The New York Herald Newspaper, November 29, 1848, Page 1

Importznt Financial Decision. North American Trust and Banking Company. Surnewe Covnt—In Equity—David Leavitt, re- ceiver of the North American Trust and Banking Company, vs Richard M. Blatebford, James B. Murray, John Horsley Palmer, et a/. ‘The bill in this cause was filed by Mr. Leavitt, as receiver, in April, 1842, to set aside an assignment of made by the North American Trust and ‘company in November, 1840. to secure a debt due by that company to Messrs. Palmer, Makillop, Dent & Co, bankers in London. was heard on pleadings and proofs at the m of the Supreme Court, held in this city in September last, by Justices McCoun, Hurlbut and Edwards, and was decided on the 13th of November, it. wnimous opinion of the Court was delivered by Mr. Justice Edwards, and is as follows: — ‘By the Court —Fi ,J.—Tur, Receiver or tue Noatn American Trust ano Banxina Company the aid of this Court, setting im equity, to set aside are void forty-eight promissory notes, made d_ signed by its pre: terest, payable to set aside an agreement, or trust deed, executed under th of the company, and signed by its president bier, whereby the company assigned certain bonds and mortgages in trust to seaure the promissory notes. The ground on which the plaintiff claims relief is, that the notes and deed were made executed in violation of the lews of this State, aud are void, The statutes on which he mainly relies are applicable to moneyed corporations only. The first question then to be considered is, whether the North American Trust and Banking Company. being an as- sociation organized under the act to authorize the bu- sinees of banking, passed April 18, 1838, was a corpora- tion within the letter and spirit of the statutory provi- sions referred to, ‘The numerous decisions which have been made in Teference to banking associations have established, beyond a doubt, that the company in question was 4 ion. (Warner vs. Boers, 23 Wend. 103; The Tho Assessors of Watertown, 1 Hill, GU ‘The Supervirors of Niagara vs, The People, 7 1b 50. Gifford ve Livington, 2 Denio, 380) This was not disputed on the argument. But it was contended that it was not a corporation, in every acceptation of the term, and within the the spirit aud meaning of all the general laws applicable to moneyed corporations. In the case of Warner vs Beers, which was the first adjudicated care onthe subject, it was held. and the same doctrine was reafirmed in the case of Gifferd vs. Livingaton, that banking associations under the act of 1888, although corporations, were not such withia the constitutional provision requiring the assent of two- thirds of each brauch of the legi:lature to the creating any body politic or corporate, The reason given for the decision was, that the general banking law did not secure exclusive privilegee to any particular class of citizens, which might not be enjoyed in the same manner by all others, In other words, that banking aesceiations were not monopolies—and that it ‘yas to institutions of that character that the constitutional restriction was intended to apply. This decision es- tabliches the principle that banking associations are not corporations within the meaning of the fandamen- tal lawof the State. The question then arises whether they aresuch within the meaaing of its general statu- tor: 8. ‘he acts which are invoked by the plaintiff, in sup- port of his claim to the relief sought, are. first, that which declares that “it shall not be lawful for the di- rectors of any moneyed corporation to apply any por- tion of the funds of their corporation, except surplus profits, direotly or indirectly to the purchase of shares Of its own stock.”? (1 R. 8. 589, §L sub, 5,1 And second. that which declares that ‘no con eignment ortransfr, nor any payment le, ment suffered, lien created orsecurity given by any such corporation when insolvent or in contemplation of insolvency, with theintent to give a preference to e@ny particular creditor over other creditora of the Hid inlaw.” (LR S. 791 §9, Led.) ere passed before the act of 1838, 1d on the part of the defendants that ply to corporations organized under that . in the first place, the legislature, at the time of the passage of the general banking law, intend. ed to create @ legal existence which would not bo a corporation, and believed that it bad done so—and that ‘therefore it could not hi Je licable to mon: banking associations; a1 there are some provisions contained in the act of 1838, applicable to subjects similar to those provided for in general law in reference to moneyed corporations, and that upon the principle that erpressio unius est exclusio ulteri @ correct legal inference is, that all the other provisions, not embraced in the act of 1898 mere not Intended to apply to associations under act. In reference to the first ground, although it is 2 fun- damental rule that every law must be construed ac- cording to the intention of the makers, still that in- tention is never resorted to for any fartfer purpose to aecertain what they in fact intended to do, and not forthe perere of ascertaining what they have done; or, to apply the principle to this case, we must look to the intention of the legislature to ertain what powers have been given to banking atsoclations by the general banking Iaw. But the intention of the Jegislature cannot govern in ascertaining what shall be the legal effect of such powers; neither is it to be rerorted to for the purpose of ascertaining what is the proper legal name and description of an sssociation possessing the powers granted. When the question ‘was before the Court for the Correction of Errors, there was no doubt as to the extent of the powers possessed by banking associations; the only question was as to which class of legal existences bodies with such powers properly belonged. The court decided that they were corporations; that is, that the thing which the légts- Tature intended to create, and did create, was, accord- ing to the correct legal construction, a corporation. pe the legislature which passed the general laws in company, shall be ‘There stat Teferepce to moneyed corporations. intended that = should apply to all associations which came with- description. The legislature that passed the act of 1838 did not, by any provision In that act. ox- clude arsociations created under it from the operation of the general laws It was intended then that those laws #hould be applicable to banktug associations, if, according to correct legal interpretation, they come within the meaning of moneyed corporations, As to the second ground taken by the defendants, there is no doubt that the general principles stated tho perik Rane e pty Ses oat se prin , Tt must appear srovicions, contained inthaact of 1838 are so far incon nt with the provisions of the general law, that there is a clear intention to exclude banking associations from ite ba There is nothing in the act of 1838 which is either expressly or by implication inconsis- tent with the general lew in reference to assignments by moneyed corporations; the principle laid dawn then does not appty to the provision of the statute on that subject ; but it is contended that the section of the ferer law whieh forbids the purchase of shares of its own stock, by a moneyed corporation.was intended to be superseded by the provisions of the act of 1538, which declares that “if any portion of the original cepital ofany banking association shall be withdrawn, for any purpose whatever, while any debts of the seoociation remain unsatisfied, ne dividends or profits on the shares of the capital stock of the association shall thereafter be made until the deficit of capital shall be made good ; and if it shall appear that any euch dividends have been made, it shall be the dat; of the chanedlor to make the necessary orders aa decrees for closing the affairs of the association ''— (Lowe 1838, Page 252.23) Thig provision is not in- consistent with the section above cited from the gan- eral-law, which probibite the purchase of shares of its ‘own stock by a moneyed corporation; on the contrary, it is not strictly in reference to t bjeot- fer, it ‘seems to have been intended to provide uiischief of a different character ; one law to prevent the purchase, by moneyed 30n, of sl f its own stock, except from its fwrplas funds. other was intended to provent a dividend by:a be nking association after any portion of, ita. capital stock should be withdrawn, and while nny of the debts of the assoviation remained unsatis- But to remove all doubt upon the subject. it seems to me that it is now seitled by authority, law In reference to moneyed corpor to: banking associations. In the case of Beers, it is true that it was held that bankin: tiona were not corporations within the spirit meaning of the constitation. But in all other reapects, when the question has arisen. they have been held to be.corporations. In the case of The People vs. The Assessors of tho village of Watertown, it w: by the Supreme court that they were moneyed corp rations within the meaning of the statute, which d olgres that corporation iving fromthe cap or otherwise, shall be liable tion. (1 R. 8.414, § 1, lst_ed.)