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extended credit at all, it was credit not to the Chesapeake and Ohio Railroad Company, but to the officers then in charge of its franchises, rights of property, &c. The Chesapeake and Ohio Railroad Company had been then so long in default that the right of the bondholders to claim possession was fully consummate, and this was a matter of common notoriety. It could not be expected that the employees all along the track of this road should pause amidst their unceasing round of daily duty to inquire whether the bondholders had or had not asserted their rights and assumed control. It was enough for them to know that the service they were rendering was such service as any proprietor would necessarily require, and they had a right to believe that the officers left in notorious occupancy of the property, and charged before the public with the responsibility of its care and custody, were abundantly authorized to act for all whom it might concern in contracting for their services.
The same principle will run through all the gradations of employment in this great corporation. These employees of every grade and dignity had every right to believe, that so long as the bondholders stood aloof without asserting their rights to possession, they were willing to accept and regard pro tanto as their agents for the preservation and protection of the property, the officers who, placed in charge thereof by their defaulting creditor, could not in good faith to the creditor or the debtor abandon their posts, or be derelict wbile they held them, to the trusts which they imposed.
These bondholders are now in a court of equity seeking satisfaction of their claims against the railroad company. They have a right to be satisfied to the extent of an entire forfeiture of all the proprietary rights of the company; but to concede to them, in enforcing such forfeiture, a right to repudiate all responsibility to satisfy these highly meritorious claims of employees, &c., out of the property or its future earnings, would be grossly inconsistent with plain equity. In this forum they must be held to be estopped from denying the authority of the officers of the company under the circumstances, as agents for themselves as well as other parties in interest, to have incurred such liability.
A recent decision of the Court of Appeals of Kentucky, in a somewhat similar case, of Douglas, fc., v. Cline, gc., of which I have been furnished by counsel with a newspaper report, fully sustains these views.
It seems to me, therefore, very clear that these claims must be recognised as properly chargeable upon the trust fund. The complainants and the defendants, trustees under the seven per cent. mortgage of the Chesapeake and Olio Raiload Company, concur with the receiver in advising the payment of these clains. The lolders of bonds secured under the mortgages of the Chesapeake and Ohio Railroad Company, all of whom they represent, are the only parties who can be ultimately affected by such payment, and I am happy to have their assent to the entry of an order which, in despite of all their opposition, must have been entered, authorizing and requiring the receiver, as promptly as practicable, to satisfy these claims.
ABSTRACTS OF RECENT AMERICAN DECISIONS,
SUPREME COURT OF ILLINOIS."
SUPREME COURT OF MICHIGAN.'
ATTORNEY. Parties in Pari Delicto— Different degrees of Guilt as between the Parties to a Fraudulent Transaction- Relution of Attorney and Client existing between Parties in Puri Delicto.—There may be different degrees of guilt as between the parties to a fraudulent or illegal transaction ; anlif one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court, in such case, will relieve : Roman v. Mali, 42 Md.
Where the parties to a fraudulent or illegal transaction are in pari delicto, the simple fact, that at the time of such transaction, the relation of client and attorney exists between them, will give the former no claim to the aid of a court of equity to have restored to him the property of which the latter has become possessed by their joint fraud. Such relation alone will not except the case from the general rule, in pari delicto potior est conditio possidentis, aut defendentis : Ia.
1 From Hon. N. I. Freeman, Reporter ; to appear in 77 Illinois Reports. The Reporter having determined to publish the latest decisions at once and bring up the others afterwards, there will be a temporary gap from vols. 68 to 76, which will be filled hereafter.
2 From J. Shaaf Stockett, Esq., Reporter ; to appear in 42 Maryland Rep.
3 From Hoyt Post, Esq., Reporter, and Henry A. Chaney, Esq. Cases decided at January Term 1876. The volume in which they will be reported cannot yet be indicated.
* From P. Frazer Smith, Esq., Reporter ; to appear in 78 Pa. State Reports.
An attorney is under no actual incapacity to deal with or purchase from his client. All that can be required is, that there has been no abuse of the confidence reposed; do imposition or undue influence practiscd, nor any unconscionable advantage taken by the attorney of the client. When a transaction between parties occupying such relation to each other is brought in question, the onus of the case is cast upon the attorney of showing that nothing has happened in the course of the dealing which might not have happened had no such connection subsisted, and that the transaction has been fair in all respects. If the court be satisfied that the party holding the relation of client performed the act or entered into the transaction voluntarily, deliberately and advisedly, knowing its nature and effect, and that no concealment or undue means were used to obtain his consent to what was done, the transaction will be maintained : Id. "He who comes into equity must come with clean hands; and if a party seek to cancel or set aside an instrument, or be relieved of a transaction, or recover property, on the ground of fraud, and he himself has been guilty of a wilful participation in the fraud, equity will not interpose in his behalf : ld.
BANKRUPTCY. Recording Assignment of Landl
- Assignce's Sale.-An assignment of a bankrupt's land by a register to an assignee in bankruptcy, pot acknowledged or proved as required by the laws of Pennsylvania, cannot be recorded in that state : Zeigler v. Shomo, 78 Penna.
From the cominencement of proceedings in bankruptcy the estate of the bankrupt is in the custody of the District Court of the United States; its jurisdiction is superior and conclusive and its decrees final and absolute : Id.
A purchaser at an assignee's sale of a bankrupt's property under an order of the District Court and decree confirming it, is not bound to see that every particular in the appointment and qualification of the assignee has been complied with ; he takes whatever title was in the bankrupt : la
Land was sold as a baukrupt's; in ejectment against him by the purchaser, he defended on the ground that the right of possession was in his wife when the writ was served. If the wife had no title, her pos. session was that of her husband and the defence could not be sustained : Id.
