(dissenting)—We dissent. The effect of this decision is to render the rules and operations of the Seattle Clearing House Association superior to the provisions of section 2, chapter 98, page 280, Laws of 1915 (Rem. Code, §3303-2), and virtually to nullify that statute. It would appear to have been the manifest intent of the legislature to comprehend just such a situation as this. If not, there was small benefit to be derived from the statute.
By the agreement between the nonmember bank and the member bank and the clearing house rules, the trust fund law of this state and the positive statutes for the regulation of banking business and the protection of creditors generally of insolvent banks are completely evaded and overridden. Such inconsistency in the law is indefensible.
Nor do we think the New York cases (O’Brien v. Grant, 146 N. Y. 163, 40 N. E. 871, 28 L. R. A. 361; O’Brien v. East River Bridge Co., 161 N. Y. 539, 56 N. E. 74; and Davenport v. National Bank of Commerce, 127 App. Div. 391, 112 N. Y. Supp. 291, 88 N. E. 1117) are exactly parallel as construing precisely such statutory provisions as ours, no such identical statutory terms being quoted or referred to in the opinions. If so, however, we are unable to concur with those decisions. In those decisions a statute of New York was *164quoted in the O’Brien cases and referred to in the Davenport case, forbidding the assignment or transfer of any property “when the corporation is insolvent, or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation.” But our statute provides that:
“No bank, trust company, association or individual knowing that the state bank examiner has taken possession of such bank or trust company shall have a lien or charge for any payment advanced or any clearance thereafter made, or liability thereafter incurred, against any of the assets of the bank or trust company of whose property and business the state bank examiner shall have taken possession.” Rem. Code, § 3303-2.
We have italicized the terms of our statute which compel us to conclude that it controls in such case'as this, notwithstanding the clearing house association rules, and notwithstanding the New York decisions. There, intent to prefer creditors was an essential element prohibited. Here, intent is immaterial. Manifestly, by the majority opinion, either a lien is impressed upon the fund deposited by the nonmember bank with the clearing house bank, under their contract and the association rules, or an indemnity allowed for “any payment advanced,” or “clearance thereafter made, or liability thereafter incurred.”
Nor do we agree with the observations made respecting the lack of application of the, principle of ultra vires. We doubt if it is necessarily involved; but, at any rate, while, under the case cited and another which might have been cited, United States Fidelity & Guaranty Co. v. Cascade Const. Co., 106 Wash. 478, 180 Pac. 463, the corporation itself probably should not be permitted to invoke that principle, others, who were *165not parties to the corporate act, especially creditors, certainly would be permitted to do so.
The judgment should be reversed.
Fullerton, Mitchell, and Mackintosh, JJ., concur with Holcomb, C. J.