Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1900-10-26

of the indictment are therefore held
insufficient to charge the offense of
uctering forged instrument for the
reason that the eXtrinsic facts pleaded
neither created or purported to create
any liability.
The court has also decided the case
or E. c. Tourtelot, as receiver of the
Grand Forks National bank against
H. l.. Whllhed, as assignee of the
North Dakota Milling company. This
is an action which was brought by the
receiver Of the bank against Whithed
70 compel him to allow the bank it's
pro rata share on alleged claims
against the milling company. It is
alleged that the milling company owed
the bank $4,000, in notes for $4,000
and $4,000. The milling company
claimed that the note for $4,000 was
exlinguished by the transfer of shares
of stock in the milling company for
that amount, and that it had deposit
of $1O14 II which should be set off
against the other note. The receiver
claimed that the $4,000 in stock was
taken as security, not as satisfaction
of the note. The court holds with the
respondent, Withheld, and affirms the
judgment of the district court The
syllabus of the decision says that
where at the time a national bank is
placed in the hands of receiver an
other corporation has on deposit a cer-
tam sum of money and was also liable
to the bank on distinct contracts, such
oLner corporation had right to direct
the application of money on deposit.
The court also holds that where the
board of directors of bank have for
months ceased to exercise their func-
tions and have abandoned the man.
agement and control of the corporation
business entirely to the president Of
the bank it is presumed that sucn
officer was authorized to do in the
name Of the bank whatever the bank
might lawfully do and no special au-
thorization or ratification of his acts
need be shown. A contract by which
national bank receives corporate
stock of another corporation in pay
ment of a debt by such other corpora
ion, the court ho-.s, is not ultra wires
as to the bank when at the time Of
making such contract such corporation
is financially embarrassed and unable
to meet its commercial obligations as
they mature. A contract that is ultra
wires not because prohibited by posi-
tive law or inherently vicious and not
because the corporation could not un-
der any circumstances make the con-
tract, but solely because of the exist
ing circumstances and conditions un-
der which it was made is never void
and the plea of ultra wires will not
avail either party to such contract
when the contract has been fully exc
cuted by the other party.
The court has reversed the decision
of the lower court and ordered a new
trial in the case of Willis A. Joy as
administrator OF the estate of Gather
inc l.. Wording, against the bondsmen
of S. w. Mclaughlin to recover bal
ance of $4,000 claimed to be due from
said Mclaughlin as executor of the
estate. The only evidence of any
such balance is a Judgment of the
county court of Grand Forks county
upon an accounting made in said
court by the executor. The supreme
court holds that a judgment entered
by county courts of the state upon the
final accounting Of an executor is of
equal rank with judgments entered in
other courts of record and is cOnclu-
sive as against collateral attack except
upon jurisdictional grounds and those
OF collusion and fraud. In the lower
court the case was tried to jury and
the court directed verdict for the de-
PENDANTS. The supreme court holds
this to have been error and orders Z
new trial.