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is appointed, it cannot of course prevail against a stat and of the Bank of Commerce at Savannah, both of ute of the State in which the question is presented for which were then, and continued till the breaking out adjudication, expressly applicable to the estate of a of the war, in sound condition, paying good dividends. ward domiciled elsewhere. Hoyt v. Sprague, 103 U.S. There is nothing to raise a suspicion that Lamar, in 613.

making these investments, did not use the highest deCases may also arise with facts so peculiar or so com gree of prudence; aud they were such as by the law of plicated as to modify the degree of influence that the Georgia or of Alabama he might properly make. Nor court in which the guardian is called to account may is there any evidence that he was guilty of neglect in not allow to the law of the domicile of the ward, consist- withdrawing the investment in the stock of the Bank ently with doing justice to the parties before it. And of Commerce at Savannah before it became wortbless. a guardian, who had in good faith conformed to the He should not therefore be charged with the loss of law of the State in which he was appointed, might per that stock. The investinent in the stock of the Bank haps be excused for not having complied with stricter of the Republic of New York being a proper invest. rules prevailing at the domicile of the ward. But in a ment by the law of the domicile of the wards, and case in which the domicile of the ward has always there being no evidence that the sale of that stock by been in a State whose law leaves much to the discretion Lamar's order in New York in 1862 was not judicious, of the guardian in the matter of investments, and he or was for less than its fair market price, he was not bas faithfully and prudently exercised that discretion responsible for the decrease in its value between the with a view to the pecuniary interests of the ward, it times of its purchase and of its. sale. He had the auwould be inconsistent with the principles of equity to thority as guardian, without any order of court, to sell charge him with the amount of the moneys invested, personal property of his ward in his own possession, merely because he has not complied with the more and to reinvest the proceeds. Field v. Schieffelin, 7 rigid rules adopted by the courts of the State in which Johus. Ch. 150; Ellis v. Essex Merrimack Bridge, 2 Pick. he was appointed. The domicile of Wm. W. Sims dur- | 243. ing his life and at the time of his death in 1850 was in That his motive in selling it was to avoid its being Georgia. This domicile continued to be the domicile confiscated by the United States does not appear to us of his widow and of their infant children until they ac to have any bearing on the rights of these parties. quired new ones. In 1853 the widow, by marrying the And no statute under which it could have been conRev. Mr. Abercrombie, acquired his domicile. But she fiscated has been brought to our notice. The act of did not, by taking the infants to the home, at first in July 17, 1862, ch. 195, $ 6, cited by the appellant, is limNew York and afterward in Connecticut, of her new ited to property of persous engaged in or abetting armed husband, who was of no kin to the children, was under no rebellion, which could hardly be predicated of two girls legal obligation to support them, and was in fact paid under thirteen years of age. 12 St. 592. Whatever for their board out of their property, make his domi- liability, criminal or civil, Lamar may have incurred oile, or the domicile derived by her from him, the

or avoided as toward the United States, there donuicile of tbe children of the first husband. Imme was nothing in his selling this stock and turning it diately upon her death in Connecticut, in 1859, these into money of which his wards had any right to comchildren, both under ten years of age, were taken back plain. to Georgia to the house of their father's mother and

As to the sum received from the sale of the stock in unmarried sister, their own nearest surviving rela the Bank of the Republic we find nothing in the facts tives; and they continued to live with their grand agreed by the parties upon which the case was heard, mother and aunt in Georgia until the marriage of the to support the argument that Lamar, under color of aunt in January, 1860, to Mr. Micou, a citizen of Ala- protecting his wards' interests, allowed tho funds to bama, after which the graudmother and the children be lent to cities and other corporations which were resided with Mr. and Mrs. Micou at their domicile aiding in the rebellion. On the contrary, it is agreed iu that State.

that that sum was applied to the purchase in New Upon these facts the domicile of the children wils York of guaranteed bonds of the cities of New Oralways in Georgia from their birth until January, 1860, leans, Memphis and Mobile, and of the East Tennessee and thenceforth was either in Georgia or in Ala and Georgia Railroad ('ompany; and the description bama. As the rules of investment prevailing before of those bonds in the receipt afterward given by Micou 1863 iu Georgia and in Alabama did not substantially

to Lamar shows that the bonds of that railroad comdiffer, the question in which of those two States their pany, and of the cities of New Orleans and Memphis at domicile was is immaterial to the decision of this case, least, were issued some years before the breaking out and it is therefore unnecessary to consider whether of the rebellion, and that the bonds of the city of their grandmother was their natural guardian, and as

