THE AMERICAN LAW TIMES. NEW SERIES. - DECEMBER, 1877.- VOL. IV., No. 12. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI ODICALS. Albany L. J. Am. Law Rec. ABBREVIATIONS. Albany Law Journal, Albany, N. Y., WEED, PARSONS & CO. Am. Law Reg.-American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Ins. L. J. Internal Revenue Record, New York, W. P. & F. C. CHURCH. La. L. J.-Louisiana Law Journal, New Orleans, La. Leg. Chron. - Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. Leg. Int.-Legal Intelligencer, Philadelphia, Pa., J. M. POWER WALLACE. Mo. Jur.-Monthly Jurist, Bloomington, Ill., T. F. TIPTON. N. B. R. National Bankruptcy Register, New York, CAMPBELL & Co. BANKS AND BANKING. 1. PRESUMPTIONS AS TO KNOWLEDGE OF DIRECTOR. A person who holds the office of director and vice-president of a bank, and at the same time has private and personal dealings with the bank, is conclusively presumed to know, so far as the same affects his said personal dealings, the general condition and management of his bank, and to know everything of importance that occurs therein, either at the time it occurs or soon thereafter. He is bound to know when his bank is in an embarrassed condition, and the condition of an account which has been overdrawn for several months; and where the cashier gives a credit of $2,100 to the person having such overdrawn account, for an insufficient and illegal consideration, such officer is bound to know the same within less than several days thereafter. German Savings Bank v. Wulfkuhleez, S. C. Kans., Cent. L. J., October 26, 1877. 2. BANK CANNOT BUY ITS OWN STOCK. A bank, organized under the laws of Kansas, cannot purchase its own stock, except in some cases for the purpose of securing a previously existing debt. Ib. VOL. IV. 12 Vol. IV.] DIGEST OF CASES. [No. 12. 3. LIABILITY OF DIRECTOR. Where W., a stockholder and also a director and the vice-president of such a bank, sells his stock of such bank while the bank is in an embarrassed condition to H., who has no funds in the bank, but, on the contrary, has an overdrawn account with the bank. of several months' standing, and W. receives in payment for his stock a check for $2,100, drawn by H. on the bank; and H. then sells said stock to the cashier of the bank, who purchases it for the bank, but who has no authority from the bank or from any one else to purchase the same for the bank, and the cashier gives to H. a credit for such stock for $2,100 on the books of the bank, and on the same day the cashier gives to W. a credit on the books of the bank for the amount of said check and charges H. with a like amount; and several days thereafter W. draws said amount of $2,100 out of the bank: Held, that the bank may maintain an action against W. for the amount of money so drawn out of the bank. And it makes no difference, in such a case, that said stock may in fact have belonged to W. and his brother as partners, and that all the transactions in selling said stock, in getting said credit, and in drawing said money out of the bank, may have been carried on in the name of the firm. The acts of the cashier in said transactions cannot estop the bank as against W., who is a director and the vice-president of the bank. 1b. See NATIONAL BANK. MAKER. BILLS AND NOTES. 1. WAIVER OF EXEMPTION IN JUDGMENT NOTE. - IGNORANCE OF - NEGLIGENCE. — In the absence of any evidence of fraud or mistake a waiver of exemption contained in a judgment-note is not avoided by proof that the maker at the time he signed the note could not read it, did not inquire as to its contents and was not aware that it contained the waiver of exemption. A. signed a judgment-note containing a waiver of exemption. He testified that he could not read English, that he asked no questions concerning the contents of the note, and was not aware that it contained the waiver. There was no evidence of fraud. The jury found specially that A. did not know that the note contained the waiver. Held, that the waiver of exemption was not avoided by the fact of A.'s ignorance that it was contained in the note. Adams v. Bachert, S. C. Pa., W. N. C. November 1, 1877. 2. PATENT RIGHT NOTES." INVALIDITY OF STATE ENACTMENT CONTROLLING. A state statute entitled: "An act to regulate the execution and transfer of notes or other obligations given for patent rights" consisted of two sections. The first section required all notes, and other negotiable or assignable instruments, the consideration of which, in whole or in part, consisted of the right to make, use, or vend any patented invention, to have prominently and legibly written or printed on its face the words: "Given for patent rights." Such notes were made subject to the same defence in the hands of every holder as existed against the original holder; and notes without this inscription were equally subject to such defences when the holder knew they were given for such a consideration. The second section made it a misdemeanor to take, purchase, sell, or Vol. IV.] DIGEST OF CASES. [No. 12. transfer any such note, not so inscribed, knowing it to have been given on such a consideration. Held, that the act was unconstitutional and void. Cranson v. Smith, S. C. Mich., Cent. L. J., November 2, 1877. 4. INDORSEMENT OF NOTE BY THIRD PARTY BEFORE MATURITY, ETC. When a promissory note, made payable to a particular person or order, is first indorsed by a third party, such third person is held to be an original promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name in blank on the back of the note at the time it was made, and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. If his indorsement was subsequent to the making of the note and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee, for further indulgence or forbearance he can only be held as guarantor, which can only be done where there is legal proof of a consideration for the promise, unless it be shown that he was connected with the inception of the note. But if the note was intended for discount, and he put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser in the commercial sense, and as such would be entitled to the privileges which belong to such an indorser. Good v. Martin, S. C. U. S., Chicago L. N., November, 10, 1877. See MANDAMUS. CONSTITUTIONAL LAW. CONTEMPT. See INJUNCTION. CORPORATION. See BANKS AND BANKING. EJECTMENT. See EVIDENCE, 1, 2. EVIDENCE. 1. JUDGMENT.