884 '"I'
FEDERAL REPORTER,
vol. BROWN
EPISCOPAL CITY MISSION
et al v.
et,al.
(OirlYUit OO'Urt, N. D. Imnof.s. July 31,1890.) ,
L
I. 'SAME-BILL
Plaintlfr sell to defendant property subject to a mortgage wbicb defend. ant was to 'assume. Afterwards defendant requested plaintifr, to convey to defend, ant's wife, which he did on defendant's giving a bond guarantying payment of the mortgage by defendant's wife. The mortgage was foreclosed,'a'Ud the deficiency exceeded tl:ie,amount of the guaranty bond executed by defendant. On a bill to en· force payment of the defloienoy, testified that the bond was given be. cause 'had agreed' to assume the mortgage, audthat, jf the property was con· veyedto, his wife, he (defendant) would not be carrying out his· o.ontract. Plaintiff be took a l;lOna because he was "deeding to, a straw grantee,", and tpat the am6unt of the bond was1Ued "as a sort of balance between us in our' liabilities." There was no evidence of any fraud or false statements by defendant to plaintifrto oonveyto ,defendant's wife, or of any statement thatsbe would was aoting as agent for his wife.' Held, , aSBumetbe mortgage, Or that " tbat defendant's wife WRssubstltuted as grantee by consent,and tbat defendant, _ ' could not be beld liable for the entire delloiency. ' , The bond was oonditiohed to indemnify plaintiff against any 109S by reason of a' failure of ,his grantee (defendant's wife), to pay the mortgage on property con-,' to tbe amount of mortgage asveyed to ber byplaintl.!'f to an amount 8umedby plaintiff. Plamtiff,made defaUlt 1n the payment of the mortgage so assumed, by him, and it was discharged b'y defendant. Held" that. a bill by plaintiff and his mortgagee, to whcm he had assigned the bond to enforce payment of a defioiency arising on foreclosure of the mortgage on the prcperty oonveyed to defendant's wife, would be dismissed, since there was no proof that 1>laintiff had paid anything on the mortgage, and defendant's liability on the bond was oanoeled by his payment of the mortgage assumed by plaintifr. ' , ,
AsSVM1'TION OJ' MOl\TGAGE-SUllSTITOTION 011 TnnmPERsoN.
TO ENFORCB-SUlIFICiENCY.
'
8.
S.lJI,-"PAYMENT-STOOXS.
Tbe tact tbat pll'intiff paid with stooks the mortgE'ge which defendant hE'd as8umed will not preventplalntifr from setting ofr against the bond the full amount of luoh mortgage, and defendant oannot, in such case, inquire 1ntot4e actual value of luch stocks. ." .
In George Burry, for complainants. Osborne &: Lynde, for defendants. The };lill in this case,seekf:! to enforce payment of deficiencies remaining unpaid on two mprtgages of $19,500 each, given by George W. Meserve totheEpiscopalCityMission of the city of Boston, OIl March 1,1877, oJ;lce,rtain 10tEi lnthe city of property cOWlred by the ml;lrtgages haying been conveyed by Meserve to the defendant LucyT. Brown, wife of th(l defendant John B. Brown, with a elaPse in the deed of conveyance by which the grantee assumed and ag:t:eed to,pa.y.themortgages in question, !loud said mortgages having been .now in controversy. The facts as fpreclosed, lea,ving fj:0lll thaJ about day of January, 1877, Meserve, by a contract in writing, agreed to sell to defendant John B. Brown, lots 2 and 3, on Purchase street, in the city sub· ject to. a mortgage on each lot to the complainant the Episcopal City Mission, for $19,500, which mortgage Brown was to assume and pay, and Brown was to pay Meserve, in part, by conveying to him certain lots and lands in and about the city of Chicago, upon which.there were
j
EPISCOPAL CITY MISSION V. BROWN. , . 'I, r _ _ . ' .
.
-
'-""."