Memphis and of the railroad company were at the such bad the power to change their domicile from one time of their issuo indorsed by the State of Tennessee. State to another. See llargrave's note, 66, to Co. Litt. The company had its charter from that State, and its 886; Reere Dom. Rel. $ 315; 2 Kent Comm. 219; Code road was partly in Tennessee and partly in Georgia. Ga. 1861, SS 1754, 2452; Darden v. Wyatt, 15 Ga. 414.

Tenn. St. 1818, ch. 169. Under the discretion allowed Whether the domicile of Lamar in Dec., 1855, when he to a guardian or trustee by the law of Georgia and of was appointed in New York guardian of the infants, was

Alabama he was not precluded from investing the iu New York or in Georgia, does not distinctly appear

funds in his hands in bonds of a railroad corporaaud is not material; because for the reasons already tiou, indorsed by the State by which it was chartered, stated, wherever his domicile was, his duties as guardian

or in bonds of a city. As Lamar in making these inin the management and investment of the property of

vestments appears to have used due care and prudence, bis wards were to be regulated by the law of their having regard to the best pecuniary interest of his domicile.

wards, the sum so inrested should be credited to him It remains to apply the test of that law to Lamar's in this case, unless as suggested at the argument, the acts or omissions with regard to the various kinds of requisito allowance has already been made in the final securities in which the property of the wards was in

decree of the Circuit ('ourt in the suit brought by the rested.

representative of the other ward, an appeal from 1. The sum which Lamar received in New York in which was dismissed by this court for want of jurismoney from Mrs. Abercrombie be invested in 1856 and

diction in 104 C. S. 165. 1857 in stock of the Bank of the Republic at New York

2. Other moneys from the wards in Lamar's hands,

OF

arising either from dividends which he had received NEW YORK COURT OF APPEALS ABSTRACT, on their behalf, or from interest with which he charged himself upon sums not invested, were used in the pur MUNICIPAL CORPORATION - CARE STREETS chase of bonds of the Confederate States, and of the

ADOPTING CHARTER POWERS IMPERATIVE-ADJOINING State of Alabama. The investment in bonds of the OWNER CHANGING SIDEWALK-NO DEFENSE TO CITY Confederate States was clearly unlawful, and no legis AFTER NOTICE.—Where by the charter of a municipal lative act or judicial decreo or decision of any State corporation power is conferred upon it to direct the could justify it. The so-called Confederate govern manner of and superintend the wakiug and repairing ment was in not senso a lawful government, but was a of sidewalks, and the exercise of this power, in a manmere government of force, having its origin and foun ner specified in the charter, is not left discretionary, dation in rebellion against the United States. The

but is made imperative, au assent upon the part of the notes and bonds issued in its name and for its support corporation to a substantial and unauthorized change had no legal value as money or property, except by in the slope and manner of construction of a sidewalk agreement or acceptance of parties capable of con.

may not be presumed from a simple omission on its tracting with each other, and can never be regarded part after due notice thereof to object to the change. by a court sitting under the authority of the United

While therefore the corporation may not be held liaStates as securities in which trust funds might be law ble for any defect in the original plan, and while it fully invested. Thorington v. Smith, 8 Wall. 1; Ilead

may adopt a sidewalk already constructed, or rebuild v. Starke, (hase, 312; Horn v. Lockhurt, 17 Wall. 570;

upon a new plan, and thus secure to itself immunity, Confederate Note case, 19 id. 518; Sprott v. United

this must be done by proper corporate action; and States, 20 id. 459; Fretz v. Slover, 22 id. 198; Ilexander where a change has been made by the owner of adv. Bryan, 110 U'. S. 411; S. ('., 4 Sup. ('t. Rep. 107. An

joining premises, making the sidewalk dangerous for infant has no capacity by contract with his guardian travel, an omission on the part of the corporation, after or by assent to bis unlawful acts to affect his own

