Commissioners of the Clinton & Port Hudson Rail Road v.Kernan

Same Case — On an Application for a Re-hearing. Bullard, J. The defendant’s counsel have presented a peti *177 tion for a re-hearing at the same time that they are pleased to imagine that such applications are listened to by us with reluctance. In this they are certainly mistaken; for we always pay the most respectful attention to such applications, believing them tobe dictated by a sense of professional duty on the part of counsel, although sometimes indicating an excessive professional zeal, and making too little allowance for an honest difference of opinion. One ground for asking this re-hearing is, that the court entirely overlooked a plea, on the part of the defendant, that proper parties had not been made, and that Black, the maker of the new note, ought to have been made defendant. It is true this was not noticed, because no reason was given why he should have been cited by the bank as defendant. Such a proceeding would have been absurd in the plaintiffs, who had refused to recognize him as their debtor, and who had no judgment to ask against him. His note was brought into court to be given up to the defendant, Kernan. Perhaps the defendant would have been'authorized to cite Black in the case, as his personal warrantor'; but between the plaintiffs and him there was no priority of contract, and the defendant did not ask to have him made a party. Upon the merits, it appears to us that the doctrines of agency as it relates to cashiers of banks, as laid down in Story on Agency, page 103, are applicable ; and that the release of a debtor in an act of ownership, which a cashier is not authorized to perform under his general administrative powers. The acquiescence of the board in other transactions of the kind would prove nothing, unless it were shown that in those cases, as in this, the transferee of the stock and maker of the new note, was notoriously insolvent. If in the other instances the new obligor was solvent, no inference can be drawn from the assent of the directors being given tacitly, or their acquiesence in the act of the cashier. Re-hearing refused.