or imprisoned in the county jail not exceeding thirty days, in the discretion of the court; but this section shall not apply to persons admitted to the bar under pre-existing laws. History. Amended and penalty added 1905, S. F. 62; in force July 1. 3604 35. The lawyer's brief, its requisites and value. 57 C. L. J. 221. 36. Where an attorney procures the sale of land of his client to a third party for whom he is at the same time acting, for an inadequate price, and immediately takes a half interest therein for himself, paying one half of the consideration, the court will set aside the transaction and restore the estate to the vendor on repayment of the purchase price with interest at seven per cent. This rule is not based upon fraud necessarily but on considerations of public policy, and prevails though the attorney be innocent of any intention to deceive and intended to act in good faith. In such case the vendor may set off the rents and profits which the vendor has collected. Lavara v. McNeny, Neb.; 102 N. W. R. 1042. 37. In the absence of stipulations evidencing a different intent, an employment of an attorney to prosecute a claim to a recovery terminates with the rendition of the judgment thereon and the exhaustion of the usual legal process upon the judgment. It does not include the prosecution of subsequent actions to enforce the liability against sureties on the supersedeas bond. Lamb v. Wilson, — Neb. 97 N. W. R. 325. 38. When summons in error is duly issued and placed in the hands of the proper officer for service, who informs the plaintiff's attorney that he has served the same, and the clerk of the supreme court informs him that the summons had been served and returned, the attorney may rely upon the presumption that the officer has done his duty. He is not guilty of negligence in failing to further investigate the manner of the service. Parker v. Parker, Neb. -; 102 N. W. R. 85. 39. In the absence of a special contract, one partner is not entitled to extra compensation for services rendered in the prosecution of the firm's business. Lamb v. Wilson, Neb.; 97 N. W. R. 325. 3606 38. An attorney to whom claims are unconditionally assigned may sue in his own name. Huddleson v. Polk, Neb. -; 97 N. W. R. 624. 39. Recent cases on the powers and authority of an attorney in the conduct of litigation and release and compromise of claim of client collated in 52 C. L. J. 150. 40. Where an attorney appears in an action for a defendant, the presumption is 104. An individual may obtain a charter to do a banking business. An unincorporated state bank owned by a single individual is not a corporation. The legatees under the will of the sole owner of an unincorporated state bank have no authority to continue the business. Opinions Atty. Genl. 1902-3, 51. 105. The state banking board has no power to inquire into transactions relating to the reorganization or to the voluntary liquidation of a state bank. Opinions Atty. Genl. 1902-3, 5. 106. Is knowledge of an officer of a bank as to defenses to a note he transfers to the bank binding on the bank? 57 C. L. J. 371. 107. A loan and trust company held to be a banking institution, and that its stockholders had incurred a double liability provided by the constitution. Hamilton Bank v. American L. & T. Co., Neb.; 100 N. W. R. 202. 108. The general authority of a cashier does not authorize him to issue drafts of the bank for himself or for his private use. When it appears that he has thus issued drafts, there is no presumption that they were paid for when issued. Mendel v. Boyd, Neb. ; 99 N. W. R. 493. 109. An officer or agent of a corporation is not liable personally to third persons for mere failure to perform some duty which the corporation may have owed them. Penney v. Bryant, Neb. ; 96 N. W. R. 1033. 110. Relations between bank and depositor discussed in particular case stated. Bank of Salem v. Shrimpton, Unoff.; 96 N. W. R. 1002. 111. A depository of a trust fund, who parts with no consideration and is not misled to his prejudice by reason of the deposit, is bound to restore the fund to the true owner on demand, although such deposit was made by an agent or trustee, and until such demand the depository had no notice of its real character. Union Bank v. Campbell, 2 Unoff. 72; 96 N. W. R. 608. 112. Where a check is drawn by a depositor pavable to the same bank in which deposit is made, its return by the bank as paid is prima facie evidence of a receipt by the bank of the amount of the check, and the burden is on the bank to show otherwise. Where the hand to pay is also the hand to receive, payment may be made by a transfer of credits upon the books of the bank. Patterson v. First Natl. Bank of Humboldt, Neb. ; 102 N. W. R. 765. 113. Liability of a bank on a certified check. 57 C. L. J. 367. 114. Where an imposter assumes the name of another person, and thereby induces a third person to believe he is the person whose name he has assumed, and, acting on such belief, such third person indorses a draft, designating the payee by the name assumed by the imposter, and delivers it to such imposter in the belief that he is dealing with the person whose name has been assumed, and the imposter indorses the draft, using such assumed name, and transfers it to the innocent purchaser, the purchaser takes title by such indorsement. A bank paying such draft is not liable for a mis-payment. Hoffman V. American Exch. Natl. Bank, 2 Unoff. 217-222; 96 N. W. R. 112. 3704. Capital required. 115. An order to the bank to pay a fund into court for distribution does not become a lien on the real estate of the bank. State v. Chamberlain, -Neb. ; 100 N. W. R. 205. 