_ In the case of The Supervitors of Niagara rs The People, a similar doc- trine was laid down by the Conrt for the Correction of Errors, In the matter of the Bank of Dansville, (6 Hill, 870.) in which an application was made for the summary interference of the court to ret aside an eleotion of directors by a banking association. the court eld that genorally t feranoe to mo- vod corporations apolivd anking associations, hough they held that. in that case, the general law refer the election of oMfloers of moneynd cot poratio: . 8. 698, § 47 to § 50.) could not be mada applicable to banking associations, owing to the pecu- hat character of their organization It follows, the: & conclusion, that both upon principle and authority, the statutes which have been referred to in reiation to moneyed corporations and which are relied upon by the plaintiff as one of the | grounds on which ho claims the aid of this court, are | mem to associations under the general banking | The next question which arises is, whether the pro- minsory notes and trust deed were founded on « legal tion. ia contended on the part of the plaintiff that the money lent by Paimore, Mackillop, Dent & Co., to the North American Trost and Banking Company, and h formed the consideration of the instraments in question, was used by the company for the purpose of purchasing shares of ite own stook, in violation of the provisions of the statute above cited; and that Pal- mers, Mackillop, Dent & Co., at the time of the loan, knew of the purpose to which the money was to be ied. ra bail asrume In the first place, in compliance wig | the views that have already been expressed, that if such a purchase of stock as is alleged was made by the Serene in any other manner than out of ite surplus fands, the act was illegal—and | shall farther assume that the plaintiff in this suit. who represents the credi- tors of the assoolation, has the right to set up such Megaty, ere are two questions then to be considered: — I, Whether the money lent was used as is alleged; and— 2. Whether the loan was made with knowledge on the part of the lenders of the uses and purposes to which the money was to be applied. As the: it will be necessary to inqui connected with the loan, and to rt in which it was made. Company, Shi Londen banker, was in the city of New York, ing to the business of the house of which he was s member. It farther appears, that while he addressed a letter to Palmers, Mackillop, Dent & Co., a London, in which, after representing with gteat earnestness the valuable se hich he su; | would be rendered by the North Americ Upon this introduction, a busin the parties commenced. At the time when the Banking Company had com- pleted its organization, it was supposed that by the fale of its own stock it could place itself in a condition to carry on the banking operations for which it had been formed. In this expectation it was disappointed; and, in orderto meet its liabilities, itsent State stocks, which it hed purchased to avery large amount, to England, for sale. Palmers, Mackillop, Dent & Co, were the bankers through whom a portion of these stocks were gold, and who were also employed by the in other transactions connected with its jiness, These relations continued until about the fourth day of April. 1840, when bills of ex- change to the amount of £83,500. drawn upon Palmers, Mackillop, Dent & Co., were presented to them for ac- ceptance, These bills had no connection with any previous transactions between the parties They were not drawn upon any funds which the Banking Com- pany had in the hands of the drawers, nor upon any existing credits; and, owing to accidental causes, they were not accompanied by any letter of explanation. Under these circumstances, acceptance of the bills was refused, and they were noted for non-acceptance. On the 6th of April, in the same year, a letter was received from Beers, the president of the Banking Company, bearing date the 2d of March, 1840, in which he stated that the company had authorized a credit in favor of Thos. E. Davis, for £16,875, the bills to be drawn at ninety days’ sight, and to be renewed in case certain bonds in the hands offPalmer’s, Mackillop, Deut & Co. should not have been previously cashed. The letter speaks in high terms of the wealth. respectabi- lity and prudence of Davis, and refers to their mutual friend, Fletcher Wilson, for an explanation of the mo- tives which had induced the company to grant the credit. and of the adventages which might be expected toaccrue from it Upon the strength of this letter, and of representations which were made to ralmers, Mackillop. Dent & Co., by afriendin London, as to the wealth of Davis, they resolved to aceept the bills, and afterwards did so, and, finally, after two renewals, paid them in full. It is alleged, on the part of the plaintiff, that these bills were drawn for the purpose of enabling the com- pany to purchase five thousand shares of its own stock; and it is also alleged that this fact was known bieeed drawees at the time of their acceptance of the a. The first question to be considered is, whether the bills were drawn and accepted, for the purpose and in the manner alleged. It_appears by the testimony of Strong, who was one of the directors of the company, and wiois the prin- i on part of the plaintiff, that on the 28th y, 1840, the company purchased five thou- sand shares of itsown stock. It farther appears that, uch purchase, two sets of bills were 3, the first set upon Palmers, Mackillop, Dent & Co,. in favor of Huth & Co., and other bsukers in Eng- jJand; and the second set upon Huth & Co,, and the other houses in whore favor the first set of bills had been drat the second set of bills having been drawn against the anticipated acceptances of the first. The second set of bills was sold in the city of New York, id it was with the proceeds of such sale that the ck in question was purchased. It appears, then, that the stock was not purchased by the bills drawn on Palmers, Mackillop, Dent & Co., but that it was pur- chased with the proceeds of other bills; and that the whole transaction had been completed not only be- fore Palmers, Mackillopt Dent & Co. knew of it, and be- fore the bills drawn upon them were sccepted, but be- fore they had been sent from cow ay It was contended, however, on the of the pla! tiff, that although Palmers. Mackillop. Dent & Co., had no knowledge of the purchase before it was completed, still that Fletcher Wilson was their agent, and that he had notice of the intended stock transaction at the time when the bills were drawn, and sanctioned it as such agent. ‘The first enqu: whether Wilson was the agent of Palmers, Mackillop, Dent & Co. It seems t> me that the proof shows beyond » doubt that he was not. The answer of Palmers, Mackillop, Dent & Co, which, in this respect, is responsive to the bill, unequi- yocally and tively denies such agency. is no evidence that he was expressly authorized to act a: agent, or that he was expressly acknowledgedas such Neither does the testimony of Strong or Davis, the two witnesses who are reliedon for this purpose, show any act from which the agenoy of Wilson can be im- plied. It is evident, too, that the company did not consider him an authorized agent. They” never treated him in the trapsactions as if they so re- garded him. The letter of Beers does not pretend that Wilson had authotized, or that he had any right to authorize, the drawing of the bills of exchange to which the letter alludes. He is spoken of as “our mutual friend.’ to whom Boers refers for explanations which he thinks will satiefy the drawees of the bills. Palmers, Mackillop, Deut & Co. cannot then be oharged with knowledge of the facts which were known by Wilson Such being the case, the firm of Palmers, Mackillop, Dent & Co. had no knowledge of the atock purchare, either actual or constructive, till after the presentment of the bills of exchange to them in Lon- don for acceptance. The question then arises, how soon after such pre- sentment they received notice. The letter of Beers was received on the 6th of-April. In that letter, no actual notice was given; but it is contended that the reference which it makes to Wilson was of such a cha- rat of. the their ingot ry. ietive ni re ts to astohow far the rule in re- ference to constru notice extends. For, if we adopt the rule lata down by the counsel for the plain- tiff, that whatever is calculated to create a sus; to the legality of a transactien, is constructive notice of the nature of such transaction, stil] there would be nothing in this case to charge the draweos with con- structive notice. The reference to Wilson was caloulated rather to silay than excite suspicion. And it certainly could never have been supposed by Palmar, Maokillap. Dent & Co. when they were referred to the mutual friend of the parties for on explanation. which the letter evi- dently Neplies would prove satisfactory, that, on in- quiry of their friend, it would be disclosed to them that the transaction was illegal. The same remarks are epplicable to the letter of Davis If lam correct in these views, it follows that the first ‘notice of the stock purchase which Palmers, Mackillop, Dent & Co, received. was that which was contained in the letter delivered by Murray to Palmer, evening of the 7th of Avril. It becomes i mpor- tant here to ascertain what was the situation of the bills of exchange at that time. In the answor of Pal- mer, which, in thiv respect, is responsive, he says that the bills which had been presented, amounting in ths aggregate to'£33,500, had been accepted or agraed to be accepted. It appears that £19,000 were held by Huth & Co.; that £3,500 were held by Masterman & Co.; and that £11,000 were held by Palmers. Mackillop, Dent & Co. It also appears by the testimony of Mait land. the clerk of Palmers, Mackillop, Dent & Co., tha the bills in their hands were accepted and parxed to the oredit of the com; in conse juence of the re ceipt of the letter of Beers, although he does not dis tinotly etate whether this was done before or afte Palmer's interview with Murray; and Murray state in his testimony thatin his interview with Palmer, the latter stated, that on the receipt of the letter of ore- dit, and on the assurance of his fricad Melville Wil son, as to the responsibility of Davis, he hi tice to Huth & and to Masterman & Co., that Palmers, Mackillop. Dent & Co. had decided to accep the bills held by them. [t appears, then, that as to upward of £20,000 of the bills drawn on them, Palmars, Mackillop, Dent & Co. had given notice of their in- tended acceptance before the receipt of Fletcher Wil- son’s letter. It will be romombered that by the law of England,» verbal aceeptance of a foreign bill of exchange is bind- ing. (Chitty om Bills, 172.) But it was contended on ament, that inasmuch aa the bills of exchange had not been delivered up to the holders, ater notice of theirintended acceptance, and as there had been Do exprens assent to the acceptance on tho part of the holders, it was revocabls; and that Palmers, Mackil- lop, Dent & Co. were not a by it. (See Story on Bille. p. 252). It is undoubtedly tras, as a general rule, that an acceptance of a bill. not communicated to the holders, is revooable before tho bill is dellvered ap. But is the rule the same where the acceptance {s com- municated. even although there is no delivery of the intercourse between accepted bill’? In the case of Cox vy. Troy, (5 Barn, & Ald, 474 ey. J., anya, “It is not the mere act of writin, he dill, but the making a communica- tion of what f# so written, that binds the acceptor; for the making the communication is @ pledge by him to the party, and enables the holder to act upon it ’ Caa it then be said. with certainty, that in case the holders of the bills had insisted on the notice which they had received as a binding acceptance, Palmers, Mackil- lop Dent & Co. could have successfully resisted such aclaim? Toray the least of it, the case admitted of question. The holders of the bills might have made arrangements in their basiness, founded upon the no- tice which they had received; and even if Palmers, Mackillop, Dent & Co., were not legaily lisbie, still « regard for their faith as merchants would have requir- ed them to fulfil the promise which they had made, and upon which others had depended. As to the bills which had not been presented at the time of the reseipt of Wilson's letter, Palmers, Maokil- lop. Dent & Co were uncommitted, But the letter of credit was an entire contract. and it would have heen GUI Cda vie Lim pad olnw patowe by 1s Would MATS BEER liabie to Palmers, Mackillop, Dent & Co. in case they had honored but a part of the bills drawnunder it. It might porsibly be that if, immediaiely on the receipt of Wilson’s letter, Palmers, Mackillop, Dent & Co. had countermanded the notice of acceptance, they would have e-oaped all legal liability. But if, in the embar- rassing situation in which they then stood, they were j induced to keep the promise which they had made, andin order to remove all legal question, thought it expedient afterward to accept the other bills drawn against theentire credit, cam it be said thata claim thus created arone ex turpi causa ? Particularly, when upward of a month had elapsed after the illegal trans- action had beem consummated. It seems to me that neither law, equity, nor morality would require such a conclusion The question has frequently arisen in England, as to how fer contract for the repayment of money ad- vanced by one party te another, to enable him to pay ‘an illegal debt, could be emforced. In the case of Faikney y. Rainous, (4 Burr. 2069,) two persons had been jointly engaged in stook-jobbing transactions, and one of them had advanced money on behaif of the other for compounding differences. It was held by Lord Viansfield, that a suit could be maintained upon ‘a bond given for tl payment of the money advanced, on the groun@ that there was a new consideration. In the case of Petrie v. mnay, ( R. 419,) which was a similar transaction, it was held that the party who had advanced the money could recover it back, it hay- ing been advanced for the benefit of the other party, and with hii peirthy, and consent, and he having sub- sequently to the advance made an express promise of payment. In the case of Booth v. Hodgson, (6 T. R. 408.) which also arose out of a stock jobding transac- tion, it was held that one partner who had advaneed money for the benefit of another could not recover it back on an applied assumpsit, and the court then stated that an action could not be sustained, because on the whole case no promise could be implied except that which arose out of an illegal contract. Inthe ease of Aubert v. Maze, (2 Bos, & Pul. 371,) where one partner had advanced money for the benefit of ano- ther, in payment of losses on illegal insurances, it was held that no action would lie; and che soundness of the distinction taken in the case of Petrie v. Hannay, between an express and an implied promise,was doubt. ed. lt will be remembered that in all these cases the party who advanced the money had beeh partiveps erimins in the original illegal transaction. nother class of oases in which actions have stained for money advance to a person, to ay a debt which had been illegally con- tracted, but where the lender was not a party to the illegal transaction. In the case of Robinson v. Bland, (2 Burr 1077) money lent to