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is appointed, it cannot of course prevail against a statute of the State in which the question is presented for adjudication, expressly applicable to the estate of a ward domiciled elsewhere. Hoyt v. Sprague, 103 U. S. 613.

Cases may also arise with facts so peculiar or so complicated as to modify the degree of influence that the court in which the guardian is called to account may allow to the law of the domicile of the ward, consistently with doing justice to the parties before it. And a guardian, who had in good faith conformed to the law of the State in which he was appointed, might perhaps be excused for not having complied with stricter rules prevailing at the domicile of the ward. But in a case in which the domicile of the ward has always been in a State whose law leaves much to the discretion of the guardiau in the matter of investments, and he has faithfully and prudently exercised that discretion with a view to the pecuniary interests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the State in which he was appointed. The domicile of Wm. W. Sims during his life and at the time of his death in 1850 was in Georgia. This domicile continued to be the domicile of his widow and of their infant children until they acquired new ones. In 1853 the widow, by marrying the Rev. Mr. Abercrombie, acquired his domicile. But she did not, by taking the infants to the home, at first in New York and afterward in Connecticut, of her new husband, who was of no kin to the children, was under no legal obligation to support them, and was in fact paid for their board out of their property, make his domicile, or the domicile derived by her from him, the domicile of the children of the first husband. Immediately upon her death in Connecticut, in 1859, these children, both under ten years of age, were taken back to Georgia to the house of their father's mother and unmarried sister, their own nearest surviving rela tives; and they continued to live with their grandmother and aunt in Georgia until the marriage of the aunt in January, 1860, to Mr. Micou, a citizen of Alabama, after which the grandmother and the children resided with Mr. and Mrs. Micou at their domicile in that State.

Upon these facts the domicile of the children was always in Georgia from their birth until January, 1860, and thenceforth was either in Georgia or in Alabama. As the rules of investment prevailing before 1863 in Georgia and in Alabama did not substantially differ, the question in which of those two States their domicile was is immaterial to the decision of this case, and it is therefore unnecessary to consider whether their grandmother was their natural guardian, and as such had the power to change their domicile from one State to another. See Hargrave's note, 66, to Co. Litt. 88b; Reeve Dom. Rel. § 315; 2 Kent Comm. 219; Code Ga. 1861, §§ 1754, 2452; Darden v. Wyatt, 15 Ga. 414. Whether the domicile of Lamar in Dec., 1855, when he was appointed in New York guardian of the infants, was in New York or in Georgia, does not distinctly appear and is not material; because for the reasons already stated, wherever his domicile was,his duties as guardian in the management and investment of the property of bis wards were to be regulated by the law of their domicile.

It remains to apply the test of that law to Lamar's acts or omissions with regard to the various kinds of securities in which the property of the wards was invested.

1. The sum which Lamar received in New York in money from Mrs. Abercrombie he invested in 1856 and 1857 in stock of the Bank of the Republic at New York

and of the Bank of Commerce at Savannah, both of which were then, and continued till the breaking out of the war, in sound condition, paying good dividends. There is nothing to raise a suspicion that Lamar, in making these investments, did not use the highest degree of prudence; and they were such as by the law of Georgia or of Alabama he might properly make. Nor is there any evidence that he was guilty of neglect in not withdrawing the investment in the stock of the Bank of Commerce at Savannah before it became worthless. He should not therefore be charged with the loss of that stock. The investment in the stock of the Bank of the Republic of New York being a proper invest. ment by the law of the domicile of the wards, and there being no evidence that the sale of that stock by Lamar's order in New York in 1862 was not judicious, or was for less than its fair market price, he was not responsible for the decrease in its value between the times of its purchase and of its sale. He had the authority as guardian, without any order of court, to sell personal property of his ward in his own possession, and to reinvest the proceeds. Field v. Schieffelin, 7 Johus. Ch. 150; Ellis v. Essex Merrimack Bridge, 2 Pick. 243.

That his motive in selling it was to avoid its being confiscated by the United States does not appear to us to have any bearing on the rights of these parties. And no statute under which it could have been confiscated has been brought to our notice. The act of July 17, 1862, ch. 195, § 6, cited by the appellant, is limited to property of persons engaged in or abetting armed rebellion, which could hardly be predicated of two girls under thirteen years of age. 12 St. 591. Whatever liability, criminal or civil, Lamar may have incurred or avoided as toward the United States, there was nothing in his selling this stock and turning it into money of which his wards had any right to complain.