notice, to take any action in reference to the matter is rights. The case is governed in this particular by the not a defense iu an action brought against it to recover decision in Horn v. Lockhart, in which it was held

damages for injuries caused by the defect. Clemence that an executor was not discharged from his liability v. City of Auburn, 66 N. Y. 334; Saulsbury v. Village to legatees by having invested funds, pursuant to a of Ithaca, 94 id. 27; Crqubart v. City of Ogdensburgh, statute of the State, and with the approval of the Pro 91 id. 67, distinguished. Urquhart v. City of Ogdensbate Court by which he has heen appointed, in bonds of burgh. Opinion by Danforth, J. the Confederato States, which became worthless in his

[Decided Nov. 25, 1884.) hands. Neither the date nor the purpose of the issue of the bonds of the State of Alabama is shown, and it

NEGLIGENCE-PLAINTIFF'S TESTIMONY MUST ESTABis unnecessary to consider the lawfulness of the in

LISH-INFERENCE EITHER WAY-NONSUIT PROPER. — vestment in thoso bonds, becauseLamar appears to have

To maintain an action to recover damages for veglisold them for as much as he had paid for them, and to

gence, plaintiff must prove facts warranting an inferhave invested the proceeds in additional (onfederate

ence of negligence on the part of defendant. He may States bonds, and for the amount thereby lost to the

not recover upon facts as consistent with care and estate he was accountable.

prudence as was the opposite in such an action. Bauleo 3. The stock in the Mechanics' Bank of Georgia,

v. New York, etc., R. Co., 59 N. Y. 357. Plaiutiff's eviwhich had belonged to William W. Sims in his life

dence to the effect was that he went upon one of the time, and stood on the books of the bank in the name

defendant's street cars and stood upon the front platof his administratrix, and of which one-third belonged

form, although there were vacant seats inside. The to her as his widow, and one-third to each of the in

car stopped to receive other passengers, who eutered fants, never came into Lamar's possession; and upon

by the front platform. To facilitate their entry, a request made by him, the very next month after his

plaintiff stepped down upon the front steps; as he was appointment, the bank refused to transfer to him any

stepping up again, after they had got on the platform, part of it. IIe did receive and account for the divi

as he testified, “the car gave a sudden movement and dends; and he could not under the law of Georgia

pulled up,' and he was thrown off and injured. It apconcerning foreign guardians have obtained possession

peared that after starting the car did not stop until of property of his wards within that State without the

after the accident. Held, that the evidence failed to consent of the ordinary. (ode 1861, $$ 1834-1839. The

show any negligence on defendant's part, and that a re

fusal to nousuit was error. attempt to charge him for tho value of the principal of

Ilayes v. Forty-second the stock must fail for two reasons: First, this very

Street, etc., R. Co. Opinion by Finch, J. stock had not only belonged to the father of the wards

[Decided Nov. 25, 1881.] in his life-time, but it was such stock as a guardian or PRACTICE-DEMU'RRER-UNITING CAUSES OF ACTION trustce might properly invest in by the law of Geor -Cone Civ. PROC., $ 481.—Plaintiff's complaint congia. Second. No reason is shown why this stock, tained in two causes of action, one to recover dambeing in Georgia, the domicile of the wards, should ages alleged to have been caused by an embankment have been transferred to a guardian who had been ap orected by defendant upon its land, which turned the pointed in New York during their temporary resi wators of a stream and caused them to flow over dence there. The same reasons are conclusive against plaintiff's premises. The other was to recover damcharging him with the value of the bank stock in Goor ages for an alleged breach of duty on the part of gia, which was owned by Mrs. Abercrombie in her defendant in neglecting and refusing to erect and own right, and to which Mr. Abercrombie bocamo on maintain a farm crossing. On demurrer, held, that titled upon her death. It is therefore unnecessary to the two causes of action were improperly united, as the consider whether there is sufficient evidence of an im first is “for injuries to real property," while the secmediate surrender by him of her interest to her chil ond is “upon contract," i. e., for the breach of an imdren.

plied contract to perform a statutory duty; that the The result is that both tho decrees of the Circuit fact that such contract affects real estate does not Court in this case must be reversed, and the case re change the nature of the obligation so as to make the manded for further proceedings in conformity with cause of action one relating to real property within this opiniou.