835
ihcumbrancel:l to theamQ)lnt of something which Meserve 'Vas to assume, and pay. 'Iri the early part of. March, 1877, the parties were ready to exchange deeds, when Brown requested Meserve to make the deed of the Eoston,property to his wife, the defendant Lucy T. Brown. Meserve hesitated about complying with this request, On the ground that he knew nothing of Mrs. Brown's pecuniary responsibility, and did not know that her agreement to pay the mortgages upon the Boston lots' would be a sufficient guaranty to him that they would be paid. To, obviate this objection, Brown proposed to give his individual bond to Meserve, by which he should guaranty the performance of Mrs. Brown's assumption of the mortgage indebtedness. This proposition was satisfactory to Meserve, and separate <leeds were'made to Mrs: Brown for each of the Boston lots,each of which contained an assumption clause, as follows: "And this conveyance is now made subject to a mortgl;lgeon said store, (or $19,500, made by me to said Episcopal City Mission, which mortgage, with all interest thereon, said Lucy 1'. Brown hereby "ssumes "nd agrees to pay, and to protect and save harmless the said grantor therefrom. And in the, deed of Brown to Meserve of the Chicago property a simi. lar clause was inserted, by which Meserve assumed and agreed to pay, as his own debt, as a part of the purchase price, the illc,umbrances on said property, and save and keep Brown harmless therefrom. The bond given by to Meserve was in the following language: "Know all men by these presents, that I, John B. Brown, am holden and stand firmly bound unto Gl'orge W. Meserve in the sum of $10,000, to the payment of which to the said Meserve and his executors, administrators, or assigns I hereby bind myself, my heirs, executors, and administrators. The condition of the above obligation is such that, whereas, the said George W. Meserve did by deed dated March 1, 1l:l77,convey to Lucy T. Brown, two separate estates on Purchase street, Boston, Mass., each estate being subject to . a mortgage of $19,500, at 61 per cent. interest, to tbe Episcopal City Mission, of even date with said deed, which said mortgage, and interest thereon, said Lucy T. Brown ,assumes and agrees to pay and hold the said Meserve harmless therefrom. Now, therefore, if the said Lucy T. Brown shall perform the obligations of said deed as thl'rein expressed, and savethe said Meserve less, then this obligation shall be void; otherwise it shall remain in full force and Virtue, only to the extent, however, that said Meserve suffers harm."
It is conceded that in the fall of 1877 default was made in the payment of the interest upon the Boston property, and that thereupon the Episcopal City Mission entered into possession thereof, and continued in such possession for several years, collecting and retaining the rents; and in the spring of 1884, they proqeeded to foreclose the said mortgages, and sell the mortgaged property, the result of,which foreclosure and sale was to leave a deficiency on lot 3 of $10,574.71', and en lot 4 of $10,074.71, which are the deficiencies now sought to be recovered. It is also conceded that Meserve made default in the payment of the iridebtedntlss ,secured upon the Chicago property, and that Brown was compelled to 'pay and settle the same. The proof also shows without dispute that Mrs. Brown was not consulted in regard to having the deed
836
vol. 43.
of the Boston property made to her, and that she never consented to the taking of said deed, nor to the assumption of the said mortgage indebtedness; that in fact, while' she was informed, soon after the deeds were made, that they ran to her, instead of her husband, she was'not informed that the deeds contaiQ any assumption of the mortgages in question d untilnbout the time this suit was commenced, in December, 1886, and upon these facts thecQunsel for the'Episcopal City Mission concedes that no case for a recovery is made against Mrs. Brown,-a view in which I fully cOncur. Thecomplainarit the Episcopal City Mission, however, claims-First, to· hold Brown liable for the full amount of this deficiency, because he .fraudulently used tqename or' his wife as grantee in these two deeds Without authority, and thereby made himself personally responsible for the amount of the' indebtedness which he, without authority, caused Mrs. Brown to assume; second, that, if not liable for the full amount of such deficiencies, bels, liable to the full amount of the guaranty bond which Meserve has transferred to the complainant the Episcopal City Mission. The proof in the case clearly shows that while, in the inception of the transaction, it was agreed that the conveyance by Meserve of the BOston property was to be made to Brown, yet, when the deeds came to be exchanged between the parties, Brown requested that the deed pe made to Mrs. Brown, and Meserve acceded to this request upon Brown's giving him the indemnity bond which I have quoted. The reason for giving this bond is given by Mr; Brown in his testimony, in substance, as follows: "Bythe contract, I had agreed to, assume the mortgages 'upon these stores to the amount of $19,500 each, and the objection was made. that, if the property was deeded to. Mrs. Brown, I should not be carrying out my contract, and there!ore'herequired tbebond·. I recognized the claim,and agreed to give my bond to meet,tbat responsfbUity. We agreed upon five thousand at nrst, but, later, Mr. Meserye raised the question that, as this bond, was to stanqin lieu of theobligation in tha deed, it should be for $10,000. This was agreed to, and a bond for that amount was given. ';rhe deeds were d.elivered at the time.! deliverel1 the bond, I delivered Mr. Meserve my deed ot'the Ohicago property.aD.d Iby bond .for $10,000, and received from him the two dee(ls stol'es at the same time." .