pay a gaming debt was held recoverable. A similar decision was made in Al- cipbrook v. Hall, (2 Wils. 309) See also Carson vy. Rambat, (2 Bay, 660.) In the caseof Armstrong vs. Toler, (11 Wheat 25 the English cases were reviewed by Ch. J. Marshall) and the rule which he deduced from them is, that where @ contract grows immediately out o¥, and is, connected. with an illegal or’ immoral act, it cannot be enforced. But if the promise is entirely discon- nected with the illegal act, and is founded on a new consideration, it is net affected by the illegality of the act, although it was known to the party ‘to whom the promise was made. Thus, if the party who advanced the money knew that it was to be paid in discharge of @ debt not nét recoverable at law, still he could main- tain an action for itsrecovery. The case of Cannon vs. Bryce, (3 Barn. & Ald. 179,) does not conflict with this rule. In that case money was lent to enable a party to pay an illegal debt, and the court held that it could not be recovered back by the lender. The ground of that decision was, that in the case then be- fore the court, the statute made the act of payment illegal. and the loan was consequently for the purpose of enabling a party to do an illegal act. But where the statute does not make the payment itself illegal, a promise founded ona loan fo pay an illegal debt does not arise out of an illegal transaction, andis not connected with it, and the maxim ex ¢urpi causa non oritur actio does not apply. $ But if it should be admitted that money lent to pay an illegal debt cannot be recovered, still {think that the claim of Palmers, Mackillop. Ds & Co. can sustained; for as a question of fact, it seems to me that the loan made to the king company was not only not made for the purpose of enabling it to purchase its own stock, but that it was not made for the purpose of enabling it to pay for stock already purchased. As has been before stated, it appears by the testimony of Strong, that tl tock was purchased on the 28th of February, 1840, that it was paid for out of the pro- ceeds of other bills than thore drawn on Palmers, Mac- killop, Dent & Co., before the bills drawn on then had been presented for acceptance. It must follow, then, t! the bills wer not to enable the company to pay to use eneral powers of banking associations, and then con- fers such incidental ones as shall be necessary to car- ry on their basiness under the powers specifically anted. Without reference to the banking law, it is a general fandamental principle, that when « right is given, all povers are given which are necessary to the exercise and enjoyment of the right. Now, it cannot ‘be questioned that a banking association may become indebted in the exercise of its undoubted legitimate business. It has the right to receive deposits, and it must become indebted for them. It has the right to purchase gold and silver bullion, foreign coins and bills of exchange, andit may become inde! upon such purebase. It requires State stocks as a basis of its cir- culation ; and it may eee kiteaaen a debt in the urchase of State stocks for that purpose. msy other ways in which a banking association can be- come legally indebted. If it has the right to become indebted, it may become liable for the pa it of ite debts, at a time when, owing to disappointment, un- expected losses, or some unforeseen casualty, it has no available assets to meet ite e: ments. This emer- gency may occur ip the soundestand best regulated association. The question then must arise. whether a solvent institution is to fail to meet its Mabilities, and be broken up, and ruined. or whether it shall be per- mitted to substitute a credit for some convenient period of time. im the place of a debt then due and payable ; or, in other words, whether it can substitute one cre- ditor in the place ofamothar? The power to borrow, then, is a necessary incident tothe power to become indebted. It is power without whi sociation could safely earry on ita bu: ‘was never authorized by the company. On reference to the articles of association it will be geen that all the powers, rights and privileges of the association were delegated to and vested in a board of directors, and such officers and agents as they should appoint. (Art. 2, 61, p. 60.) It was also provided; in the ar- association, that the board of directors should have authority to make such by-laws, rules and regulations for the management of the business of the association as they might think expedient. (Art. 4, §2,p.51.) Under and in pursuance of there provi- sions, the directors adopted a set of by-laws, and divided all the business of the company into two de- partments. (By-Laws, 1,2,p.55.) They then dele- gated the bt ty to conduct the business of ons do- & committee of investments and finance, and the power to conduct the bu: 88 of the other department to a committee of foreign and domestic exehange. (By-Laws, $1, 2,3. 4,p.55.) All the busi- f the company was to be transacted by these committees. In this distribution the general powers ef the directors over the finances were con ferred upon the committee of investments and finance ir to borrow money, assuming it to have ited, must have been a necessary incidental part of the power of that committee. By reterenee to the printed oase, (p. 288.) it appears, that on the 28th of February, 18: Tesolution was assed by the committee of investments and finance, instructing and authorizing the drawing of bills or the granting of credits upon Palmers, Mackillop, Deat & Co, In pursuance of this resolution, @ letter was jeers. the president of the company. to Mackillop, Dent & Co., informing them that nking Company had authorized a credit in favor of Davis te the amount of £46,875. It was it this credit that the bills accepted by Palmers, lop, Dent & Co. were drawn. The letter of credit was signed by Beers, as president of the com- any. ¥ The general banking law provides that contracts made by any banking association, shall be signed by the president or vice president, and eashier. (Laws Pp. 250,612.) It is contended on the part of the pl Nit in this suit, that the letter of credit being signed only by the president, did not bind the compa- ny. It cannot be denied, that if it is to be treated as the contract between the parties, it was not executed as the law required that written contracts should be; but does it follow that the loan itself, the receipt of which was authorized by tho association throm proper conimittee, by @ resolution duly passed communicated to the lenders, does not create a ti lity on the part of the company! In the case of: posite, the depositor does not, except in special cases, receive a written contract for repayment. Inythe pre- sent care, the claim of the lenders is not founded on the letter of credit; it is founded on the liability of the company to repay a sum of money which it legally borrowed, and for which, consequently, it became le- gally indebted. The next quetions which arise are as to the legali- ty of Pepomuey notes and ofthe agreement or trust dee It or by the testimony, that the bills accepted by Palmers, Mackillop, Dent & Co, were twice renewed, and that on the 5t! October, 1810, and after the second renew: but while the bills were running, B ford, their attornay in fact, addressed a letter to Davin, stating that they were desirous of having the credit closed, and that they were unwilling to con- tinue it beyond the seo renewal, then in ress. After the receipt of this at tne We Davis, and the com- munication of its sontenta by him tothe company. it was agreed between the tien thet certificates of Geposit to the amoumt of £48000 should be given by the company to Palmers, Mackillop. Dent & Co, pay- able intwelve months after date, with the privilege of renewal for six month: id that, as collateral therato, certain securit #shonld be assigned te Blatch- ) Av60 oud muusiay 1 tsuoe) 1b wan aldy mgideu wed Wer | foras kt Legal, and toi It is consen se however, that the loan ia this ei vis ehould give his bond for $110,000, which should con- stitute » part of the securities to be assigned, and that he ehould be released by Palmers, Mackillop, Dent & Co, Im pursuance of this arrangement, and on the 