IRONS V. HAlNtJFACTURERS' NAT. BAlSK.

843

the. constitution and statutes of Ohio "are matters of which the courts of the United States are bound to take judicial notice, without plea or proof." Lamar v. Micou, 114 U.S. 218,5 Sup. Ct. Rep. 857; Bank v. Francklyn, 120 U. S. 747,7 Sup. Ct. Rep. 757. The demurrers are overruled. . The defendants may answer within 20 days.

IRONS V. MANUFACTURERS' NAT. BANK

et aZ.

(Oircuit Oourt,

N. D. illinois. December 8, 1888.)

1.

GUARANTy-RELEASE.

A bank guarantied the pa;vment of notes executed by Po', and discounted for the bank by derendant, WhICh were secured by trust deeds. Upon the liquidation of the bank. dealings were had by which the real estate held a8 security wa.s transferred to the president of the bank inllquldation, who assumed to act for the bank. and he executed his notes for the amount of P.'s indebtedness, and P .. in consideration of a quitclaim deed. was released from all liability on the notes. Held, that his release operated to release the guaranty by the bank. A judgment obtained by defendant on the bank's guaranty. after the bank had gone into liquidation. lSDot conclusive on the stockholders of the bank, who are shown to have had 'no knowledge of the release at the time the judg· ment was obtained. ' In proceedings against the stockholders of a national bank that has gone into liquidation, to ascertain and recover assessments for the indebtedness, the stockholders are liable ,for costs as if they were·co-defendants iIi any or· dinary action. Where the proceedings are beinA' prosecuted by one creditor as representa· tive of all, and the stockholders appeal from a decree against them. which decree is reversed. with costs. the costs incurred by appellee in defense of the appeal will be deducted before any dividend will be declared.
,

2. JUDGMENT-RES ADJUDICATA.

8. BANKS-NATIONAL BANKS-LIQUIDATION-COSTa.

4.

SAME.

In Equity. '0n exceptions to report of master. D. J. Schuyler and Henry B. Mason, for creditors and receiver. Harvey B. Hurd and Henry G. Miller, for defendants. Oharles W. Thomas and F. A. McConaughy, for claimant. BLODGETT, J. This cause was referred to one ofthe masters of the court
to ascertain and report the amount of :indebtedness owing by the defend-

ant bank, and the amount of assessment to be made against the stockholders of the bank for the purpose of paying such indebtedness, in conformity with the opinion of the supreme court, when this cause was before that court on appeal, which is reported in 121 U. S. 27,7 Sup. Ct. Rep. 788. The report of the master has been filed, and all parties satisfied with his findings, except the People's Bank of Belleville,who had presented a-large claim against the bank. which the master has disallowed,and exceptions are· filed by this claimant; the substance of these exceptionl:l being that the master has erred in finding that the defendant bank is not liable on this claim. This claim. of the People's Bank of