And Meserve in his testimony says: "The reasons or circu'rilstances leading to the making of the bond were to hold me harmless against possible l<)ss on those notes. The facts and circumstances which led to the fixing of the amount of the bond were to make Mr. Brown's liability equal til $yown. I had assumed rbout$10.000 in Chicago. My feeling was that he had assumed $39,000 here. and there could not possi. bly be a loss to. that extent, if any. I did not feel that there would be. I recollect it now as a sort,ofbalance between us in our liabilities.. I knew my mortgages to 'be "'eli-seCUred mercantile property, that could not depreciate to any great extent; his were secured by vacant lots. I took a bond because I was deeding to a straw grantee,-somebody that I dill not know. I did not milan to make the bond the whole amount of· the difference. because I knew there could· be no possible way o!making my security worthless in three . ... . .. .
EPISCOPAL CITY MISSION V. BROWN.
837
'this testimony, together with other quotations which might be made from the record, show, I think, conclusively that Meserve consented to the substitution of Mrs. Brown as grantee in his deed of the Boston erty, without any regard to her responsibility upon the assumption clauses in the deeds, relying wholly upon the indemnity bond of Mr. Brown to secure him against loss as the mortgagor of the Boston property. I do not mean by this that Mrs. Brown would have been wholly released from liability on these assumption clauses if she had been a consenting party thereto, but that Meserve looked only to Brown's bond for his indemnity, and made no -Juestion either as to Mrs. Brown's solvency or as to whether she knew anything about the deed to her and its obligations, or not, and that taking the bond by Meserve shows that he was not imposed upon. There is no proof that there was any fraud or false statement made by Brown to Meserve to induce him to make the deeds to Mrs. Brown. No statement to the effect that Mrs. Brown had consented to take the title and assume the mortgnge indebtedness, or that he, as her agent, had authority to bind her in any way in the assumption of the mortgage indebtedness. Meserve only insisted upon the $10," 000 individual bond of Brown to protect him against the mortgages he had given the Episcopal City Mission,' and which, by the terms of the deeds, Mrs. Brown had assumed. Meserve was not imposed upon by any statement, express or implied, that Mrs. Brown was or was not a consenting party to the transaction; but Meserve, upon Brown's agreeing to give the bond, consented to the substitution of Mrs. Brown as the grantee, relying solely upon Brown's bond, knowing, as he says i l his testimony, that he was deeding the property to a "straw grantee." I see no reason why these parties had not an unquestionable right to make this substitution, and, if Meserve consented to it, it is binding on him and all claiming under him. This being, in my estimation, a clear case of substitution by consent, with no question on the part of Meserve of Brown's right to ask such substitution, I do not think that any such case of imposition upon Meserve is made out as entitles the complainant or Meserve to invoke the principle that, where an agent pretends to act for a principal without authority, even without fraud, he is himself liable as principal, 'as there is no proof that Brown pretended to have any authority to act for Mrs. Brown in the matter. .The proof shows, and it is conceded, that before the commencement o( this suHMeserve had transferred the indemnity bond given him by Brown to the Episcopal City Mission, and fully consented that the mis>sion might enforce whatever rights he (Meserve) had as against Brown. No question, therefore, arises in the case as to the right of the Episcopal City Mission to enforce by this suit whatever rights Meserve had under the bond as against Brown. Copious citations of authorities in regard to the right of a mortgagee to enforce an agreement on the part of the grantee of a mortgagor to pay the mortgage debt have been made; but I think all the questions that arise in this case are substantially settled in the late case of Keller v. Ashford, reported in 133 U. S. 610, 10 Sup. Ct. Rep. 494. It is there decided, in substanc.e, that the mortgagee
',FEDERAL REPORTER ,
vol. 43·.