30th November, 1840, @ resolution was passed by the committee of investments and finance, approving of the form of the proposed agreement, and authorizing the roper officers of the company to execute and deliver t, together with the certificates of deposite therein re- ferred to. and to assign the securities mentioned in the schedule thereto anvexed, and to do all other acts neceseary to carry into effect the provisions of the agreement. In pursuance of this resolutiou, and on the day ofits ¢, the agreement was executed and delivered to Blatchford and Murray. It appears, how- ever, that instead of certificates of deposite being dell- vered, a8 agreed upon, Pxmmissory notes were issued to the amount of the indebtedness of the company, signed by the president and cashier, payable to the Cooke, in twelve months after date. him, and it does not appear that ce: site were ever given. It is contended by the plaintiff that the agreement or trust deed thus executed is illegal and void. The first objection which is is as to its exeou- tion. Itbas already appeared was approved by the committee of investments and fin and that its execution was authorized by them. by reference to the instrument itself, that it wa by the president and cashier, pursuant tothe provi- sions for the general banking law. The question then arises, whether the committee of investments and finance hag the power to authorize its execution The powers of this committee have already been examined, and it sooms to me clear, that in the delegation of the powers of the directors tothe two committees, this power was conferred upon the committee which autho- Tized the execution of the agreements. It_is evident that the directors themselves supposed 80, for there is no proof that any. doubt or dissent was ever expressed by any 0: ‘The next objections made b: agreement or trust deed itself, contended that the promissory notes given by the com- pany, being payable after date, are illegal and void. By the act of May 14, 1840. it is provided that no banking association shall issue or put in circulation any bill or note of such association. unless the same shall be paya- ble on demand without interest. 1840, p 358.) It seems to me that the notes in question are clearly void by the provisions of this statute. It was contend- ed on the argument onthe part of the defendants that the act only refers to notes intended to be put in cir- culation and capable of circulating as money; and that the fact that these notes were drawn in large amounts, and made payable in London.fin sterling that there was no such intention, and uch effect in this case. The answer to this is, that there is no such qualification in the statute. The object contemplated by the Legislature unquestionably was to prevent the circulation as mo- ney of notes not payable on demand; but the method of effecting that ohject was to prevent tho issuing of such notes absolutely, without reference to the inten- tion or effect of such issue. But even if the qualifica- tion contended for should be adopted, it can hardly be said with certainty that commercial ingenuity could not have devised some scheme by which the notes in quartion might have entered into the circulation of ote State In the case of Swift vs. Beers, (3 Denio, 70,) the the plaintiff are to the In the first place. it is B qualifeation which has been sugxeated was ex- presely repudiated. (See also, Ontario Bank va. Seber- merhorn, 10 Paige, 112.) But it was farther contended on the part of the de- fendants, that even if the statute does not apply to the notes in question, still the company is lisble upon them, and the only-effect of thelr wate fa to subject the <Mloers of the company to the penalty presoribed for the violation of the statute. There are cases in which & penalty is imposed for doing an act where the act itself is not void. These, however, are cases where the penalty in tmpoted merely for the purpose of reve- nue. and not where the act prohibited is against pub. Uc polioy. (Bartlett v. Vinor, Carthew, 252. De Bog nis v. Armistead, 10 Bing. 107, Foster v. Tayior, 3 Nev. & Man. 244; 8.C. 5 B & Ad. 887. Ferguson, Norman, 5 Bing N.C. 76. Hallett v Novion, 14 Johus. R. 290. Cope v. Rowl Mees, & Welsh. 149. nds. Griffith v. Wells, 3 Denio, 226. e mischief intended to be prevented In this case ti was the circulation of the notes of banking associa- tions, not payable on demand: The person who re- ceives them {s rupposed to know the law, and by receiving and aiding in the circulation he becomes particeps crimime, By reference to the agreement, or trust deed, it will be seen that certificates of deposit, and mot promissory notes, were to have been given by the company, sud Blatchford, the attorney of Palmers, Mackillop, Dent & Co,, says im his answer. thet he had the impression that they had been given, until time after the execution of the agreement. 1 pose, hows sis in it. It to.wiad | phaginensete eats Spe. Th cers of the company stituted in placa of Certificates of deposit, by con- such a situation, that the acceptance “bent of all the parties, or iu other words that the notes necessary to prevent its prostration and ruin. It was | given cre what it wes intended should be given, but. in reference to this consideration, and for the purpose | that they are miscalled in the » ‘The ques- alt which would have been so disas. | tion them arires, how far the ill ity of the notes almers, Mackillop, Dent & Co., much | Tenders the trust deed void. It i settled prin- against their wish, were forced to become the credi. | ciple of law, that if there aro different and distinct tors of the company. ‘undertakings in the samgoon' The next question to be considered, is, how far the | legal and some illegal, ' law Hehe American Trust oe ee: bie ep eo fe eke ae only. at Py saled old okt Bom is e power to borrow mo! general benking law . part lvoe no such power in express terms. It epaciGes the | where the faut is, and presertes thergst” | Wheat statute déclares the instrument itseif void. otherwise. Now, in this onse, the indebtedno: the agreement was intended to secure was not created by- the notes—it already existed. The notes are merely evidences of it. The object of the agreement was to secure the in- debted ness, and not to secure the perfor illegal contract. The notes extended th: payment of the debt of the company, tather for its benefit than for the benefit of Palmers, Mackillop, Dent & Co, If the notes had been de- tiroyed, Indebtedness would have remained. One of the evidences of indebtedness would be gone, and it is all. But euppose the promissory notes were a were called on the argument, the ould be that,being illegal and void, Dent & Co. would have one secu- rity les ttled that where there is a secu- rity given for the payment of a debt, although the seourity may be illegal and void, yet if {n the seme instrument there is a contract to pay the debt, the contract may be enforced (Mouys v. Leake, 8 T. R., 411; Kenison v. Cole, § East, 231; Ferguson v. Nor- man, 6 Bing, N. C. 76; Utica Insurance Company v. Kip, 8 Cowen, 20.) And it necessarily follows that if there are two securities for a debt, and one fails, the other is not effected, But it is said that the agree- ment in this case is. that the proceeds of the securi- ties assigned shall not be paid over till there is a de- fault in the payment of the notes, after they have been due, and that they being void ad initio, and therefore not capable of, becoming due, the contingency upon whi trustees will be bound to pay over the pro- ceeds Of the seburities. will never occur. There two elemei jiples applicable to 8 ; first, that thesfmiast he constrned ao. ad operated all con! cording to their legal effect—and second, that they must be #0 construed ui ree mages valeat quam pereai. Nowythe object and intention of the agreement in question was to seoure an existing indebtedness. The time-when the notes were to become payable was upon as adate when the right of Palmers, Mackillop, Dent & Co., to receive the proceeds of the dl ee. curities, should become absolute. Asan evidence that uch was the intention of the parties, the agreement itself acknowledges the indebtedn the company was desirous that the