1. On demurrer to a declaration by an
association formed under the General
Banking Law of this state, which was
argued in the supreme court at the July
term, 1839, and decided by that court at
the following October term, a majority
of the court held, that the act to authorize
the business of banking, passed 18th
April, 1838, is a valid and constitutional
law, on the assumption that it received
the assent of two-thirds of the members
elected to each branch of the legislature;
and that it would be presumed to have
been thus passed, until the fact was de-
nied by plea; at all events the court re-
fused to pass upon the question on a de-
murrer to a declaration by an association
in a suit for the recovery of a debt. All
the judges concurred in the opinion that
associations formed under the act are
corporations. Thomas v. Dakin, 9
Ray v. Beers, President of the North
American Trust and Banking Compa-
ny," and "Bolander v. Stevens, Presi-
dent of the Bank of Commerce, in New
York," which will be reported in volume
|XXIII.
BILLS OF EXCHANGE AND
PROMISSORY NOTES.
1. A bank receiving for collection a bill
of exchange drawn here, upon a per-
son residing in another state, is liable
for any neglect of duty occurring in
its collection, whether arising from
the default of its officers here, its cor-
respondents abroad, or of agents em-
ployed by such correspondents.* S.
& M. Allen v. The Merchants' Bank,
215
During the session of the legislature
in the winter of 1840, the COURT FOR
THE CORRECTION OF ERRORS heard two
causes argued, which had been brought
*Upon the principal point decided in
up by writ of error from the supreme this case, the court divided 14 to 10.
court, presenting the same questions Senator VERPLANCK delivering an opin-
which arose in Thomas v. Dakin, and on for reversal, in which he was sup-
the decision of which was based upon ported by thirteen of his brethren, and
the opinions delivered in that cause. the CHANCELLOR delivering an opinion
The cases were elaborately argued by in favor of an affirmance of the judgment
counsel; and after advisement, opinions of the supreme court and nine senators
were delivered by the PRESIDENT OF concurring with him. It is worthy of
THE SENATE, the CHANCELLOR, and remark, that in a late case, decided in
Senator VERPLANCK, for an affirmance the supreme court of errors of the state
of the judgment of the supreme court, of Connecticut, the report of which was
and by Senator Roor, for reversal. The published probably since the argument
judgment of the supreme court was afin this court, the same doctrine was held
firmed, by a vote of 22 to 1. Where- by the judges of that court that was held
upon the following resolutions were by the supreme court and by the chan-
adopted:
cellor of this state as to a bank receiv-
1. "Resolved, That the law entitleding a note for collection, not being liable
"An act to authorize the business of for the default of a foreign agent: see
"banking, passed 18th April, 1838, is East Haddam Bank v. Scovil, 12 Conn.
"valid, and was constitutionally enact- R. 303.
"ed, although it may not have received
"the assent of two-thirds of the members
"elected to each branch of the legisla
"ture." This resolution was adopted
by a vote of 23 to 1.
2. "Resolve, That the associations
"organized in conformity with the pro-
"visions of the act entitled 'An act to
"authorize the business of banking,'
"passed April 1st, 1838, are not bodies
"politic or corporate, within the spirit
"and meaning of the constitution."
This resolution was adopted by a vote
of 22 to 3.
The causes in which the above reso-
lutions were adopted, are "Warner &
This liability may be varied, howev-
er, either by express contract or by im-
plication arising from general usage in
respect to such paper; it is competent,
therefore, for the bank to show an ex-
press contract, varying the terms of its
liability, or in the absence of a judicial
determination upon the point to show
that by the usage and custom of the
place, a bank thus receiving foreign
paper is liable only for its safe trans-
mission to some competent agent, and
is not responsible for the acts or omis-
sions of such agent, or of any subor.
dinates employed by him.
