expenses of the administration up to this time, includiug the compensation of the receiver, Fell, and the costs in this cause, be paid by the defendant Williams, as trustee.
(Circuit Court, E. D. Louisiana. July 14, 1SS1.)
1. NATIONAL BANK-COMPTROLLER Olf THE CURRENCy-REv. ST.
§ 5234. The comptroller of the currency has no power to compound or settle claims of a national bank against its debtors; that requires the authority of the court, under Rev. St. § 5234. QUllJre, can be direct their discontinuance f NATIONAL BANK-LIABILITY OF STOCKIIOLDERS-REV. ST. 5151. under section 5151, Rev. St., owners of stock in a national bank are liable for its debts, and persons who bold themselves out or allow themselves to be held out as owners of stock, are also liable, whetber they own stock or not.
John D. Rouse and William Grant, for complainant. Thomas J. Semmes and Robert Mott, for defendant 1. K. Small. PARDEE, C. J. This is a suit brought by the receiver of the Crescent City National Bank against the defendants to compel the contribution of 70 per cent. on certain 50 shares of the stock of said bank, under the assessment of the comptroller of the currency, by virtue of section 5151, Rev. St. lt seems that, just prior to the failure of the bank, Keenan, one of the defendants, through a broker, sold· 50 shares of the stock. They were purchased by 1. K; Small, and p.aid for by him, as he says, fdr and on account of his sister, Miss E. M. Small, and were transferred on the books of the bank by Keenan to Miss Small. The plaintiff claims that this transfer, so far as the .putting of toe stock in the name. of Miss Small is concerned, was a sham, a simlll:ttion, and that 1. K. Small was the real purchaser; that this simulation was resorted to to avoid the liability of stockholders under the hLWS of the United States. It is shown that Miss Small resides in Maine; that she was spending the winter here, and was and is of no pecuniary responsibility, and was without means of her own to make the purchase, requiring $1,500; that 1. K. Small paid the purchase price, and, so far as it appears, has never been An examination of the evidence of 1. K. Small, taken in a former case, in relation to the !lame
*Hcported by Joseph P. Hornor, Esq., of the New Orleans bar.
CASE V. SMALL.
stock, and of his answers filed in this caSe, leave no other conclusion in my mind than that the interposition of Miss Small was a sham, and that 1. K. Small was the real purchaser and owner of the stock. In his first examination his answers were evasive, when if the facts had been in his favor they could, and undoubtedly would, have been clear and responsive. Here is a sample:
Question. Has she (yOUl' sister) ever reimbursed you for the payment on this stock that you made? Answer. Not entirely. No, sir. Q. Has she reimbursed you any part of the payment? A. Yes, sir. Q. How much? A. Well, Tdon't remember that. Q. When did she make any such reimbursement? A. I think it was in 1874, she gave me something. Q. How much? A. It was not very much; it was a small amount. Q. Was it ten dollars? A. Mote than that. Q. Tell us, as near as you can. A. Thirty dollars or forty dollars. Q. In what lUanner did she make such reimbursement to you? A. In presents.
