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COURT OF APPEALS ABSTRACT.
tion of Worthington to keep the control of the wheat
and the order for the delivery of the property was COSTS.
given to Nims merely for the purpose of carrying it to Creditors of insolvent corporation intervening in aid the office of defendant to have the wheat transferred, of receiver not entitled to.-While creditors of a cor- the act of defendant's agent would be negligence and poration in the hands of a receiver in proper cases plaintiff entitled to recover. Held, that the instruction may intervene and aid the receiver in the defense of
was correct. Judgment below affirmed Farmers and individual claims made by action or petition, such Mechanics' Nat. Bank of Busfalo v. Erie Railway Co. intervening creditors are not, as of right, entitled to Opinion by Rapallo, J. costs in proceedings to which they become parties [Decided January 22, 1878.] either out of the fund or against the adverse party.
LANDLORD AND TENANT. Motion denied. Matter of People, ex rel. Attorney-Gen
When landlord entitled to rent of premises tenant eral, v. Security Life Insurance Co. Opinion per
deprived of.-Defendant, a lessee of premises, brought Curiam.
action against plaintiff, the lessor, for damages in be[Decided January 22, 1878.]
ing deprived of the use and occupation of such premDEFENSE.
ises during a certain period, and recovered judgment Railroad aid town bonds: who cannot raise question for the whole value of the use and occupation of such of invalidity of.-Under the provisions of Laws of 1866, premises, no deduction being made for rent. Held, that chap. 398. $ 4, for the bonding of towns in aid of rail- the lessor was thereafter entitled to recover the amount roads, it is provided that the money raised by taxation of rent agreed to be paid for such premises during for the payment of the bonds shall, wheu collected, be such period. Order below reversed. Knox v. Hexter. paid to the town railroad commissioners, and by them Opinion by Andrews, J. shall be applied thereon. Money was raised by tax- [Decided December 18, 1877.] ation and paid to the railroad commissioners for the
PRACTICE. purpose of paying interest on bonds issued by a
Under new Code: supplemental answer under & 574: town. Held, that, in an action by the holder of the
appealable order.- The allowance of a supplemental bonds against the commissioners to recover such inter
answer, under section 574 of the New Code, is discreest, the invalidity of the bouds could not be set up as a
tionary with the court below, and an order granting defense. Judgment below affirmed. First National
or refusing leave to make such answer is not applicaBank of Oxford v. Wheeler. Opinion by Andrews, J.
ble to the Court of Appeals. Appeal dismissed. Folger, Miller and Earl, JJ., concur; Church, C. J.,
Spears v. Mayor of New York. Opinion by Folger, J. and Allen, J., dissent.
[Decided February 5, 1878. Reported below, 10 Hun, [Decided January 29, 1878.)
REAL ESTATE. Liability of carrier for damages from bill of lading 1. Presumption of delivery of deed from recording: negligently issued to wrong person.-Worthington, who how rebutted.–The fact that a deed was recorded more had the general title to and control of wheat stored in than forty years previous to an action in which it is an elevator at Buffalo, had verbally agreed to sell the claimed as a source of title, no possession of the same to Nims under a contract by which title and premises, which were in a thickly settled place and possession were not to pass until payment. He drew valuable only for their use, having ever been taken by this order for the wheat, directed to the elevator, and the grantee, is sufficient to repel the presumption of gave it to Nims:
delivery arising from the record of the deed alone. • Propellor Mohawk, or Niagara elevator: Deliver Order below affirmed. Knowles v. Barnhardt. Opinto the Erie Railroad fifteen thousand bushels Mil. ion by Church, C. J. wheat, more or less. Subject to order, S. K. Worth- 2. Title and obligations of widow oceupying dower ington."