the meaning of section 484 of the Code of Civil Proce

construction here. Cronin v. Stoddard. Opinion by Danforth, J. [Decided Nov. 25, 1884.]

dure, which section provides that the plaintiff may unite in the same complaint two or more causes of action, in the several cases which aro enumerated, and among others “for injuries to real property.' It is very manifest that the first cause of action, in the complaint herein, is to recover damages, within the meaning of subdivision 4, “for injuries to real property.” A more difficulü question arises as to the second cause of action. The complaint as amended, after a portion of the same had been stricken out by an order of the court, as we have seen, claims to recover damages sustained by reason of a failure of defendant to perform its statutory duty. The gist of the action is this failure of the defendant to perform a duty enjoined upon it by law, in consequence of which the plaintiff has sustained injuries for which he is entitled to recover damages. This second cause of action arises upon an implied contract or obligation of the defendant to perform a duty required. The duty is imposed by statute, and an implied promise of performance arises by reason thereof. In N. Y. & N. II. R. v. Schuylor, 31 N. Y. 85, it was laid down by Davis, J., that “all duties imposed upon a corporation by law raise an implied promise of performance.” See also Inhabitants of Booth v. Freeport, 5 Mass. 326. Tho duty imposed upon the corporation here was to make and maintain fences and provide farm crossings for the plaintiff, and an implied obligation or promise was thus create which the defendant was bound to fulfill and for a failure to perform an action for damages would lie. Such action clearly related to a violation of the contract by the defendant, and the fact that such contract affected the real estate did not change the nature of the obligation so as to make the cause of action one relating to real estate, and not to the implied promise or contract. Thomas v. ltica & Black River R. Co Opinion by Miller, J. [Decided Nor. 25, 1884.]

LICENSE-OMISSION TO EXECUTE BOND) CREATES NO " VACANCY INVALID LICENSE NO DEFENSE.—The omission of an excise commissioner elected under the act of 1874 (ch. 414) to execute an official bond approved by the supervisor of the town, does not create a vacancy; the omission at the utmost only furnishes cause for a forfeiture of the office; and a vacancy can be effected only by a direct proceeding for that purpose. To avoid the penalty imposed by the excise law (Laws of 1857, ch. 628) a party desiring to sell intoxicating liquors must see to it that ho obtains a license from those clearly authorized to grant it. Where therefore because of the failure of an excise commissioner to procure the approval of the superintendent to the bond presented by him, another was elected to fill the supposed vacanar, held, that a license signed by the person so elected by one commission was no defense to an action to recover a penalty for selling liquor without license. This was held in Fout v. Stiles, 57 N. Y. 399, in the case of a commissioner of highways, where the same question came up on the construction of a statute similar to the one before us. The Legislature uses different language when it intends that an act or omission shall create a vacancy, as in Laws of 1875, ch. 180, § 4, where the mere acceptance of an election or appointment by a town auditor to any other town offico creates a vacancy in the first office, or section 5, whero neglect to accept has the same effect upon the office named. In l'eople ex rel. Kelly 5. Common Council of Brooklyn, 77 N. 1. 50:3, the statute under consideration declared that upon the happening of a certain event the office “should become vacant.” The event bappened, and it was held that no proceedings were necessary, for the effect of the statute was the removal of the incumbent. The differing language of the statutes will not permit that

RAILROAD-LICENSE FEES-CONSTRUCTION OF STATUTE-REPEAL OF REPEALING ACT RESTORES-ACTION FOR FEES.-By defendant's charter (Laws of 1860, ch. 513, $ 2) its right to construct and operate a street railroad in the city of New York is made subject