- EJECTMENT. - POSSESSION. While a judgment in ejectment is conclusive evidence that defendant was in possession on the day the writ was served, it is only prima facie evidence that defendant continued in possession. Miller v. Henry, S. C. Pa., W. N. C., November 1, 1877. 2. IN AN ACTION FOR MESNE PROFITS, AFTER A JUDGMENT IN EJECTMENT, the defendant may show that she was not in possession after the service of the writ, but merely resided on the premises as a guest or housekeeper of a co-defendant. And such evidence is not rendered inadmissible by the fact that it also tends to show that she was not in possession at the time the writ was served. 1b. Vol. IV.] DIGEST OF CASES. [No. 12. INJUNCTION. CONTEMPT OF PROCESS OF STATE COURT BY RECEIVER OF FEDERAL COURT. On the 6th of March, 1873, an injunction was granted by the state court against the Cairo and Vincennes Railroad, restraining its agents, employees, and attorneys from the use of an avenue in the city of Cairo for loading and unloading cars, from leaving them standing thereon, or making up trains, and from using railroad tracks for switching cars or trains thereon, or for any purpose other than for transit of cars and trains over their tracks, &c. This writ was served on an agent of the corporation on the next day. On the 5th of March, 1874, plaintiffs in error were appointed by the United States district court for the Southern District of Illinois, receivers of the road, and entered upon the discharge of their duties. They disregarded the injunction, and switched daily upon the forbidden track large numbers of cars to be loaded and unloaded, &c. Held, that the receivers acted in contempt of the state court, and are amenable thereto. The order and writ are matters of public record, of which all persons are bound to take notice at their peril, and the receivers are legally the agents of the corporation, although they are under the direction of the court appointing them. The federal court could not legally dissolve the injunction granted by the state court. Safford v. People, S. C. Ill., Cent. L. J., November 2, 1877.1 See NATIONAL BANK, 1, 2. JUDGMENT. TORT. JUDGMENT FOR. - JOINT AND SEVERAL WRONG-DOERS. K., on April 5, mortgaged personal property to S. to secure indorsements. S., owing defendant, assigned the mortgage to him to secure the debt. On October 4 K. gave to G. a second mortgage for $4,000 (which was used to pay note of K. indorsed by S. and G.) on the property which also covered other property. October 12 K. sold the property for $6,000, of which sum G. received $3,500 and defendant $2,500. S. paid nothing on the secured indorsements. November 2 bankruptcy proceedings were commenced against K., and plaintiff appointed assignee, who brought action against G. for the $3,500 received by him, and another for the money paid on the notes. The first-named suit resulted in a judgment for $4,000 which was satisfied, and the second was settled for $2,000 and G. was released. Held (1), that though the mortgage to S. was originally valid, he having paid nothing, the sum paid to defendant on it was a preference, and defendant liable to the assignee therefor; and (2) that the judgment against G. and its satisfaction and the release did not bar 1 Concerning the opinion in this case the editor of the Central Law Journal writes as follows: "The opinion is written in heated language, and cites no authorities. It is, in our judgment, a complete judicial faux pas. It proceeds upon the false premise that a receiver is the agent of a corporation whom he dispossesses. A receiver is the agent of no one ex cept the court by which he is appointed, and no other court can, without consent of that court, exercise any more authority over him than it can exercise over the judge of the court whose agent he is. We are profoundly astonished that such a decision should proceed from any appellate bench in the United States." EDITOR. Vol. IV.] DIGEST OF CASES. [No. 12. an action therefor against defendant. Sessions v. Johnson, S. C. U. S., Albany L. J., October 27, 1877. See BILLS AND NOTES, 1. JUDGMENT NOTE. See BILLS AND NOTES, 1. MANDAMUS. SCHOOL BOARD. POWER TO RECEIVE DRAFT, ETC. W. desired to purchase some school bonds, and on September 10 sent a draft on J. C. & Co., in payment therefor, to the order of "School Board, Muncy, Pa." The draft was received at a special meeting of the board, on September 13, in the absence of the treasurer, and bonds were ordered to be issued on payment of the draft. The draft was handed to the treasurer on his return after bank hours on September 16, and was sent by him properly endorsed, on the 17th, for collection, to his bank at W., some eleven miles from Muncy on the road to Philadelphia. Owing to a delay in the mail, the draft was not received by the W. bank until the evening of September 18. On September 20 the draft was presented for payment, and protested, the drawees having failed on September 18. In a mandamus by W. against the School Board to compell an issue of bonds: Held, that the respondents were guilty of no laches in the presentation of the draft. Muncy, &c., District v. Commonwealth, S. C. Pa., W. N. C., October 25, 1877. MARRIED WOMAN. 1. MORTGAGE OF MARRIED WOMAN. While the bond and mortgage, or judgment, given by a married woman to secure purchase money will be enforced against the land, upon the equitable principle that she may not withhold the price and retain the land, such instrument creates no personal obligation on the part of the married woman, and gives the holder no right to participate in the distribution of her estate in the hands of her administrator. Sawtelle's Appeal, S. C. Pa., W. N. C., October 25, 1877. 2. CLAIMS FOR MEDICAL SERVICES RENDERED TO a married woman are not good against her separate estate, unless it is proved that they were rendered at her request and on her credit. Ib. MASTER AND SERVANT. EMPLOYMENT OF SERVANT BY JOINT MASTERS. - T. was employed as a signal-man by the G. Railway Company at a station which abutted upon a station of the N. Railway Company. The business of T. was common to both stations, and was to signal the trains of both companies, and he was called one of the joint-station staff, all of whom were appointed and paid by the G. Company, but the expenses of their salaries was borne equally by the two companies. Held, that he was employed as the servant of both companies, and the N. Company was not liable for his death through the negligence of one of its servants. Swainson v. North Eastern Railway Co., High Ct. England, Albany L. J., October 13, 1877. |