Bowden v. Johnson. person known to be irresponsible, and collusively made, with the intent of escaping liability, and defeating the rights given by statute to creditors. Mrs. Valentine might be liable as a shareholder succeeding to the liabilities of Johnson, because she has voluntarily assumed that position, but that is no reason why Johnson should not, at the election of creditors, still be treated as a shareholder, he having, to escape liability, perpetrated a fraud on the statute. This is the view enforced by the decision of the chief justice in Davis v. Stevens, 17 Blatchf. C. C. 259. It urged that, as the bill prays that Johnson may answer its allegations on oath, the answer is evidence in his favor, and is to be taken as true, unless it is overcome by the testimony of one witness and by corroborating circumstances equivalent to the testimony of another witness. 'Under the view we have taken of the case, the only material questions which are controverted are the knowledge and intent of Johnson, and the insolvency of Mrs. Valentine, and the knowledge of the latter fact by Johnson at the time. Although Johnson executed the transfer and power of attorney on December 5, he did not deliver it to Mrs. Valentine. He sent it to Lamb for him to act as attorney. Mrs. Valentine had no agency in it. When the transfer had been made on the books of the bank, and the new certificate was made out, it was sent to Johnson on February 14, for him to deliver it to Mrs. Valentine. The letter of that date from Lamb to Johnson, which inclosed it, was full notice to Johnson that the condition of the bank was growing worse. His contract with Mrs. Valentine, if there was one, was not fully consummated on his part till after that. There was no delivery of any thing by him to her till after that. On the whole evidence, the intent of Johnson, though denied in the answer, is abundantly proved, because the facts from which the conclusion as to such intent flows are satisfactorily established, to an extent sufficient to satisfy the rule of equity. As to Mrs. Valentine's insolvency, she herself proves it conclusively, and she states facts which show that Johnson must have known it. She could give him nothing, according to her story, to answer for the $4,000 balance due him on the stock, and was reduced to telling him he might consider her jewelry his, for part compensation. Under all these circumstances, the omission of Johnson to VOL. III-9. Bowden v. Johnson. testify as a witness for himself, in reply to the evidence against him, is of great weight. This case, on the whole, is brought within the principle asserted by Chief Justice MARSHALL, speaking for this court, in Clark v. Reimsdyke, 9 Cranch, 153, as a case where the evidence arising from circumstances is stronger than the testimony of any single witness. In 3 Greenl. Ev., § 289, it is stated as a rule that the sufficient evidence to outweigh the force of an answer may consist of one witness, with additional and corroborative circumstances, which circumstances may sometimes be found in the answer itself, or it may consist of circumstances alone, which, in the absence of a positive witness, may be sufficient to outweigh the answer even of a defendant who answers on his own knowledge. It is contended for the appellees that this is not a case of equitable cognizance, because a plain, adequate, and complete remedy may be had at law. But the case is one of a transfer of the legal title to the stock, made to defraud the creditors of the bank. The evidence of title to the stock is the formal assignment on the books of the bank. This being a bill for discovery as well as relief, and the fraudulent transfer being good between the parties, and only voidable at the election of the plaintiff, it is clear that equity has jurisdiction to set it aside and enforce the liability of the transferrer. Objection is taken here, by the appellees, to the sufficiency of the proof that the Comptroller of the Currency decided, before this suit was brought, that it was necessary to enforce the personal liability of the stockholders. The plaintiff, as a witness, testified that he received written instructions from the Comptroller of the Currency to enforce the whole of the personal liability of the stockholders. The defendant Johnson objected that the written evidence referred to must be produced. The record states that the plaintiff reserved the right to file the paper, or a duly-certified copy of it, with the deposition, before the same should be closed. Before the deposition was closed the witness was recalled, and produced, as the record states, the original letter addressed to him and signed by the Comptroller, and it was filed with the deposition. No objection was made to it, and no requirement of further proof was made. It directs the receiver to institute legal Bowden v. Johnson. proceedings to enforce against every stockholder of the bank owning stock at the time the bank suspended, his or her personal liability as such stockholder under the statute. This was sufficient. The liability of the defendant bears interest from the date of said letter, August 13, 1875. Casey v. Galli, 94 U. S. 677; 1 Nat. Bank Cas. 142. In June, 1878, Orson Adams was appointed receiver of the bank, in place of Bowden, the plaintiff. The decree of the Circuit Court was not made till January, 1879. The appeal to this court was taken in the name of Bowden, Adams not having been substituted as plaintiff. Adams became surety in the appeal bond, and thus treated the decree as valid and adopted the appeal. Adams now moves to be substituted as plaintiff and appellant in place of Bowden, without prejudice to the proceedings heretofore had. The appellees and their counsel first heard of the appointment of Adams from the