9. A rural cemetery association, in-
corporated under chapter 133,
Laws of 1847, is the legal owner
in fee of the lands, purchased for
the purposes of the association.
One to whom a cemetery lot is con-
veyed for burial purposes, takes
under the statute, simply a right to
use it for those purposes. No such
estate is granted, as makes him
an owner in such sense, as to ex-
clude the general proprietorship of
the association. In an assessment,
therefore, for local improvements,
it is proper to assess the whole
premises to the association. Buf-
falo City Cemetery v. City of B.

503

10. Statutes conferring exemptions
from taxation are to be strictly
construed. The provision of sec-
tion 10, of the act providing for
the incorporation of rural ceme-
tery associations (Chap. 133 Laws
of 1847), which exempts the lands
and property of such associations,
from "all public taxes, rates and
assessments," does not apply to a
municipal assessment to defray the
expenses of a local improvement.
Buffalo City Cemetery v. City of B.

506

nett.

One having possession of personal
property as a bailee for hire, with
an executory and conditional
agreement for its purchase, which
conditions have not been per-
formed, can give no title thereto to
a purchaser, although the latter
acts in good faith and parts with
value, without notice of the want
of title of his vendor. Austin v.
Dye.
500

BANKS AND BANKERS.

1. The relation of banker and deposi-
tor, is that of debtor and creditor.
Deposits on general account belong
to the bank, and are part of its
general fund. The bank becomes
a debtor to the depositor to the
amount thereof, and the debt can
only be discharged by payment to
the depositor, or pursuant to his
order. Until actual payment, or
acceptance by the bank of the
depositor's check, or an assignment
of the credit by the depositor, and
notice to the bank, the deposit is
subject to his order. The contract
has none of the elements of a trust.
For a breach on the part of a bank,
of the obligation resulting from
the relations between the parties,
the depositor alone can sue. "The
Florence Mills," having a balance
of $694.83 to its credit with defen-
dant, sent to it on the 2d April, by
mail, a check on another New York
Bank for $4,895, accompanied by

a letter containing this direction :
"which (the check inclosed) please
credit our account, and charge us
our note of $5,000, due the 4th
instant." The check was received
and credited in account on the 3d,
and, on the same day, defendant
paid a past due note of $5,000, of
"The Florence Mills," payable at
defendant's bank, and charged it
in account. On the 4th, the note
referred to in the letter, held by
plaintiff, was presented, and pay-
ment refused.

Held, that the direction contained in
the letter did not transfer the fund;
that plaintiff acquired no title to it,
and could not recover. Etna
National Bank v. Fourth National
Bank.
82

2. Stockholders in a banking corpo-
ration are only personally liable,
or their individual property charge-
able for the debts of the corpora-
tion, to the extent, and as pre-
scribed by the charter. By the
act of becoming stockholders they
assent to the terms, and assume the
liabilities imposed by the act crea-
ting the corporation. The obliga-
tions thus assumed are limited by
the terms of the charter, and can-
not be extended by implication be-
yond the terms of that instrument,
reasonably interpreted. If a gen-
eral personal liability is created, it
may be enforced by a personal ac-
tion, as other personal obligations
are enforced.
charter
If the
merely permits the individual pro-
perty of stockholders to be levied,
and taken upon execution, on a
judgment against the corporation
in a given contingency, and pro-
vides that the same process may
be used and enforced by the stock-
holders, whose property is first
taken, against the property of the
other stockholders, so as to com-
pel a ratable contribution by all,
no general individual liability is
created for which a personal action
can be brought. In such a case
the creditor of the corporation is
confined to the remedy against the
stockholders and their individual
property given by the act. Lowry
v. Inman.
119

3. Where the individual property of
the stockholders is made liable for

the debts of the bank, either abso-
lutely or conditionally, and by a
specified process, an indorsement
upon the bills of the bank of the
words, " individual property of the
stockholders liable," is but notice
of the charter liability, and of itself
gives no rights of action to the
bill-holders against the stockhold-
ers, or against the president or
cashier of the bank signing the
bills officially. The bill-holders
by means of such indorsement, ac-
quire no rights against the officers
or stockholders or their property
other than such as are given by
the charter, with which all persons
dealing with the corporation or
receiving its obligations are sup-
posed to be conversant.
Id

1. The drawee of a bill of exchange
is presumed to know the hand-
writing of his correspondent; and
if he accepts or pays a bill in the
hands of a bona fide holder, to
which the drawer's name has been
forged, he is bound by the act, and
can neither repudiate the accept-
ance nor recover the money. A
rule so well established, and so
firmly rooted and grounded in the
jurisprudence of the country, will
not be overruled or disregarded.
National Park Bank v. Ninth Na-
tional Bank.
77

See PARTNERSHIP, 1, 2.
USURY.

