Imágenes de páginas
PDF
EPUB

further progress hazardous to the public, and that it has exceeded its powers or failed to comply with all the rules, restrictions, and conditions provided by law, they may apply to a judge of the Supreme Court to issue an injunction to restrain the bank, in whole or in part, from further proceeding in its business, until a hearing of it can be had; and the judge shall forthwith issue such process, and, after a full hearing of the bank upon said matters, may dissolve, modify, or make perpetual the injunction, and, at his discretion, appoint a receiver. Held, this statute, being a general law, in regard to all banks, that upon a given state of facts an injunction shall issue, was not unconstitutional, as an assumption of judicial power in the legislature, in requiring a judge in a particular case to perform a judicial act. Commonwealth v. Farmers, &c.,

xxi. 542.

13. Held, the statute merely imports, that the representation made by the commissioners to the judge, after exainining the condition of a bank, shall be primâ facie evidence that the bank is acting unlawfully and cannot safely proceed; and therefore is not unconstitutional, as a usurpation of judicial power, in requiring the judge in the first instance, upon complaint made, and without hearing evidence, to issue his injunction. Ibid.

14. Nor, on the ground of compelling the officers and agents of a bank to furnish evidence criminating themselves; because (among other reasons) it imposes a penalty only upon those who refuse to testify" without justifiable cause."— Ibid.

15. Nor, on the ground of abridging the period, for which a bank, by its charter, is allowed to act as such; for, as the bank may violate such charter or the general law, some method must be provided, for inquiry into the fact, and affording redress to parties injured, and the injunction is not an arbitrary suspension of the powers of the bank, but a compulsory process precisely conformable to the mode of administering justice in like cases. Ibid.

16. Revised Statutes, c. 36, § 57, prohibit any "contract by a bank for the payment of money at a future day certain." The plaintiff, upon depositing money in a bank, received a book, containing the cashier's certificate of deposit, which stated that the money was to remain in deposit a certain time. Before the expiration of this time, and without a demand, the present action was commenced against the bank, to recover the money; declaring upon the money counts and an account stated. Held, no action would lie upon the express contract, it being illegal under the statute; but that the plaintiff, not being in pari delicto with the defendant, might disaffirm such contract, and recover in this action, and that no demand was necessary. White v. Franklin, &c., xxii. 181.

17. The board of directors of a bank is a body recognized by law, and, to all purposes of dealing with others, constitutes the corporation. Burrill v. Nahant, &c., 2 Met. 163.

[ocr errors]

18. A board of bank directors may authorize a committee of its members to alienate or mortgage real estate; and an authority to convey real estate necessarily involves the power of executing proper instruments, and affixing the corporate seal to them. Ibid.

"the

19. A board of bank directors having authorized such committee "to sell and transfer any estate owned by the bank,' committee gave a mortgage to one who had recovered judgment against the bank upon its bills, taking from him a bond not to put the bills in circulation. The board of directors accepted and acted on this bond, and the cashier paid the costs of the suit, according to the agreement between the plaintiff and the committee. Held, whether the committee had or had not authority to mortgage, the directors had ratified the mortgage. - Ibid.

[ocr errors]

20. By St. 1819, c. 43, corporations shall continue such, three years from the expiration of their charters, for settling their concerns, but not for continuing their former business. A bank, immediately before such term of three years expired, indorsed a note, held by it, to trustees appointed for winding up its affairs, and vested by it with all the powers of the corporation. Held, such transfer was legal and valid. Folger v. Chase, xviii. 63.

21. By Revised Statutes, c. 36, § 31, when the charter of a bank has expired and is dissolved, bill-holders are authorized to proceed in certain ways against the stockholders. Held, the repeal of the act incorporating a bank brought the case within this provision, though it would be allowed to exist sub modo for three years longer, for the purpose of settling its affairs. Crease v. Babcock, xxiii. 334.

Bastard.

1. To sustain a bastardy process under St. 1785, c. 66 (Revised Statutes, c. 49), the complainant must have accused the defendant, in the time of her travail, of being the father. Stiles v. Eastman, xxi. 132.

2. A bond, given according to this statute, by the putative father, to appear at court and answer to the charge, is forfeited by non-appearance and default, without an order of filiation. - Jordan v. Lovejoy, xx. 86.

3. After forfeiture of such bond, either on issue or default, judgment is not rendered for the penalty, but the defendant may be heard in Chancery, and judgment given for the amount equitably due. Ibid.

4. The complainant in such case cannot be a witness, whether she complained to the Justice before or after birth of the child, unless she charged the defendant during the time of her travail. M'Managill v. Ross, xx. 99.

5. But she may do this spontaneously, not in answer to inquiry, or suggestions to declare the truth, from others. Nor is any express declaration of the fact in question necessary; but only that she intelligibly mention it as a fact. - Ibid.

6. Her competency as a witness is a question for the Court, not for the jury. — Ibid.

7. A complaint for the support of a bastard, if both parties live in Massachusetts, may be brought and prosecuted in the county where one of them resides, though the child was begotten and born in another county. Williams v. Campbell, 3 Met. 209.

8. A misrecital, in the condition of a bastardy bond, of the day on which the complaint was made, does not avoid the bond. Chapel v. Congdon, xviii. 257.

9. A., a justice of the peace, to whom a complaint was made under the bastardy act of 1785, c. 66, § 2, issued his warrant, which was returned before B., another magistrate; and B. required the defendant to give bond with surety for his appearance at Court, and that he be held in custody till such bond was given. Held, the bond was void, both as against principal and surety, for duress. Fisher v. Shattuck, xvii. 252.

10. The principal appeared at Court, according to the bond, but did not plead, and the case was continued, because the child was not then born. Held, the duress was not hereby waived, and, if it were, the plaintiff must rely upon the facts in the form of a replication to the plea of duress. - Ibid.

Bawdy-Houce.

It is an offence at common law, to keep a house of ill-fame for lucre; and the common law is not repealed by St. 1793, c. 59, § 8, providing, that for the prevention of poverty as well as lewdness, any person suspected of such offence may be apprehended

by a warrant from a justice of the peace, upon complaint of the overseers of the poor, and on conviction may be ordered to the house of correction for a month, and shall not afterwards keep boarders without license from the overseers. -Jennings v. Commonwealth, xvii. 80.

Bills and Notes.

A. Bills of Exchange, Drafts, and Orders.

B. Consideration of Bills, &c.

C. Construction of, and Evidence in relation to, Bills, &c. D. Indorsement of Bills, &c., and herein of the liability of indorsers, sureties, and guarantors.

E. Time of payment of Bills, &c.

F. Demand and Notice.

G. Alteration of Bills, &c.

H. Actions upon Bills, &c., and defences thereto, and herein of payment.

A. Bills of Exchange, Drafts, and Orders.

1. Where A. owes B. an entire sum, for a part of which B. gives C. an order or draft on A., this cannot be treated as an assignment of such part, against A.'s consent; because he would thus be subjected to two actions instead of one. -Gibson v. Cooke, xx. 15.

66

2. B., being entitled to quarterly payments from A., the defendant, as a trustee, drew an order on him in favor of C., to be paid as B.'s income should become due," for a sum not agreeing precisely with one or any number of the sums payable to B. A. refused to accept the order, and C. brings an action against him for the amount of it, in the name of B. Held, the order was not a legal assignment, and the action did not lie. - Ibid.

3. An accommodation acceptor may pay the bill on the last day of grace before business hours, and immediately sue the drawer. Whitwell v. Brigham, xix. 117.

4. Such acceptor, in order to recover of the drawer, must prove presentment to, and non-acceptance or non-payment by, the drawee, and notice thereof to the defendant. - Baring v. Clark,

xix. 220.

5. Possession of a bill, which has been in circulation, by the acceptor, is primâ facie evidence of payment by him. - Ibid.

6. April 3, 1834, a draft was drawn in New York, on A., the defendant, residing in Massachusetts, and sent here for collection. A. being then in New York, B., the payee, offered him a discharge from the draft, and demanded payment, but A. replied, that he "would rather pay it in the regular way, when presented," and "would pay to any person who should present it." The draft was afterwards returned to New York, and B. enclosed it in a letter, dated April 15th, to A., in Boston, requesting him to send the money by mail; but to this, and several other communications, A. made no reply. On May 26th, A. wrote to a third person in New York, acknowledging receipt of the draft, and stating that it would be in some way disposed of, when he should be there. Held, the jury would be warranted in finding that the defendant had waived the condition originally made as to a personal presentment, and had impliedly bound himself as an absolute acceptor. Hough v. Loring, xxiv. 254.

7. A promise by the drawer of a check to pay it is not binding, if made after it became due, and under an ignorance of the fact, that it had not been duly presented to the bank for payment. Franklin Bank v. Freeman, xvi. 535.

8. A memorandum check need not be presented for payment to the bank on which it is drawn, nor payment demanded of the drawer, before commencement of suit against him. - Ibid.

9. A printed blank check upon the North Bank was altered by substituting "Market" for "North," and inserting the word "Memo.," and then filled up in usual form. Held, the paper was a memorandum check, and need not be presented to the Market Bank for payment, though the drawer did business there, and a common check drawn by him for the same sum would have been paid if presented. - Ibid.

10. To a suit against the acceptor, by the bona fide holder, of a bill, it is no defence, that the bill was fraudulently altered before acceptance. Ward v Allen, 2 Met. 53.

11. A bill, payable in three days, was indorsed by the payee for the drawer's accommodation, who altered it to thirty days, and put it in circulation. On discovering the alteration, the holder and the payee made an arrangement with the drawer, by which the payee gave security to the holder for half the amount of the bill,

« AnteriorContinuar »