whol rest on ite responsibility, and that Palmers, Mackillop, Dent and Co. should make olaim for it only against the company and against the seourities agreed to be deposited for their indemnity ; it was never intended by the parties t hat if, owing to any informality in the notes themrelves, they should not. be legally pa: the assignment of the securities should beco: id. Such was not the object and intention of the parties to the agreement, and such is not its legal effect. If, for any cause other than the discharge of the indebt- edness, the notes were not paid at the time when made payable, the rights of Palmers, Maokillop, Deut & Co. to the securities under the agreement became absolute, But it is contended that, by the terme of the agree ment, the securities are. in case of default, to be held for the benefit of the holders of the notes; and that, nee,any claim made by such holders mast virtue of the notes, and. if they are void, the claim must be void. It appears as a fact in the cuse, that all the notes are now held by Palmer killop. Dent & Co., and thei ts. The origiaal ine debtedness existed a il exists, in their favo it was to indemnify them that the trust deed was exe- cuted. Shall they then be permitted to lone the benefit of the indemnity because the agreement contemplated that the notes might be transferred to others, and in- tended, in case of such transfer, to indemauify the holders? The agreement says that after default shall be in the payment of the notes, the securities shall sold and the proceeds shall be paid over to Palmers, Mackillop, Dept & Co,, or any other parties who shail them be holders of the certificates; the term “holders” is merely descriptio persone; and if the holders of the notes are also the original creditors, for whose benefit alone the securities were asticned, shal it be said that they must lose the benefit of the securt- ties, because a farther provision is made, which is not attempted to be enforced, and in reference to which, inasmuch as there has been mo transfer of the notes, the question whether it can be legally enforced or not does not and cannot arise? The provision as to other persons than original ercditors, is @ distinct alterna tive undertaking. and ought not in equity to be per- mitted to destroy} the claims of Palmurs, Mackillop, Dent & Co. But it is e@id that a court of equity cannot create a newsecurity, This is unquestionably true, and if the construction which | have given has that effwot, it cannot besustained, In the case of Hunt vs, Rousma- nier, (3 Mason, 304,) which was cited om the argument, the true princ’ple was laid down. In that case, t laintiff, instead of taking a bill of of « vessel for his seourity, had taken @ power of attorney sathoriz- ing the execution ofa bill of sale Ther by him for doing so was that he did not out new papers in his own ni After the execu- before anythin: a m The piaintit then claimed that the personal representatives of the deceased should execute a bill of sal court beid refused to take a bill of sale, ‘® neourity of a different kind, ome able. they could not aubsti- tute a new security, That oi differs widely from the present. Here nothing isto be dona, Ali that is necessary is to sustain what has been dons. xo oeebas Walsk is iga) te separate the sound from the unsound parts of the agree- | ment. | T have hitherto considered this case as if the promis- sory notes were the certificates of deposite alluded to in the agreement. It now becomes necessary to con: sider what would be the effect upon the agreement in case they should not be so regarded. The conse- quence, of course, would be that in this respect the agreement has not been performed. But a court of ae considers that done which ought to be done, and the agreement must be construed in the same manner asif certificates of deposit had been given to Palmers, Mackillop, Dent & Co, and wore now held by them. The next questions to be considered are: — 1, Whether the agreement or trust deed was exe- cuted when the banking company was insolvent, or in contemplation of insolvency. 2. Whether it was executed with the intent to gives particular creditor & preference over other creditors of the company ‘A appears by the testimony, that tho trust deed was nthe 30th of November, 1840, *p inted by the company to examine into the con- dition of its On the 23d of December, in the committee reported. In their report, ‘the accounts of the company hat been, for some time past, in a course of critical inves- tigation, and that a tement has been made up to ce which period, they have tive change.” That report jigned by the committee, and published, and states nee of available assets over debts amounting to 1,895 35. Im opposition to this report, and for $2, the pt rpose of showing its entire fallacy. and that the company was at that time insolve then a director of the company. was examined asa wi ness on the part of the gplaintiff. His testimony is general He states, in reference to a portion of the assets, that he should think probably one. third were not collectable” In reference to other assets. he says thet he “ should think that but a small proportion was collected.”” The reatiof bis testimony is of thesame in- definite character ng is the only witness on this point on whom the plaintiff relles, and it is from this testimony that we are to infer that the company was insolvent, It will be remembered. in considering how much weight is to be attached to the testimony, that in the autumn of 1840, the Commercial Bank of the oity of New York, of which the witness was at the time prasi- dent, lent between $39.000 and $40,000 to the aom- pany, and that the loan was made with his approbation and advice. It will also be remaked that in or about the month of January, 1841, he was interested to the amount of at leasr one-fourth in the purchase of from two to three thousand shares of the stock of the com- pany; and what is more extraordinary. he, as one of the committee who had made a critical investigation of the affairs of the company, signed the report of the 28d December, 1840, showing’ a surplus of upward of $2,000 000, and published it to thy world, with his as- surance of its verity ‘There must generally be a difficulty im ascertaining what was the value of liabilities and things in action at any particolar antecedent period. But cortatuly there can bea nearer approximation to it, and upon more satisfactory testimony, than is offered in this case, ‘The proof is equally unsatisfactory to show that the agreementiin question was exeouted in contemplation of insolvency. The company did not stop payment until some months afterward, and all their acta show that.at that time not only its earnest hope. but its sinoere expectation was, that it would avoid insol- vency. But irrespective of these considerations, it doos not appear that any preference was intended or. has in fact been made, or that there are not now sufficient assets in the hands of the receiver to pay all the lawful debts of the company. It is farther objected to the agreement that it was made to hinder, delay and defraud creditors. Before examining this part of. the case, I would remark that the decision which was made by the Vice Chancellor of the first cirouit, in the case of Leavitt vs. Yates et aj., does not apply to the instrument in question. In that case, the trust deed executed by the company to Yates and others was made, not to secure debts pre- viourly contracted, but to secure future liabilities about to be contracted, and which might not be con- tracted for the period of thirteen months afterward, ‘The property assigned was thus locked up in trust for that space of time, when there might not be, dur- ing the whole period, any cestui que trust who would acquire an interest in it. In this case there was an existing indebtedness. ‘The ereditors, in very decided terme, announced their resolution not to continue the credit any longer in its then existing state. It was at that time, and for the purpose of obtaining an exten- sion, and upon the additional consideration of the re- , tu Strong, who w: was entered into.