Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1860-11-14


closing the bank, the amount demanded
beng $4,000. Story, Judge, decided
that such corduct amounted 10 refusal.
and that a protest for refusal to re-
deem was proper. s'There is no pre-
tence to say" the Judge RENAL cd.
"tnat bank has a right to delay the
holder of bills, day after dav, while It's
officers can count ont change, so as to
make up the amount in the smallest
pieces of com, in their own way. Ev
cry bank is bound to have lis specie
counted and weighed, ready for deliy-
cry, &c.
Hubbard rs. Chenango Bank, s Cor
enSs
Gilbert as. Nantucket Bank, 2 1m
L. J lO7.
The case Of The People Us. Dubois,
8 Ills. 1913, does not involve this ques-
i n. There was in that case no hung 10
show tina, small change was offered, or
any act done by he Bark for the pur-
pose Of vexatlon aad delay, and the on
y question decided was, tina the coin
age If the L. S. A., of all dcnomiLa-
tlons, was a legal tender. 1t by no
means follows because the coin rendered
was Legal tender, that the Bank had
the right, by vexatiously prolonging the
payment OF few hundred dollars, to
keep bill holder waiting day after day
tor his money.
But it is insisted By the complainant
that The notes we're not properly pro-
tested, because the Notary stated in his
protest the facts as they transpired at
the time they were presented. 1t is a
singular objection tor the complainant
to urge, because the protest would be
sufficient even II all he excerpts 10 were
stricken ont.
The Notary certitits that he presented
t g notes, at the request of the owners,
at the counter of the Bank, at 10 o'clock
a. NJ, to the President Of the Bank,
stating tue amount OF the package, and
demanded OF the said President the re
demptlon of said notes, and that the said
President then aud there refused to re-
Deem
He then proceeds to state what the
|
deeming, as before stated, and concludes
his certificate by stating, "whereupoi |
the sad Notary, at the request of the
said Adsit and Willard, did protest, and
by these presents do solemnlv protest,
ETC., ty reason of the non-redemptlon OF
said circulating notes SO remaining IN
redeemed" etc. No rule is better set
tied than this. A necessary statemt mt
or averment well sta cd is not weaken, d
or IN any manner affected by the state
meht OF facts not necessary to be stated.
The statement of the manner of the re
fusal, # improper, can only be regarded
as surplussge. Though, in my own
judgment, there is no objection to sta
ting the facts in this case, SO that if pro.
test is improperly made, the party for
whose benefit the protest is made may
decide whether the protest was proper.
: y made or not, and proceed according.
Is. Clearly, II cannot vitate a protest
otherwise properly made.
If the facts stated show that the pro-
test was properly made, court Of equity
would not lend its aid to the party pro.
tested to prevent the officer from doing
what he was required by law to do under
such protest.
In the present case the Court is ask
ed to enjoin the Auditor from dong
what the law requires him to do in d
case made by the bill.
1t is said that the Auditor is not Ju-
dicial officer, and has no right to deter
mine whether the facts snow proper
case for protest.
In the first pace, no such duty de.
wolves upon the Auditor in this case, az
already shown, because the protest i.
perfect after striking out the special
facts stated.
But, We're it otherwise, and the Audi
tor had decided upon the facts stated
and decided that the protest was prop
err, aud decided correctly, and proceeded
:. to act as required by law In such eases,
am at a loss to know what ground a
court Of equity would enjoin him.
Admittl g that the protest was proper
, there remains no equitable ground Of re-
liet, SO far as this case shows. There is
no avcrment that the Auditor is pro-
ceeding to do, or threatening to do, any
act which he is not required by law to
do if the protest is properly made, and
nothing but what, upon rcinsa a coult
would compel HIM to do ty mandamns
l, Lorenzo Leland, Clerk of the SUI
preme Court Of the State of Illinois, dc
hereby certify, that the foregoing is a
true copy OF the final opinion OF the SAID
Supreme Cont in the above entitled
!. canse, of record in my office.
In Testimony Whereof, have set my
hand and affixed the seal Of
l.. 5. the said Supreme Court, al
Ottawa, this LIST day of Oct in
, the year OF our Lord one thousand eight
hundred and sixty.
l.. LELAND,
Clerk of the Supreme Court
Bv J. b. RIcE, Deputy.