lands in common with heirs.--The possession of land by Nims gave the order to defendant's agent at a widow as doweress, and as guardian iu socage of the Buffalo, who issued to Nims a bill of lading in his own minor children, held to be as tenant in common with name, and took possession of the wheat and trans- all the heirs. When the land was occupied under a ported it to New York. Plaintiff, on the faith of this contract of sale to the deceased husband of the bill of lading, advanced money to Nims, and after- widow, held, that she could not purchase for her indiward took possession of the wheat and sold it to vidual benefit the contract or a title to the land. reimburse the advance it had made. The M. Bank, [Decided December 18, 1877. Reported below, 9 Hun, which had a lien on the wheat for advances to Worth- | 443.] ington, brought action against plaintiff for the value of the wheat, and obtained a judgment against plain- 1. Lien law relating to ships: canal boat a vessel.tiff, which was sustained on the ground that no title A canal boat is a vessel within the meaning of the passed to Nims by Worthington's acts. In an action statute (Laws 1862, chap. 482) relating to the collection by plaintiff to recover damages claimed to have been of demands against ships and vessels. Mony v. Noyes, caused by defendant's negligence in giving the bill of 5 Hill, 34, contra, was under the Revised Statutes, and lading to Nims in his own name, the court, at trial, is not authority. Order below aflirmed. King v. submitted to the jury the question, whether, by his Greenway. Opiniou by Miller, J. dealing with Nims, Worthington intended to part 2. Personal judgment, execution, and supplementary with the control of the wheat and to deliver it to proceedings does not impair lien on boat.-The fact that Nims in pursuance of the verbal contract of sale, and a personal judgment has been obtained on the claim to authorize him to dispose of it as needed, and against the boat, execution issued and supplementary charged that if such was the intent they should find a proceedings had, does not impair the lien upon the verdict for the defendant, but that if it was the inten- | boat giveu by the statute. Ib.
3. Statute giving lien on vessels not unconstitutionat: railroad company mortgaged with the railroad is a proceedings against vessel by name.- The statute in part of the realty. Force v. City of Elizabeth, p. 403: question is not unconstitutional. The fact that the The alteration of the number of a municipal bond, vessel proceeded against was a steamboat and pro- where different bonds of the same series are disceeded against by its name could not alter the case or tinguished alone by numbers, will avoid the instrudemand a different rule. Ib.
ment as to the oue making the alteration and those 4. Statutory construction: Laws 1863, chap. 422, $ 2.- claiming under him. There are a number of valuable A steamboat was constructed with a view to run on notes by the reporter subjoined to cases, among which Lake Ontario, but never did run anywhere except we particularly notice these: On page 79, relating to upon the canal, Oswego river and Seneca lake. Held, the relative rights of surface owners and mine owners; not a vessel “navigating the western and northwest- on page 145, as to the rights of street railroad comeru lakes, or any of them," under the provisions of panies, and the use of their tracks by the public; on Laws 1863, chap. 422, $ 2, amending the statute relating page 210, upon the subject of undue influence; on page to claims against vessels. Ib.
404, on the subject of compound interest, and on page [Decided December 11, 1877.]
537, relating to the remedy for interferences with ferry SURETYSHIP.
franchises. Principal liable to surety for costs and expenses incurred in securing payment of debt.-While a surety
DELAWARE CHANCERY REPORTS, VOL. II. cannot call upon his principal for expeuses incurred in defending himself against liability or for remote or Reports of Cases Adjudged and Determined in the Court of consequential damages, he may call upon him to reim
Chancery of the State of Delaware. Under authority of
the General Assembly. By Daniel M. Bates, late Chanburse him for reasonable expenses in enforcing the pay- cellor. Vol. II. Philadelphia : T. & W. Johnson & Co.,
1878. ment of the debt by the principal, or the åpplication of his property toward it. Accordingly, where the surety The present volume contains cases selected from the made an arrangement with the creditors whereby he manuscript notes of the late Chancellors, Johns, Jr., gave security for the payment of those demands, and and Harrington, from the year 1833 to that of 1865. received authority from them to take the necessary The reporting is carefully done, and many of the cases proceedings in their names to secure the property of the involve interesting questions, which are ably discussed. estate of the debtor and the application to the payment Among the decisions of interest we notice these: Mcof the debts for which he was surety, and paid the costs Dowell v. Bank of Wilmington, etc., p. 1: An agreement and expenses of the proceedings himself, held, that between the creditor and the principal debtor in order the estate of the principal was liable for such costs and to discharge the surety must be such as gives time to expenses. Order below affirmed. Thompson v. Tay- the debtor, and it must be for a consideration. Kilby lor, In re claim of Matteson. Opinion by Rapallo, J. v. Goodwin, p. 61: A mother, on her death-bed, deliv(Decided January 15, 1878. Reported below, 11 Hun, ered securities and jewelry to a third person for the 274.]
