EMMA SILVER MINING CO." (LIMITED,)
v. EMMA, ETC., 00. OF
Co., (Limited,) of London, v. EMMA Co., of New York, and others.
(Circuit Court, S. D. New York. June, 1882.,
PRACTIOE-DIBMlSBAL OF BILL-AUTHORITY.
Where the denial of the authority of a liquidator, acting for a corporation under its corporate seal, is qualified, and insufficient to meet the presumption arising from the use of the corporate seal, he will be deemed to have authority to release the action, where it is alleged that he possesses sucll power.
SAME-SETTLEMENT OF OASE-ATTORNEY'S LIEN.
An attorney"s lien cannot preclude the defendant from settling the cause of action with complainant where such settlement is not surreptitious or unfair, and complainant is pecuniarily responsible.
On Motion to Dismiss. WALLAOE, C. 1. Under the circumstances of this case, if the authority of McDougall to release the cause of action and stipulate for a discontinuance were specifically controverted, I should be disposed to deny the motion to dismiss the bill/and put the defendants to a plea. The qualified denial made by the complainants' solicitor, hoWever, is not sufficient to meet the presumption arising from the use of the corporate seal. The seal itself is prima facie evidence that it was affixed by proper authority. It is not denied that McDougall is the duly-appointed liquidator of the corporation, or that he was authorized to release the cause of action. The denial that, he " has been appointed, with the duties and powers alleged by the defendants," may be entirely true, for their allegation is that he possesses, various powers and duties beyond those requisite for the present purposes. The attorney's lien cannot preclude the defendant from settling the cause of action with the complainant. It is not asserted that therA has been a surreptitious or unfair settlement, or that the complainant is not entirely responsible pecuniarily. Motion to dismiss the bill is granted.
See same parties, 7 FED. REP. 401.
PICTET ARTIFICIAL IOE
NEW YORK ICE MAOHINE
(Oircuit Oourt, S. D. New York. June 8, 1882.)
Consent and order for discontinuance are, in effect, a dismissal of the bill.
C. J. The consent and order for a discontinuance are, in effect, a dismissal of the bill. The complainant has the right to dismiss, with costs to the defendant, at the present stage of the case, as of course. I suggest, however, that So formal rule "dismissing" the bill be entered by oomplainant.
UNITED STATES V. LEE.
((7ircuit Court, N. D. !yew York.
June Term, 1882.)
EMBEZZLEMENT-NATIONAL BANKING ASSOOIATION.
The first clause of section 5209 of the Revised Statutes provides for three distinct offences: First, embezzlement; ,econd, abstraction; and, third, wilful of the moneys, funds, or credits of the bank by any president, director, cashier, teller, clerk, or agent of any association organized as a national banking association.
It was the intention of congress to make criminal the misapplication and conversion of the funds of national banking associations without regard to whether or not the party so misapplying received any of the funds or other advantage, directly or indirectly.
If it appears that the funds of the banking association have been abstracted or wilfully misapplied by defendant, he is precluded from denying that it was done with unlawful intent.
COXE, D. J., (charging jury.) The prisoner at the bar stands indicted for having done various acts in violation of section 5209 of the Revised Statutes of the United States, while he was acting as president of the First National Bank of the city of Buffalo. The indictment is framed under this section, and the effort on the part of the prosecution and the defence has been, on the one side, to establish the guilt, and, on the other, the innocence, of the defendant, having reference solely to the crimes there enumerated. Although it has been read in your presence many times, it seems to me important that at the outset of your deliberations you should understand