“to the payment to the city of the same license fee annually for each car run thereon, as is now paid by other city railroads in said city.” At the time the charter was granted two railroads in the city paid a license fee of $50 per car each, one paid $20 per car, and three paid no license. In an action to recover license fees, held, that the city was entitled to collect and receive, and defendant was properly required to pay, $50 per car; also that interest was properly allowed. A different construction would prerent the collection of any fee and render the statute inoperative and of no effeot, and should not be sanctioned. If ambiguity exists as to the amount of the fee to be paid, then the greater amount should be adopted, for it is a well-settled rule that any ambiguity in a grant of privileges must operate against the grantee and in favor of the public. This is fully established by the adjudications in this country and in England. Langdon v. Mayor, etc., 93 N. Y. 129; R. & G. R. Co. v. Reid, 01 N. C. 158; Ilartford Bridge ('o. v. Union F. ('0., 29 Coun. 210; Allegheny v. (). & P. R., 26 Penn. St. 355 ; Dugan v. Bridge Co., 27 id. 303 ; Bowling Green R. v. Warren Co., 10 Bush, (Ky.), 711; Marion Savings Bank v. Dunkin, 54 Ala. 471; Bridge (o. v. IIoboken, 13 N. J. Eq. 81; Florida R. Co. v. P. R. ('0., 10 Fla. 145; Rice v. M. & N. R. Co., 1 Black (U. S.), 358; Bradley v. N. Y. & N. H. R., 21 ('onn. 294; Priestly 1. Foulds, 2 Scott (new), 205 ; Kingston Dock ('0. v. La Marche, 8 B. & C. 42; Leeds & Liverpool Canal v. Ilustler, i:1. 424; Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 79:2; Gildart v. Gladstone, 11 East, 685. The fee of the streets being in the city for public purposes and upon public trusts, and the use of the streets being given to a private corpora tion for private gain without compeusation, and the corporate authorities of the city being the representatives of the public in the assertion of their rights, the principles of construction stated should be held to apply the same as between corporations and individuals. The strictest rules of interpretation can therefore be properly invoked. The ordinance was therefore valid as to the city railroads which were required by their charters or by contract with the city to pay a given sum to the city in consideration of the privileges conferred. In cases of a grant by legislatire power the right to collect the amount fixed as a license confers express authority to enforce the payment of the same, and in no sense can it be considered as the imposition of a tax or a penalty which is without the sanction of law. The said ordinance was subsequently repealed, but the repealing resolution was thereafter repealed. Helil, that the ordinance was thereby restored to full force and efficacy. People v. Davis, 61 Barb. 156; Vandenburgh v. Greenbush, 66 N. Y. 1. It may be added that the claim of the plaintiff to recover in this action does not rest upon the ordinance alone, but depends upon the statute, which requires the payment of the license fees to the city independent of any ordi

There would seem to be no valid reason wby the city should not maintain an action to recover the license fee provided for by the statute. It clearly confers upon the city the right to such fees, and perhaps even without the ordinance an action would lie for their recovery. Mayor, etc., v. Broadwuy and Serenth Ave. R. Co. Opinion by Miller, J. [Decided Nov. 25, 1884.]

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OF

UNITED STATES SUPREME COURT AB “all legal and equitable rights and interests therein STRACT.*

and thereto; " but the rights of the parties in this suit

are not affected by it, and must be governed by the TRUST-LIEN JUDGMENT “ REAL ESTATE

principles of the common law in force when they be

came fixed. It is indeed a rule well established in BANKRUPTCY - POWER OF APPOINTMENT DOES NOT PASS.—The statute of Illinois in force at the time and

England, and recognized in this country, that where a governing the case was sec. 1, ch. 57, Rev. Stat. 1845,

person has a general power of appointment, either by which after providing that judgments should be a lien deed or by will, and executes this power, the property on the real estate of the judgment debtor, provided as

appointed is deemed in equity part of his assets, and follows: The term 'real estate'in this section shall

subject to the demands of his creditors in preference be construed to include all interest of the defendant

to the claims of his voluntary appointees or legatees. or any person to his use, held or claimed by virtue of

This rule is stated by Mr. Justice Gray in Clapp v. Inany doed, bond, covenant or otherwise, for a convey

graham, 126 Mass. 200, to have had its origin perhaps ance, or as mortgagee or mortgagor of lands in fee, for

in a decree of Lord Somers, affirmed by the House of life or for years." Except so far as modified by this Lords, in a case in which the person executing the act, the common law on the same subject was in force

power had in effect reserved the power to himself in in Illinois by express adoption. Rev. Stat. 1815, p. 337,

granting away the estate. Thompson v. Towne, Prec. § 1. Iu Spindlo v. Shrere, 111 U. S. 542-517; S. C., 4