benefit of her minor children. Held a valid donutio
mortis causa. Logan v. Brick, p. 206: A voluntary NEW BOOKS AND NEW EDITIONS.
conveyance, though without a fraudulent intent, is void as against creditors under the statute of 13th
Elizabeth. Frazer v. Frazer, p. 260: The party allegSTEWART'S REPORTS, VOL. I.
ing insanity is bound to prove it, but general insanity Reports of Cases Decided in the Court of Chancery, the Pre
being proved, the onus is upon the party setting up rogative Court, and on Appeal in the Court of Errors and any act as binding to prove that it was done in a lucid Appeals of the State of New Jersey. John H. Stewart, Reporter, Vol. I.
interval. Pickering v. Day, p. 333: The consent of a
collector of internal revenue that a deputy might use THIS volume, the 28th in the series known as the
the public funds in his hands in his private business, New Jersey Equity Reports, is a model in every
uncommunicated to the sureties on the official bond respect. The reporter has done his work in the best
given by the deputy to the collector, discharges such manner, the decisions are published promptly after
Bureties. Garden v. Derrickson, p. 386: A bond under their delivery, and the mechanical execution of the
seal, though voluntary, creates a debt, is impeachable volume is excellent. The decisions given are those of
only for fraud, and is enforceable against the grantor the various terms of the courts mentioned during the
and all claiming under him as volunteers. State v. year 1877, closing with the November term of the
Griffith, p 392: Charitable uses are not within the rule Court of Errors and Appeals. Among the cases of
of law as to perpetuities. The English Mortmain acts value we notice these: Morris v. Hill, p. 33: A com
did not extend to the colonies. The volume is finely mon rumor that an injunction has been dissolved will printed and bound. not excuse the breach of it. First Nat. Bank of Freehold, v. Irons, p. 43: Fraud will not be inferred from
COURT OF APPEALS DECISIONS. circumstances which merely indicate unusual generosity. Camden H. R. R. Co. v. Citizens' Coach Co., p.
HE following decisions were handed down Tuesday, 145: The public right to use a horse railroad track in
February 19, 1878: the streets of a city for vehicles does not authorize a Judgment affirmed, with costs Wilkinson v. First transportation company to use it in competition with National Fire Insurance Co.; Troy and Lausingburgh the railroad company. Stoudenger v. City of Newark, Railroad Co. v. Kane; Von Sachs v. Kretz; Scofield v. p. 187: The streets of a city may be lawfully used for Churchill; Bauk of Commerce v. Bissell; Scholey v. the construction of sewers, whether the public right Halsey. - Judgment atfirmed - People v. Brown. was acquired by condemnation or dedication. William- Order affirmed, with costs - Morris v. Tuthill.son v. N. J. South. R. R. Co., p. 277: As between a Judgment affirmed, with costs of all parties to be paid mortgagee and execution creditor, rolling stock of a out of the estate-Garvey v. McDevitt. Motion
ANOTHER la periodicah bas made itu apa mnac is
denied, without costs of motion - Horn v. Pullman.
Motion denied, without costs - Dering v. Metcalf.
Judgment reversed, and new trial granted, costs to abide event -- McMurry v. Noyes; Mowry v. Sanborn; Furst v. Second Avenue Railroad Co.- Order of General Term reversed and that of Special Term affirmed, with costs - In re petition Trustees of New York and Brooklyn Bridge v. Burr. - Judgment reversed, and judgment for defendant, with costs, with leave to plaintiff to amend complaint, on payment of costs, within twenty days after notice of filing remittitur- Littaner v. Goldman. -Judgment modified, so as to affirm order without modification, and without costs to either party on the appeal; the respondents to pay $10 costs of this motion and costs of remittitur, and subsequent proceedings – In re petition of Hebrew Benevolent Orphan Asylum of New York, — Judgment of Supreme Court and decree of surrogate modified, by declarivg the same without prejudice to an action by the administrator for relief, and staying proceedings thereon for sixty days after filing the remittitur, to enable him to bring such action, if he shall be so advised, without costs, in this court or Supreme Court, to either party - McNulty v. Hurd.
