Omaha daily bee., 1899-05-05
CASE OF MERCHANTS BANK
State Endeavors to Recover from Bondsmen
of Defunct Institution,
7 WILL GO TO THE Jury THIS MORNING
Chicf Justice Harrison Holds that
"statute of Uses" is Not in Force
in Nebraska-Iown After
Chancellor MncLean.

LINCOLN, May 4--(special.)-- case
Oh the state Of Nebraska against the bonds
men OF the defuDct Merchants bank of this
city, TO recover tho amount Of the states
deposit remaining unpaid, $S,731 will be
submitted to the jury in district court be-
lore Judge Holmes tomorrow morning. The
case was prosecuted by Attorney General
Smyth, who was assisted by his deputy and
several other lawyers. The suit Is against
me men who are alleged to have insured
The state against loss when the Merchants
bank was made a state depository. The
defendants in the case are: c. NJ. Craw-
lord E A. stephens, Joseph L. Ryons, c.
l.. Chapman, j. IL. Sheen, X. 5. Young, Will
liam Fullerton, David Fitzgerald William
Ryons, j. c. and J. w. Fullerton.
The case has several points of in
terest and was warmly contested by the
attorneys for the bondsmen, two of whom
set up the defense that their names were
forged to the bond and that they did not
Know OF the fact until a short time ago.
Ihe bank failed nearly three years ago.
lhese Two men, Joseph l.. Ryons and Will
nam Fullerton, are probably of greater
financial responsibility than the rest.
The signing of the bond was witnessed
by w. d. Ryons, but when questioned in
court he did not remember whether one
person signed for all the bondsmen or
whether the bondsmen signed Individually.
On examining the signatures he did not
believe the handwriting was that of Will
liam Fullerton and later he was inclined
to think that the signatures of the three
Tullertons were affixed by the same person,
but he could not remember who that per-
son was. The examination of the wit
ness was very rigid, but his memory failed
regarding the signers of the bond.
Denial by Fullerton.
William Fullerton, who was president of
the bank four years denied positively that
he had signed the bond saying that he did
not even know his name had been affixed
to the paper until after the failure. He
produeed a number of his own checks to
show that the writing on the bond not
similar to his own. When asked by the at
torney general if he knew the bank was
state depository or not he replied that
be did not. Mr. Fullerton afterward tesC.N
fed that he was very sure his name was
not on the bond, because Mr.. Crawford an
officer Of the bank, had frequently asked
him to sign the banks depository bond
which he refused to do. He was also very
certain that he had never appeared before
the notary, Ryons, who witnessed the sign
ing of the bond, though the notary's seal
and signature seemed to show that he had.
The attorneys for the two alleged signers
moved the court to dismiss the case as to
their liability or connection with the bond,
but the court overrued the motion, leav-
ing the jury to decide whether the men
signed the bond or not.
A bond similar to the one in question
was given covering funds deposited by Ian
caster county, which is being resisted on
the same grounds
hartley Bondsmcn Case.
The hearing of the case instituted in the
district court here temporarily enjoining
Attorney General Smyth from prosecuting
Bartley's boudsmen in Omaha has been set
for hearing before Judge Frost on May 19
at 3 o'clock. The petition filed by the
bondsmen after setting forth a copy of
the bend of ex-Stato Treasurer Bartley for
his second term and giving the particulars
upon which to base an argument that 1t
had not been fully approved, sets forth the
depository bond of the Omaha National bank
and continues with the assertion that thu
plaintiffs are of the opinion that by the
depository bond the defendants, signing the
same as obligors undertook to protect all
persons who should be sureties upon the
bond of BARLEY from all loss and damage
by reason of the conversion, loss embezzle-
ment or otherwise Of any or all money al
any time deposited in the bank 1t is fur
ther alleged that II 1t be true that $20l,-
SSt.O5 was embezzled it was with the full
and actual knowledge of the Omaha Nationa
bank and Of all the persons signing the de-
pository bond of the bank, that the pre-
tended payment by the officers of the banl
accomplished the embeZzlement or conver'
sion.
Statute of Uses Not in Force.
Chief Justice Harrison has written al
opinion for the supreme court, holding tina
the statute of uses" is not in force II
this state, il not being of the laws OF Ne
braska. This statute of uses" involves
point of the common law handed down from
the time of Henry VIII CT England anc
has always been "A much disputed poin
among Nebraska attorneys. The supreme
court has never ruled on 1t before, henc
the Importance of the decision to the law
yers of the state.
The decision is in the case of the Farmers
and Merchants Insurance Company agains
lyers Jansen, taken to the supreme cour
on error from the district court in Saun
ders county, The court adheres to its orgi
nal decision in the suit which WAS re
versal and remanding of the case and hold
that the statute of uses" is not of tn
law of the state and therefore cannot b
enforced. The original statute OF uses
adopted during tDC reign ol llenTy VII, Wa
set forth in full in the pleadings and tn
following Interpretation was placed upo
il by one of the attorneys in the case:
"If a. owning real estate, shall conye
or win It to b, under an agreement be
tween them that Notwithstanding the con
yeyance, A, or some other person or cor
poraton shall have the rents or profit
arising from the real estate notwithstand
ing the conveyance made by under tina
agreement, he shall have the title he ha
before he made the conveyance
In the case in question the defendar
transferred his property to his wife an
the wife transferred 1t to a third perso
who afterward transferred it back to he
Jansen claimed all this was done with tn
agreement between himself and wife this
the property was to be for his use an
TO remain under his control and direction
When there was loss on the nsuranC
policy the insurance company asserted th'
the property had changed title, without IL
consent of the company, and that the trans
actions were directly contrary to the tern
of the policy. The original owner elaine
the property had not changed hands