Upton v. National Bank of South Reading.

which the mortgage was originally given to secure, and consented that the bank should hold the mortgage to secure the sum of $3,000 thus advanced, and also three notes amounting to about $911 then due from him to the bank. The claim that this was a loan of money upon real estate security or a purchase of real estate, is not maintained when it is found as a fact that the inducement to this transaction was the agreement that the mortgage and the real estate upon which it was secured should be held for the antecedent debt due to the bank.

The objection that such an oral agreement could not be put in evidence cannot be maintained. While an indebtedness, other than that for which the mortgage was given, cannot legally be attached to such mortgage, yet it is competent, in answer to a bill in equity to redeem a mortgage, for the defendant to show that it would be inequitable to allow the plaintiff to do so upon payment of the amount apparently due thereon, inasmuch as the defendant had for valuable consideration orally agreed that it should not thus be discharged, but should remain as security for other debts. Joslyn v. Wyman, 5 Allen, 62; Stone v. Lane, 10 id. 74. Had any question of title arisen between the defendant and a subsequent mortgagee, attaching creditor or bona fide purchaser, or even if an action at law had been brought by the defendant to foreclose the mortgage, it must have been decided that the defendant could enforce the mortgage only for that portion of the $3,000 now actually due. But, if the present bill had been brought by Emerson, he could not have been allowed to obtain a release or discharge of the mortgage from the defendant, to whom it has been assigned, except upon the performance of his oral agreement with the defendant in relation to his antecedent debt. Joslyn v. Wyman, ubi supra; Stone v. Lane, ubi supra.

By the assignment in bankruptcy, the assignee has succeeded to all the rights of Emerson, but his rights here are not superior to those of Emerson. He has come into a court of equity to seek its aid in obtaining those rights, and is, therefore, to do what Emerson would have been compelled to do. In order to obtain a decree for the redemption of the mortgage, he must perform the oral agreement that the debt of $911 due the bank should be paid, as well as pay the balance of the $3,000 which is now due. Decree accordingly.

Thatcher v. West River National Bank.

THATCHER V. WEST RIVER NATIONAL Bank.

(19 Michigan, 196.)

Evidence of incorporation - Certificate of organization — Defense to accommo dation note.

In an action by "The West River National Bank of Jamaica, Vermont," held, that the certificate of the Comptroller of the Currency of the existence of a corporation under the name of "The West River National Bank of Jamaica," described as located in the town of Jamaica, Vermont, was admissible under the general issue for the purpose of proving the plaintiff's corporate exist

ence.

It is no objection to the admission in evidence of the certificate of the organization of a National bank, that the notary before whom it was acknowledged was one of the shareholders of the bank. The Comptroller's certificate of compliance with the act of Congress removes any objection which might otherwise have been made to the evidence on which he acted.*

A National bank discounted a note made by the defendant for the benefit of the payee and which the payee agreed to take care of at maturity. Held, that the bank could recover on the note although it had when it took the note full notice of the circumstances under which it was given.

A

CTION on a promissory note made by the defendant Thatcher, payable to the order of "L. N. Sprague, Agt.," and indorsed by him to the plaintiff for value and before maturity.

The declaration described the plaintiff as "The West River National Bank of Jamaica, Vermont." The defendant pleaded the general issue and gave notice that the payee was the agent of the Jamaica Leather Company, and that the note was given without consideration and for the benefit of such company, of which the plaintiff had notice when it discounted the note.

On the trial the plaintiff offered in evidence a document purporting to be a certified copy of the organization certificate of The West River National Bank of Jamaica," dated August 17, 1865, to which the Comptroller of the Currency certifies that the original was filed and recorded in his office on the 25th day of August, A. D. 1865; and which document contained the following recitals:

"First. The name and title of this association shall be The West River National Bank of Jamacia."

*See Tapley v. Martin, ante, p. 611.

"Second.

Thatcher v. West River National Bank.

The said association shall be located and continued in the town of Jamaica, county of Windham and State of Vermont, where its operations of discount and deposit are to be carried on." And also a certificate of the Comptroller of the Currency that the plaintiff had complied with the act of Congress.

It appeared by the certificate of acknowledgment of the document first mentioned, that the acknowledgment was taken before Jno. A. Butler, notary public; and by said document it further appeared that J. A. Butler was a subscribing shareholder named therein. To the reading these papers in evidence the defendant objected: (1) That the name of the plaintiff in this suit is "The West River National Bank of Jamaica, Vermont," and not the name of the institution set forth in said documents; (2) that the certificate of acknowledgment of said first-named document is not suflicient, because it appears upon the face of said first-mentioned document that the notary public taking said acknowledgment is one of the shareholders mentioned in the document; and (3) that it is not alleged in the declaration that the plaintiff is a corporation, nor that it is organized in manner and form as set forth in said documents

The Circuit judge overruled the several objections and allowed the documents to be read in evidence; to which the defendant excepted.