As to the sum received from the sale of the stock in the Bank of the Republic we find nothing in the facts agreed by the parties upon which the case was heard, to support the argument that Lamar, under color of protecting his wards' interests, allowed the funds to be lent to cities and other corporations which were aiding in the rebellion. On the contrary, it is agreed that that sum was applied to the purchase in New York of guaranteed bonds of the cities of New Orleans, Memphis and Mobile, and of the East Tennessee and Georgia Railroad Company; and the description of those bonds in the receipt afterward given by Micou to Lamar shows that the bonds of that railroad company, and of the cities of New Orleans and Memphis at least, were issued some years before the breaking out of the rebellion, and that the bonds of the city of Memphis and of the railroad company were at the time of their issue indorsed by the State of Tennessee. The company had its charter from that State, and its road was partly in Tennessee and partly in Georgia. Tenn. St. 1848, ch. 169. Under the discretion allowed to a guardian or trustee by the law of Georgia and of Alabama he was not precluded from investing the funds in his hands in bonds of a railroad corporatiou, indorsed by the State by which it was chartered, or in bonds of a city. As Lamar in making these investments appears to have used due care and prudence, having regard to the best pecuniary interest of his wards, the sum so invested should be credited to him in this case. unless as suggested at the argument, the requisite allowance has already been made in the final decree of the Circuit Court in the suit brought by the representative of the other ward, an appeal from which was dismissed by this court for want of jurisdiction in 104 U. S. 465.

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

arising either from dividends which he had received on their behalf, or from interest with which he charged himself upon sums not invested, were used in the purchase of bonds of the Confederate States, and of the State of Alabama. The investment in bonds of the Confederate States was clearly unlawful, and no legislative act or judicial decree or decision of any State could justify it. The so-called Confederate government was in not sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States. The notes and bonds issued in its name and for its support had no legal value as money or property, except by agreement or acceptance of parties capable of contracting with each other, and can never be regarded by a court sitting under the authority of the United States as securities in which trust funds might be lawfully invested. Thorington v. Smith, 8 Wall. 1; Head v. Starke, Chase, 312; Horn v. Lockhart, 17 Wall. 570; Confederate Note case, 19 id. 548; Sprott v. United States, 20 id. 459; Fretz v. Stover, 22 id. 198: Alexander v. Bryan, 110 U. S. 414; S. C., 4 Sup. Ct. Rep. 107. An infant has no capacity by contract with his guardian or by assent to his unlawful acts to affect his own rights. The case is governed in this particular by the decision in Horn v. Lockhart, in which it was held that an executor was not discharged from his liability to legatees by having invested funds, pursuant to a statute of the State, and with the approval of the Probate Court by which he has heen appointed,in bonds of the Confederate States, which became worthless in his hands. Neither the date nor the purpose of the issue of the bonds of the State of Alabama is shown, and it is unnecessary to consider the lawfulness of the investment in those bonds, because Lamar appears to have sold them for as much as he had paid for them, aud to have invested the proceeds in additional Confederate States bonds, and for the amount thereby lost to the estate he was accountable.

3. The stock in the Mechanics' Bank of Georgia, which had belonged to William W. Sims in his lifetime, and stood on the books of the bank in the name of his administratrix, and of which one-third belonged to her as his widow, and one-third to each of the infants, never came into Lamar's possession; and upon a request made by him, the very next month after his appointment, the bank refused to transfer to him any part of it. He did receive and account for the dividends; and he could not under the law of Georgia concerning foreign guardians have obtained possession of property of his wards within that State without the consent of the ordinary. Code 1861, §§ 1834-1839. The attempt to charge him for the value of the principal of the stock must fail for two reasons: First, this very stock had not only belonged to the father of the wards in his life-time, but it was such stock as a guardian or trustee might properly invest in by the law of Georgia. Second. No reason is shown why this stock, being in Georgia, the domicile of the wards, should have been transferred to a guardian who had been appointed in New York during their temporary residence there. The same reasons are conclusive against charging him with the value of the bank stock in Georgia, which was owned by Mrs. Abercrombie in ber own right, and to which Mr. Abercrombie became entitled upon her death. It is therefore unnecessary to consider whether there is sufficient evidence of an immediate surrender by him of her interest to her children.

The result is that both the decrees of the Circuit Court in this case must be reversed, and the case remanded for further proceedings in conformity with this opinion.

NEW YORK COURT OF APPEALS ABSTRACT.

MUNICIPAL CORPORATION - CARE OF STREETSADOPTING CHARTER POWERS IMPERATIVE-ADJOINING OWNER CHANGING SIDEWALK-NO DEFENSE TO CITY

AFTER NOTICE.-Where by the charter of a municipal corporation power is conferred upon it to direct the manner of and superintend the making and repairing of sidewalks, and the exercise of this power, in a manner specified in the charter, is not left discretionary, but is made imperative, au assent upon the part of the corporation to a substantial and unauthorized change in the slope and manner of construction of a sidewalk may not be presumed from a simple omission on its part after due notice thereof to object to the change. While therefore the corporation may not be held liable for any defect in the original plan, and while it may adopt a sidewalk already constructed, or rebuild upon a new plan, and thus secure to itself immunity, this must be done by proper corporate action; and where a change has been made by the owner of adjoining premises, making the sidewalk dangerous for travel, an omission on the part of the corporation,after notice, to take any action in reference to the matter is not a defense in an action brought against it to recover damages for injuries caused by the defect. Clemence v. City of Auburn, 66 N. Y. 334; Saulsbury v. Village of Ithaca, 94 id. 27; Urquhart v. City of Ogdensburgh, 91 id. 67, distinguished. Urquhart v. City of Ogdens burgh. Opinion by Danforth, J. [Decided Nov. 25, 1884.]

