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1896, just cited (Comp. St. 1916, § 1430), which penalizes the acceptance by United States Attorneys of illegal fees. The fees in question were paid under judicial order allowing compensation, obtained in the evident belief that the government and all parties concerned had assented thereto. But as indicating the spirit of the laws the sections referred to are pertinent.

State statutes fixing compensation for the official services of a public prosecutor have been held to forbid the recovery of additional compensation for services which it was his official duty to perform-not only from third persons, and in pursuance of express contract therefor (Coggeshall v. Conner, 31 Okl. 113, 120 Pac. 559, 39 L. R. A. [N. S.] 81, Ann. Cas. 1913D, 577), but from the county, even where the services were rendered under express agreement to pay therefor (McHenderson v. Anderson County, 105 Tenn. 591, 59 S. W. 1016; Money v. Beard, 136 Ky. 219, 124 S. W. 282). In the Coggeshall Case it was said (31 Okl. 115, 120 Pac. 560, 39 L. R. A. [N. S.] 81, Ann. Cas. 1913D, 577):

"It is against public policy for a public officer to be allowed private compensation for the performance of any duty as a public officer."

In the Anderson County Case it was said:

"It cannot alter the rule of law as to either of these officials that the value of their services was far beyond the compensation provided by statute. Public office is taken and held with the emoluments and burdens which the law imposes, and the burdens are or may be far beyond the compensation allowed in many cases. But this gives no valid claim for additional compensation."

In Wilson v. Otoe County, 71 Neb. 435, 98 N. W. 1050, the prohibition against recovery of extra compensation is held to extend even to extraofficial services. And see Railroad Co. v. Lee, 37 Ohio St. 479.

The pendency of the criminal cases, and appellants' relations toward them, to our minds give special emphasis to the rule of public policy invoked.

In our opinion United States v. Mormon Church, 6 Utah, 9, 44, 21 Pac. 503, 524, et seq., is distinguished from the instant case, not only because of the later statute of 1896, providing for compensation by salary alone, but because of the prominent features of this case not found in the Church Case.

It follows that, at least in the absence of the consent of the United States, appellants could not lawfully retain the compensation in question; and it was at least incumbent upon them to show that such consent was given. This burden has not been sustained, for not only is there no direct proof that Mr. Herron was authorized to agree on the terms of the compromise, but the implications from the testimony are the other way. The order setting aside the award of compensation for services rendered in the prosecution of the receiver's suit was therefore rightly made.

No question of appellants' right to compensation for services rendered the receiver personally, as distinguished from services rendered for the benefit of the United States, is presented; for it does not appear

that appellants rendered any substantial services to the receiver unless as incidental to, or involved in, the services rendered the United States. The order vacating the award of compensation is accordingly affirmed.

JESSON et al. v. NOYES.

(Circuit Court of Appeals, Ninth Circuit. August 20, 1917. Rehearing Denied October 8, 1917.)

No. 2528.


The court, under Alaska statute as to joinder of causes of action, had discretion to permit the joinder of causes of action for diminishing the assets of the bank by permitting subscribers to surrender stock and for declaring an illegal dividend.

2. BANKS AND BANKING ~77(6)—UNLAWFUL ACTS OF OFFICERS-COMPLAINT. In a suit by the receiver of an insolvent bank against former directors and officers to recover assets illegally diverted, a complaint alleging that the dividend was wrongfully, unlawfully, and fraudulently declared and paid, setting forth facts to sustain the allegation, and alleging facts to show that the money paid out for the surrender of stock certificates was fraudulently and illegally paid out of the capital of the corporation, stated a cause of action at common law.


The District Court of Alaska may take judicial notice of the statutes of a state.

4. BANKS AND BANKING 91-PURCHASE OF CAPITAL STOCK BY BANK. Under Corporation Act of Nevada (Laws 1903, c. 88) § 68, Rev. Laws, § 1169, providing that it shall not be lawful for the trustees or directors to divide or withdraw, or in any way pay to the stockholders, any part of the capital stock of the company, nor reduce the capital stock, unless in the manner prescribed, it was illegal for the bank to purchase at par value its stock from stockholders, and pay therefor out of the capital, and not the surplus, of the bank.




In a suit to hold the directors of a bank liable for an illegal purchase for the bank of its stock, evidence held to support a finding that the directors had knowledge of the purchase.


Where, contrary to statute and not in good faith, the directors of a bank declared dividends out of its capital, and purchased for the bank its stock, the diverted funds may be recovered for subsequent creditors of the bank, in a suit against the directors and the sellers of the stock. 7. ACCORD AND SATISFACTION


In a suit against former directors and officers of a bank, evidence held insufficient to show that certain deeds were accepted by the receiver from an ex-president in accord and satisfaction of the claims against the president, or any of the defendants.