Ch. 52; S. C., 2 Vern. 319. But it was frequently afterSup. Ct. Rep. 522, it was stated to be the law in Illi

ward applied to cases of the execution of a general nois that where the legal title to lands is in trustees,

power of appointment by will of property of which the for the purpose of serving the requirements of an act

donee had never any ownership or control duriug life. ire trust, the judgment creditor had no lien and could

In re Harvey's Estate, L. R., 13 Ch. Div., 216. That acquire none at law, but could obtain one only by fil

doctrine however has no application in the present ing a bill in equity for that purpose, according to the

case. (2) A power of appointment does not pass to the provisions of section 49 of the Chancery Practice Act

assignee in baukruptcy of the person in whom the

Branof that State. Rev. Stat. 1815, p. 97. It was otherwise

power resides. Jones v. Clifton, 101 U. S. 225. if the trust was merely passive, such as those de

dies v. Cochrane. Opinion by Matthews, J. scribed in the section defining real estate as subject to

[Decided Dec. 1, 1881.] the lien of judgments already quoted. Miller v. Dav.

VENDOR AND PURCHASER-PURCHASE OF SECURITIES idson, 3 Gil. 518; Baker v. Copenbarger, 15 Ill. 103;

-PAYMENT-DISCHARGE OF LIEN-PAROL EVIDENCE Thomas v. Eckard, 88 id. 593. The rule at common

AS TO CONSIDERATION-PRACTICE-SUBROGATION.-(1) law and the corresponding jurisdiction of chancery as

On or about the 19th of December, 1870, H. T. and M. to equitable estates are fully explained in Morsell v.

T. purchased of 1), a tract of land in the city of ChiFirst Nat. Bank, 91 U. S. 357; Legsee of Smith v. Mc

cago, which they afterward caused to be laid off into Cam, 24 IIow. 398; Freedman's Savings & Trust (o).

blocks and lots. The blocks were numbered 1, 2 and v. Earle, 110 U. S. 710. Prior to the enactment of 1 &

3. A part of the purchase money was paid by them in 2 Vict., ch. 110, it was settled in England that at law

cash, and for the balance they executed four joint a judgment against the party having a power of ap

notes, each for the sum of $5,373.6772, payable at difpointment, with the estate vested in him until and in

ferent times, with interest, secured by a deed of trust default of appointment, was defeated by the subse

on the property to A. as trustee. Prior to September, quent execution of the power in favor of a mortgagee.

1872, M. T. sold some of the lots, partly for cash avd Doe v. Jones, 10 Barn. & (. 459; Tunstall v: Trappes, partly on credit. On the 5th of September, 1872, an 3 Sim. 300. And it was held to be immaterial that tbo

oral agreement was made by which M. T. was to take purchaser had notice of the judgment (Eaton v. Sanx

all the cash and notes that had been received from ter, 6 Sim. 517), or that a portion of the purchase sales, and all the unsold parts of block 2, and all but money was set aside as an indemnity against it.

eight lots of those unsold in block 3, pay the debt to Skeeles v. Shearly, 8 Sim. 153; S. (., on appeal, 3

I)., and give II. T. all of block 1, and eight lots in Mylne & ('. 112. In this caso Sir John Leach, the vice

block 3, clear of the incumbranco of the trust deed to chancellor, docided that the effect of the transmission

A. In part execution of this agreement, M. T. at the of the estate by appointment was that tho appointeo

time conveyed to II. T. his interest in block 1, and in takes it in the same manner as if it had been limited

the eight lots in block3. II. T. did not convey to M. to him by the deed under which the appointer takes in