3. The inquiry, however, in such case is
not as to the opinion of merchants,
however general, as to the law of the
case, but as to the usage and practice
in respect to such transactions, or the
general understanding of merchants as
to the nature of the contract evidenc-
ed by their acts, so as to enable the
court to give the contract a correct
interpretation.
id
4. Where a debt was lost by the omis
sion of a notary to give notice of the
non-acceptance of a bill presented
before maturity, IT WAS HELD, not
to excuse a bank which had received
the same for collection, that, by the
law merchant of the place where the
bill was presented, notice of non-ac-
ceptance was deemed unnecessary;
but that on the contrary, as the lex loci
contractus governed in a case like it,
it was the duty of the bank to have
given the necessary instructions to its
correspondents.
id
5. The omission to give notice of non
acceptance happening through the de-
fault of a commissioned public officer,
a notary, does not vary the rights of
the parties: pro hac vice, he acted
merely as the agent of his employers,
and not in his official capacity. id
See DEED, 3. Partnership, 1, 2, 3, 4, 5.
BILL OF PARTICULARS,
See PRACTICE, 20.
C
CERTIORARI,
See HIGHWAYS, 4.
CHANCERY.
CONSIDERATION.
1. Where an action is brought for breach
of a contract, whether the same be
sealed or not, and the defendant can
show that the plaintiff has not per-
formed the contract on his part, ac-
cording to its terms or spirit, so as to
entitle him to a cross-action, he may
at his election, instead of bringing an
action in his turn, recoupe his dama-
ges arising from the breach committed
by the plaintiffs, whether they be li-
quidated or not. Ives v. Van Epps, 155
2. It seems, however, that in such case,
the defendant should give notice with
his plea of his intention to insist upon
the right of recoupement.
id
1. An action of assumpsit lies against a
corporation for refusing to permit a
transfer of stock upon its books; and
the measure of damages is the full
value of the stock at its highest price
at any time between the refusal and
the commencement of the suit. Quere.
Might not the time have been extend-
ed to the day of trial? The Commer-
cial Bank of Buffalo v. Kortright, 348
2. A blank transfer of a certificate of
stock, where the holder has affixed
his name and scal upon the back of the
certificate is valid; and the transferee
is authorized to fill it up by writing a
transfer and a power of attorney over
the signature.
id
3. Proof of custom as to the mode of
transfering stock is admissible. id
4. A corporation is bound by the acts of
its acknowledged agents in the com-
mon transactions of the corporation,
although the appointment of the
agents be not evidenced by the records
of the corporation.
id
5. A transfer of stock in a monied cor-
poration is good as between the ven-
dor and purchaser although not regis-
tered in the transfer book of the cor
poration, notwithstanding a statutory
provision, that no transfer shall be
valid unless so registered; the evi-
dence of right to the stock as between
the parties themselves not being with-
in the purview of the statute.* id
*The CHANCELLOR who delivered a
dissenting opinion in this case, holds
that where the charter of a monied cor-
poration coutains a provision that no
transfer of its stock shall be valid, unless
registered in the books of the corpora
tion, that an unregistered transfer does
not convey the legal title to the stock,
but merely confers an equitable interest
in it, and that, subject to all previously
existing equities. He further holds, that
the plaintiff was not entitled to sustain
an action at law, and that if such action
did lie, the utmost extent of the plain-
tiff's claim would be for the deprecia-
tion in the value of the stock.
of New-York, have not the power to
take a public street or any part there-
of, for the purpose of a reservoir to
supply the city with water. Ex parte
the Manhatten Co.,
653
11. It seems they may occupy streets
temporarily, whilst laying aqueducts,
&c.
id
12. It seems, further, that the discretion
of the company in appropriating pri-
vate property subject to valuation and
payment of damages, will not be con-
trolled by the supreme court on a mo-
tion for the appointment of commis.
sioners of estimate; if there be an
abuse of power, the party aggrieved
must seek his remedy otherwise. id
See BANKS, 1.
1. Under the act concerning costs, pass-
ed May 14, 1840, unless the plaintiff
recover a sum exceeding two hundred
and fifty dollars, in an action for the
recovery of a debt, he is entitled to
two-thirds only of the amount prescrib-
ed by the act. Pearson v. Cole, 652
6. Where, by the act incorporating an
insurance company, the management
of the stock and affairs of the corpora-
tion is given to a board of twenty-
three directors to be annually elected,
a major part of whom by the act are
competent to the transaction of all the
business of the corporation, and an
election of directors takes place at
which only 22 persons receive a plu-
rality of votes, such twenty-two per-
sons areduly elected,and take the place
of their predecessors, notwithstand-
ing that it chanced that the full num-
ber of twenty-three directors was not
filled up.