papers served on the motion for substitution, and the appellees now move to dismiss the appeal, on the ground that none was ever lawfully taken. We think that the motion of Adams should be granted, and that of the appellees should be denied. Adams prosecuted the appeal in the name of Bowden, whowas and is in life, and had a representative capacity. The power of amendment to this extent is authorized by section 954 of the Revised Statutes. It is of the same character as that exercised by this court in Gates v. Goodloe, 101 U. S. 612, where a writ of error was sued out by two bankrupts after their discharge in bankruptcy, and this court, on a motion to dismiss the writ, and a counter-motion by the assignee in bankruptcy to be substituted as plaintiff in error, denied the former motion and granted the latter. The motion of Adams is granted, and that of the appellees is denied, and the decree of the Circuit Court is reversed, with costs, and the cause is remanded to that court, with directions to enter a decree in favor of the substituted plaintiff as receiver, setting aside, as against him, the transfer of the one hundred and thirty shares of stock by Johnson to Mrs. Valentine, and decreeing that Johnson pay to said receiver the sum of $13,000, with interest thereon, at the lawful rate in the State of New Jersey, from August 13, 1875, with costs. Cook County National Bank v. United States. COOK COUNTY NATIONAL BANK V. UNITED STATES.* (107 U. S. 445.) Insolvency rights of United States as creditor. The provision of U. S. Rev. Stat., section 3466, that "whenever any person indebted to the United States is insolvent the debts due to the United States shall be first satisfied" does not apply to an insolvent National bank. The United States may not claim a payment of their demand against a National bank out of surplus moneys remaining in the treasury of the proceeds of bonds deposited as security for the circulating notes of the bank. A PPEAL from the Circuit Court of the United States for the Northern District of Illinois. This is an appeal from a decree of the Circuit Court overruling a general demurrer to a bill filed by the United States against the Cook County National Bank of Chicago, Illinois, and Augustus H. Burley, its receiver. The facts as stated in the bill, are briefly as follows: Previously to 1872 the bank was formed under the acts of Congress authorizing the organization of National banks, and was designated as a depository of moneys of the United States. In January, 1875, it became insolvent and suspended business. In February following, Burley was appointed, by the Comptroller of the Currency, its receiver, and he immediately entered upon the discharge of his duties. At the time of its suspension, the bank had on deposit, "of postal funds," $24,900, and "of money-order funds,” $14,684, which are respectively designated on its books by those names. These moneys had been deposited with the bank by John McArthur, a deputy postmaster at Chicago. The treasury department at the time held United States bonds, placed with it by the bank, to the amount of $150,000 par value, as security for all public moneys which might be deposited with the bank. These bonds were afterward sold for $174,544.52. Of the proceeds, $155,305.47 were appropriated to pay the amount then on deposit with the bank to the credit of the Treasurer of the United States. Of the balance remaining, $11,803.98 Cook County National Bank v. United States. were applied on the " postal funds," and $7,435.07 on the "moneyorder funds" deposited by the deputy postmaster at Chicago, leaving still due on account of those two funds $20,344.95. In addition to these bonds, there were at the time, in the treasury department, United States bonds to the amount of $100,000 par value, deposited by the bank to secure its notes issued for circulation. When in 1875 the bank failed to pay these notes, the Comptroller of the Currency declared the bonds forfeited to the United States. A part of them have been sold, and it is the intention of the treasury department to sell the remainder, and apply the proceeds to pay the notes in circulation, and reimburse the United States for sums already advanced for that purpose. The proceeds of all the bonds, when sold, will be sufficient to redeem the notes, reimburse the United States, in full for their advances, and leave a balance exceeding $30,000, more than sufficient to pay the debts due by the bank to the United States for postal funds and money-order funds, deposited by the deputy postmaster at Chicago. The treasury department, in addition to the bonds to secure the circulation of the notes, has a sum exceeding $30,000 belonging to the bank, collected from bills receivable and debts due to it; but its liabilities notwithstanding greatly exceed its assets. Upon these facts the question arose, whether the claim of the United States for moneys deposited by the deputy postmaster is a preferred debt or not; and the officers of the United States are in doubt as to their duty on the subject, that is, whether they should reserve from the funds in the treasury department belonging to the bank a sufficient amount to pay the debt for postal funds and money-order funds due to the United States, or whether they should distribute the said moneys pro rata to all the creditors of the bank, including the United States. The bill prays that an account be taken of the amount due to the United States by the bank for moneys so deposited with it by the deputy postmaster, and that a decree be entered directing the disposition of the funds belonging to the bank in the control of the treasury department. The defendants treated the bill as filed to obtain a decree adjudging to the United States a priority in the payment of their |