1. On demurrer to a declaration by an association formed under the General Banking Law of this state, which was argued in the supreme court at the July term, 1839, and decided by that court at the following October term, a majority of the court held, that the act to authorize the business of banking, passed 18th April, 1838, is a valid and constitutional law, on the assumption that it received the assent of two-thirds of the members elected to each branch of the legislature; and that it would be presumed to have been thus passed, until the fact was de- nied by plea; at all events the court re- fused to pass upon the question on a de- murrer to a declaration by an association in a suit for the recovery of a debt. All the judges concurred in the opinion that associations formed under the act are corporations. Thomas v. Dakin, 9
Ray v. Beers, President of the North American Trust and Banking Compa- ny," and "Bolander v. Stevens, Presi- dent of the Bank of Commerce, in New York," which will be reported in volume |XXIII.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. A bank receiving for collection a bill of exchange drawn here, upon a per- son residing in another state, is liable for any neglect of duty occurring in its collection, whether arising from the default of its officers here, its cor- respondents abroad, or of agents em- ployed by such correspondents.* S. & M. Allen v. The Merchants' Bank, 215
During the session of the legislature in the winter of 1840, the COURT FOR THE CORRECTION OF ERRORS heard two causes argued, which had been brought *Upon the principal point decided in up by writ of error from the supreme this case, the court divided 14 to 10. court, presenting the same questions Senator VERPLANCK delivering an opin- which arose in Thomas v. Dakin, and on for reversal, in which he was sup- the decision of which was based upon ported by thirteen of his brethren, and the opinions delivered in that cause. the CHANCELLOR delivering an opinion The cases were elaborately argued by in favor of an affirmance of the judgment counsel; and after advisement, opinions of the supreme court and nine senators were delivered by the PRESIDENT OF concurring with him. It is worthy of THE SENATE, the CHANCELLOR, and remark, that in a late case, decided in Senator VERPLANCK, for an affirmance the supreme court of errors of the state of the judgment of the supreme court, of Connecticut, the report of which was and by Senator Roor, for reversal. The published probably since the argument judgment of the supreme court was afin this court, the same doctrine was held firmed, by a vote of 22 to 1. Where- by the judges of that court that was held upon the following resolutions were by the supreme court and by the chan- adopted: cellor of this state as to a bank receiv-
1. "Resolved, That the law entitleding a note for collection, not being liable "An act to authorize the business of for the default of a foreign agent: see "banking, passed 18th April, 1838, is East Haddam Bank v. Scovil, 12 Conn. "valid, and was constitutionally enact- R. 303.
"ed, although it may not have received "the assent of two-thirds of the members "elected to each branch of the legisla "ture." This resolution was adopted by a vote of 23 to 1.
2. "Resolve, That the associations "organized in conformity with the pro- "visions of the act entitled 'An act to "authorize the business of banking,' "passed April 1st, 1838, are not bodies "politic or corporate, within the spirit "and meaning of the constitution." This resolution was adopted by a vote of 22 to 3.
The causes in which the above reso- lutions were adopted, are "Warner &
This liability may be varied, howev- er, either by express contract or by im- plication arising from general usage in respect to such paper; it is competent, therefore, for the bank to show an ex- press contract, varying the terms of its liability, or in the absence of a judicial determination upon the point to show that by the usage and custom of the place, a bank thus receiving foreign paper is liable only for its safe trans- mission to some competent agent, and is not responsible for the acts or omis- sions of such agent, or of any subor. dinates employed by him.
3. The inquiry, however, in such case is not as to the opinion of merchants, however general, as to the law of the case, but as to the usage and practice in respect to such transactions, or the general understanding of merchants as to the nature of the contract evidenc- ed by their acts, so as to enable the court to give the contract a correct interpretation. id
4. Where a debt was lost by the omis sion of a notary to give notice of the non-acceptance of a bill presented before maturity, IT WAS HELD, not to excuse a bank which had received the same for collection, that, by the law merchant of the place where the bill was presented, notice of non-ac- ceptance was deemed unnecessary; but that on the contrary, as the lex loci contractus governed in a case like it, it was the duty of the bank to have given the necessary instructions to its correspondents. id
5. The omission to give notice of non acceptance happening through the de- fault of a commissioned public officer, a notary, does not vary the rights of the parties: pro hac vice, he acted merely as the agent of his employers, and not in his official capacity. id See DEED, 3. Partnership, 1, 2, 3, 4, 5.
BILL OF PARTICULARS, See PRACTICE, 20.
C CERTIORARI, See HIGHWAYS, 4.
CHANCERY.
CONSIDERATION.
1. Where an action is brought for breach of a contract, whether the same be sealed or not, and the defendant can show that the plaintiff has not per- formed the contract on his part, ac- cording to its terms or spirit, so as to entitle him to a cross-action, he may
at his election, instead of bringing an action in his turn, recoupe his dama- ges arising from the breach committed by the plaintiffs, whether they be li- quidated or not. Ives v. Van Epps, 155
2. It seems, however, that in such case, the defendant should give notice with his plea of his intention to insist upon the right of recoupement. id
1. An action of assumpsit lies against a corporation for refusing to permit a transfer of stock upon its books; and the measure of damages is the full value of the stock at its highest price at any time between the refusal and the commencement of the suit. Quere. Might not the time have been extend- ed to the day of trial? The Commer- cial Bank of Buffalo v. Kortright, 348
2. A blank transfer of a certificate of stock, where the holder has affixed his name and scal upon the back of the certificate is valid; and the transferee is authorized to fill it up by writing a transfer and a power of attorney over the signature. id
3. Proof of custom as to the mode of transfering stock is admissible. id
4. A corporation is bound by the acts of its acknowledged agents in the com- mon transactions of the corporation, although the appointment of the agents be not evidenced by the records of the corporation. id
5. A transfer of stock in a monied cor- poration is good as between the ven- dor and purchaser although not regis- tered in the transfer book of the cor poration, notwithstanding a statutory provision, that no transfer shall be valid unless so registered; the evi- dence of right to the stock as between the parties themselves not being with- in the purview of the statute.* id
*The CHANCELLOR who delivered a
dissenting opinion in this case, holds that where the charter of a monied cor-
poration coutains a provision that no transfer of its stock shall be valid, unless registered in the books of the corpora tion, that an unregistered transfer does not convey the legal title to the stock, but merely confers an equitable interest in it, and that, subject to all previously existing equities. He further holds, that the plaintiff was not entitled to sustain an action at law, and that if such action did lie, the utmost extent of the plain- tiff's claim would be for the deprecia- tion in the value of the stock.