T. until December 20, 1872. On that day, for the condefault of appointment, and consequently free and sideration of $100, as expressed in the deed, he released disconnected from any interest that the appointer had

and quitclaimed to M. T. in fee simple all his title and in the tenements in default of appointment; that as

interest in the unsold lots in block 2, and in block 3, the appointee is in no sense the assigneo of tho ap

except the eight lots which had been conveyed to him pointer, he cannot be affected by judgments which af

by M, T., and at the same time transferred to M. T. all fect only the estate and interest of the appointer, and

his interest in the moneys and securities which bad that being so, the circumstance of his having notice of

been received for the lots sold. M. T., finding himself such judgments is immaterial. The statute of 1 & 2

unable to pay the note of D., which became due in DeVict., ch. 110, altered the law in this respect by mak

cember, 1872, and the interest on the other notes, ening judgments on actual charge on the debtor's prop

tered into an agreement with H., by which H. was to erty, where he has at the time the judgment is entered

take the property off his hands, as he took it from H. up, or at any time afterward, any disposing power T., pay the debt to 1)., and relieve tho premises conover it which ho might, without the assent of any

veyed to 11. T. from the lion of the trust deed to A. other person, exercise for his own benefit, so that it

Under this agreement M. T. conveyed the part of the would continuo to bind the property, notwithstanding property to which he held the title to H. by deed, for any appointment. 2 Sugil. Powers (ñth Lond. ed.), 33;

tho expressed consideration of $16,000, and transferred Burton Real Prop. (8th Lond. ed.) 283; IIotham v.

to him all debts due for lots sold. This deed was dated Somerville, 9 Beav. 63. In Illinois the definition of

December 28, 1872. II. at the same time orally asthat real estate which is made subject at law to the

sumed the payment of the debt to D., that being the lien of judgments was enlarged by the act of July 1, only consideration for the transfer. At the time of 1872 (Hurd's Rev. Stat. 1883, p. 676), so as to include

this transfer II. borrowed from R., through H. & B., * Appearing in 5 Supreme Court Reports.

his agents, $10,000, for which he executed two notes,

payable three years from date, one for $6,000 and the it is not void, but only voidable. The sovereign alone otter for $4,000—and secured them by two deeds of can object. It is valid until assailed in a direct proceedtrust to H., one of the agents, as trustee, each upon ing instituted for that purpose. National Bank v. different parts of block 2. Together these deeds cor Matthews, 98 U. S. 628; National Bank v. Whitney, ered the whole of the block. H. and B. were only au 103 id. 99; Swope v. Leffingwell, 105 id. 3. Reynolds v. thorized to make loans for R. on unincumbered prop- First National Bank of Crawfordsville. Opinion by erty. They knew at the time they paid the money Woods, J. over to H. that block 2 was incumbered by the deed of [Decided Nov. 24, 1884.] trust to A., but H. promised to pay the past due note and the past due interest to D. out of the money he borrowed, and obtained a release from A. of that

OHIO SUPREME COURT ABSTRAUT,* block. H. did pay the note and the interest past due, and also the note falling due in December, 1873; but CONTEMPT-PROCEEDINGS IN AID OF EXECUTIONinstead of getting a release from A. of block 2 he, with REFUSAL TO PAY MONEY-IMPRISONMENT ILLEGAL.out the knowledge of H. and B., took one of block 3, A. had in his possession money which he claimed as a thus leaving block 2 still under the incumbrance of a gift from B., who was a judgment debtor of C. In lien, prior to that for the benefit of R., to the extent of proceedings prosecuted by C. before the probate judge the two notes to D., falling due four and five years in aid of execution, the judge found that the money from date. When the note maturing in December, had been placed in the hands of A. by B. to defraud 1874, fell due H. was unable to meet it, but in January, his creditors, and the judge ordered A. to deliver the 1875, be sold nineteen lots in block 2, for which ho re money to a receiver then appointed by him, to be apceived $6,000 in cash. With this, and other moneys plied on the judgment, but A. refused to comply with advanced by H. & B., B. went to the bankers, to the order. Held, that the probate judge had no power whom both the remaining notes due to D. had been to imprison A. for a contempt, but the receiver must sent for collection, and paid the money for them, and resort to his remedy by action against A. White v. took them away uncancelled, they having been previ Gates. ()pinion by Okey, J. ously indorsed in blank by D. One payment of $6,000

MANDAMUS-PUBLIC OFFICER-WHEN DOES NOT LIE. was made on the 15th of January, and the other, being the principle is too firmly established to be ques$5,641.87, on the 29th. On the day the last payment

tioned, that where a public officer is invested with diswas made, and after the notes had been taken up, B.

cretionary power concerning the performance of a went to A. with them, and requested him to release public duty required at his hands, or wherever in deblock 2 from the lieu of the trust deed to bim. He | termining the course of official action he is called upon stated to A. that he was the owner of the notes, and

to use official judgment and discretion, his exercise of thereupon A. executed a release of block 2, which B.

them in the absence of had faith, fraud, and gross signed and acknowledged with him. In this release

abuse of discretion, will not be controlled or directed B. is described as the legal holder of the unpaid by mandamus. Free Turnpike ('o. v. Sandusky notes.” After this H. paid II. & B. the money they County, 1 Ohio St. 149; State ex rel. Anderson F. had advanced to take up the notes from the bank.