In the matter of the Union
Insurance Co.
591
7. Where, uder such circumstances, the
old board conceived that the election
had wholly failed, and a second elec-
tion was held by their order, at which
twenty-three directors were chosen,
this court, upon the summary appli- See EXECUTORS AND ADMINISTRATORS,
cation authorized by statute, set aside
the second election, declared the
twenty-two directors first chosen duly
elected, and ordered a new election
to supply the vacancy of the one
director who was not chosen at the
first election.
id
8. Application was made to the court
previous to the second election to de-
clare the twenty-two persons chosen
directors of the company, and to
direct the election of one additional
director; but the court refused to act
upon it, considering the proceeding
premature.
id
2. Prospective charges for transcripts
of the judgment, and postage of the
same, cannot be taxed.
1. An indictment for murder at the
common law viz: charging the act to
have been done with malice afore-
thought, is not vitiated by the addition
of the words, that the act was done
from a premeditated design to effect
the death of the deceased; such latter
words may be rejected as surplusage.
The People v. White,
9. It seems, that the stockholders, with-
out any order of the court, have the
power to fill up a vacancy happening
under the above circumstances; and 2.
further, that on the neglect of the
board to make order for an election
to supply such vacancy, that a manda-
mus would lie.
10. The Manhattan Company in the city
An entry endorsed on an inquisition
of murder taken by a coroner, pur-
porting to be the examination of wit-
nesses, will not be recognized as duly
taken under the statute if it have not
a jurat or certificate of the coroner,
that the witnesses were sworn, and it
1. Where parties entered into a submis-
sion to arbitration, and bound them-
selves in a penalty of a specified sum
as stipulated damages, to be paid by
the party failing in performance; and
the submission contained a stipulation
that one of the parties should give no-
tice of five days to the other of the
time of the meeting of the arbitrators,
it was held, in an action brought on,
the submission, assigning as a breach
the omission to give such notice, that
the liquidated damages could not be
recovered for such omission, and if
the party was liable for the payment
of such damages, they could be enfor-
ced only for not performing the award
when made. Hoag v. McGinnis, 163
It seems, however, that even in the
case of the non-performance of the
award, the sum specified in the sub-
mission would be considered only as
a penalty, and not as liquidated dama-
ges; that in such cases the specified
sum will not be held as liquidated
damages, except where it is manifest
the parties so intended, and where it
is difficult if not impossible from the
circumstances of the case for a jury
to arrive at a satisfactory conclusion
as to the amount of damages to be al-
lowed.
3. Whether a sum agreed upon by the
parties to a contract as the measure
of damages, shall be considered as
liquidated damages, or only as a pen-
alty, depends upon the intent of the
parties and the peculiar circumstances
of the subject matter of the contract;
if the damages must necssarily be
wholly uncertain and incapable of
estimation, the party failing to per-
form will be held to pay the stipulated
sum as liquidated damages, and it was
accordingly held, where the plaintiffs
gave $3000 for the patronage and
good will of a newspaper establish-
ment, and $500 for the type and print-
ing apparatus, and the defendants
(the vendors) covenanted that they
would not publish or aid or assist in
publishing a rival paper, and fixed the
measure of damages for a violation of
their covenant at $3000, and did sub-
sequently aid and assist in the publi-
cation of such paper, that the plain-
tiffs were entitled to recover the whole
sum of $3000, as liquidated damages.
Williams v. Dakin,
4. Although where an estate is granted
subject to a condition, and the gran-
tee is released from a part thereof, the
whole condition is gone, the same rule
does not prevail in respect to a cove-
nant not coupled with a condition;
and it was accordingly held, in this
case, where the plaintiffs released the
defendants from their covenant so far
as to permit them to publish a paper
of a peculiar character, that such re-
lease did not excuse them for subse-
quently publishing or aiding in the
publication of a paper different from
that specified in the release.
See CONSIDERATION, 1. CORPORATIONS, I
|