BELLEVILLE SA-V. BANK'. WINSLOW.
The restoration ofthe order of arrest,' like the granting of it in the first place, was provisional merely, and preliminary to the trial on the merits, by which the right to hold to bail would be determined. It was similar to the preliminary examination in criminal casf',s. The decision to hold to bail in such cases, if evidence of probable cause, does not establish it, as a verdict of guilty on a trial' in chief would. Bacot/, v. Towne,4 Cush. 217; Burt v. Place,4 Wend. 591. These circumstances, with all the others in the case, were laid before the jury, and they have found from all the evidence that at the time the defendant took the proceedings for arrest his firm had no claim against the plaintiff for money held in a fiduciary capacity, and no fair or reasonable ground to suppose that they had, and that the proceeding was institutedto compel the plaintiff to relinquish his claims contrary: to law. No question was made about the charge to the jl,uy but what is covered by these considerations. ' .' The jury found for the plaintiff to recover 83,500 damages. The defendant moves to set aside the verdict for, among the other grounds treated of, excessive damages. The motion in CkLrkev.;Improvemem Co."pOBt, 478, to set aside the verdict for excessive damages, was under consideration at the same time with this motion. The cases are so similar that wha.t was said in that case ,is applicable to this, an.dthe reasons for denying the motion there appear to be controWng in,respeet to this part of this motion. They are referred to without being. repeated. The result is that this motion must be denied·
, B.Ans' At'» ACQUIESCENCE. , In consideration of the relinquishment of boJidsheld 88 collateral,'a transfer of stock, and a cash payment, a bank president executed a release to a debtor of tbe bank, informing him that,thedirectors had not. then assented thereto. ,The directors afterwards authorized. the president and discount committee to compromise the debt, and later rejected the compromise; but DO Dotice of either action was given to the debtor. The bank afterwards sold the bonds without notice to the debtor, and collected dividends on the stock, for which and for the cash 'Payment it made certificates of deposit in favor of the debtor and his wife, but retained them, and the debtor had no knowledge of them. These transactions' extended over a period of seven years. Held" that the release was ratified.J
(Oircuit Oourt_ E. D. MissoUri. June 18_1888.)
At Law. Action on a judgment. O. W. ThO'flU1,8, for plaintiff. John 0' Day and J. M. Hamill, for defendant.
lAs to what will oonstitute a rad1loation by a ot unauthorized· acts ot its agent, aDd. the eflect of sucb ratiflcatioD. see Lathal:n First Nat. Bank, (Kan,) 18 Pac. Rep. Su, and note. ' ' , ,..
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THAYER, J. . This is an action on a judgment recovered against the defend.ant in the circuit court of the United States for the Southern district of Illinois 013. the 23d of February, 1877, in the sum of $24,600. The point has been made by the defendant that the court which rendered the judgment sued on had no jurisdiction of the case, and that the judgment,. on that account, is void. On the other hand, it is claimed that thejurisdiction of the circuit court of the United States for the Southern district of Illinois to render the judgment was upheld in Bank v. Calhoun, 102 U. S. 256. I have not found it necessary to determine the jurisdictional question so raised, as, according to the view I have taken ofthe case, the judgment sued upon, whether valid orinvalid, has been released by the judgment creditor. For the information of counsel, it will suffice to say that I predicate my decision on the following findings of fact: On August 29, 1878, the defendant, being then indebted to the plaintiff ill the sum of about $30,000, consisting of the jUdgment I).ow sued upon and a note for $4,000, through his· attorney, Mr. Hamill. proposed to compromise the debt by relinqllishing to the plaintiff all the collateral then held by it as security for the debt, consisting of bonds of the st. Louis & S. E. R. R., of the par value of $48,000, and, iQ. addition, to transfer to the plaintiff six and one-half shares of the stock.of the Belleville Building & Loan Assodation. and to pay plaintiff the sum of $350 in cash. Plaintiff's presil,lent, (Mr. Abend,} to whom the proposition was made, unquestionably assented to the proposition, and executed a release of the indebtedness in the name of the bank, and accepted·a transfer of the six and one-half shares of stock Hnd the sum of $050 in cash. I have no doubt, however, that, at ·the time of· accepting the offer and executing the release, he informed defendant's attorney thllt the board of directors had not as yet assented to the comprumise. and that he was acting on his own responsibility, without the formal assent of the board. Subsequently, on September 4, 1878, the board of directors, by resolution, authorized the president and discount committee to compromise the debt on the best terms obtainable, ami later still, on November 8. the board passed another resolution rejecting the proposed compromise. Neither of these resolutions,'however, appears to have been communicated to the defendant; nor was the stock in the building and loan association, or the cash payment of $350, to the defendant, or tendered to him before the day of trial. Some time aft(lr the deli very of the release and rpceipt of the sum of $350, the p.laintiff made outa certificate of deposit in favorof the defendant for the sum of $350, retaining the same, however, in its possession. It also collected dividends on the building company's stock in the sum of $195, and made out a 'certificate of· deposit for that amount in favor of defendant's wife, which it . also retained. Neither of these certificates was tendered to the defendant before the daYQf triid, and the evidence fails to show that the defendant was ever notifiedtbat such certificates had been executed, or that the bank held any money for his or his wife's account. The bank afterwards sold all of the bonds of the St. Louis & S. E. R. R., originally deposited with it as collateral to secure the indebtedness, at the price of 12k cents on the dollar of their par value, and made such sale without notice to the defendant. In the year the plaintiff was made a party to a proceeding to liquidatp, the affairs of the bUilding and loan association ; and, although lIuly served with process as a stockholder of the association, it suffered a decree to go against it as one of the defendants,which ascertained and found, among other things, that plaintiff was the owner of six and one-half shares of stoc.k. in the assuciation, acquind by purchase from defendant's wife on August 29, 1878.
