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against him in favor of the assignees, and the limitation prescribed by the second ,;ection of the bankrupt act did not begin to rnn in his favor. J. E. McKeigham and A. A. Ramsey, for plaintiff. Sidlley Bartlett and Russell & Putnam, for defendant. '.rhe cases cited in the opinion were: As to the power of corporations, express and implied: Fertilizer Co. v. Hyde Park, 97 U.S. 659; Salomons v. Laing, 12 Beav. 339; Eastern Cos. R. Co. v. Hawkes, 5 H. L. Cas. 34tl. That a corpora_ tion has no implied power to change the amount of its capital as prescribed in its charter: Mechanics' Bank v. New York & N. H',R. Co. 13 N. Y. New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30; Railway Co. v. Allerton, 18 Wall. 233; Stace&Worth's Case, Law Rep.4 Ch.682. That where the increase of stock is authorized by law a stockholder cannot set up informalities in the issuance of stock: Upton v. Tribilcock,91 U. S. 45; Chubb v. Upton, 95 U. S. 665: Pullman v. Upton, 96 U. S. 328. As to the distinction between shares which the company had no power to issue and those which they had power to issue: Lathrop v. Kneeland, 46 Barb. 432; Mackley's Case, L. R. 1 Ch. D. 247; Stace & Worth's Case, ld. 4 Ch. 682. That a holder of elaims against an insolvent corporation cannot set them off against his liability to assessment on his stock: Sawyer v. Hoag, 17 Wall. 610: Sanger v. 56; Scammon v. Kimball, 92 U. S. 362; Morgan Co. v. Allen, Upton, 91 103 U. S. 498: Wilcox v. Plummer, 4 Pet. 172; Amy v. Dubuque, 98 U. S. 470; Waterhouse v. Jamieson, L. R. 2 H. L. 29; Ex parte Currie, 3 De G., J. & S. 367: Carling's Case, L. R. 1 Ch. Div. 115: New Albany v. Burke, 11 Wall. 96: Burke v. Smith, 16 Wall. 390: Wood v. Dumner, 3 Mason, 308; Mumma'v. Potomac Co. 8 Pet. 286; Ogilvie v. Knox Ins. Co. 22 How. 387. That a court. of equity, when the company refuses or neglects to make a call for the unpaid subscription to stock: Curry v. Woodward, 53 Ala. 371; Robinson v.Bank of Darien, 18 Ga.65; Ward v. Griswoldville Manuf'g Co. 16 (Jonn. 601: and the statute of limitations does not begin to run until order of court or demand; Van Hook v. Whitelock, 3 Paige, 409; Salisbury v. Black, {) Har. & J. 293; Walter v. Walter, 1 Whart. 292: Quigg v. Kittredge, 18 N. H. 137: Nimms v. Walker, 14 La. Ann. 581. '.rhat a suit lies by a billholder of an insolvent bank against a stockholder to enforce his individual liability to pay the bills of the bank: Terry v. Tubman, 92 U. S. 156, distinguisbed. The statute of limitations begins to run against the bank and its creditors in favor of the stockholder when the bank stops paym ent: Baker v. Atlas Bank, 9 Met. 182: Com. v. Cochituate Bank, 3 Allen, 42.
Practice-Appeal-Certificate of Division-Forfeiture under Internal Revenue Laws. UNITED STATES 'll. An information was filed in the district eourt for the western district of Wisconsin for the forfeiture of the right, title, and interest of Severin Schulte in certain real estate on which he carried on the business of a distiller without giving bond as required by law, and with intent to deprive the United States of the tax on spirits distilled by him. Upon the trial in the district court, held by Judge Bunn, Schulte was by spechil verdict found guilty as charged, and that he held the legal title to the real estate subject to a mortgage to each of two claimants; and it was
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adjudged that the mortgages constituted no lien' or' encumbrance against the United States, and that all the real estate be forfeited. From this judgment the claimants appealed to the circuit court. In the circuit court, held by Mr. Justice Harlan and Judge Bunn, the judgment was reversed, and a certificate, signed by Mr. Justice Harlan only, was entered of record, stating that they were divided in opinion upon the question whether the United States was entitled to judgment forfeiting the property, except subject to the interests of the claimants. From the judgment of the circuit court the district attorney appealed to the supreme court, where it was held., (}ray, J., under the Revised Statutes, § 614, upon the hearing in the circuit court of an appeal from a judgment of the district court, the district judge who rendered the decision appealed from, although he may, for, the information of the court assign his reasons for that decision, is prohibited from, voting or taking part in the judgment of the circuit court, and that judgment is to be entered according to the opinion of the judge who is not, so disqualified; and further, that neither the consent of parties nor the. allowance of an appeal in the court appealed from, can enable the supreme court to review a jUdgment in any other form of' procedure than that prescribed by law, and an appeal does not lie in f\uch actions. The cases cited in opinion were: United States v. Lancaster, 5 Wheat. 434: Nelson v. Garland, 1 How. 265; Bevins v. Ramsey, 11 How. 185: Jones v. La Vallette, 5 Wall. 579; Clifton v. United States, 4 242; Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541.
Promissory Notes-Presentment and Demand. BRITTON v. NWCOLLS. This case, deeided in the October term, 1881, was brought up to the supreme court on error to the circuit court of the United States for the southern district of Mississippi. The plaintiff in the court below, a citizen of Illinois, brought suit to recover damages from the surviving partner of a firm for its neglect to present for payment to the maker two promissory notes sent to it, a banking firm engaged in business at Natchez, in the state of Mississippi, for collection, by reason qf which the liability of a responsible indorser was released. Mr. Justice Field delivered the opinion of the court: (1) The locality at which a promissory note is dated presumed in law to be the place of the maker's residence. (2) If the maker of a promissory note has neither place of business nQr residence in the place where dated, and is absent from it at the maturity of the note, the indorser is charged without actual demand upon the maker, if the holder has the note at such place at maturity, and is ignorant of the actual residence of the maker. (3) By the law of Mississippi, a notary is the agent of the holder of the note placed in his hands for presentment, and not the agent of the bank to which the note is sent for collection, and by whom he is employed. (4) Semble that it is not the duty of a notary to make presentment of a promissory note to the maker outside of the place of date of such note, even if he, the notary, knows the actual residence of such maker. (5) An agent for col. lection of a note dated at a particular place is discharged by placing such note in the hands of a notary for presentment there, provided he, the agent for col. lection, is ignorant of the actual residence of the maker.