844

DDEBAL REPOBTD. ,

Is based upon a guaranty of payment, made by the Manufacttirers' National Bank, of eight notes of $5,000 each, given by Henry E. Pickett, dated August 5, 1873,and due in one year from date,which were discounted for the Manufacturers' National B.ank, soon after their date, by the People's Bank of Belleville. These notes were secured by a trust deed upon land in the vicinity of the city of Chicago. The Manufacturers' National Bank suspended payment, and went into voluntary liquidation on or about the 23d of September, 1873; and when these notes matured, about a year afterwards, dealings were had between the People's Bank of Belleville and Ira Holmes. thenaeting as president of the Manufacturers' National Bank, in liquidation,oand assuming to act also for his bank, by which the title to the real estate held as security for the payment of these notes was transferred to Holmes, and Holmes gave his notes for the amount due on the Pickett notes, and !lilso fora large amount of other indebtedness held by t11e People's Bank, on whibh the Manufacturers' National Bank, or Holmes, or both, were liable;and"as.is found by the master, Pickett, in consideration of a qpitClaim frdm. himself and wife to Holmes, of the land covered by the trust deed securing his notes, was released from further liability on these notes. The master found that this release of Pickett from the notes which the Manufacturers' National Bank had guarantied, operated to release the guarantor, and hence the master rejected the claim. t not intend to go into an analysis or statement of the proof upon which the master made his finding, as it will be sufficient to say that I "have 'examined' these proofs, and am of opinion tpat they fully sustlilin tlJ.e ma/>ter's, conclusions; It is urged, however, that as the proof shows that the People's Bank of Belleville brought suit on this guaranty now in questi0ll ' and obtained judgment thereon,..that such judgment is against the defendants in this case, WI10 are stockholders in the Manufacturers' National Bank against whom an assessment is asked. Aside from the' authorities cited, which satisfy me that the stockholders of the Manufacturers' National Bank are not concluded by this judgment, which was rendered after the bank went into liquidation, I think the facts shown in this record, that the between the People's Bank of Belleville and Holmes and Pickett, by which Pickett was released, were unkuownto tbe stockholders at the time this W8:J:! ,rend,ered, should allow these stockholders to go behind the record of that judgment; and raise the question before the court in this suit whether the guaranty was released by the release of Pickett, the princi- , pill' debtor, whose notes were guarantied. The exceptions to the master's report 8,re thllrefore overruled, and the report confirmed.' Two 'other questions were suggested upon the final, argument of the case, which it b¢coines necessary to say a word upon. The first is as to who,is liable fOf tpe costs incurred in this case againllt the stockholders. ' After a careful consideration of that question, I have come to the concln- ' sionthat these defendant stockholders all stand condition or any ordinary defend'ants' as common or joint defendants, and the costs must, be borne by as if they were co-defendants in any ordinary suit. . ..

do

\

("

TEXAS & P. UY·. co.

v.

CITY OF BATON ROUGE.

84.5

Another question that was raised was in regard to the costs of the appeal which was taken by the stockholders from the decree formerlyentered in this case. The former decree was reversed on this appeal, and the appellants in that case recovered costs against the appellee. The appellee also incurred expenses in the printing of records and brief.<;I, etc., upon this appeal, all of which it would be unjust to charge against Mrs. Irons, the complainant in this case, becauBe she stands merely in a representative capacity, prosecuting this suit for the benefit of the creditors of the bank; and hence it to me that it is just, and I shall have it so provided in the decree, that, on the payment of the mOl.ley assessed against the stockholders into the hands of the clerk of the court, the clerk first ascertain the amount of costs which were recovered against the appellee, and also tax the costs which the appellee incurred .in the defense of that appeal, and deduct, before any dividend is made to the creditors, the expenses thus incurred. This will protect Mrs. Irons, I think, which should properly be done. A decree may also be prepared, directing the defendant stockholders to pay, and I presume it will be more for them-(this is merely a suggestion of my own, and has not been made by their counsel)-and my suggestion is that an instaUment 0[25 per cent. be paid in 30 days, an installment of 25 per cent. in 60 days, an installment of25 in 90 days, and the balance in 120 days; making the decree all paid up in 120 days. If this is not desired by the counsel .representing stockholders, a decree may be Dlade for the PaY1 ment of the whole amount in 60 days. The counsel mayconsultt.9gether about that. The clerk will, under the direction ofthe master, tax the costs that were neces::>arily incurred against the defendants in resisting the claim of the People's Bank of Belleville, and the decree will· adjudge these costs to be paid by the People's Bank of Belleville; but .the cost o£the master's fees upon th.is reference may go into the general costs of the Cll.se, because it is impossible to divide it, and see how much of the labor done by the master upon this reference was given to the claim of the People's Bank of Belleville, and how much to the general.adjustment against each stockholder.

TEXAS

& P. Ry. Co. ". CITY

OF BATON RoUGE et

ale

(Oircuit Oourt, E. D. Louisiana. June 8, 1888.)
INJUNCTION-RIGHTS PROTECTED AND WRONGS

Complainant. having the right under its charter of transporting its passengers and freight across a river by, means of its own boats. agreed. for a con· sideration. to use for such purpose only the public ferry operated bya.private party under a lease. The ferry proving inadequate, complainant commenced running its own boats for purposes of transportation. Held. that equity would not protllc.t complainant from the consequences of its failure to comply with the contract, by enjoin inK the operators of the ferry from interfering with the operation of complainant's boats.

apublication delayed by inability to obtain copy of opinion at time of delivery"