fund by the debtor, out of which the creditor is to be paid, the debtor cannot set up the statute of limitations to an action on the bonds and coupons, without showing that the fund has been provided. Lincoln County v. Luning, 529. See MORTGAGE, (9).
1. In this case, which was an action against a railroad company, by one of its employés, to recover damages for a personal injury, it was Held, that it was proper for the Circuit Court to direct the jury to find a verdict for the defendant. Coyne v. Union Pacific Railroad Co., 370. 2. The plaintiff was a laborer or construction hand, under a construction boss or foreman of the defendant. He was injured by the fall of a steel rail, which he and other laborers were trying to load from the ground upon a flat car, and which struck the side of the car and fell back. The negligence alleged was, that the foreman moved out the construction train to which the flat car belonged, in the face of an approaching regular freight train, to avoid which the laborers were hurrying to load the rails; and that he failed to give the customary word of command to lift the rail in concert, but, with the approaching freight train in sight, and with oaths and imprecations, ordered the men to get the rail on in any way they could, and they lifted it with- out concert; Held, that whatever negligence there was, was that of either the plaintiff himself or of his fellow-servants who with him had hold of the rail. Ib.
3. The stewardess of a steam-vessel belonging to a corporation sued it to recover damages for personal injuries sustained by her. She came out of the cabin, which was on deck, to throw the contents of a pail over the side of the vessel, at a gangway facing the door of the cabin, and leaned over a railing at the gangway, composed of four horizon-
tal rods, which gave way, because not properly secured, and she fell into the water, probably striking the side of a boat. The röds were movable, to make a gangway, and had been recently opened to take off some baggage of passengers, and not properly replaced. The por- ter and the carpenter had attempted to replace them, but left the work, knowing that it was unfinished. The persons composing the ship's company were divided into three classes of servants, called three departments the deck department, containing the first and second officers, the purser, the carpenter and the sailors; the engineer's de- partment, containing the engineers, the firemen and the coal-passers, and the steward's department, containing the steward, the waiters, the cooks, the porter and the stewardess. Every one on board, in- cluding the plaintiff, had signed the shipping articles, and she had participated in salvage given to the vessel. The master was in command of the whole vessel; Held, that the porter and the car- penter were fellow-servants with the plaintiff, and that the corpora tion was not liable to her for any damages. Quebec Steamship Co... v. Merchant, 375.
4. The Circuit Court left it to t'e jury to determine, if they found there was negligence, whether the injury was occasioned by the care- less act of a servant not employed in the same department with the plaintiff; Held, error, and that the court ought to have directed the jury, as requested, to find for the defeudant, on the ground that the negligence was that of a fellow-servant, either the porter or the car- penter. Ib.
S. gave two deeds of trust of a lot of land in the District of Columbia to secure loans made by P. Afterwards he gave a deed of trust of the same lot to secure a loan made by C., that deed covering also a lot in the rear of the first lot, and fronting on a side street. At the time all the deeds were given, there was a dwelling-house on the premises, the main part of which was on the first lot, but some of which was on the rear lot. P., on an allegation that B., a trustee in each of the first two deeds, had refused to sell the property covered by them, filed a bill asking the appointment of a trustee in place of those appointed by the first two deeds. The suit resulted in a decree appointing a new trustee in place of B., "in the deed of trust," but not identifying which one. The new trustee and the remaining old one then sold the land at auction to P., under the first trust deed. S. then filed a bill to set aside the sale, and P. filed a cross bill to confirm it. The bill was dismissed. P. then filed this bill against S. and C., and all necessary parties, to have a trustee appointed to sell the land covered by the three trust deeds, and the improvements on it, to have a receiver of the rents appointed, and to have the rents and the proceeds of sale applied first to pay P. A receiver was appointed, and a decrec made
for the sale of the entire property, as a whole, by trustees whom the decree appointed, and for the ascertainment by the trustees of the relative values of the land covered by the first two trust deeds and the improvements thereon, and of the rear piece of land and the improvements thereon, and for the payment to P. of the net proceeds of sale representing the value of the land and improvements covered by the first two trust deeds, less the expenses chargeable thereto, and of the residue to C., and, out of the rents, to P., what he had paid for taxes and insurance premiums, and for a personal decree against S., in favor of P., for any deficiency in the proceeds of sale to pay the claims of P.; Held, (1) It was the intention of both S. and P. that the first two deeds of trust should include the rear land as well as the front lot; (2) The decree in the first suit by P. was so uncertain as to be practically void, and there was no effective appointment of a trustee and no effective sale to P.; (3) P. was not estopped by that sale from having the property sold again; (4) P. was not required, as a condi- tion of the sale of the rear lot, to pay the whole of the debt due to C.; and the case was a proper one for selling the property as an entirety; (5) It was, also, a proper one for the appointment of a receiver of the rents, and those rents in the hands of the receiver, after paying charges, ought to go to make up any deficiency in the proceeds of sale to satisfy the corpus of all the secured debts, and ought to be first applied to pay any balance due to P.; (6) Under § 808 of the Revised Statutes relating to the District of Columbia a decree in personam for a deficiency is a necessary incident of a foreclosure suit in equity; (7) As the notes secured by the deeds of trust bore interest at the rate of nine per cent per annum, until paid, it was proper to allow that rate of interest on the principal until paid, and not to limit the rate to six per cent after decree, because the contracts were not merged in the decree; (8) The rate of interest on the decree for deficiency is properly six per cent, under §§ 713 and 829 of said Revised Statutes. (9) The statute of limitation not having been pleaded as to any part of the principal or interest, the defendant cannot avail himself of it. Shepherd v. Pepper, 626.