It is entitled The Southern Law Journal, and is published monthly at Tuscaloosa, Alabama. The second number, that for February, which is the only one we have received, contains interesting articles upon “Lord Jeffreys,” “Executorial Duties and Personal Trusts,” and “The Theory of the Election for President." There is a review of the case of Miller v. Marx, decided by the Supreme Court of Alabama, wherein the ruling of the court that when a homestead cannot be reduced in area so as not to exceed $20,000 in value, there is no exemption under the Constitution, and in the absence of legislation, no authority to allot the family an equivalent in money, is criticised sharply. A syllabus of the decisions of the Supreme Court of, Alabama at the December term, 1877, covers a large number of cases, and we presume gives all those decided for the term mentioned. Abstracts of decisions of the Federal Supreme Court and the highest courts of the several States are also given. The editorial notes, though brief, are well written and to the point. Our new coutemporary is well worthy the support of the profession of Alabama and the adjoining States, and we trust that they will sustain it.
In the cases of Usill v. Hales et als., decided by the Common Pleas Division of the English High Court of
Justice, on the 30th ult., there were three actions for A correspondent writes: “Are you going to let Senator Sessions' bill relative
libel brought by the plaintiff, a civil engineer, against
the three defendants as printers and publishers of the to taxation of mortgaged real property pass unnoticed and become a law, virtually exempting the rail
Daily News, the Standard, and the Morning Advertiser.
Certain persons who had been employed by the plainroad corporations of this State from taxation, and creating the worst muddle in assessments ever con
tiff in the construction of a railway in Ireland, applied ceived. Doesn't it look like a railroad job?”
to a metropolitan police magistrate for a criminal pro
cess against the plaintiff to recover from the plaintiff We referred to the bill on page 61 of the current volume. A bill of like nature is introduced every
the wages due to them. The magistrate dismissed the
application on the ground that he had no jurisdiction, year, but preceding legislatures have been sensible enough to refuse to pass any such foolish measure,
and a report of the proceedings was printed and pub
lished in the defendants' newspapers, which was the and we presume the present body will do likewise.
libel complained of.
At the trial the jury found the report in the newspa
pers to be a fair and impartial report of what took BENCH AND BAR.
place before the magistrate. The judge ruled the reGEORGE W. PASCHALL, well known as a
port to be privileged, and his decision was sustained writer on law, died at Washington, D. C., on the
by the Common Pleas Division. The Solicitors' Jour16th inst. He was born in Green county, Georgia,
nal says that this case, though likely to be cited as a November 28, 1812. He was educated in the Georgia lea case, and overruling, as Lord Coleridge said, State College at Athens, was admitted to the bar in 1832, and removed to Arkansas iu 1837. In 1841 he was
what has been over and over again laid down by great elected Judge of the Supreme Court of Arkansas. In
judges, is really only a return to the old lines. In 1848 he removed to Texas. In that State he devoted
1796, in Curry v. Walter (1 Esp. 456;1 B. & P. 525), an himself to the practice of his profession, and in the
action was brought in respect of "au account pubpreparation of his well-known law works. These are
lished in the newspaper called the Times," of an appli* An Annotated Digest of the Laws of Texas,
cation for a criminal information. It was ruled by notated Constitution of the United States,” five vol.
Eyre, C. J., and afterward by the Court of Common umes of the “Texas Reports,' and a
Pleas, that the action did not lie. This ruling, which
Digest of Decisions." He also wrote many pamphlets and articles
was very shortly reported, though approved in R. v. upon questions of jurisprudence and political science.
Wright (8 T. R. 298), soon became a mark for judicial In 1869 he removed to Washington, D. C., and re
attack. Lord Ellenborough, in R. v. Fisher (2 Camp. mained there until his death.
563), and Lord Tenterden, in Duncan v. Thwaites (5 D. & R. at p. 479), distinctly disapproved of it. Lord
Campbell, in Levis v. Levy (E. B. & E. 537), with Gideon Welles, ex-secretary of the navy, who died characteristic caution, expressly left the point last week, studied law in the offices of Chief Justice
open. Lord Chief Justice Cockburn, in Wason v. Williams and Judge Ellsworth, of Connecticut, and Walter (L. R., 4 Q. B. at p. 94), with equally characterwas admitted to the bar, but he was never engaged in istic boldness, predicted that, if any action or indictactive practice.
ment founded on an ex parte proceeding were to
be brought, it would probably be held that the true Sir Edward Creasy, who recently died in England, criterion of the privilege was, not whether the report was for two years Chief Justice of Ceylon, and had was or was not ex parte, but whether it was a fair and occupied an inferior judicial position in England. He honest report of what had taken place, published is best known to Americans by his works, " The Rise simply with a view to the information of the public, and Progress of the British Constitution,” and “The and innocent of all intention to do injury to the repFifteen Decisive Battles."
utation of the party affected.
court of justice to get such a wrong as this kind All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the
of action is founded upon, righted, and others ought name of the writer should be given, though not necessa- not to be permitted to do so. rily for publication.