Accord and satisfaction requires an agreement, and must finally and definitely close the matter covered by it.

Appeal from the District Court of the United States for the Fourth Division of the Territory of Alaska; F. E. Fuller, District Judge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Suit by F. G. Noyes, as receiver of the Washington-Alaska Bank, a corporation, against John A. Jesson and others. Decree for complainant, and defendants appeal. No error. No error. Decree affirmed.

The appellee, as receiver of an insolvent bank, brought suit against the appellants, who had been the directors and officers of the bank, charging them with wrongful and negligent acts and conduct whereby the bank had been injured and its assets wasted, so that it became unable to pay its creditors, praying that an accounting be had and judgments rendered against the appellants for the amounts found to be due from them respectively. On January 21, 1908, the Fairbanks Banking Company, a corporation organized under the laws of the state of Nevada, began business at Fairbanks, Alaska. On September 14, 1910, the name of the corporation was changed to WashingtonAlaska Bank. On January 5, 1911, receivers were appointed to take over the assets of the corporation and wind up its business. The court below found that certain of the appellants unlawfully diminished the assets and capital stock of the corporation, by permitting subscribers to surrender stock certificates which had been issued to them, and paying them the amount of their subscriptions, and that on April 12, 1910, the appellants Wood, McGinn, Brumbaugh, and Jesson declared a dividend upon the outstanding capital stock, at a time when the corporation had no undivided profits or surplus in excess of its liabilities, but was insolvent.

The findings of the court as to the surrender of the stock are in substance as follows: That, when stock was taken back by the corporation, the amount paid therefor was either paid in cash, or the notes held by the bank therefor were canceled and surrendered to the stockholders; that the bank had no surplus or undivided profits against which the same could be charged; that the taking back of said stock and such payment therefor was illegal and wrongful, and in violation of the laws of the state of Nevada, under which the corporation was organized; and that said stock surrenders were acquiesced in by said directors and in some instances were made under their direction and with their express approval.

As to the unlawful declaring of the dividend, the court found in substance as follows: That on April 12, 1910, the Fairbanks Banking Company, by its board of directors, declared a dividend of 20 per cent. on its then outstanding capital stock of $168,600, which dividend amounted to $33,720, and was paid to the stockholders of the bank, either in cash or by crediting the amount thereof upon notes due by the stockholders to the bank; that at that time the said Fairbanks Banking Company had no surplus or undivided profits out of which the dividend could be declared and paid, and said dividend was declared and paid in violation of the laws of the state of Nevada, and also in violation of the by-laws of the corporation, and was wrongful and illegal; that at the time when the dividend was declared and paid the appellants Wood, McGinn, Brumbaugh, and Jesson were members of the board of directors of said Fairbanks Banking Company, and gave their consent thereto.

By the decree it was adjudged that the appellee recover of and from the appellants Wood, McGinn, Brumbaugh, and Jesson, jointly and severally, the sum of $33,720; that he recover from the appellant J. A. Jesson the further sum of $13,400, by reason of the surrender of shares of capital stock made between July 13, 1908, and September 12, 1908; that he recover from the appellants Jesson and Hill, jointly and severally, the further sum of $1,500, by reason of the surrender of shares of capital stock between September 13, 1908, and October 13, 1908; that he recover from the appellants Jesson, Hill, and Peoples, jointly and severally, the further sum of $1,100, by reason of the surrender of shares of capital stock made between October 14, 1908, and March 13, 1909; that he recover from the appellants Jesson, Hill, and Brumbaugh, jointly and severally, the further sum of $1.000, by reason of the surrender of shares of capital stock made between March 14, 1909, and September 12, 1909; that he recover from the appellants Jesson, Brumbaugh, and McGinn, jointly and severally, the further sum of $3,000, by reason of the surrender of the capital stock made between September 13, 1909, and October 12, 1909: and that he recover from the appellants Jesson, McGinn, and Brumbaugh,

jointly and severally, the further sum of $1,000, by reason of the surrender of shares of the capital stock made between October 13, 1909, and January 18, 1910.