1. Full control over the matter of the organization of new counties in the State of Kansas is, by its constitution, article 9, § 1, given to the legislature of the State, which has power, not only to organizė a county in any manner it sees fit, but also to validate by recognition any organization already existing, no matter how fraudulent the pro- ceedings therefor were. Comanche County v. Lewis, 198.
2. When both the executive and legislative departments of the State have
given notice to the world that a county within the territorial limits of the State of Kansas has been duly organized, and exists, with full power of contracting, it is not open to the county to dispute those facts in an action brought against it by a holder of its bonds, who bought them in good faith in open market. Ib.
3. The debts of a county, contracted during a valid organization, remain the obligations of the county, although, for a time, the organization be abandoned, and there are no officers to be reached by the process of the court.
4. A recital in the bond of a municipal corporation in Kansas that it was issued in accordance with authority conferred by the act of March 2, 1872, Kansas Laws of 1872, 110, c. 68, and in accordance with a vote of a majority of the qualified. voters, is sufficient to validate the bonds in the hands of a bona fide holder; and the certificate of the auditor of the State thereon that the bond was regularly issued, that the sig- natures were genuine, and that the bond had been duly registered, is conclusive upon the municipality. Ib.
5. A recital in a bond issued by a county in Kansas for the purpose of building a bridge, need not necessarily refer to the particular bridge for the construction of which it was issued.
6. In Kansas a county has power to borrow money for the erection of county buildings, and to issue its bonds therefor. Ib.
7. The organization of townships and the number, character, and duties of their various officers are matters of legislative control. Bernards Township v. Morrison, 523.
8. Officers duly appointed under statute authority represent a municipality as fully as officers elected. Ib.
9. When the legislature has declared how an officer is to be selected, and the officer is selected in accordance with that declaration, his acts, within the scope of the powers given him by the legislature, bind the municipality. Ib.
See CASES AFfirmed, 2, 3;
EQUITY, 7; LIMITATION, STATUTES OF.
1. A national bank went into voluntary liquidation in September, 1873. Before that it had become liable to a state bank, as guarantor on sun- dry notes, made by a third person, and which were discounted for it› by the state bank. In August, 1874, transactions took place between the maker of the notes and the state bank, and the person who acted as the president of the national bank, whereby the maker was released from further liability on the notes, but such acting president attempted to continue, by agreement, the liability of the national bank as guar- antor. In a suit begun in October, 1876, a judgment on the guaranty was obtained in May, 1880, by the state bank against the national bank. In a suit brought by a creditor against the national bank and
its stockholders to enforce their statutory liability for its debts, the court on an application made in June, 1887, enquired into the liability of the stockholders to have the claim of the state bank enforced as against them, in view of the transactions of August, 1874, and dis- allowed that claim; Held, (1) It was proper to reexamine the claim; (2) The judgment against the bank was not binding on the stock- holders in the sense that it could not be reëxamined; (3) The guar- anty of the bank was released as to the stockholders by the release of the maker of the notes; (4) The rights of the stockholders could not be affected by the acts of the president done after the bank had gone into liquidation. Schrader v. Manufacturers' Bank, 67. 2. After the passage of the act of June 30, 1876, 19 Stat. 63, savings banks organized in the District of Columbia under an act of Congress, and having a capital stock paid up in whole or in part, were entitled to become national banking associations in the mode prescribed by Rev. Stat. § 5154. Keyser v. Hitz, 138.
3. A certificate signed by the Deputy Comptroller of the Currency as "Acting Comptroller of the Currency," is a sufficient certificate by the Comptroller of the Currency within the requirements of Rev. Stat. § 5154. Ib.
4. A transfer of stock in a bank to a person without his or her knowledge or consent, does not of itself impose upon the transferee the liability attached by law to the position of a shareholder in the association; but if, after the transfer, the transferee approves or acquiesces in it, or in any way ratifies it, (as, for instance, by joining in an application to convert the bank into a national bank,) or accepts any benefit aris- ing from the ownership of such stock, he or she becomes liable to be treated as a shareholder, with such responsibility as the law imposes in such case; and this liability is the same whether new certificates have or have not been issued to the transferee after the transfer. Ib. 5. The endorsement, by the payee, of a check which appears on its face to be drawn by the cashier of a bank in payment of a dividend due the payee as a stockholder, estops him from denying knowledge of its contents or ownership of the shares. Ib.
6. A married woman in the District of Columbia may become a holder of stock in a national banking association, and assume all the liabilities of such a shareholder, although the consideration may have proceeded wholly from the husband. Ib.
7. The coverture of a married woman, who is a shareholder in a national bank, does not prevent the receiver of the bank from recovering judg- ment against her for the amount of an assessment. levied upon the shareholders equally and ratably under the statute; but no opinion is expressed as to what property may be reached in the enforcement of such judgment. lb.
8. When the previous proceedings looking to an increase in the capital stock of a national bank have been regular and all that are requisite,
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