Holmes County, 17 id. 608; Lake Co. v. Ashtabula Co., Held, that R. was not a purchaser of the notes due to

24 id. 393, 401; Moses Mand. 78; High Ex. Rem., § 24; D., but that said notes were paid by II. with his own money, according to the agreement made with M. T.: Opinion by Owen, J.

United States v. Seaman, 17 How. 225. State v. Oloore. and that when said notes were taken up from the bank with the money of H., they were in legal effect

CONTRACT–BENEFIT OF THIRD PERSON-STATUTE OF paid, and from that time the lien on block 1 was dis LIMITATIONS-COSTS-INTEREST OX,FROM DATE OF JUDGcharged. (2) That parol eridence of oral agreements MENT.-An agreement made on a valid consideration is admissible to prove any other consideration not by one person with another, to pay money to a third, mentioned in a deed, provided it be not inconsistent can be enforced by the latter in his own name. ('rumwith the consideration expressed in it. (3) Whero re

baugh v. Kugler, 3 Ohio St. 549; Bagales r. Waters, 7 lief has been asked in a bill on some other different and id. 367; Trimble v. Strother, 25 id. 381; Thompson v. distinct ground, equity will not relievo by way of sub- Thompson, 4 id. 333. And the facts that the instrurogation. The doctrine of subrogation held not appli- ment evidencing such agreement is under seal, and cable to the facts of this case. Richardson v. Traver. that such third person is not named therein, do not afOpinion by Waite, C. J.

fect the right to enforce it. Coster v. Mayor, 43 N. Y. [Decided Dec. 8, 1881.]

411. The proposition that the rule invoked is confined

in its operation to simple and unsealed contracts, is BANK-NATIONAL-POWER TO PURCHASE REAL ES

not well founded. Coster 6. Mayor, 43 N. Y, 411; TATE–Rev. STAT., $ 5137.-A national bank has the

McDowell v. Laev, 35 Wis. 171; Rogers v. Gosnell, 51 power to purchase such real estate as shall be mort

Mo. 466. The plea of the statute of limitations is gaged to it in good faith by way of security for debts pre

equally untenable. The action was properly proseriously contracted; and if in order to secure the same

cuted upon the unwritten instrument which gridenced debt it purchases other real estate not mortgaged to

Emmitt's liability. In his “fifth defense" Emmitt it, that does not affect the title to tho Jand it was au

arers that a long time prior to the filing of the plaintthorized to purcbase. The National Banking Law

iff's petition herein he contended that he was not (Rev. Stat., $ 5137) provides that a national banking bound to pay the judgment, atterly refused to pay it, assooiation may purchase such real estate as shall bo and “rescinded said alleged promise.” A rescission mortgaged to it in good faith by way of security for

of the contract sued upon by the parties to it prior to debts previously contracted. The power to purchaso

the plaintiff's assenting to it, would haro been a good the real estate in dispute was therefore clearly con

defense. Trimble v. Strother, 25 Obio St. 378; Brewer ferred by the statute. The fact that in order to secure

v. Maurer, 38 id.554; ("rowell v. Hospital of St. Barnathe same debt it purchased other real estato not mort

bas, 27 N. J. Eq. 650. But the rescission contemplated gaged to it, cannot affect the title to the land which it

by this priuciple is one by the parties, whereas the was authorized to purchase; but if there was any force

averment of Emmitt is that he refused to pay the in this objection to the title, it could not be raised by judgment, and he rescinded the promise. It was not the debtor, for whero a corporation is incompetent by its charter to take a title to real estate, a conveyance to

* To appear in 42 Ohio State Reports.

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