BOARD OF SUPERVISORS.

1. The provision of section 22 of the
act of 1864 (chap. 8, Laws of 1864),
authorizing the raising of money
for paying bounties, etc., being
silent as to the means to be used
to procure enlistments, it devolved,
by necessary inference, upon the
board of supervisors to adopt such
means and agencies to accomplish
the purposes of the act as they
should deem appropriate. A reso-
lution of such board appointing a
recruiting agent, authorized him
to appoint sub-agents; his con-
tract for their services bound the
county, and he is not personally
liable. (GROVER, J., dissenting as
to power to bind county.) Even
if the board had no authority to
appoint the agent, yet, as its power
was determined by the statute,
known to both parties, the agent is
not personally liable. The agent
does not warrant the capacity of
the principal to contract. Hall v.
Lauderdale.

70

the plaintiff here paid. In a suit
brought upon the bond,-Held

1st. That, whether the judgment
in the action against plaintiff was
recovered on the ground that the
note was received by the depositors
as conditional payment only, or
that it was received as payment,
but the agreement was rescinded
on account of the fraud of plaintiff';
in either view the case was brought
within the letter and plain inten-
tion of the bond.

2d. That, if M. had knowledge
of these outstanding claims, plain-
tiff was not concluded by the bank
books; that the evidence given was
sufficient to require the submission
of the question of knowledge to a
jury, and a nonsuit was, therefore,

error.

3d. That the rejection of testi-
mony offered by plaintiff, tending
to show M. had such knowledge,
was error. Hart v. Messenger. 253

See APPEAL, 17.

BOND.

1. Defendant M. purchased of plain-
tiff an individual bank, and he,
with the other defendants as his
sureties, executed to plaintiff a
bond of indemnity from all claims
of every kind against said bank.
Prior to the transfer, certain deposi-
tors had received a promissory
note to the amount of their claims
against the bank, and the accounts
had been balanced and closed upon
the books of the bank. The note
not being paid at maturity, the
depositors offered to return it, and
demanded payment of their respec-
tive accounts, claiming, among
other things, that they had been
induced to take the note by fraud-
ulent representations of plaintiff.
This state of affairs, plaintiff testi-
fied, was known to M. at the time
of the transfer and giving the bond.
Subsequently plaintiff was sued for
the amount of the deposit balances
due at the time of the receipt of
the note. M., upon notice, em-
ployed counsel and defended the
action; but the plaintiff in that
action recovered judgment, which

3. The case submitted presented the
following facts: Defendant, an
insolvent, assigned all his property,
real and personal, to H., an in-
dorser, upon his paper, receiving
good notes for the full value of
the property, less than amount of
the indorsements, payable in six,
twelve and eighteen months.-Held,
that from these facts the law would
not, of necessity, conclude an actual
fraudulent intent. But the ques-
tion whether the transfer was fraud-
ulent or not, was one of fact
remaining in dispute. Proceedings
therefore dismissed.
id.

2.

discharge, under the provisions of
sections 51 and 52 of the statute of
uses and trusts (1 R. S., Edmonds'
ed., 677, §§ 51 and 52).-Held, that
those sections do not give a specific
lien upon the property, but an
equitable right to be enforced by
suit in equity, after all available
legal remedies are exhausted; that
the commencement of the equi-
table action and filing of lis pendens
is necessary to constitute a lien,
and that as in this case, before the
commencement of such action, the
judgment or debt, which is the
foundation thereof, was extin-
guished, the relation of debtor and
creditor did not exist, and the ac-
tion would not lie. The Ocean
National Bank v. Olcott.
12

"The Florence Mills," having a
balance of $694.83 to its credit
with defendant, sent to it, on the
2d April, by mail, a check on
another New York bank for
$4,895, accompanied by a letter
containing this direction: "which
(the check inclosed) please credit
our account, and charge us our
note of $5,000, due the 4th in-
stant." The check was received
and credited in account on the 3d,
and, on the same day, defendant
paid a past due note of $5,000, of
"The Florence Mills," payable at
defendant's bank, and charged it
in account. On the 4th, the note
referred to in the letter, held by
plaintiff, was presented and pay-
ment refused.-Held, that the direc-
tion contained in the letter did not
transfer the fund; that plaintiff
acquired no title to it, and could
not recover. The Etna National
Bank v. The Fourth National Bank
of New York.
82

3. To maintain an action for the par-
tition of lands, the plaintiff must,
at the time of its commencement,
have actual or constructive posses-
sion in common with defendants.
A subsisting adverse possession is
an absolute bar. Florence v. Hop-
kins.
182