was made; assets transferred to and liabilities assumed by the succeeding bank (if the assets were transferred to and the liabilities assumed by any other bank); assets transferred to the liquidating agent or committee and liabilities remaining unsatisfied on that date.]
Report of the condition of the
National Bank of
liquidating, and the business of which is to be acquired by the at the close of business on the day of
17. Due from....
-18. Due from.....
We, the undersigned, being a majority of the liquidating committee, certify the above to be a true statement of the liquidating, this day of
[Form of quarterly report required to be submitted showing progress made by the liquidating agent or committee in converting the assets into cash, satisfying the liabilities of the association, and the payment of liquidating dividends to shareholders for the quarters ending Mar. 31, June 30, Sept. 30, and Dec. 31.]
Total liquidating dividends paid to date,
After a national bank has gone into liquidation the officers have no authority to bind the shareholders by the transaction of any business except that necessarily involved in the winding up of its affairs unless such authority has been expressly conferred by the shareholders. (Schrader v. Manufacturers National Bank, 133 U. S., 67; Richmond v. Irons, 121 U. S., 27.)
While the matter does not appear to be provided for by law, it would seem advisable in all cases to have the liquidating agent or committee secure the authority of the board of directors before disposing of real estate or other assets of the bank.
109. ELECTION OF OFFICERS DURING LIQUIDATION.
A national bank that has voted to go into liquidation may continue to elect officers and directors for the purpose of effecting liquidation, but after the expiration of the term of its charter the stock is not transferable so as to give the transferee the right to share in the election of directors, and such transferee not being a shareholder is ineligible as a director under section 5145, United States Revised Statutes. (Richards v. Attleboro National Bank, 148 Mass., 187; 3 N. B. C., 495.)
110. LIQUIDATION AT EXPIRATION OF CHARTER.
Section 7 of the act of July 12, 1882, provides that national banking associations, the corporate existence of which has expired or shall hereafter expire, and which do not avail themselves of the provisions of this act, shall be required to comply with the provisions of sections 5221 and 5222 in the same manner as if the shareholders had voted to go into liquidation, as provided in section 5220; and the provisions of sections 5224 and 5225 shall also be applicable to such associations, except as modified by this act; and the franchise of such associations is extended for the sole purpose of liquidating their affairs until such affairs are finally closed.
While, under the act, no meeting of shareholders is necessary for the purpose of voting on the question of expiration of charter (the corporate existence expiring by limitation, if not extended as provided by law), it would seem advisable to call the shareholders to gether before date of expiration of charter, for exchange of views and the taking of such action as may be deemed necessary with regard to closing the affairs of the bank after the charter has expired.
After the charter of a bank is permitted to expire, the president or cashier should execute and forward to the Comptroller of the Currency certificate to that effect, in the following form: