ofthe first-mortgage bonds,and the trustees and holders.r the income bOnds, came in,recognized the necessity lor a receiver, and acquiesced in the appointment of Mr. Chamberlain. The trustees of the second mortgage made no objection except to the right of the complainant to sue. It thus appears that all parties in interest agreed that the pursued by the complainant was for the good of all persons concerned in the property. When,ata subsequent period, it was proposed to sell the railway property, and wind up the receivership, all parties, trustees, and bondholders, the first mortgage, concurred in opposition to the proposed order for sale,and united in the opinion that it was for the benefit of the first-mortgage bondholders that the railway propertyremainin the hands of and be managed by the receiver. Up tothis time the practical result of the receivership is a reduction of expenses arid a, large increase in the earnings of the property. It thus 'appears that, the services rendered by the attorneys for the complainant were for the common benefitandthe.'adVatitagaof the fund in which'all the cred·' ther.eforebe compensated out ofthat itorsare-interested. flJrld.The .entire amount of this compensation We will not fix now. We prefer to follow the course suggested by JudgeBREwER in ,Gen· " trfll'l'.Co. 11f. Wabash,etc., Ry.Co., 23 Fed. Rep.:675, and setnpart it sum'ior',present purposes, to be supplemented ,in the .future, the amount to"h.e measured, by the results of the case. It. is: ordered that the receiverpay to Messrs. Mitehell & Smith,complainant's solicitors, $(),OOO" on account of professional services. , ",1'
WITTERS f1. SOWLES
et Ill.
, (q-brcult (]OUh't,D. Vfl'I"/1WI'I.t. May Term,l890.) LNA'l'tONAt. B.l:NXS'-:"PERSONAL LIABILITY OJ' DmECTOB_ExCESSIVE LOANB.
. Where the directors of a' national bank assent·to a loah, in excess of the limit scribed by Rev. st. U. s. 5 5200, and subeequently retire paper representing a pal\. oHhls loan; by charging it against an illegal dividend, declared when the bad paper reCkoned to make up an apparent surplus more than exceedlthe capital stock, the tJ;ansaction i,8 invalid,ood. for the amount of the paper thUS retired, the directors are' personally as by section 5289, for damages sustained in conSequence of exceSSlve loans. . " " , Ol!' ;MASTER-CORRECTION., . , , '.:
Where. the report of a master can be corrected from ,the facts that appear in the , case, aside from the evidence taken before him,lt should be done,·ana are-refer·; euce is unneces.sary. . " ' , , "
:, In Equity:_ . . . . .. ; Chester Witters and HfinrY ..4. Burt, for .,Albert .P. qr08!, and Willard Famngron,.foJ' ·liefendaJ;lts.
,
'J
:WHEELER,. ;r,,an This 4:lause has moneYJI pf the, . o,n the ,report:the· the; hea,rd' stating aCCollOt Qrth,e dethe orator is r:eceiyeNIQstby
assented "tit by <theJdefEhdants :Albmrt riSbwles and: iapd: theeQurt :had found ,beforel ,therefuretlce, that< loandf of tillege morieysi/to! EiHvard A.
,_It
cutitY;:iwlliph'wQs·$20 j OOO:in 'etlcesalQlfthe limit prescl'ibed ,by section· . 5200 of the ReVisedlStatutesoHhe Uiiited States. They were/made per-sonally 'liable,' by.sl'lctioD.r5239, forillU daffiagessustainedin,consequence. The motley HWRSjthen taken, and, oOhe excess im,accrue!! ito tqebank;, forwhi,?h they then became chargeable. WhaUhisitild.been reduced, by paym1!lit or,satisfaction of the loan was referredJ:td the Fed. Rep. 1,'6. that was paid'soon, and:that theremain:ing;$30,OOO became rE"presentedamong;tbe assetsoflthe bank by th.ree, iLiues.·of paper, ' of$10,OOOleach.' . This is,oorrect.,', ;What was· said in the formeropin': i ionabout<t40,OOO being paci:d,8nd 86,OO@ representedby.draft on H. E .. Lewis, (Idr:4;)'is. erroneou&,i, The:l1epooo,furthershows that one line of thepapell W8sltetiredon January,8, 188&,!by being charged in separate atnotlrits}'Nlch,..,..."toEdwarlhA. Albert Sowles, 8940; MerritkSow}es;';8140j Mary.A. $140j and 1.11'8; E.S. Leach,; $140j that:anotber was.paid :bysecnrities of MargaretB. Sowles, ,wif,f of Edward A.Sowlesi'and:thaUhe other was satisfied down to $290.30, ' No question is now made May, 22, 1888, ,by forecloEiuro in respect to! the: mtter.; j Margaret B.,Smvles has been made a ('reditor: oftlbe;:l:iarikfor:t:heiamountpi',these.Securities,bya decree of this court.. 39 Fed. Rep·. 403, 40 }i'od. Rep. 413. ,i This decreewasdl1; evidence be-" fore the master. The question whE"ther it shows failure of satisfaction of the debt to which her .. is raised. As between her and the bank, represented by the orator, It does so show conclusivelYj but these defEmdants were not parties to that suit, un(l are not bound by that decree. To show id,tliis ·Sllit·thut'so:niUch'6[ the debt was in fact paid by those securities, and the damages mitigated oothat extent. was open to them. fothiitis'in this what was taken by ..hill}. It is ( fetufned' \dth 'repol't.aWL.:ls;soillewbirfdilferentfromthatin her cllse. ,diicree is' urged,
it.:',.,
"
".'