av.aitJii.mself of any undertakings made with the mortgagor fol'the ,payment'of the mortgage indebtedness, to the extent that the mortgagor l;llightenforce such undertaking. Applying this rule to this case, then, ·the-question is, what rights could Meserve have enforced against John B: Brown, upon this bond?: It is admitted that the transaction between Meserve and Brown was, in effect, an exchange of property, in which each"party assumed topay.certain debts or obligations of the other. And it is also admitted that, Meserve made default in his undertaking, and that Brown was compelled to pay.and settle, and has paid and settled; 'the incumbrances upon the: Chicago property which Meserve as, sumed to pay.' It is equally clear that Brown would be entitled, in an :aation by Meserve him upon this bond, to set off any payments which he had been compelled to make upon the incumbrances on this :Chioago property whioh Meserve assumed' and has failed to pay, and which Brown has since paid or remains liable therefor. The proof shows ·thatBrown's payments in cash, or what was accepted as cash from him, upon the incumbrances on this Chicago property, amount, with interest, to $9,122;63. It is true that Brown testifies that, while some of this in·· debtedness which Meserve assumed still remains uncanceled, yet he has .made such arrangements with the holders, by agreements for the payment of other indebtedness, that he expects these debts so assumed by Meserve will alLbe canceled,so that Meserve will be relieved from payment. This, in my opinion, fully cancels, by right of recoupment, all claims Meserve would have against Browll on the bond, and hence cancels all olaimS of the complainant therein. It is urged that Brown paid sume portion of this indebtedness with stocks and bonds, and that the complainant has the right to inquire into the value of those stOCKS and bonds. I do not think this position in any sense tenable. The defundant John B. Brown had the right to settle with his creditors in any way that he saw fit, and pay them either in property or. money. so long as he retired and liquidated his indebtedness. I do not therefore see that Meserve would have any right of recov.ery against Brown upon this bond, as, by the express terms of the bond, he is only to be liable to the extent that Meserve sustains harm, and, so far as the proof shows, Meserve ha$ sustaiJ?ed no harin, as he has not paid a penny on the mortgage indebtedness which Mrs. Brown assumed, and if he has no right, certainly the Episcopal City Mission, in whose behalf this suit is prosecuted, can have no such right. The bill is therefore dismissed for want Qf equhy. .
CASE II.
839
CASE t1.
LoFTus.
(CXrcuUOO1llrt, D. OregOn. November 8, 1890.) CoNSTlTUTJOlUL LAW-TITLB OF ACT.
The clause in section 8 of the act of 1885, purporting to the tide-land on Yaquina bay, in front of lot 4, to the town of Newport is void, because the 8ubject is not "expressed" in the title, as required by said section 20. (Syl/,abu8 b'lJ the Oourt.)
In Equity. Mr. Jamea F. 'Watson, for plaintiff; Mr. Lewis L. McA1'thur, for defendant. DEADY, J. This suit is brought to have the defendantrestrained from constructing and maintaining a tramway along the northern shore of Yaquina bay, near its mouth, in front of certain property belonging to the plaintiff, whereby access to the water from said property is hindered and prevented. The property in question is lot 4 of section 8, in township 11 south, of range 11 west, for which the plaintiff obtained a patent from the United States on November 1, 1875. ' The case was before the court on a demurrer to the bill, (39 Fed. Rep. 730,) when it was held, on overruling the same: (1)" On the admission of a new state into the Union, the' shore' or tide-land therein, notdisposed of by the United States, prior thereto, becomes the property oUhe state;" and (2) "the owner of land abutting on the 'shore' or tide-land in thi8state, and not disposed of by the United States or the state, has a right of access from his land to the water, and may erect and maintain a private wharf there for his own convenience, so long as he does not materially interfere with the rights of the general pnblic, and subject to the power of the legislature to regulate such use." The defendant then answered, and the plaintiff filed the general replication. Testimony was taken, and the case submitted after a view of the premises by the court. The material facts, about which there is very little if any dispute, are as follows: . ' At the time of filing the bill, the United States, through its proper pfficers, was engaged in improving the mouth of Yaquina bay, by the construction of a jetty, in pursuance of an act of congress, and, for the purpose of transporting stone to said jetty, the defendant constructedthe tramway, as alleged, under the direction of the 'engineer officer incharga of the work; that on February 5,1885 1 the tide-land in question was owned by the state of Oregon, and on that day the legislature of_the state passed an act, granting the same to the'town of Newport "for the common benefit" thereof, with power to lease the same for any period of not more than 30 years; that on July 12, 1887, the common counoil of Newport passed an ordin!tnce, in pursuance of which the in front of said lot 4 was, on November 9, 1888, leased to the engineer of-
840