BELLEVILLE SAV. BANK V. WINSLOW.
The foregoing facts are practically conceded, with the single exception that there is some controversy as to whether the relinquishment by defendant of all his interest in the bonds held by the bank as collateral to secure the indebtedness formed a part of the consideration for the release executed by its president. Mr. Abend's recollection, as to this point, does not seem to be very clear or reliable. On the other hand, defendant's testimony with reference to that matter, the situation of p/l:rties at the time the compromise was proposed, and the manner in which the bank subsequently dealt with those securities as if they were its own property, together warrant the conclusion that defendant did propose to surrender his interest in the collateral, to transfer to the bank six and onehalt shares of in the building association, and to pay $350 in cash, on. condition that the indebtedness was released. The alternative presented to the bank, if this proposition was not accepted, was that the defendant would seek a discharge from his debts under the bankruptcy act. The president of the bank admits that one reason that induced him to sign the release was that he did not want the bank "dragged into court" as a party to bankrupt proceedings. It is a fair conclusion, I think, from all the testimony, that a proposition to compromise the indebted. ness for the consideration last above stated, was made to Mr. Abend, and. that he accepted the same on the part of the bank, believing, no doubt, that it was the best course to pursue under the circumstances, and that the board of directors would ratify his action. T4e act of the president of the corporation in executing the release wolild., no doubt, bind the corporation as an act within the scope of his apparent power, although the corporate seal was not attached to the release, but for the fact that notice was given to the defendant's attorney, at the time the releabe was signed, that the board of directors had not given their assent to the same. Such seems to be the law in Illinois, where the 'release was executed. Ryan v. Dunlap, 17 Ill. 40; Railroad Co. v. Colt'llnan, 18 Ill. 297; Sawyer v. 0Jx, 63 Ill. 130; Wood v. Whelen, 93 IlL 153; Smith v. Smith, 62 Ill. 493. Does the fact, then, that defendant was notified, when the release was signed, that the compromise agreement had not been approved by the board,and that its approval was necessary, affect the validity of the release, in view of the subsequent action of the corporation as above recited? This question must be answered in the negative. In the first place, by selling the collateral bonds, and appropriating the proceeds, without notifying the defendant of its a<;tion, as well as by collecting and appropriating the dividends on the building company's stock, the corporationeffectually ratified the compromise agreement made by its president. It could not appropriate the consideration paid by the defendant for the release of the indebtedness in the manner stated, without assentrelease. The device adopted of making out certificates of deing to posit for the amount of the dividend collected on the stock, nswell as for the cash payment of $350 made when the release was signed, does not alter the legal effect of what was done, for the reason that defendant was'not consulted, and does not appear to have had any-knowledge of
the existence of. the certificates until the day of trial. The fltock having been delivered,and the money having been paid to obtain a release, it is obvious that the bank had no right to retain the consideration, and deal with iUn the manner shown, unless it ratified the release. It certainly ha4 po ,right to constitute itself an agent of the defendant to collect dividends on the stock, and hold the same for his account, or to issue a certificate therefor in the name of his wife; and its attempt to assume that relation, without authority from the defendant, puts it in no better than it woul.dhave occupied if certificates of deposit had not been executed. Its plain duty was to restore the stock, and refund the money, which had been paid as the consideration for the release, or, at least, to have made a tender of the money and stock when the compromise As the bank gave the defendant no notice that its board had rejected the offer of comJ)romise, and in the mean time, for a period of nearly Seven years, dealt with the consideration as its own, merel)'adopting the thin disguise of making out certificates of deposit to represent moneys received, which it did not even tender to the defendInust ,be held that by its acts it has as effectually ratified the agreement made by its president as it could have done by a formal resolution of its board of directors. Judgment is accordingly entered for the defendllnt.
,GRAFFLINf. NEVASSA PHOSPHATE
OF NEW YORK, (DUNCAN,
(OVrcuit (ftw,'I't, D. Ma'l'1fland.
L 'Down.....1N GUAJ.'iO.lBLAND-ACT AVG. 18, 1856. , Held, that the 'act ,of' congress approved August 18. 1856, authorizing protection to be given to ci'tizens of the United States who may discover deposits of- guano,' (Rev., 8t.tit. 72, "Guano Islands.") does not confer upon the discoverer a title to the land of the island such as Will entitle his widow to dower therein as against a purchaser from him, although she has not joined in his asslgnment,or executed a release.
.. SAKE-NATURE OF RIGHT GRANTED DISCOVERER.
Held, that the riltht recognized in the discoverer an<l his assigns by ,the act of congress is not a as propritltor of the soil, but merely a commercial - privilege. bywhlch the enterprise of obtaining the guano discovered on such islands is protected.' so that It may be obtained for shipment to the United States, or elsewhere,·if permitted (8gllali'u8 b31 tlu· OO'UrL)
In the Matter of the Petition of .Isabella Duncan, widow of Capt. Peter J)uncan, to have dower in the Island of Nevassa assigned to her,or tobe allowed gr()!lS sum as a commutation of the same· .D, Eldridge ¥onroe and Victor Smith, for petitioner. S. T. WaUis, e<mtra.
MQRRIS, J·. This petition is filed in a case in which, upon the application of certain stockholders, ,the, ?ourt has appointed receivers of the