.,
.
,of paper charged were the sallie to wHom a diVidend of 10 per·,eent. on the. stock .and .in the saIne' Jont dl The case a,lso shows clearly and indisputably that, aJthough the Lank then had an apparent surpluil of $55,948, its bad paper reckoned to make up th,is dh'iden,q would Wipe otitmore surplus and as a foundation lor than all its capital 'It' belobge(No its depoSitors and other creditors, and hadr-nothintt',1o 'divideurhi()hg itlt shilreholUerS.The dh'idendcould notbe law,fully dE"clared or pajd, but paper was taken t6'(pbf'invitn. r:'In'effect',"1hEFs!ltlrehdld-er8, gavetheit,sper'out of the assets' of' 'the 'bftYfk' ·to :Ed A'. :Sowlesj 'it 'wlis riot paid 'fhe statute'. i thcis0 d<mdllnts i ho]t1l6rI'.for :tlie: damageS, in cousequence of thiE! .
-\1Illawfur'lbm;'nptbnly't6 ;tho"bank !aiid it."! 's:ha.reliolder13,but, ttdlny JotherpetSotHJ Section::5239. asreceiV'er"representelf tlb'e ahd (creditors; The ,question is not one Of discharging sure'ties" norolliability for declaring the:diviJend, but whether; the bank '88 such in"itsentiretygot hack any part of the money so unlawfully lent to Edward A., Sowles, or its equivalent. Olearly it did not. The mit were not, by this transaction, lit'8111essened or mitigMed. ,The report js to be taken as it is applicable to' the case as otherwise ;made. ' In: connection with these plain facts aheady in the case; it shows tht11osstol the bank, a:s'represented by the orator, in consequenoo :ofthis .excessivlolloan,to have been the amount 'oBhat paper at the tiine ,when it:wagi-etiredjwhi:eh was $10 1000, with interest to now,whicbis $290;30 reported by the'master, with interest 1888,whiahis el»'04,-in"allj$14j875;34; As,these fll.O'ts,outsideof the 'report, appear from the case, mride from the :evidence rberore ltIlE! master, the correction of the' amount reported should be made ,without sending the back, to the master. . Kel.se'!lv. Hobby, 16 Pet. 26{1FParks,v.B()()t'h, 102 U.S: 96. EfCceptions overruled, report: ae.. ,oopted':and"oonfirnted, a.nd! dectee thereupon, and upon the pleadings ,andproot&, tHat the defendants·Albert SowlesRlld Burton do pay,to the oratot.$14 j 875.34 j with and that the bill be dismisse<i. as to the other defendauts,without costs. ' . .
.,;'
DUDEN 1/. ttlAL()Y,
S. D. Ne:w Ywk. ,,l'ull414, 1,81lO.) . 1. 'tllat. since the filing, of tba :report, a state having jurisdicJ;ioD bas, in an t.he to real estate, decidtld ,that it was partnership property, tpis will beconcluslve, 'though the master has'found to the contrary. t,; 1N'1'ERES'1'--tJ sttn; :A New¥ork ll'rm" having whicb to ,buy, entered into an agreemenUn Be.lgium, with a Brussels firm, by which thelatte,r agreed tosbip goods to the N,ev/York firm" on the ex,press conditio,,n ',tli,'at, in additi,on to th,e, iilV,aice price,' they should receive 7 per int.erestfrom,the dl!ote of invoice. :a,e/d. t-hatas , tlle Belgium. law allowed an?: stipUlated rl!ote of.interes.t"and as this was rather a mode of':ftXmg the share of the BrusselsD.rm '11l the 'JOint venture; there was no usury agree,menl;. , .
Jb.s, Ql!' ,STATE COURT. . , ' "" .' , Wliere, on exceptions to a master's report in a partnersbip BOCOunting, ittippears
In Equity.' On exceptions to master's report" , BilFby Herman Duden against ,Michael F. Maloy for an accounting of thepll.rtnel'ship ,affail'sof the finn of Duden & Co. For motion to make :theAssociated Lace-Makers'Company thesuitJ',see37 ,,Fedr. :Rep. 9.8., " '; i ," Howa1!d Y. StiUman, ,< ,1,:J.M·.hydrltyifor: defendaaL": '" .,',;:, ,; . '0;,' "