INDEX.

ACKNOWLEDGMENT.
See DEED, 513.

AFFIDAVIT.

Under Procedure Act.] Where a National bank sues under the Procedure
Act of 1864, chapter 6, the cashier may make the affidavit required to be
filed with the declaration, stating the true amount that the defendant is in-
debted to the plaintiff over and above all discounts. Parkhurst v. Citi-
zens' National Bank of Baltimore, 463.

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AGENCY.

Broker- implied authority to pledge stocks - tender.] Moller & Co., brokers
and agents for Hunt, by an absolute power of attorney, having authority
from her to pledge her stocks for a loan of $35,000, contracted with de-
fendant for the loan, giving their own note therefor, secured by pledge of
the stock. Defendant knew that the loan was for Hunt, and was to be used
to pay for a portion of the stocks, and that the stocks belonged to her.
Held, that defendant could not hold the same as security for other loans
made by it to M. & Co. Plaintiff tendered before suit the $35,000 and in-
terest, and on this being refused, tendered $46,000. Held, not a conclusive.
admission that defendant had a lien for the latter sum. Talmage v. Third
National Bank of the City of New York, 603.

APPEAL.

1. Jurisdiction-practice.] Where a suit is brought in the United States
court by one in his individual name, as president of a National bank, and
the whole record shows that the suit was treated by both parties as that
of the bank, and not of the individual, the defendant will not be allowed
on final hearing, to assert for the first time that the individual and not the
bank was the complainant. Fortier v. New Orleans National Bank; New
Orleans National Bank v. Fortier, 140.

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2. Record review of evidence.] An appeal from an order of reversal, which
does not state that the reversal was upon questions of fact, brings up for
review only questions of law. A finding of fact by the trial court upon
sufficient evidence, and not reversed by the General Term, is conclusive
on appeal to the Court of Appeals. Prosser v. First National Bank of
Buffalo, 646.

Of stock.] See TAXATION.

See JURISDICTION, 52.

ASSIGNOR.

ATTACHMENT.

1. Against insolvent bank-repeal.] An attachment issued against an insol.
vent National bank is invalid (U. S. R. S., § 5142), and is not made valid
by the subsequent acquisition by the bank of further capital. Although
the bank after the issuing of the attachment paid a large amount of its
debts in full, this does not estop it from questioning the validity of the
attachment. The provision of the National Banking Act prohibiting at-
tachments in such cases is not repealed by the act of Congress of July 12,
1883, providing that the jurisdiction for suits thereafter brought against
National banks shall be the same as for suits against State banks, and
repealing laws inconsistent therewith. Raynor v. Pacific National Bank,
624.

2. Jurisdiction.] An attachment from a State court may not issue against an
insolvent National bank of that State. National Shoe and Leather Bank
of the City of New York v. Mechanics' National Bank of Newark, N. J.;
Corn Exchange Bank v. Same; West Side Bank v. Same, 601.

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3. Before judgment Federal jurisdiction — unlawful attachment — bond for
property — validity — action to set aside bond — equity — jurisdiction.] Un-
der U. S. Revised Statutes, section 5242, providing that no attachment
before final judgment shall be issued in any State court against a Na-
tional bank, and U. S. Revised Statutes, section 915, entitling the plain-
tiff in actions in the Federal courts to similar remedies by attachment to
those provided by the laws of the State in which such courts are held, a
Federal court may not issue a writ of attachment before final judgment
against a National bank. A bond given to release property from an ille-
gal attachment is void. The principal in a bond given in an attachment
suit may maintain an action in equity to have the bond declared void and
the property held by the sureties as indemnity returned. Butler v. Cole-
man; Same v. Mixter; Same v. Whitney; Same v. Demmon, 291.
See INSOLVENCY; JURISDICTION, 350, 670.

ATTORNEY.

Commissions,] The reasonableness of an attorney's commission stipulated for
in a judgment-note is a question for the court, but if submitted to the jury
and their verdict is reasonable it will not be disturbed. Guthrie v. Reid,
751.

BANKRUPTCY.