ficer in charge of the construction of said jetty for the period of three years. . The tramway rests on heavy piles, thoroughly braced, and is about the line of low-water mark. It is about 8 feet wide, and 15 feet high. Owing to the check which the tide receives in passing through the timbers of the tramway, the sand in the water is deposited, and the space tll'ereunder, and back to high-water mark, is being filed up. The plaintiff's property, onw,hich he maintains a public house for the accommodation of travelers and visitors to the bay, extends 1,100 feet on the shore line, and this tramway extends clear across it, and is altogether impassable by boats; but there are two openings under the same, opposite the plaintiff's property, through which a wagon can be driven. Back of the tramway, about 30 feet, and at the foot of the bluff and stairway leading down from the plaintiff's house to the shore, is a bulkhead 'or pier at which he was in the habit of landing and fastening his boats coming in from the,bay with goods or travelers. This is now inMcessible>by boats, both on account of the structure of the tramway, and the deposit of sand caused thereby. On the law of the case, as laid down in the decision on the demurrer, tbis structure is clearly a purpresture or obstruction 'to the plaintiff's right, as Q littoral proprietor, to have access to and from the water over this shore, unless the defendant or the United States,under which he is acting, has succeeded, by means of the lease trom the town of Newport, toa11 the rights of the state in the premises; that is, the jus publicum, or the right of the public to use the same for the purpose of navigation or fishing, and the jua privatum, or the private property in the land.. These rights, it is claimed, were acquired by,the town from the state under section 3 of the actof February 5, 1885, (Sess. Laws, 5.) On theotherrhand, it is contended that so much of this section as purports to grant this tide-land to the town of Newport relates to a subject not in the title of the act, and, therefore, under section 20 of article 4 o( th'e constitution, is illegal and void.; , By its title, the act purports to be amendatory ofan act, October 24, 1874, (Sess. Laws, 51,) providing "for the construction of the Willamette Valley & Coast Railway," as amended by the act of October 14, 1878, (Sess. Laws, 3,) and confirm the rights of said railway company under the said acts. There is nothing in the title of this act which in any way expresses or even suggests that it contains a grant of any land to the town of Newport, nor is the subject of such grant provided for or even alluded to in the act of 1874, or that of 1878, amendatory ofthe same. Section 2 of the act extends the time within which the company may complete its road, and section 3 confirms thereto the grant made inthe acts of 1874 and 1878 of certain tide and marsh and other lands, and waives all rights reserved to the state under the same, with a proviso that "the tide and overflowed lands in and adjoining" the town of Newport "are exempted from the operation" of these acts.
to
CASE
v.
LOFTUS.
841
In section 3 these lands are described, among others, as lying "in front of lot 4" aforesaid; and the section then further provides that the same
Clare hereby granted" to said town "for the common benefit" thereof, Cl with power to lease the same fora period not to exceed thirty years at a time." The constitution (section 20, art. 4) declares that an act of the legislature shall be void, so far as the subject thereof is not" expressed" in the title, and it is the bounden duty of courts, whenever the occasion arises, to give it effect. In the nature of things, it is more than likely that this act was passed without the legislature being. aware that this clause was in it. To prevent just such exploits this provision was placed in the constitution, and it should not be made naught or frittered away in deference to the acts of ignorant or indolent legislators. .' As I have said, there is nothing in the title of the act of 1874, or in that of the prior amendatory one of 1878, that indicates that the subject of a grant of tide-lands to the town of Newport was mentioned or.provided for therein, so the case does not come within State v. Phenline; 16 Or. 109, 17 Pac. Rep. 572, wherein it is held that if the subject of'ari. act is expressed in the title-as pilotage on a certain water-an act amendatory of the same need not express the subject thereof in its title. In other words, an act amendatory of another, which relates to pilotage, purports, prima facie, to relate to the same subject, which therefore need not be otherwise expressed in its title. But if such amendatory act also contains a provision relating to any other subject, as a grant of tide-land to the town of Newport, it will be so far void. unless the same is pressed in the title. n is suggested on behalf of the defendant that the town of N port has authority over the tide-land in front of the town, by virtue of. sections 4227. and 4228 of the Compilation of 1887, regulating wharves in incorporated towns. These sections are simply intended to give the municipal corpuration power to limit the extension of wharves on gable waters beyond low-water mark, and do not pretend to give the town any interest in or control over the shore between high and low watel) mark. The plaintiff is entitled to the relief prayed for in the bill,-;-,an'injunc." tion commanding the defendant to remove the tramway. and restraining him from renewing the same or otherwise obstructing the passage of the plaintiff over the shore to and from his property between high and low, water mark. On the argument counsel for the plaintiff conceded that, in view ,of, the public importance of the completion of the jetty, for which the trani,i way, was constructed and is now used, the injunction need.not issue until the completion of the jetty, and not exceeding the period of three years from the date of this decree. the decree of the court will be that the tramway in front of the plail).tiff's property, to-wit, lot 4 aforesaid, is an ul1lawfulobstruction and injury to the right of the plaintiff to have free accesS! to and from'
.842
·yol. 43.