116. A person seeking the benefit of subrogation must have paid a debt due to a third party, not as a mere volunteer but on compulsion to save himself from loss. Sharp v. Citizens' Bank, Neb. : 98 N. W. R. 50. 117. The statute of limitation does not begin to run on a demand certificate of deposit until demand has been made. Sharp v. Citizens' Bank, Neb.; 98 N. W. R. 50. 118. The payment to a bank of a note payable at such bank does not bind the owner of the note. Chapman v. Wagner, 1 Unoff. 492; 96 N. W. R. 412. It shall be unlawful for any corporation, partnership, firm, or individual to transact a banking business unless such corporation, partnership, firm, or individual shall have first obtained from the State Banking Board a charter, as provided in Section 3707 of this Chapter. No charter shall hereafter be issued by the State Banking Board to any corporation, partnership, firm, or individual to transact such business, unless such corporation, partnership, firm, or individual has property of cash value as follows: In towns or villages having a population of 400 or less, $5000. In cities and villages having a population of fifteen hundred (1500) inhabitants and more than four hundred (400) inhabitants, ten thousand (10,000) Dollars; in cities and villages having a population of less than two thousand (2,000) and more than fifteen hundred (1,500) inhabitants fifteen thousand ($15,000) dollars; in cities having a population of less than three thousand (3,000) and more than two thousand (2,000) inhabitants twenty thousand ($20,000) Dollars; in cities having a population of less than five thousand (5,000) and more than three thousand (3,000) inhabitants, twentyfive thousand ($25,000) Dollars; in cities having a population of less than (10,000) and more than five thousand (5,000) inhabitants, thirty thousand ($30,000) dollars; in cities having more than ten thousand (10,000) inhabitants, fifty thousand ($50,000) dollars. Such property shall be in money, bank furniture, fixtures and necessary bank building, including the lot or lots on which the building is situated, which said lot or lots shall be unincumbered; Provided, That the banking house and lot or lots on which the same is situated together with the furniture and fixtures, shall not constitute more than one-third (1-3) of the paid-up capital, and in no case shall the furniture and fixtures constitute more than ten per cent of the paid up capital, provided that the provisions of this section shall not affect any bank now established. History. Amendment requiring a charter inserted 1905, S. F. 55; in force July 1. Does not affect present banks. See sec. 3714a. 3705 1. The stockholders of an incorporated bank may before expiration of its charter extend its corporate existence by a legal amendment of its articles of incorporation. Opinions Atty. Genl. 1902-3, 194. 3707. Approval of statement-Charter issue. Whenever after the examination and approval by the State banking board, of the statement provided for in section six (6) (3706) of this act, the corporation, partnership, firm, or individual shall file with the state banking board the oath of the president, cashier, partner, member of the firm, or individual, that the capital stock has been paid in as provided for, and in compliance with section four (4) (3704) of this act; then the state banking board,* if upon an investigation shall be satisfied that the parties requesting said charters are parties of integrity and responsibility shall upon the payment of the sum of Twenty-five ($25.00) Dollars to said board, and by them paid to the State Treasurer and by him placed in the General Fund of the State. It shall then be the duty of said board* without unnecessary delay issue to said corporation, partnership, firm, or individual, a charter for the same purpose and in the same manner as in section five (5). On receipt of said charter the proposed bank may begin to transact a banking business. History. *to* inserted 1905, H. R. 103; in force July 1. 3713 2. There is no authority for bank ex- of an insolvent bank. Opinions Atty. Genl. aminers making a charge for examination 1902-3, 5. 3714. Failure of bank to make report-Penalty. Every Bank, corporation, partnership, firm, or individual that shall refuse, fail, or neglect to make any report, or any published statement required by the provisions of this act; or that shall transact a banking business without having first obtained a charter therefor, in accordance with the provisions of this chapter, shall be subject to a fine or penalty of fifty dollars ($50.00) per day for each day after the time named for said report or statement to be made, that it, they, or he delays to make and transmit such report or statement to the State Banking Board; and for each day on which any such bank, corporation, partnership, firm, or individual shall be engaged in transacting a banking business in violation of the provisions of this chapter. The fine or penalty herein provided for shall be recovered by the state, for the benefit of the general fund, in a civil action in any court of competent jurisdiction, and it is hereby made the duty of the attorney-general to enforce the fine or penalty herein provided. History. Amended 1905, S. F. 55; in force July 1. 3714a. Amended act not affect existing banks. Provided further that the provisions of this act shall not effect any bank now established. History. This section added 1905, S. F. 55; in force July 1. 3734 11. This summary method of taking property will be strictly construed. Omaha Sav. Bank v. Rosewater, 1 Unoff. 723; 96 N. W. R. 68. 3735 11. The delivery of the property of a bank to parties furnishing the bond herein provided for does not relieve the sureties of such bond from liability thereon. Taylor v. Weckerly, Unoff.; 96 N. W. R. 617. 