Suit by assignee for penalties for taking usury.] Plaintiff as assignee in bank-
ruptcy of A. sued to recover the penalties imposed by the National Bank-
ing Act for charging and receiving usurious rates of interest. Defendant
proved a release and discharge, executed by A. before the commencement
of the bankruptcy proceedings. Plaintiff gave in evidence the record of
a judgment in his favor in an action in which he as assignee sued de-
fendant to recover a payment of a debt made to it by A. about a month
prior to the execution of the release, as having been made when A. was
insolvent, and when defendant had reasonable cause to believe that fact
and knew the payment was made in fraud of the Bankrupt Act. Held,
that defendant was not concluded or affected by the judgment. Getman
v. Second National Bank of Oswego, 599.

BROKER.

See AGENCY, 603.

CASHIER.

Liability for negligence in discounts — limitation of loans to single person or
firm.] The by-laws of plaintiff, a National bank, directed that there
should be ""
a standing committee known as the exchange committee, con-
sisting of the president, cashier and one director," having power to dis-
count bills, etc., who were required to report at each meeting of the
board of directors. The cashier was empowered, with the assent of the
president, to "make discounts of an ordinary character." When the
committee was not in session, such discounts were to be reported at its next
meeting. No such committee was ever appointed. A discount committee
of directors was appointed by the board, also an advisory and executive
committee, but neither ever held a meeting. In January, 1873, plaintiff's
president announced to the board of directors that he could not thereafter
actively perform the duties of his office, and requested the appointment
of a committee to examine, from time to time, its financial condition.
Such a committee was appointed, with directions to investigate "three
or four times each year." Thereafter the president took no active part
in the business. Defendant, plaintiff's cashier, with the knowledge and
at least tacit consent of the president and directors, discounted certain
drafts, the drawers and drawees of which, at the time of the discounts,
possessed the highest degree of commercial credit, but before the maturity
of the paper became insolvent. Held, that in the absence of any claim
of want of integrity, judgment or skill on his part, he was not liable.
By another of plaintiff's by-laws, the names of two responsible persons
were required upon discounted paper, the name of a firm being considered
as one person. The drafts in question were drawn by the firm of P. &
Co. upon W. & Co., both being composed of the same members. The
business of the two firms was separate and distinct. The former bought
and manufactured lumber, at Oswego, shipping it to W. & Co., at Albany.
for sale. The latter firm was also consignee for other parties, selling on
commission. Held, that defendant was not liable for loss by approving
such paper for discount. The drafts in question came within the exemp-
tion in the National Banking Act (§ 29), of bona fide bills of exchange,
drawn upon actually existing values, from the prohibition against loans
by National banks to a single person or firm, in excess of one-tenth of its
capital. It could not be assumed that W. & Co. were not, at the time the
drafts were discounted, in receipt of property from P. & Co., sufficient to
meet their requirements. Second National Bank of Oswego v. Burt, 609.

CERTIFICATE OF DEPOSIT.

1. Power to issue-purchase by trustee — evidence-custom.] A certificate of
deposit issued by a National bank, payable to the order of the depositor,
on return of the certificate properly indorsed, and understood between the
bank and the depositor not to be payable until a future day agreed upon,
is not in violation of the National Banking Act. The purchase, by a trus-
tee, with the trust funds, in good faith, of a certificate of deposit, payable

CERTIFICATE OF DEPOSIT - (Continued).

at a future day, issued by a National bank, the stock of which was selling
at par, and occasionally at a small premium, and which was issuing large
numbers of such certificates to individuals, savings banks and trust com-
panies, will not render the trustee liable for a loss arising from the fail-
ure of the bank before the day stipulated for the payment of the certifi-
cate. In such a case, evidence is admissible to show that at and about the
time of such investment, the bank issued large numbers of such certifi-
cates to individuals, savings banks and trust companies; and the evidence
of bank examiners, that it is not usual for National banks to issue such
certificates, is also admissible. Hunt, Appellant, 474.

2. Ultra vires — embezzlement.] A National bank by its cashier issued its
certificate of deposit for money to be paid on a note of the depositor, or
lent for his use. Held, that the bank was liable thereon although the

cashier embezzled much more of the bank's funds. First National Bank
of Monmouth v. Brooks, 387.