the water, loYerand across the .shore in 'front of sald;,property', and: that the town of Newport has no right to lease said shore to"1any nor to maintain ot authorize said tramway thereon, and thatanil.1jnnction may issue 8:s pril.yed·for in the bill, on motion of the plaintiff or his assigns, on the completion of the jetty or the expiration of three years from this date,· and that ,the, plaintiff recover from the defendant his. costa and expenses hereiusustained.
STEPHENS "'. FOLLETT 1
et ,,'
(Cirowtt Oourt, I D· .lI{wmesow. October 18,..1890.) L NJ.TlOIUL BAmtlI-INDIVIDt'AL LIJ.BILITY OF SHARBHoLD:BR8. '; .. Olle who .subscribes and JIllya specified numQe.J:'iof sl1"resof" "proposed 'increase" of the capitltl stock of a.n!ltional bank, whiohincrea.se IS1n fact never ; :;;' iSsUed, and to whom the bankofllOials transfer, iQste9.d, ola' stock of! the bank witbout hislo!owledge or consent is not a "shareholder" within of Rev. .St: U. 8. 55151, imposing individual liability on the shareholder8 for the debts of !. national banks.. .) ," . I
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1:'. IIhares'80transferrea. ". :.\ ·..
The f8.0t that the. :b, . : '<'.:
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of
!lew shar.esrepelvest !llvtdend, on the old to him does' not estop him from den.nl1:!rbliliability as a 8uch· dividend wall' receIved In the belletthat it Willi. paid to his sub8l?riptiop to the new stock. . ' , ' , ' '. ,:' '"
,At Law. " , . suit WRStried by the cotirt, a stipulation wamng'ajury being:filed. 1.l'he action'is brought to recover an assessment made, by the comptroller of the currency on the stockholderEi ofthe Fifth National Bank otthe. city of St. Louis, which went into liquidation November 1887,and'ohvhich the .' The assessmerit was 100 per cent. of the par 'valueofthe shates! 'The complaint alleges that Stephen A. Gardner held and. was the owner of 241 shares of the capital stock of -said bank; of the par value of $100 each, amounting to $24,100, and that l:1BidGardner died testate March 11,1889, ahd that the defendants'are the dulY'''qualified executors of his last will and and that by reason thereof the' plaintiff is entitleJtorecover $24,100, with intercst from June 22, 1889..' The defendants admit that G:ar,dJler owned 115 shares ofthe stock,butdenythat he owned any mote; arid further, in substance, set up, that if any other or greater amount than 115 shares 'stands in his name' on the books, the entries thereof are fraudulellt and uninithorized, andnnknown.tosaid Gardner until after the failure of the bank and the appointment of a receiver. T!le fopowing facts are stipulated,and the evidence of the receiver and'othel:''lVitriesses intro'daced do not change them. The .receiver testifies that ·when he took' charge of the bank he found. Gardnerl a of the proposed increase of the capit.al stock, but he nev'erregarded him'as a'subscriber to the new stock, and the books of the bank do not show that he receivedllew stock. :.Thefollowing are the findings dffaCt and conclusions .. ' . . ""This; cause, being for:trlai at the general. I:
T'
of:thiS.cOU1"t sitting at St. Paul, MlnnesQta,comlllenclng-on' the '9th daf of