« AnteriorContinuar »
new trial was unquestioned ; its rightful exercise was another matter, which
could only be inquired into on the final determination of the case ; perhaps
both parties might be satisfied with the next verdict. Ib.
7. See Habeas Corpus, for appeal in.
ASSIGNMENT, DEED OF.
See Deed and Fraud.
ASSIGNOR AND ASSIGNEE.
See Bills of Exchange and Promissory Notes.
A mere equitable right cannot be recovered under the common counts; the
plaintiff, as in other actions at law, must have a legal right.
absconding debtor, which is levied upon land, the proper process to issue,
under the statutes, to enforce the judgment, is an execution commanding the
sale of the specific land levied on ; yet if an ordinary fieri facias issue, gen-
eral in its terms, and the specific land attached be sold under it, the pur-
chaser will, in the absence of proof that he had any notice of the irregu-
larity in the process, acquire a good title. 16.
7. If an attachment at law be regularly sued out against an absconding debtor or
one removing his property, and the bond and affidavit before their return to the
circuit court, while in the custody of the magistrate who issued the attach-
ment, be accidentally destroyed by fire, the attachment will not, on proof of
these facts, be quashed for want of the affidavit and bond “taken and re-
turned,” as required by the statute. Wheeler v. Slavens, 623.
8. The attachment law is to be construed “ in the most liberal manner, for the
advancement of justice and the benefit of creditors ; ” it was held, therefore,
that though that law required the “bond and affidavit” of the creditor to be
taken and “returned” to the court, or the attachment to be dismissed,
it did not embrace the case of the accidental destruction of such bond and
affidavit duly taken, before their return; the bond having been once taken, the
debtor could have the same remedy upon it after as before its destruction. 16.
ATTACHMENT IN CHANCERY.
ATTACHMENT FOR CONTEMPT.
1. Whether an attachment of the person of a defendant may issue only on motion
that though that law required the “bond and affidavit of the creditor” to be
taken and “ returned” to the court, or the attachment should be dismissed, it
did not embrace the case of the accidental destruction of such bond and affida-
vit duly taken, before their return; the bond having been once taken, the cred-
itor could have the same remedy upon it after as before its destruction. Ib.
ATTORNEY AT LAW.
In an action against an attorney at law for money collected by him for his
client, he may plead the statute of limitations; and it will be no answer to
the plea, that he did not notify his client of the collection of the money.
Cook v. Rives, 328.
1. A guardian ad litem cannot bind his wards by submitting the suit in their name
to arbitration, and approving the award ; they can only conduct the suit
under the directions of the court. Fort v. Battle, 133.
2. A husband cannot bind his wife by submitting to an arbitration questions
affecting her separate property; he may submit to arbitration any thing that
he can dispose of in right of his wife; but as respects property which he
cannot alien, he cannot submit to an award which would give that property
to another. Ib.
3. An award may be binding on a portion of the parties, and not on the residue ;
as where adult and minor heirs, the latter acting by their guardian ad litem,
submitted with the administrator the latter's course of administration to ar-
bitrators, and approved of their award; the adults will be bound, and not
the minors, by the award. Ib.
1. A note given by an applicant for a discharge in bankruptcy from his debts
under the act of Congress, to a creditor resisting his discharge on the
ground of a fraudulent concealment of his assets, the note being executed
on condition that the creditor would withdraw his opposition, is void, though
executed after the bankrupt's discharge; the consideration being illegal,
and the transaction in fraud of the policy of the act of Congress.
Rice v. Maxwell, 289.
2, The debts of a discharged bankrupt are annihilated by the decree in bank-
one of them in regard to a matter not pertaining to his duties cannot affect
the bank. Goodloe v. Godley, 233.
2. Knowledge, therefore, on the part of a clerk in a bank of the residence of a
party to negotiable paper protested by the bank, will not prevent the holder
of the paper, in a suit against this party to it, from availing himself of the
ignorance of the proper officer of the bank of the residence of the party. 16.
3. A note executed by a stockholder in the Commercial Bank of Natchez, payable
to the bank and discounted by it for the purpose of paying a call by the
bank on his subscription for stock, after the first and several other calls on
his stock had been paid, is a valid obligation on the maker of the note ;
may be enforced after a judgment of forfeiture against the bank, under
the act of 1843, by the trustee appointed by the court.
Lewis v. Robertson, 558.