CHANGE FROM STATE BANK.

Guaranty.] A National bank, changed from a State bank, may maintain an
action on a continuing guaranty for loans, held by it before the change,
for loans both before and after the change. City National Bank of Pough-
keepsie v. Phelps, 627.

CHECKS.

Certification of.] A National bank agreed to honor a depositor's checks in
consideration of collaterals, and subsequently certified such checks for
the benefit of anticipated holders; held, that the validity of the debt
created by paying the checks is not affected by U. S. R. S., § 5208,
declaring it unlawful for National banks to certify any check unless
the drawer have the amount thereof on deposit. Thompson v. St. Nich-
olas Nat. Bk., 663.

COLLATERAL SECURITY.

Fraudulent certificate of stock in National bank · action against bank.] A.
lent money to B. for his own use on B.'s false representation that he
owned and had transferred to A. a certificate of stock to an equal amount
in a National bank of which B. was cashier, and received from him such
a certificate, written by him in one of the printed forms which the presi-
dent had signed and left with him to be used if needed in the president's
absence, certifying that A. was the owner of that amount of stock, "trans-
ferable only on the books of the bank on the surrender of this certificate,"
according to its by-laws. B. did not deliver any certificate to the bank, or
make any transfer to A. upon its books. He never repaid the loan and
was insolvent. The bank did not ratify or receive any benefit from the
transaction. Held, that A. could not maintain an action against the bank
to recover the value of the certificate. Held, also, that the action could
not be maintained by mere evidence of one or two other similar instances
of issues of stock by B. without the surrender of any certificate, and that
shares once owned by B. and pledged by him to other persons before the
issue of the certificate to A., were afterward transferred to the president,
with the approval of the directors, to secure a debt due from B. to the
bank. Moores v. Citizens' National Bank of Piqua, Ohio, 110.

COMMITTEE.

To appraise shares-power to correct mistake.] The committee provided for
by the fifth section of act of Congress of July 12, 1882, to appraise the Na-
tional bank shares of shareholders who do not assent to amendments to
the articles of association, may correct a mistake made by them in their
approval within thirty days there from. First National Bank of Clarion
v. Brenneman's Executors, 755.

COMPROMISE.

Opening.] A compromise of a suit by the receiver of a National bank and
counsel for the United States will not be opened after a delay of seven
years, no fraud being shown. Henderson v. Myers, 759.

CONFLICT OF LAWS.

See USURY, 25.

CONSPIRACY.

Procuring declaration of dividend - · common-law offenses.] In an indictment
for conspiracy under U. S. Revised Statutes, section 5440, the charge of
conspiracy cannot be aided by averments of acts done by one or more of
the conspirators in furtherance of the conspiracy. A conspiracy entered
into between the directors of a banking association to misapply the
moneys of the association by procuring the declaration by the association
of a dividend greater than the net profits, in violation of section 5104 of
the Revised Statutes, is not a criminal offense against the United States.
United States v. Britton, 104.

CONSTITUTIONAL LAW.

Service on surety of non-resident.] The provision of Code of Georgia, § 3354,
that in a suit on an attachment bond, service of notice on the resident
surety is service on his non-resident principal, is not unconstitutional.
Continental National Bank v. Folsom, 350.

See TAXATION.

CONTRACT.

1. Assumption of another's obligation-failure of consideration.] On foreclosure
of a deed of trust upon a leasehold interest executed by an association to
secure its debts, B. & T. became the purchasers. As payment of the
purchase-money they assumed the debt, and by way of indemnity to
certain sureties of the association, they executed a mortgage in their
favor. At this time the leased property was subject to a deed of trust
which was subsequently foreclosed, whereby the leasehold interest was
extinguished. B. & T. bought with knowledge of this deed of trust and
without warranty of title to the leasehold, and no fraud or deceit was
practiced on them. Held, that as between them and the sureties whom
they had indemnified, the liability of the latter had not been revived, and
they had a right to claim the benefit of the mortgage B. & T. had given
them. Thornton v. National Exchange Bank, 513.

2. Not to sue· consideration-payment of interest.] An agreement not to sue
a promissory note which is due, in consideration of the agreement, by the
VOL. III-97.