12. A receiver's sale of property must be made within the time fixed by the order of the court. It should contain such description of the property as to inform the public of its general nature. Morrison v. Lincoln Sav. Bank, 1 Unoff. 449; 96 N. W. R. 230. 3800 1. Rule of distribution as between borrowing and non-borrowing members, upon the insolvency of building and loan associations. 52 C. L. J. 313. 3814 1. A foreign association is subject to the penalty against usury. Contracts signed in this state covering real estate in this state are Nebraska contracts. Peoples' B. L. & S. Assn. v. Parish, 1 Unoff. 505; 96 N. W. R. 243. 3829 6. The rule that the purchaser of the equity of redemption, who purchases subject to a mortgage, and who deducts from the purchase price sufficient to pay such mortgage, is estopped to defeat the mortgage on the ground of usury, is not applicable when the amount taken out or reserved does not include the usury. National Mut. B. & L. Assn. v. Retzman, Neb.; 96 N. W. R. 204. 7. Contracts made in this state, by residents of this state, with foreign building and loan associations, such contracts being made through agents of such associations located in this state, are Nebraska contracts, and their construction, validity, and enforcement are governed by the laws of this state. National Mut. B. & 45. The personal property character of a chattel in its relation to realty. 52 C. L. J. 163. 46. A mortgage on growing hay stipulating that it shall be cut and stacked, and that the mortgage shall cover it when so stacked, is superior to an execution levied upon the stacks. A description of the premises giving the wrong range, held, not to avoid the mortgage. Hayes v. First State Bank, — Unoff. —; 98 N. W. R. 423. 47. A contract for the delivery of a crop to be raised is an executory contract, and before the crop is harvested and divided replevin will not lie in favor of the grantee though the contract recites that he may enter and take if not delivered. Robinson v. Stricklin, Neb.; 102 N. W. R. 479. 48. Advancements made by a mortagee to harvest and market a crop under an oral agreement with the owner and another mortgagee warrants their payment ahead of the mortgage. Dickenson v. Columbus Bank, Neb.; 98 N. W. R. 813. 49. An agreement to execute a mortgage upon a crop to be planted after it is growing will be enforced in a proper case. Sporer v. McDermott, Neb.; 96 N. W. R. 232. Ryan v. Donley, Neb. 96 N. W. R. 234. 50. In case stated description of stock held to be sufficient. Gosnell v. Webster, 28. An injunction, restraining a mortgagor from disposing of property pending the foreclosure, does not prevent other parties from pursuing the property by process of law. Ryan v. Donley, 2 Unoff. 6; 96 N. W. R. 49. 29. The pendency of an action of foreclosure in which an injunction has been granted, preventing defendant from consuming or selling the property, prevents the general creditors from seizing the property. Ryan v. Donley, Neb. ; 96 N. W. R. 234. 30. A mortgagee, after due notice, may sell a sufficient amount of the mortgaged property to satisfy the mortgage debt; but if he sell more than sufficient to satisfy the same and costs necessarily incurred, he will be liable for conversion of such excess. Skow v. Locke, -; 101 N. W. R. 340. - Neb. 31. An allegation of possession of the mortgaged property by agreement with the mortgagor, renders unnecessary any allegation of demand of payment on demand notes secured by the agreement in order to show the mortgagee's right of possession. Taylor v. Harle Drug Co., Unoff.; 96 N. W. R. 182. 32. A covenant in an unrecorded lease for the term of five years, that the lessor will each year execute a mortgage on the crops to secure the rent, is void as to the creditors of the lessee. Ryan v. Donley, 2 Unoff. 6; 96 N. W. R. 49. Secs. 3919 and 3920. An act giving the vendee of personal property under a contract of conditional sale the right to redeem the same after rescission of the contract by the vendor because of default in payment by the vendee; and authorizing a recovery by the vendee when taken by the vendor, and the amount due on the contract under certain conditions. Clarke's redemption bill. 1905, H. R. 187; in force July 1. 3919. Right of vendee to redeem from a default. Where any personal property sold and delivered upon a contract of conditional sale, to be paid for in installments, with the ownership thereof remaining in the vendor as security for the payment of the purchase price, shall be taken possession of by the vendor upon the rescinding of the contract of sale by him because of the default in payment by the vendee; and where the vendee has paid thereon a sum equal to one-third of the entire purchase price, such vendor shall at any time within twenty days after the taking of such property by him, redeliver the same to the vendee upon the payment by the vendee of the balance of the purchase price; together with the reasonable cost of taking and keeping the same; provided, if the vendee shall in the first instance surrender said personal property to the vendor without legal process no costs shall be chargeable to the vendee upon the redemption of said personal property. History.-Laws 1905, H. R. 187, sec. 1; in force July 1. 3920. Right of action by vendee against vendor after tender of performance. Upon the refusal of any such vendor to redeliver any such property after payment or tender of the balance of the purchase price thereof and costs according to the provisions of the preceding section, the vendee may thereupon recover from any such vendor the whole of the purchase money paid on the contract of sale. History.-Laws 1905, H. R. 187, sec. 2; in force July 1. |