COLLATERAL SECURITY. See Debtor and Creditor.
COMMON CARRIER. See Contruct.
ConstitUTIONAL LAW. Presumption as to Passage of Laws — Where a law is signed by the speakers of both houses, and approved by the governor; it will be presumed to have been passed in conformity with all the requirements of the Constitution, and to be valid, until the presumption is overcome by legitimate proof, clear and convincing in its character: Larrison v. Peoria, Atlanta & Decatur Railroad Co., 77 III.
CONTRACT. See Attorney; Equity; Injunction. Construction of Bill of Lading-Liability of Common Carriers limited by Special Contract —However terms may be understood in their ordinary sense, if the parties have attached other, or unusual, or arbitrary meaning to them to be derived from their fair interpretation in the contract, they have the right so to employ them. But to accomplish such purpose and to vary the common understanding, the meaning ought to be plain and free from reasonable doubt : McCoy v. Erie & Western Transportation Co., 42 Md.
The plaintiffs sued the defendants, who were common carriers, for damages sustained by the alleged negligence of the defendants in transporting a cargo of corn, consigned to the plaintiffs, from Chicago to Baltimore. The bill of lading was a printed form with the blanks filled up, in which was stated “ Received ** of * * the following packages (contents unknown), in apparent good condition : Marks ** * articles : 25,000 bus. 25,000 bus. No. 2, Corn Pro. Philadelphia. Marked and numbered as per margin, to be transported by the Anchor Line, * * on the following terms and conditions, viz. : ** * It is further agreed that the Anchor Line, and the steamboats, railroads and forwarding lines with which it connects, shall not be held accountable for any damage or deficiency in packages, after the same shall have been receipted for in good order by consignees, or their agents, at or by the next carrier beyond the point to which this bill of lading contracts. * * * It is further stipulated and agreed that in case of any loss, detriment or damage done to or sustained by any of the property herein receipted for, during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment or damage. *** And it is further agreed, that the amount of the loss or damage so accruing, so far as it shall fall upon the carriers above described, shall be computed at the value or cost of said goods or property, at the place and time of shipment under this bill of lading,” &c. Evidence was offered at the trial tending to show that the corn was receipted for, " in good order," by the consignees' agents at Baltimore : Held,
1. That it was intended by the exemption clause in the bill of lading, to protect the defendant from any damage or deficiency in any package where the contents were unknown, after the same had been receipted for in good order; but that it was not intended to be applied to the * corn” in question, and did not admit of such meaning.
2. That common carriers may by special contract limit their liability as recognised by the common law, where there seems to be reason and justice to sustain their exemption. But where such is the case it ought to be by clear and distinct terms.
3. That if it were the design of the defendant that said clause of exemption should apply to "corn,” it was not expressed with sufficient clearness to preclude the plaintiffs from a recovery.
4. That under the clause in the bill of lading-which was the written contract between the parties,-prescribing the mode of estimating any loss or damage which the plaintiffs were entitled to recover by reason of the non-performance of the contract by the defendant,—there was no occasion to resort to parol explanation, or to any course of dealing between the parties to enable the jury to ascertain the extent of the damage : Įd.
See Trust. Directors-Liability for Fraud— Billby Stockholder-LachesPowers.—Where directors of a corporation have so mismanaged its affairs as to be fraudulent, a bill may be maintained against them personally by a shareholder : Watts's Appeal, 78 Penna.
A shareholder, in such case, may, under proper circumstances, interpose for the protection of the corporation : la.
The directors of a corporation for the sale of land rejected offers for the purchase of its land; although this was imprudently done, yet being a matter resting in their discretion, if without fraud, they were not responsible: Id.
The power to execute and issue bonds, contracts and other certificates of indebtedness belongs to all corporations, public and private, and is inseparable from their existence. The power to contract necessarily involves the power to create a debt: Id.
The charter of a land company gave the directors power to dispose of its land by deed or lease; the power to mortgage land on a proper occasion and for a proper debt is implied: Id.
The corporation owning a very large body of lands, had power by their charter “to aid in the development of minerals and other materials, and to promote the clearing and settlement of the country:" Heh, that the buildir.g of saw-mills and an hotel for the accommodation of those haviog husiness in connection with carrying out the prime object of ile corporation was within its powers: Id.
Even if such expenditures were ultra vires, stockholders knowing of them, and not objecting until long after their completion, could not compel the directors to account for the moneys expended: I.
When directors act honestly for what they esteem the best interests of the corporation, and do not wilfully pervert their powers, but only misjudge them, they will not be held to account for money expended in such case : Id.
When an act of directors is in excess of their authority, but done with a bonâ fide intent of benefiting the corporation, and a shareholder, knowing of it, does not dissent within a reasonable time, his assent will be presumed, and he cannot gainsay it; and when the act of the directors complained of is to be followed by a large expenditure, the shareholder should not only make his protest within a reasonable time, but should follow it up by active preventive measures : Id.
It is against good conscience that one having power to prevent should stand by and see his associates spend money which may result to his benefit, and afterwards charge them with it. His neglect to act at the proper time effectually bars his right: ld.
Six years' omission to proceed would be a bar to an action against directors for the misuse of the corporate property : Id.
The stockholders directed public sales of their lands, and that payment might be made in cash and in their bonds : Held, the payment in boods was equivalent to cash : Id.
Directors bought at the sales at fair prices, and the sales were conducted openly and fairly: Held, the sales to them were valid : Id.
Fraudulent Issue of Stock.—If the directors of a railway company gratuitously give away certificates of stock, being a major part 'thereof, to