— T eed declares that till default is made in the pays ment of the certifioates of deposit, the property assigned shall be held in trust for the company. It is contend: ed that by this provision the company became the fole cestui que tru md that for that reason the truat is void, Such. however, is not the legal effect of the agreement. On the contrary, Palmers, Mackillop, Dent & Co. acquired an interest in the securities im- mediately on the execution of the deed. Not absolute, it is true, but baolute interest a4 8 pledge ever acquires before default, in property deposited ss eolla- teral security for the payment of adebt. The com- pany could not resume possersion or ownership of the securities asrigned, neither could it contrel them. [t could not make use of, nor‘receive the interest or pro- fits arising from them. It had n0 greater interest in them, nor advantage arising out of them than belongs to every pledgor. The case of Goodrich y. Downe (6 Hill. 438,) was par- ticularly relied upon, on the argument, in support of the views taken on bebalf of the plantiff. In that case, an insolvent debtor, azainst whom a judgment had been recovered, within the thirty days’ atay of execu- tion then allowed by law, assigned nearly all his pro- perty to bis son, to pay four of his creditors, and to pay over the surplus. if thero should be any, to bim- self, The Court held that this was an attempt by an insolvent debtor to put his property beyond the reach of legal process. and at the seme time to reserve a por- tion of it for his own benefit. The statement of this case shows that it is distin hable from the one be- fore us. In the first place, the assignor was admitted- ly insolvent, and 5 ay pd recovered against him remained uneatist in the next place, there were other creditors whose debts were then due, who were hindered and delayed by the assignment. In this case, on the contrary, it ig Mert that the company paid its accruing debts and liabilities till some time after the execution of the deed. ‘The only thing which distinguishes this from an or- dinary case of a pledge, is that the persons who were to receive the benefit of it were not made the deposi- tories of the property pledged. If they had been, thay would have become trustees for the benefit of the pledgors, except to the extent of the security for their own debts. In this case, other persons are substituted as trustees for both parties. But jt is contended that the agreement is void, be- cause trustees, in addition to the right to sell the securities, also had a right to borrow money upon them in case of default, at is, they are authorized to substitute a new pledge in tl lace of tl by the deed ; this would be the whole et ing money on the securities, Now if on gal, it is not obvious wh: substitution anot! contract of precisely the same character, should not be equally fo certainly it ought not to vitiate the ee 4 ‘he next question to be considered is as to the effect of the asrignment of stocks of the Apalachic Company, the American Land Company, Miseissippi Land Company. It appears from the testimony tbat the Apalachcola stock was transferred to the company by Ogden, as seourity forbis bond conditioned the payment of $10,000—that the stock of the American Land Com- ny was transferred to the Banking Company by vers as security for his bond conditioned for the payment of $75,000—and that the Mississippi atook was transferred to the company by Sherwood aase- curity for his bond conditioned for the payment of $30 060, It also appears that neither of the bonds was avsigned to Blatchford & Murray, It is contended on the part of the plaintiff, that as the bende of Ogden, Bers and Sherwood wore never | assigued, the stocks never passed to the arsignees — Biatebford and Murray state in their answer that they were not aware that the ¢ were any such bonds. The company ofcourre had no interest in the stocks, than to the extent to which they were pledged as so. curity for the payment of the bonds and they could assign no other or greater interest. This interest they must beve intended to assign, and {t must have beea either throngh oarelessnere. oversight or fraad. th: the bonds were not assigned. The question then i the bonds and stocks beiag seperated, which shall fol- low the other? In respect to this ' matter, the re ceiver stands in the place of the company and the question is to be decided in the same manner as it would be if this suit had been brought by the company. The company imtended to assign its interest 1m the stocks, and it was necessary, in order to make the transfer effectual, that the bonds should pi with them. It follows, as a consequence, that the company ought to have assigned the bonds, A Court of Equity considers that as done which ought to be done, and the bonds must be considered as having been assigned with the stocks—and this court should enforce an as- signment in fact, if neceseary. The next question which arises is, as to the bond of Beers for $20,000. This was not tocladed ‘n the list of securities set forth in the original report of the com- mittee of investments and finance It appeats to have bean substituted in the place of another bond mentioned in that report; but in the final resolution o the committee. authorizing the execution of the trust deed, it is stated that the form of the agreement in question was submitted to them for thelr approval, and at they ther approved of itand authorized its ex- eoution, and also authorized the officers of the company to assign the securities mentioned in the schedule thereto annexed, The bond of Beers is one of the seouritios mentioned in this schedule, and of course passed under the as tignment. Finally, it is contended that the original indebted- ness of the company was founded oa an usurious con sideration. The evidence relied upon as to this branch of the case, is that Palmers, Mackillop, Dent & Co, eharged & commission ofone pet cent, aod in the frat account which they rendered to the company, charged 7 per cent interest. Palmers says in bis answer, which ie responsive to the bill. that no agresmeat was made a6 to lnterest; that the custom of his house, in similar transactions, wat to charge one p»r ceas mare than a TWO CENTS. the time of the tramsactions in question, was five per cent, He further states that the charge of seven per cent, contained in the first account, was made by a misteke of the clerk, and that on ascertaining the mis- toke, and before the commencement of this suit, the error was corrected, and @ new account furnished It appears from the testimony that such corrected ac- count was rendered. To make out a case of usury, there murt be a corrupt agreement; or, in other words, an agreement (o reserve more than seven per cont for the loan or firbearance of money. There is no proof, in this care. of any such agreement The conclusion. from the views which have been ex- pressed, is, that the debt, to secure the paymemt of which the agreement or trust deed was given, was le- golly contracted, and is still due and payable—thatthe promissory notrs given by the company, being payable & yearafter date, were issued in vislation of the provi- sions of the statute, and ought to be delivered over to the platotiff to be cancelled -that the agreement or trust deed is legal and valid—and that all the securi- ties mentioned in the schedule annexed to it. passed to the trustees, subject to the trusts contained in the deed. and a decree must be entered to that effect. A provition must also be made in the deoree for the pey- Ment of the costs of the defendants out of the proceeds Of the assigned seourities, and that the costa of the laintift be a charge against the assets of the company in his hands as reoviver. The Tele; Mr. Bennett :—In heading of a telegrap! ph. 3, journal of Sunday, the io despatch trom Washington contains an important error, fe I say the heading,” the body of the despatch doen not warrant what is asserted in the caption, that Mr. Bain’s patent or- dered to be issued is for a mi atic telerraph, or. in- deed, for any telegraph. If Bain has been per- mitted, by the Commissioner of Patents, to patent his English patent of 1843 in this country, that patent hes nothing to do with any telegraph (if the writer bas been truly informed), and, if this is the case. the Eptiic should not be deceived’ into any bellef of the ind. ‘That there Is an error {n this respeot. in evident from the fact that a thoreugh investigation has lately taken place, of the interfering claims of Professor Morse and Mr. Bain, before the Commissioner of Patents, and the result was officially announced, Oct, 24th, 1813, « that the said S. F, B. Morse is the first and original inven- tor of the aforesaid alleged improvement in telegraphs and, as such. is entitled to receive a patent therefor.” Signed, EDMUND BURKF, Commissioner of Patents. Now it can hardly be supposed, that after having thus officially decided, only @ month ago, the commts- sioner has granted Mr, Bain a patent forthe same thing. The patent must be for something else, New Yor, Nov, 28, 1848, SCRUTATOR. Court of Special Sessions, Before the Recorder and Ald. Smith and Franklin, Noy. 28.