McGowan & Clark, A. R. Heilig, and John L. McGinn, all of Fairbanks, Alaska (Metson, Drew & Mackenzie, Curtis Hillyer, and Charles J. Heggerty, all of San Francisco, Cal., of counsel), for appellants. O. L. Rider, of St. Louis, Mo., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] It is assigned as error that the court below overruled the demurrers which the appellants interposed to the amended complaint, on the ground that several causes of action had been improperly united therein. The statute of Alaska, concerning the joinder of causes of action, is identical with and is taken from the statute of Oregon, and before it was adopted for Alaska it had been construed by the Supreme Court of Oregon in Benson v. Keller, 37 Or. 120, 60 Pac. 918. In that case it was the opinion of the court that much must be left to the discretion of the court in determining whether a bill is multifarious. The court said that the objection of multifariousness—

"does not go to the merits of the cause, but relates more nearly to a question of convenience in conducting the suit; and, in large measure, it simply calls for an exercise of discretion in deciding whether both or all the causes of suit set forth in the bill shall be tried in a single suit, or be split up, and the parties be relegated to the bringing of two or more suits for the accomplishment of their purposes, or whether the defendant who is a necessary party in respect of one or more matters suggested by the complaint has a sufficient interest in or connection with the other matters involved to make him a proper party in respect to such other matters."

The court considered that the object of the rule against multifariousness is to protect the defendant from unnecessary expense; that the demurrer for multifariousness does not go to the merits of the controversy. but calls upon the plaintiff to go out of court and split up his demands and begin anew; and the court quoted from Lehigh Val. R. R. Co. v. McFarlan, 31 N. J. Eq. 706, 758:

"The rule with regard to multifariousness, whether arising from the misjoinder of causes of action or of defendants therein, is not an inflexible rule of practice or procedure, but is a rule founded in general convenience, which rests upon a consideration of what will best promote the administration of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and unnecessary expenses on the other."

The object of the suit in Benson v. Keller was to cancel several duebills alleged to have been fraudulently procured from the plaintiff by one of the defendants, and thereafter transferred by him to others of the defendants severally. The court sustained the joinder, notwithstanding that it appeared that some of the defendants were put to additional expense by reason of the fact that the cause was tried away from their home counties. The plaintiff, in bringing the present suit, had in view but the single purpose of recovering the funds of the bank, which he alleged had been wasted by the directors. All the appellants had been directors. Jesson was director from March 12, 1908, to January 4, 1911; Peoples was director from October 14, 1908, to

April 24, 1909; Wood from November 13, 1909, to May 1, 1910; Brumbaugh from March 13, 1909, to September 12, 1910; Hill from September 12, 1908, to October 1, 1909; and McGinn from September 14, 1909, to May 1, 1910.

The appellants rely upon Emerson v. Gaither, 103 Md. 664, 64 Atl. 26, 8 L. R. A. (N. S.) 738, 7 Ann. Cas. 1114, a case in which were joined 17 directors, who had held their offices each for a short period in 12 different directorates, some of whom were charged with having declared illegal dividends, and others were charged with having made improper loans. It appeared that the defendants who were charged. with making the improper loans were not directors at the time when the illegal dividends were declared. The court said:

"Are all of the defendants to be thus subjected to inconvenience, loss of time, fees of counsel, and possibly expert accountants, court costs incurred concerning matters in which they are not connected, simply because at some time they happened to be directors of the same bank?"

But the court also said:

"There is no rule on the subject of universal application, and much is left to the discretion of the court, to be determined by the facts of each particular case."

It was in view of the confusion and the difficulty of apportioning costs that the court, in that case, held that the bill was multifarious. This it doubtless had the discretion to do. But we think it clear that in the present case the court below had the discretion to permit, as it did, the joinder of the causes of action, and that in so ruling there

was no error.

[2, 3] It is contended that the complaint fails to state a cause of action, in that it omits to plead the statute of the state of Nevada. This objection was not presented to the court below, and it is not suggested in the assignments of error. Nor was any objection made in the court below to the introduction in evidence of the Nevada statute. There are two reasons why the contention cannot be sustained. In the first place, the complaint did not lack necessary averments to constitute a cause of action. It alleged that the dividend was wrongfully and unlawfully and fraudulently declared and paid, with the knowledge, consent, and approval of the defendants, and set forth facts to sustain the allegation, and also alleged facts to show that the money paid out for the surrender of stock certificates was fraudulently and illegally paid out of the capital of the corporation. Those allegations were sufficient to constitute a cause of action at common law. 7 C. J. 562, § 168; Brinckerhoff v. Bostwick, 88 N. Y. 52. Again, it is our opinion that the court below was authorized to take judicial cognizance of the law of Nevada. In Mills v. Green, 159 U. S. 651, 657, 16 Sup. Ct. 132, 134 (40 L. Ed. 293), the rule is thus stated:

"The lower courts of the United States, and this court on appeal from their decisions, take judicial notice of the Constitution and public laws of each state of the Union."

The District Court of the territory of Alaska is, we think, one of the "lower courts of the United States" to which the rule should apply, and, while we find no adjudication to that precise effect, it is significant

245 F.-4

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