WAITE, C. J. The judgment in each of these cases was rendered after a trial by jury on the seventeenth of March, 1880, during the November term, 1879, although it was not signed until May 20, 1880. On the nineteenth of May, 1880, which was at the April term of that year, the district judge who presided at the trial signed a bill of exceptions, which sets forth that on the trial the United States offered. in evidence a document, which was annexed, and purported to be a copy of an assessment made by the commissioner of internal revenue for May, 1875, to the introduction of which the defendants objected, and that the objection was sustained. The bill of exceptions then proceeds as follows: "To which ruling of the court plaintiff excepts, and tenders this his bill of exceptions, which is accordingly signed this nineteenth day of May, 1880." The rule is well established and of long standing that an exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; U. S. v. Breitling, 20 How. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U. S. 555; Hunnicutt v. Peyton, 102 U. S. 354. This clearly is not such a case. There is nothing whatever to indicate that any exception was taken to the rejection of the evidence complained of until the next term after the trial was over and the judgment rendered, though not signed. Even the liberal extension of the rule granted in Simpson v. Dall, 3 Wall. 460, is not enough to reach this defect. The language here implies an exception only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent term of the court.

(110 U. S. 52)

It follows that the errors assigned are not such as we can consider, and the judgments are consequently affirmed.


(January 7, 1884.)


In Error to the Circuit Court of the United States for the Eastern District of Michigan.


Harrison Geer and W. B. Williams, for plaintiff in error.
H. M. Duffield, for defendant in error.

WAITE, C. J. The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record that of this amount $2,669.03 was not disputed below. The defense related alone to the difference between these two amounts, which is less than $5,000.

The dispute here is only in reference to the amount contested below. Such being the case, we have no jurisdiction. The case of Gray v. Blanchard, 97 U. S. 564; Tintsman v. Nat. Bank, 100 U. S. 6; and Hilton v. Dickinson, 108 U. S., [S. C. 2 SUP. CT. REP. 424,] are conclusive to this effect. Dismissed.

(109 U. S. 650)

ALBRIGHT and others v. EMERY.

(January 7, 1884.)


A decree of the supreme court of the District of Columbia, in general term, affirmed, on the facts.

Appeal from the Supreme Court of the District of Columbia.
A. S. Worthington, for appellants.

John W. Ross and S. S. Henkle, for appellee.

BLATCHFORD, J. In a suit in equity brought in the supreme court of the District of Columbia, by the firm of Langdon, Albright & Co., against Samuel Emery, Sr., and five other persons, that court, in special term, made a decree setting aside an assignment made to two of the defendants, directing the manner in which receivers in the suit should distribute a fund in their hands, directing the clerk to pay to the plaintiffs the whole of a fund in the registry of the court, directing the defendant Emery to pay to the plaintiffs $1,232.37, with interest from July 14, 1879, adjudging Emery to be indebted to the plaintiffs in the further sum of $14,818.98, with interest from July 20, 1877, and the defendant Sailer to be liable to them for the same amount, and awarding execution as at law therefor against them or either of them. From that decree Emery appealed to that court in general term, in his own behalf; Sailer declining, in open court, to appeal. The court in general term made a decree reversing the decree in special term so far as it charged Emery, and dismissing the bill as to him. From that decree the plaintiffs have appealed to this court. It is not necessary to consider the question whether the bill, if demurred to, or if the facts alleged in it were sustained by the proofs, would lie, as setting forth a case for the cognizance of a court in equity, because we are of opinion that the proofs do not establish the allegations of the bill, so far as they affect Emery, in respect to any relief prayed against him in the bill, or any relief granted against him by the court in special term, and that no part of the relief contended for in the assignments of error made by the appellants is warranted by the proofs.

The decree of the court in general term is affirmed.

(110 U. S. 59)


(January 7, 1884.)

REMOVAL OF CAUSE-REV. ST. § 639, SUBD. 2-ACT OF MARCH 3, 1875, c. 137.

The second subdivision of section 639 of the Revised Statutes was repealed by the act of March 3, 1875, c. 137.

Under the act of 1875 the petition for removal must be filed in the state court before or at the term at which the cause could be first tried.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

No brief filed for plaintiff in error.

Jas. O. Broadhead, for defendant in error.

*WAITE, C. J. This is a writ of error brought under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) to review an order of the circuit court remanding a cause which had been removed from a state court. The facts are as follows: The suit was begun in the state court on the nineteenth of July, 1879, by Chambers, as plaintiff, against C. M. Swope and Joseph B. Holland, defendants, to recover damages for writing and publishing an alleged libel. An answer was filed by Holland on the sixth of October, 1879, and an amended answer on January 24, 1880. A reply was filed February 5th. At the April term, 1880, a trial was had, which resulted in a verdict and judgment for $20,000 in favor of Chambers. This judgment was afterwards set aside by the court and a new trial granted. On the twentieth of January, 1882, Holland petitioned for the removal of the suit as against him to the circuit court of the United States for the eastern district of Missouri. The petition set forth that Holland was a citizen of Illinois, and both Swope and Chambers citizens of Missouri; "that said suit is one in which there can be a final determination of the controversy, so far as it concerns your petitioner, without the presence of the said defendant Swope as a party in said cause; and that your petitioner desires to remove said suit as against your petitioner, and so far as concerns him, into the circuit court, in pursuance of the act of congress in that behalf provided, to-wit, the Revised Statutes of the United States, section 639, subdivision second." Upon these facts the order of the circuit court remanding the cause was clearly right. The second subdivision of section 639 was repealed by the act of March 3, 1875, c. 137. That was settled in Hyde v. Ruble, 104 U. S. 407, and King v. Cornell, 106 U. S. 395; [S. C. 1 SUP. CT. REP. 312.]


Under the act of 1875 the petition for removal must be filed in the state court before or at the term at which the cause could be first tried. This suit could not only have been tried, but it actually was

S. C. 11 Fed. Rep. 209.


tried once, nearly two years before the petition to remove. Such being the case, it is needless to inquire whether there might have been a removal under that act if an application had been made in time and in proper form.

The order remanding the cause is affirmed.


(110 U. S. 7)

MARTIN, Sheriff, etc., and others v. WEBB and others, Trustees, etc.

(January 7, 1884.)


A banking corporation, whose charter does not otherwise provide, may be represented by its cashier in transactions outside of his ordinary duties, without his authority to do so being in writing, or appearing in the records of the proceedings of the directors.

His authority may be by parol, and collected from circumstances, or implied from the conduct or acquiescence of the directors.

It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been suffered by the directors, without interference or inquiry, to conduct the affairs of the bank. When, during a s ries of years, or in numerous business transactions, he has been permitted, in his official capacity, and without objection, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation, that he has acted in conformity with instructions received from those who have the right to control its operations.

That which directors ought, by proper diligence, to have known as to the general course of the bank's business, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with it upon the basis of that course of business.

Appeal from the Circuit Court of the United States for the Western District of Missouri.

Jeff. Chandler and Eppa Hunton, for appellants.

Jas. S. Botsford, R. T. Merrick, and M. F. Morris, for appellees. HARLAN, J. This is an appeal from a decree in two suits in equity commenced in one of the courts of the state of Missouri, and thence removed into the circuit court of the United States for the western district of that state, where by consent they were consolidated for final hearing. The question presented is whether the appellant the Daviess County Savings Association, a banking corporation of Missouri, doing business at Gallatin, in that state, is, under the circumstances of this case, estopped to deny that the cancellation, in its name and by its cashier, of certain notes secured by trust deeds upon real estate, and the release of record of the liens given by those deeds, was by its authority and binding upon it. The facts bearing upon. this question, as they are disclosed by the pleadings, testimony, and

stipulations of counsel, are substantially as will be now stated. On the thirtieth day of June, 1879, one Patrick S. Kenney was largely indebted to that association. The indebtedness was secured by recorded deeds of trust upon several tracts of land, in some of which, embracing a large part of this indebtedness to the bank, his wife had not joined. These deeds bore date, respectively, February 8, 1872; November 17, 1873; December 20, 1873; August 28, 1874; September 21, 1874; May 24, 1875; and April 1, 1876. In three of them the trustee was Robert L. Tomlin, who, at the date of their execution and during the entire period covered by the transactions to be hereafter recited, was a director and the cashier of the bank. Kenney and wife had also executed and delivered a deed of trust upon a portion of the same lands, for the benefit of James D. Powers, to secure a debt of $5,000 and interest. As to the lands therein described, it gave a lien superior to that created by any of the before-mentioned deeds, except the one of date February 8, 1872. On the fifteenth day of July, 1875, and first day of November of the same year, respectively, the Exchange Bank of Breckinridge, Missouri, and one Thomas Ryan, obtained judgments for money against Kenney, which, on June 30, 1879, remained, or were believed by those interested in them to remain, liens superior to that given by the foregoing deed of April 1, 1876.

It was desired by Tomlin, the cashier, to have Kenney's indebtedness to the bank in better shape than it was, and to secure further time on his indebtedness to other parties. He also deemed it important that the liens upon these lands, (whether created by trust deeds or judgments,) which were prior to those held by the bank, should be removed, and that Mrs. Kenney's signature be obtained to a trust deed or deeds in favor of the bank, covering all the lands of her husband. He therefore requested Kenney to obtain a loan of money sufficient to satisfy all liens prior to those held by the bank. Tomlin did not wish his bank to make further advancements to Kenney, believing the latter would be more prompt with strangers than with the bank in paying interest as it matured. In order to effect the desired result, application was made by the cashier to Frank & Darrow, of Corning, Iowa, for a loan to Kenney. After some negotiations, that firm made an arrangement with Albert S. Webb, R. L. Belknap, and William H. Kane, of New York, trustees under the wili of Henry R. Remsen, for a loan of money to Kenney for five years, at 8 per cent. interest, to be secured by a trust deed on his lands, which would give them a lien prior and superior to that held by all others, including the bank. It was expressly agreed between Frank & Darrow, representing the trustees of Remsen, on one side, and Kenney and Tomlin, the latter representing his bank, on the other side, that the money thus obtained should be applied, as far as necessary, to the debts secured by the before-mentioned Powers deed of trust, and to the two judgments against Kenney; that the balance should

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