—Thero were about thirty-five pereons cused before the court this morning. They were of all complexions and of both sexes, and varied in age from six to sixty years—some were charged with dis- orderly conduct, some were accused of arsaulting and beating their wives. and @ respestable number of the whole were charged with having appropriated their neighbors’ goods to thelr own use. Among these po- tit larceniste was h Peter Trainer, who went on « train. he was pretty well by the head, stole molasses, worth $25, the property of C! Holt, of South street,on Thanksgiving day. Peter averred that he was employed by another man to take the molasses toa certain place in Cherry street. It was not posi tively proven that he intended te steal the molasses, and £0 the court allowed Trainer to go Patrick McGuire and Margaret McGuire were called upon by the clerk to take their places at the bar. couple an and nd the affidavit of com- plaint aga’ nst them w: ndoreed “Affidavit of Gross Indecency.” The witness for the people could not bring his mind to give his testimony in : loud tone from the witness’ stand, so he told his story in under- tones to the judger, we could only hear scraps of the testimony, thus junday moroing, 10 o'clock, Patrick met his wife in Thirtieth s:reet, near 4th avenue ; she had been absent two weeks; only married a month ago—very affectionately, and then — yes sir, in > Judges amile, and accus- ed look asl d—Alderman reads complaint, which ends with—‘ In public view, to the great injury of the public morals. and the great scandal of the neighbor- hood, and their conduct wassuch as tended toa breach of the public peace.” (Judges put their heads together snd consult; conclude there is here no case over which this court has jurisdiction.) Reconpen.— Patric! id Mai DB you want to owe Ald, Frawxz1w,—Margaret, ‘buabare ne ef gO home for it. Mancaner.— Yoo sir; it’s that [ will, yer oners.— (Exit Margaret and Pairick. rt Ferguson was brought low to-get Change.— Ste up ona charge of stealing a $5 bill from Stephen C. Birdsall, It appeared, from the statement of the ao- cused, that he was invited by complainant to go and drink at a neighboring grocery. flaving got the li- quor, Birdeail offered a $5 bank note in payment. ‘The barkeeper could not change the note, and Ferguson, who fa quite a youngster, picked it up saying that he could get change af & grocery opposite. and away he started.” The ian cpposite could not change it, and 80 Ferguson must needs go further, drinking at’ each lace, and at each offering the $6 bill. At longth, ving imbibed quite too often. he got disorderly, noisy, and quarrelsome, and brought up at the station house. in custody ofa numberof policemen. He was disebarged in the morning, but found that most of tke money wasgone. He could not, therefore, face his old friend, and went to work to earn money to make good the deficiency, but just as he was about to return the amount (?) be was arrested on charge of larceny, and #0 stood here accused. ‘The court agreed te euspend judgment, provided that he would refand the money. ‘This he agreed to do, and left the room in obarge of an officer, who was instructed to let him 0, provided he made good to Birdsall the loss sustain ed'by him in the above mentioned transaction. The remaining cases were of the usnal character, offering no specially interesting feature: Supreme Court, Before Justices Huribut, MoCoun and Edwards. Nov 28.—In the Matter of John H. Lord —This was a motion to review the proceedings bad on a Stillwell warrant, granted by Judge Ulshoeffer. It sppeara that Lord became bail, in the Court of Sessions, for aman named Ross, charged with larceny. Ross absoonded, and judgment was entered up against Lord for $3 000. ‘The district attorney issued a Stillwell warrant against him for the purpore of collecting the amount, Lord having sworn he was worth $47,000, onthe 13th Mareb, 1847. Onthe 15th of April, 1847, Judge Ulshoeffer committed Lord to prison, under the Stillwell pro- ceedings, where he has since remained. Tho Supreme court decided that the district attorney had a right to smatitute the Stillwell proceedings, and that they were va The People vs. Baxter —In this caso tho prisoner was convicted, in the Court of General Sessions, of an at- tempt to commit grand larceny, He was caught in the act of taking fom ® gentleman’s pooket a pocket book containing more than $25 The fandent’s counsel insisted he could be convicted only of petit lare: ny, a8 be did not know what the pocket book contained. Error was aasig: nd the question ar- and when ogshond of t. you may go. gued to-day. Judgment Court wy Before Judge E stevens and {Iatfeld The People vs. Thomas Hayes —I1t will b: that Hayes was convicted in Septem! last of the murder of his wife. fentenced to be execated on the 17th or 18th of this present month; the execution of the sentence was reapitéd until the 2Istof January, 1849. counsel made an application this morning to amend the bill of exceptions which bad been taken, for the purpore of havinz bis case carried before the Supreme Coust, in regard to the chailenges; that. is, whether for prinetpal cause, or for form. Decision re- served. emembered United States Commi efore George W. Mor‘on, Charge of Larceny on the High Seas don, one of the crew of the American ship St. George, was arrested yesterday moraing and committed on w charge of stealing @ froek coat and a pair of cassimere pantaloons from George Uhamberiain, one of his ship- mates. Law Intelligen: Court oF Arreats—November Term—November 26.—Mr. M Hoffman resumed his argument in cause No, 24, on part of appeila Mr C P. Kirkland was heard ‘on part of respondent, «nd Mr. Hoffa No. 22, Benjamin Swett, adininistrator, ko & Wm Tracy opened the argument of this cause part of sppeliant, and at the adjournment of Court had not concluded Brooklyn Inteitigences Fatan Acctoent —A maa named Low was s0 severe~ ly injured by being thrown from bis wagon, in Harri- fon street, on Monday evening that be died in a fow hours after, His horse became frightened and ran off, which caused the wagon to upset and fall upen him, He resided in Smith street. Serrovsty Huxt —A horse attached to a coal cart, driven by @ Jad, commenced kicking, yesterda: Fulton street, which caused the lad to fall between the animal and the cart, when he received several severe kicks, which injured him seriously. Nev elligen ‘The United States ship Germautown, Lownds Com? mander, from Penracola, remained at St. Thomas on the jth inst. to sail on the %th for Aux © other Wert India Isiands. The follo her’ officers :—Charles Lownds Feq Co P MeKinsty, first Heute: t; Richard Fores, se ditto; ( harles Thomas, third ditto; Jas. G. Shi fourth ditto; 1. ©. La on; Edward Stein, eq. purser ; J. Matthews, master ; Thomas H. Looker, midsbipan Julius G. Hegieman, aitto; William T. Gloraell ditte; John K. Lagow, ditto; W, H. Tosue, ditto, ard Harrison, master’s mate Dorsey, captai: jerk ; W. C, Thompson, guaner ; George Thomi 1 maker; H. A. De Comui, purser’s clerk. Mr. Cray-—We have a telegraphic despatch from Lexington, communicating the egreeable iateiii- gence that Mr (Jay's condition has greatly improved, and that he is now considered out of presen: dorger, the Pret at Grelend oha-wod anh ma ard A bite bie amew vb amevewnl mabsh bony Amaia vs sutngunsin ae b =F iilatelphia North tmevican,