The Saint Paul globe., 1896-12-18
No MERE pRETENSE.
CAN BE RECOGNIZED BY MINNIE
sofa COURTS AS TO "P0s-
SESSION.
DELIVERY TO BE ACTUAL.
THIS RULING IS MADE IN REGAHD
TO NOTES OF INSOLVENT
BANKS.
FUTILE IS FINALLY CLEARED.
Jury Decides Kim Innocent After
Six Hours C0nsideration-Cou
News of Yesterday.

Justice Collins, in the supreme court
yesterday, handed down half a dozen
decisions, the most interesting of which
involves the American Savings and
Loan association Of Minneapolis. The
case is a peculiar one in that each of
the litigants had made an assignment,
and the assignee of one sued the re-
ceiver of the other. The decision is
in favor of the Irish-American bank,
as against the building association.
The syilabi Of yesterdays decisions
are as follows:
Stephen Mahoney, as assignee OF the Irish
American hank. insoNent, respondent, VS..
William D. Itaie, as receive er OF the Amer
ican Savings and Loan Association, APP
peIlant.
l. Held, in an action brought under the
provisions OF General Statutes 1894, section
4,243, TO have a transfer and assignment of
certain prom!ssory notes, made by in
solvent bank TO one or It's creditors, set aside
and TO recover possession of such notes. that
the findings Of fact that the transfer and as
signment were made by the bank with view
to giving the creditor an unlawful preference
over other creditors upon e-existing debt,
and that, at the time, the creditor had rea-
sonable cause to believe the bank insolyent,
are supported by the evidence
2. Held, further that other findings to the
effect that by and with the consent of the
creditor the notes remained in the actual
possession or the D3nk after the alleged trans
fer, and until the creditor, a corporation,
was itself placed in the hands of a receiver,
that they were treated and dealt with as the
property of the bank while in its custody,
that there was no actual delivery of the
same to this creditor at the time of the
transfer, nothing but a pretense at delivery,
and that there was no continued change of
possession, were also supported by the evil
dence.
8. Held, further, that not only was the
transfer fraudulent and void as to the pre-
TCri dnhf hut 11.~&
security for q debt subsequently incurred by
reason OF deposits made in the bank after
the transfer.
4. In case of a pledge the requirement of
possession in the PLEDGE is an inexorable rule
OF law adopted to prevent fraud and decep-
ton. There must be an actual delivery
OF the chattels as distinguished from a mere
pretense, and the change of possession must
6e continuing not formal, but substantial.
Order affirmed. Collins, J.
Frank F. Graham, respondent, VS.. William S.
Conrad, appellant.
Proof of service of notice of appeal from
a Judgment rendered in Justices court upon
Empey & Empey, the ATTORNEYS for the
plaintiff" is not proof of service of such
notice upon 'E. E. Empey'' wio, accord
ing to the record, was the only attorney ap-
PearinS in justices court for plaintiff
Proof Of. service of such notice cannot be
AMENDED, so as to show due service, after the
expiration of the ten days within which such
proof must be filed with the justice. Judg-
ment affirmed. Collins !
Charles A. Graham respondent, VS.. William
S. Conrad, appellant
Since the enactment of Laws 1895 cbantar
II, which provides that where an appeal from
a Justices court shall for any cause be
dismissed in district court, such court shall
enter judgment in the action affirming the
Judgment OF the justice with all costs no
appear will lie from the order of dismissal
but must be taken, if at all, from the judg-
missed. -Bv the Court
Ryan Drug Company. plaintiff appellant. VS..
Alvin Rowe ct al. respondents; Ryan Drug
Company, dcfendants-appelIant
Il: was building greenhouse upon his own
land and entered into an agreement with H.
to furnish the necessary glass at a fixed price
H. purchased the glass of the RYAN Drug
company, a wholesale dealer. upon credit
and in the regular course of business. and it
was delivered to R. for H. r. used the glass
in his greenhouse and paid H. the agreed
price. Held, that the Ryan Drug company
was not entitled to a lien fer the value of
the glass upon the building in which it was
used.
Order affirmed Collins, ].
Joseph vetsch respondent, VS.. J. Adam Neiss
ct al, defendants Nicholas Georges, ap-
pellant.
/. A firm carrying on the business of bor-
Ing wells, buying materials for pumps and
wlndmlllS, putting these materials together
and then placing these articles into wells
bored by the firm, or already bored dug
Il
of law to be a trading partnership each
member having implied authority to borrow
money for the use Of the firm and to execute
and deliver negotiable paper.
2. Whether enc member of partnership
can bind his mariners by making promissory
notes in the firm name is a question of au-
thOrity to execute the note, and is not to be
determined by simply ascertaining for whose
benefit the note was made.
3. The authority to borrow money for the
use Of the firm and to execute negotiable
paper therefore may be implied from the
nature of the business according to the usual
course in which it is carried on, or as reason
ably necessary or fit for its successful prose
cution. Or, IL it cannot be found that it
may still be inferred from the actual though
exceptional course and conduct of the bust
ness of the partnership itself as personally
carried on, with the knowledge, actual OF
presumed, Of the partner sought to be
charged.
4. In all cases where the court cannot hold
rs a matter OF law that the firm is a non
trading partnership and that its members
cannot bind the firm by the execution oil
promssory notes without the knowledge anG
arises as to the authority, it is for the iury
to say what the nature of the business ir
each case is what is necessary and proper
TO its successful prosecution and what is in.
volved in the usual and ordinary course OF
It's management by those engaged in it
And for the jury to ascertain and determine
whether the transaction in question is one
which those dealing with the firm had reason