Cominunications on business matters should be ad- The Court of Appeals, on the 220 ult., adjourned dressed to the publishers.
until the 18th of the present month. The court
announced its determination not to hear any arguThe Albany Albany Law Law Journal. ments hereafter in appeals where the printed cases
are not properly indexed; and the further requireALBANY, MARCH 2, 1878.
ment is made, that the names of the counsel appear
in the briefs. The court has done a large business CURRENT TOPICS.
since its assemblying January 14th-having decided
134 cases, many of them involving the writing of N the case Matter of Allen, reported in our pres
elaborate opinions. There remain over several undeent number, Judge Wallace, of the United
cided cases of considerable importance, among which States District Court for this district, strongly ani
are Bertholf v. O’Rielly, and one other case argued madverts upon u kind of transaction common
in December last, involving the constitutionality of enough in bankruptcy proceedings, and regrets the
the civil damage law, and Lange v. Benedict, where inability of the court to interfere with it. A bank
the question of the liability of a judge for false imrupt firm, apprehending insolvency, began paying
prisonment under an erroneous sentence is raised. favored creditors and themselves out of the partnership assets; then, being unable to compromise
A bill recently introduced in the assembly by Mr. their debts, they made an assignment to a friend,
Seebacher, for the protection of working people, is and shortly after procured a petition in bankruptcy to be filed against them, and then took proceedings to meet with favor. It provides that in judgments
an example of a kind of legislation that ought not for a composition. During all the time the bank
recovered for wages, when the amount is less than rupts kept possession of the firm property under some
$50, if the execution issued is not paid the debtor pretext or other. The attorney who managed the
may be arrested and put in a jail or debtor's prison proceedings for the bankrupts represented most of
for fifteen days. As a sort of compensation for the creditors, and the court states that during all
this, it is provided that if, on a trial by jury, it shall the transaction no step was taken to protect credit
be found that the plaintiff was in the wrong or inors. Judge Wallace says: “It shocks the moral
tended persecution, he may be imprisoned. It was sense to assist in this dishonest scheme of judicial
asserted that when imprisonment for debt not conaction,” and that “the bankrupt law permits just
tracted fraudulently was abolished, we had taken a such schemes as this." We are glad to record this
long step forward in the way of legal reform, and judicial protest against the bankrupt law, and hope
the common judgment of intelligent men has justiit will encourage those striving in Congress to pro
fied that assertion. But at this late day it is procure its repeal. As the law stands to-day it is of
posed to go back to the old system, and to imprisno advantage to any honest debtor or bonest cred
men who are unable to pay contract debts. itor, and no benefit to the legal profession generally. The class of debts mentioned is undoubtedly a very There is a small but active interest who derive profit
meritorious one, but it is not sufficiently meritorious from its continuance, but we hope that interest is
to call for the enactment of such a statute as is pronot this year strong enough to thwart the generally
posed. There may be cases of wrong, now and expressed wish of the business community that the
then, which the present laws do not remedy, but law be done away with.
they furnish no excuse for the proposed statute.
We hope the legislature is not yet ready to restore It is proposed in England, by legislation, to abol-imprisonment for debt. ish actions for breach of promise of marriage, a movement which the Law Times justly remarks The position of a judge in England does not ap" will recommend itself to the common sense of pear to be one of personal safety. A few months mankind." These actions are very frequently made ago the papers were filled with the account of an the means of extorting money; in fact, the circum- assault upon a vice-chancellor with an egg, most of stance that one is brought is presumptive evidence the public, bowever, being disposed to laugh at the that the purpose with which the plaintiff sought to incident. Sir George Jessel, Master of the Rolls, on enter into matrimony was a financial one. If the the 22d ult., met with a much more serious peril. right of action did not exist the business of a class As he was alighting from his cab at the Rolls Court of scheming females would be cut off, and such he was shot at with a pistol in the hands of a crazy persons are all who would be injuriously affected. minister, named Dodwell, who had previously been A sensitive, high-minded woman never seeks a removed from the court by order of the Master, for
Vol. 17.— No. 9.