Evidence was offered by the defendant to show the knowledge of the bank of the circumstances under which the defendant signed the note; but the view taken by the court of this point in the defense renders it unnecessary to state in detail this evidence, or the ruling of the court below upon its admissibility and effect.

The defendant requested the court to charge the jury that it was necessary for the plaintiff to prove the indorsement of the note; the judge declined, but charged the jury that the note and indorsement had been read in evidence without objection, and there was no affidavit denying the execution of said indorsement, the defendant was therefore precluded now from disputing it; to which the defendant excepted. The jury found for the plaintiff, and the judgment entered on the verdict is brought into this court by writ of error.

F. Thatcher, plaintiff in error, in person.

W. L. Webber, for defendant in error.

Thatcher v. West River National Bank.

CHRISTIANCY, J. There was no error in allowing the plaintiff below (defendant in error) to introduce, for the purpose of proving its corporate existence, the organization certificates, upon which was certified by the Comptroller of the Currency that the original was filed in his office, nor in the admission of the certificates of said Comptroller (of Sept. 21, 1865), that the bank had complied with the provisions of the act of Congress, "To provide a National Currency," etc., of June 3, 1864.

The objection made by the defendant below was, in substance, that by the declaration, the plaintiff claimed to be a corporation by the name of "The West River National Bank of Jamaica, Vermont," and that the certificates did not tend to prove the existence of a corporation by this name, but only of one by the corporate name of "The West River National Bank of Jamaica."

There being no plea in abatement, and the objection arising upon the general issue, the question is whether this is a substantial variance; or rather it is merely a question of identity arising upon the evidence; and no slight variation, which does not go to raise a doubt of the identity, is to be regarded.

The plaintiff is described in the declaration as "The West River National Bank of Jamaica, Vermont," a corporation organized under the act of Congress entitled," etc. (giving the title of the act).

The organization certificate filed with the Comptroller of the Currency, it is true, declares that "the name and title of this association shall be The West River National Bank of Jamaica ;" but it also declares that "the said association shall be located and continued in the town of Jamaica, county of Windham, and State of Vermont, where its operations of discount and deposit shall be carried on." And the certificate of the Comptroller, showing a compliance with the provisions of the act of Congress, recites, that "Whereas, by satisfactory evidence presented to the undersigned, it has been made to appear that 'The West River National Bank of Jamaica,' in the county of Windham, in the State of Vermont, has been duly organized," etc.

It is clear enough, therefore, that the bank, the existence of which is proved by the certificate, is "The West River National Bank of Jamaica," in the State of Vermont. And the addition of the word "Vermont" at the end of the proper corporate name in the declaration, rather tends to render the indemnity more specific; and may

Thatcher v. West River National Bank.

properly be treated as intended only to show in what State the bank was located. And, upon the evidence, we see no reason to doubt the identity of the plaintiff with the bank whose existence is proved by the certificate.

The objection that the organization certificate appears to have been acknowledged before a notary, who by the same document is shown to have been a shareholder in the bank, is one which might have been raised by, or before, the Comptroller, but of which we can take no cognizance here. It was for him to decide upon the sufficiency of the evidence of compliance with the act of Congress, and we cannot review his decision. His certificate of compliance removes any objection which might otherwise have been made to the evidence upon which he acted.

But it is further objected that the evidence of witnesses in the case goes to show that the plaintiff was a bank doing business long prior to the date of these certificates, and therefore that the plaintiff cannot be the same corporation to which the certificates allude. This objection is answered by the 44th section of the act of Congress in question (Statutes at Large, Vol. 13, p. 112), making full provision for banks incorporated under State laws to organize under this act. And we think the fair tendency of the evidence referred to is only to show that this had been such State institution, doing business prior to its organization as a National bank under the act of Congress.

The evidence of the corporate existence of the plaintiff was full and complete, and there was no evidence of an opposite tendency. The defense relied upon by the defendant below, without going here into unnecessary particulars, was substantially, that the note. was given to L. N. Sprague, agent of the Jamaica Leather Company (to whose order it was made payable), without consideration, and merely for the accommodation of said Leather Company, upon the assurance of Sprague that the note would be taken care of and the defendant protected; and that the bank, the indorsee and plaintiff below, received it with a full notice of these facts.

The testimony of the defendant himself, and perhaps some other testimony in the cause, tended to show, that the note was given for the purpose above stated, and without consideration, and with the assurance of Sprague above stated.

But the defendant's own testimony further tended to show that the note was given for the express purpose, and with the full under