of New-York, have not the power to take a public street or any part there- of, for the purpose of a reservoir to supply the city with water. Ex parte the Manhatten Co., 653
11. It seems they may occupy streets temporarily, whilst laying aqueducts, &c. id
12. It seems, further, that the discretion of the company in appropriating pri- vate property subject to valuation and payment of damages, will not be con- trolled by the supreme court on a mo- tion for the appointment of commis. sioners of estimate; if there be an abuse of power, the party aggrieved must seek his remedy otherwise. id See BANKS, 1.
1. Under the act concerning costs, pass- ed May 14, 1840, unless the plaintiff recover a sum exceeding two hundred and fifty dollars, in an action for the recovery of a debt, he is entitled to two-thirds only of the amount prescrib- ed by the act. Pearson v. Cole, 652
6. Where, by the act incorporating an insurance company, the management of the stock and affairs of the corpora- tion is given to a board of twenty- three directors to be annually elected, a major part of whom by the act are competent to the transaction of all the business of the corporation, and an election of directors takes place at which only 22 persons receive a plu- rality of votes, such twenty-two per- sons areduly elected,and take the place of their predecessors, notwithstand- ing that it chanced that the full num- ber of twenty-three directors was not filled up. In the matter of the Union Insurance Co. 591 7. Where, uder such circumstances, the old board conceived that the election had wholly failed, and a second elec- tion was held by their order, at which twenty-three directors were chosen, this court, upon the summary appli- See EXECUTORS AND ADMINISTRATORS, cation authorized by statute, set aside the second election, declared the twenty-two directors first chosen duly elected, and ordered a new election to supply the vacancy of the one director who was not chosen at the first election.
id 8. Application was made to the court previous to the second election to de- clare the twenty-two persons chosen directors of the company, and to direct the election of one additional director; but the court refused to act upon it, considering the proceeding premature. id
2. Prospective charges for transcripts of the judgment, and postage of the same, cannot be taxed.
1. An indictment for murder at the common law viz: charging the act to have been done with malice afore- thought, is not vitiated by the addition of the words, that the act was done from a premeditated design to effect the death of the deceased; such latter words may be rejected as surplusage. The People v. White,
9. It seems, that the stockholders, with- out any order of the court, have the power to fill up a vacancy happening under the above circumstances; and 2. further, that on the neglect of the board to make order for an election to supply such vacancy, that a manda- mus would lie.
10. The Manhattan Company in the city
An entry endorsed on an inquisition of murder taken by a coroner, pur- porting to be the examination of wit- nesses, will not be recognized as duly taken under the statute if it have not a jurat or certificate of the coroner, that the witnesses were sworn, and it
1. Where parties entered into a submis- sion to arbitration, and bound them- selves in a penalty of a specified sum as stipulated damages, to be paid by the party failing in performance; and the submission contained a stipulation that one of the parties should give no- tice of five days to the other of the time of the meeting of the arbitrators, it was held, in an action brought on, the submission, assigning as a breach the omission to give such notice, that the liquidated damages could not be recovered for such omission, and if the party was liable for the payment
of such damages, they could be enfor- ced only for not performing the award when made. Hoag v. McGinnis, 163
It seems, however, that even in the case of the non-performance of the award, the sum specified in the sub- mission would be considered only as a penalty, and not as liquidated dama- ges; that in such cases the specified sum will not be held as liquidated damages, except where it is manifest the parties so intended, and where it is difficult if not impossible from the circumstances of the case for a jury to arrive at a satisfactory conclusion as to the amount of damages to be al- lowed.
3. Whether a sum agreed upon by the parties to a contract as the measure of damages, shall be considered as liquidated damages, or only as a pen- alty, depends upon the intent of the parties and the peculiar circumstances of the subject matter of the contract; if the damages must necssarily be wholly uncertain and incapable of estimation, the party failing to per- form will be held to pay the stipulated sum as liquidated damages, and it was accordingly held, where the plaintiffs gave $3000 for the patronage and good will of a newspaper establish- ment, and $500 for the type and print- ing apparatus, and the defendants (the vendors) covenanted that they would not publish or aid or assist in publishing a rival paper, and fixed the measure of damages for a violation of their covenant at $3000, and did sub- sequently aid and assist in the publi- cation of such paper, that the plain- tiffs were entitled to recover the whole sum of $3000, as liquidated damages. Williams v. Dakin,
4. Although where an estate is granted subject to a condition, and the gran- tee is released from a part thereof, the whole condition is gone, the same rule does not prevail in respect to a cove- nant not coupled with a condition; and it was accordingly held, in this case, where the plaintiffs released the defendants from their covenant so far as to permit them to publish a paper of a peculiar character, that such re- lease did not excuse them for subse- quently publishing or aiding in the publication of a paper different from that specified in the release.
See CONSIDERATION, 1. CORPORATIONS, I
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