4. The trustee of a bank, under the act of 1843, succeeds to all the rights of the
bank; he is to collect all debts due to the bank, and apply them to the pay-
ment of debts due from the bank ; and an amount due for stock in the bank is
as much a debt as any other liability. 16.
5. However it might be if there were no creditors of the bank, it is clear the
stockholders are bound to pay up all the arrearages due for stock, if neces-
sary to form a fund for the payment of the debts of the institution. Ib.
6. It seems that an assignment by a bank of its choses in action and other prop-
erty, to trustees, for the benefit of its creditors, made pending a writ of quo
warranto against it, for the purpose of preserving its assets from extinguish-
ment, is not a dissolution of a corporation, or a surrender of its franchises.
State v. Commercial Bank of Manchester, 569.
7. It is the settled doctrine of this court, that a bank may make a general assign-
ment of its property and effects, and such assignment, if in other respects
fair, will be sustained. Ib.
8. It is a part of the common law of the land, annexed as a tacit condition to the
creation of every private corporation, that it may lose its franchises by a
misuser or nonuser of them. Ib.
9. While an assignment by a bank of its property and effects, to trustees for its
creditors is not a misuser of its franchises, yet it may place it out of the
power of the bank to comply with the terms and fulfil the purposes, and
perform the conditions upon which its charter was granted, and thus prove a
ground of forfeiture for nonuser. Ib.
10 The furnishing of a sound and convertible medium of currency, is the primary
object in the incorporation of banks; the accommodation of those who deal
with them, and the benefit of the stockholders are the secondary objects; in
regulating, therefore, the management of its monied affairs, a reasonable
discretion must, of necessity, be allowed the corporation; and it is therefore
difficult to define the boundary between legitimate acts of prudence and those
which would be an abuse of its franchises ; each case must rest somewhat on
its own circumstances. Ib.
11. While a continued suspension of the principal corporate franchises, and a
failure to perform the implied conditions on which the charter of a bank was
granted, will amount to a nonuser, and so be ground of forfeiture; yet a mere
assignment of the property and effects of a bank nearly out of debt to trus-
tees to pay the debts due, and the residue to divide among the stockholders,
made pending a quo warranto with the view of saving the assets, the bank in
the meanwhile keeping up its corporate existence by the election of its offi-
cers, is not a misuser nor a nonuser of its franchises; yet it seems if, after
the decision in its favor of the quo warranto, the trustees make no reassign-
ment to the bank, and the latter omit the exercise of its usual corporate
franchises for a continued period, it would amount to a nonuser, and be cause
of forfeiture. Ib.
12. B. & D. were sureties of C. upon a note held by a bank, on which suit was
instituted against all the parties ; C. becoming insolvent, B. and D. proposed
to execute their separate notes each for half the sum due, with sureties on
each, and take up the note sued on with these new notes ; in February, 1841,
B. made his note with sureties for his portion, and delivered it to the bank for
his half of the debt sued on ; the bank retained the note, but whether at once
it agreed to the proposal was not clear; in August, 1841, B. informed one of the
directors of the bank that he did not wish the note discounted by the bank, and
applied to the bank for it; in October, 1841, the suit upon the note of C. was
dismissed, and the bank subsequently sued B. and his sureties on the note
given by him for his half of the other debt: Held, on these facts, that B., and
his sureties were liable on that note ; the holding of the note for so long a time
by the bank, without an offer to return it, might of itself be regarded as an
acceptance of the proposition of B.; and it would be unjust to allow B. to
escape the payment of the note made by him, without putting the bank back
in the condition in which it was before the dismissal of the suit on the first
note. Commercial Bank of Manchester v. Bonner, 649.
13. In an action on the note of B., the court was asked by the bank to instruct the
jury, " that if any demand were ever made by B., of the note, unless said
demand was made of some legally authorized agent of the bank, it was
of no avail, and is not evidence of B.'s disagreement to the transaction :"
Held, that this instruction propounded the law correctly, and should have been
14. The court was further asked by the bank, to instruct the jury, “ that a bank
can receive notes, and agree to propositions at the board, without any entry
upon the records, but the same may be entered at a subsequent time; and if
any agreement to a former proposition, it will relate back to the time of
receiving the original proposition : " Held, that this also should have been
15. See Deed, for deed of assignment by. See Lim., Stat. of, for how far the
injunction clause in the act of 1843 stops running of. See Scire Facias, as
to revival of judgment in favor of.