In the answer filed to the interrogatories in this case defendant Small is not so evasive, but he is by no means as candid as he might have been if the actual facts would have warranted. And now, in his answer, admits to an ownership of one-seventh, which was in nowise hinted at in the first evidence. .. In defence it is first urged that the transaction was bona fide, and that Miss Small was the real purchase:!; and owner of the stock. The facts are against this defence. Next, that 1. K. Small, knowing that the bank was in failing circumstances, had a right to donate the money to his sister, and with it purchase the stock and put it in her name. This is a doubtful proposition, but conceding it, for this case, the facta wiUnot bear out this defence. In the evidence given by Small, above purchase was for account 01 his sister, and she ha4 reimIJursed him in part of the price; and, besides, no such
defence is pleaded. Then it is urged, as well as pleaded, that the letter of recent date from the comptroller of the currency to Robert Mott, Esq., stating that a final dividend to the creditors of the Crescent City National Bank had been declared, and was now payable on signing receipt and returning certificate of indebtedness, operated in abatement of this suit. I find no authority for this position. The statutes give the comptroller no such authority to so inferentially stop suits. Perhaps he might direct the receiver to discontinue, but to compound and settle claims requires the authority of the court. Rev. St. § 5234. To discontinue the direction should be positive. And, finally, it is argued that under section 5151, Rev. St., no person can be made liable unless at some time or other he has been a stockholder of record, and been held out to the world as such. The law seems to be settled now that the owners of stock are liable under that section. At the same time, those persons who hold themselves or allow themselves to be held out as owners <?f stock, are liable whether they own stock or not. It would seem that the rules relating to the ownership of national bank stock are about the same as apply to partnerships. Real partners are liable though not publicly known as partners,and persons who allow themselves to be held out as partners are liable though they have no real interest. The case of Davis v. Stevens, decided by Chief Justice Waite, 17 Blatchf. 259, is a case directly in point. See, also, National Bank v. Case, 99 U. S. 628. Let the accompanying decree for complainant be entered:
This cause came on to be tried at this term as to the defendant t. K. Small, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz. : That said defendant 1. K. Small was, at the time of the failure of the Crescent City National Bank, on the fourteenth day of March, 1873, the owner of 50 shares of the capital stock of said bank, of the par value of $100 each, then registered and standing on the books of said bank in the name of E. M. Small. And it is further ordered and decreed that said Frank F. Case, in his capacity as receiver of said Crescent City National Bank of New Orleans, do have and recover from the defendant I. K. Small, as owner of said shares, 70 per centum of the par value thereof, to-wit, the sum of $3,500. And it is further ordered, adjudged, and decreed that said defendant pay the
M'XA.Y V. IRVINE.
costs of this suit to be taxed. And it is further ordered, adjudged. and decreed that complainant have execution against said defendant to enforce the payment of the sum so decreed to be paid and costs.
NOTE. .A receiver, appointed under the provisions of this act, may com· promise doubtful debts" on the order of a court of record of competent jurisdiction." in re Platt, 1 Ben. 534; and see, generally, Kennedy v. Gibson, 8 Wall. 498; Bank of Bethel v. PahquioqueBank, 14 Wall. 383; Bank v. Kennedy, 16 Wall. 19; Chemical Nat. Bank v. Bailey, 12 Blatchf. 480; Cadle v. Baker, 20 Wall. 650; Harvey v. Lord, 10 FED. REP. 236; Fifth Nat. Bank v. Pittsburgh & C.8. R. Co. 1 FED. REP. 190. The liability of .stockholders of a national bank for its debts is several and not joint. Nat. Bank v. Knox, 2 Morr. Trans. 248. It is that of principals, not of llureties. Hobart v. Johnson, i:>
FED. REP. 493.-[ED.
(Oircuit Court, N. D. iUinoi8. February 22,1882.)
HORBE.RACING-NEGLIGENCE-FoUL RIDING-LIABILITY OJ!'
OWNER. The owner of a horse entered for a race takes all the risks incident to the race: and if a horse is intentionally fOUled, or purposely runs against or interferes with a competing horse in the race by the rider, the employer of such rider is liable for damages for any injury which results.
SAME-FoUL H.IDlSG, WHAT Is-RIDERs-RULE OF DUTY.
1f a jockey attempts to take the track ahead of another horse before his horse is a clear length ahead of the other horse, or if he crowds the other horse, so as w impede him, or compels his jockey to hold him in, or change his course to avoid a. collision, it would be foul riding; and the fact that the rider who attempts a foul runs as great risk to himself and his horse as he imposes on his competitor, will not justify him in attempting a foul.
TllIAL-CoNFUCT OF EvIDENCE-PROVINCE OF JURY.
In case of a conflict of evidence the credence to be given to the testimony of a witness is for the jury to determine.
MEAslmE OF DAMAGES.
In an action for damages for the death of a horse, caused by'the collision of a competing horse in a horse-race, the damages must be estimated at what is shown by the evidence to have been the value of the horse killed.
M. O. Lewis and W. I. Culver, for plaintiff. S. K. Dow, for defendant. BLODGETT, D. J., (charging jttry.) Gentlemen of the jury, this is a suit for damages alleged to have been sU8tained by the plaintiff from the wilful or negligent act of the defendant's servant. The plaintiff claims that on the twenty-fifth of June last he was the owner of the thorollghbred stallion known as "Wolverton j" that this horse was