creating a disturbance. The bullet from the pistol representations be made in writing. The object of just grazed the ear of Sir George. It is needless the latter bill is said to be to prevent the use of to say that the assailant was arrested.
criminal process in the collection of debts, but its
effect will be to do away with the statute relating The House of Representatives, on the 21st ult., to false preteuses, for in not one case out of twenty passed, by the decisive vote of 169 to 87, a bill is the offense mentioned committed by means of a providing that when a woman shall have been a
writing. While the statute, as it now is, may somemember of the bar of the bigliest court in any State times be used oppressively, the change proposed or Territory she shall, on application, be admitted would open the door to the perpetration of innumto practice before the United States Supreme Court. erable frauds. The persons the bill is designed to The Senate will probably indorse the bill, and we protect are entitled to very little consideration, and may expect, in the course of the coming year, to if it should pass, the cheats, swindlers and confihear female counsel arguing causes before the high-dence men who infest our cities and prey upon est tribunal in our land. The bill is, however, a strangers, would be beyond the reach of punishpartial one, in that it opens the Supreme Court to ment. We trust the legislature will not sanction the women of those States and Territories only the bill. An amendment to article 6, section 14, where no distinction is made on account of sex in of the State Constitution was proposed in the assemadmissions to the bar. The great body of female bly, which provides that the compensation of judiaspirants for forensic honors will be still excluded cial officers shall be in the form of a salary, payable from an opportunity to place their names upon the monthly, and that judges shall receive no fees or roll of the Supreme Court. We trust this circum- allowances. A bill requiring justices of the peace stance will be considered when the bill comes before to give bonds has passed both houses, and the bill the Senate. But why not leave the whole matter enacting the last nine chapters of the Code of where it belongs-with the courts? When any con- Civil Procedure has been ordered to a third reading siderable number of the States permit women to in both houses. practice at the bar, the Federal courts will give them the same opportunity, and no objection will be The bar association of the city of New York has raised. Because two or three States and Territories been considering what action it should take in refand the District of Columbia have made the experi- erence to the two bills for reorganizing the Federal ment of admitting women to the bar is no reason courts, respectively introduced by Senators Conkwhy the dozen or so female lawyers who have taken ling and Davis, and now pending in Congress. advantage of the privilege shall be given a favor | The Davis bill provides for the appointment of an which is denied to their sisters residing in other additional circuit judge in each of the circuits of parts of the country.
the United States, while the Conkling bill provides
for additional district judges who are not to be On the same day the House of Representatives assigned to any particular district, but are to hold passed bills providing for appearance in behalf of District or Circuit Courts wherever they may be dithe United States, in foreclosure suits, and for ex- rected so to do by the circuit judge. The commitemption from seizure upon executions or attach- tee adopted the provisions of the Davis bill on this ments issued by any United States court, the same point, adding an amendment giving to all the cirproperty which shall be exempted from levy and cuit judges power to hold District Courts wherever sale under the laws of the State in which the de- they are assigned to duty by the senior circuit fendant shall reside. The first
mentioned bill is de- judge. The association passed a resolution approvsigned to meet cases where the United States has a ing the detailed amendments suggested by the comsubsequent lien on mortgaged property, it being unittee, and referred the matter back to it for now impossible to cut off such lien for the reason further consideration. that the United States caunot be sued in the ordinary courts.
NOTES OF CASES. Among the bills introduced in the legislature IN Thompson v. Lambert, 44 Iowa, 239 an action during the past week, we notice one providing that was brought oy a stockholder in a corporation all legal notices published in Sunday newspapers to prevent the corporation from paying certain shall be as valid as those published in papers issued notes given by it and sccured by a mortgage upon on a week day, one authorizing boards of supervisors its real estate, for a loan of money to it, and to to revise and correct all erroneous and illegal assess- have the notes declared null and void on the ground ments within their respective counties, and one pro- that the money was borrowed for a transaction into viding that no one shall hereafter be held for ob- which the corporation had no authority to enter, taining money or other valuable thing by means of and that the giving of the notes and mortgage was false pretenses or representations, unless the false ultra rires. The court held that the rule ultra rires