NEGLIGENCE-PLAINTIFF'S TESTIMONY MUST ESTABLISH-INFERENCE EITHER WAY-NONSUIT PROPER.To maintain an action to recover damages for negli-` gence, plaintiff must prove facts warranting an inference of negligence on the part of defendant. He may not recover upon facts as consistent with care and prudence as was the opposite in such an action. Bauleo v. New York, etc., R. Co., 59 N. Y. 357. Plaintiff's evideuce to the effect was that he went upon one of the defendant's street cars and stood upon the frout platform, although there were vacant seats inside. The car stopped to receive other passengers, who entered by the front platform. To facilitate their entry, plaintiff stepped down upon the front steps; as he was stepping up again, after they had got on the platform, as he testified, "the car gave a sudden movement and pulled up," and he was thrown off and injured. It appeared that after starting the car did not stop until after the accident. Held, that the evidence failed to show any negligence on defendant's part, and that a refusal to nonsuit was error. Hayes v. Forty-second Street, etc., R. Co. Opinion by Finch, J. [Decided Nov. 25, 1884.]

PRACTICE-DEMURRER-UNITING CAUSES OF ACTION -CODE CIV. PROC., § 484.-Plaintiff's complaint contained in two causes of action, one to recover damages alleged to have been caused by an embankment erected by defendant upon its land, which turned the waters of a stream and caused them to flow over plaintiff's premises. The other was to recover damages for an alleged breach of duty on the part of defendant in neglecting and refusing to erect and maintain a farm crossing. On demurrer, held, that the two causes of action were improperly united, as the. first is "for injuries to real property," while the second is " upon contract," i. e., for the breach of an implied contract to perform a statutory duty; that the fact that such contract affects real estate does not change the nature of the obligation so as to make the cause of action one relating to real property within the meaning of section 484 of the Code of Civil Proce

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dure, which section provides that the plaintiff may unite in the same complaint two or more causes of action, in the several cases which are 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 difficult 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. H. R. v. Schuyler, 34 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. The 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 created 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. Utica & Black River R. Co. Opinion by Miller, J.

[Decided Nov. 25, 1884.]

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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. 444) 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 he 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 vacancy, 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 Foot 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 office creates a vacancy in the first office, or section 5, where neglect to accept has the same effect upon the office named. In People ex rel. Kelly v. Common Council of Brooklyn, 77 N. Y. 503, the statute under consideration declared that upon the happening of a certain event the office "should become vacant." The event happened, 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

construction here. Cronin v. Stoddard. Opinion by Danforth, J.

[Decided Nov. 25, 1884.]

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 prevent the collection of any fee and render the statute inoperative and of no effect, 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, 64 N. C. 158; Hartford Bridge Co. v. Union F. Co., 29 Coun. 210; Allegheny v. O. & 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 Co. v. Hoboken, 13 N. J. Eq. 81; Florida R. Co. v. P. R. Co., 10 Fla. 145; Rice v. M. & N. R. Co., 1 Black (U. S.), 358; Bradley v. N. Y. & N. H. R., 21 Conn. 294; Priestly v. Foulds, 2 Scott (new), 205; Kingston Dock Co. v. La Marche, 8 B. & C. 42; Leeds & Liverpool Canal v. Hustler, 1 id. 424; Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792; 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 compensation, 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 legislative 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. Held, that the ordinance was thereby restored to full force and efficacy. People v. Davis, 61 Barb. 456; 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 ordinance. There would seem to be no valid reason why 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. Broadway and Seventh Ave. R. Co. Opinion by Miller, J.

[Decided Nov. 25, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.*

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TRUST-LIEN OF JUDGMENT- REAL ESTATE BANKRUPTCY - POWER OF APPOINTMENT DOES NOT

PASS.-The statute of Illinois in force at the time and governing the case was sec. 1, ch. 57, Rev. Stat. 1845, which after providing that judgments should be a lien on the real estate of the judgment debtor, provided as follows: "The term 'real estate' in this section shall be construed to include all interest of the defendant or any person to his use, held or claimed by virtue of any deed, bond, covenant or otherwise, for a conveyauce, or as mortgagee or mortgagor of lands in fee, for

life or for years." Except so far as modified by this

act, the common law on the same subject was in force in Illinois by express adoption. Rev. Stat. 1845, p. 337, § 1. In Spindle v. Shreve, 111 U. S. 542-547; S. C., 4 Sup. Ct. Rep. 522, it was stated to be the law in Illinois that where the legal title to lands is in trustees, for the purpose of serving the requirements of an active trust, the judgment creditor had no lien and could acquire none at law, but could obtain one only by filing a bill in equity for that purpose, according to the provisions of section 49 of the Chancery Practice Act of that State. Rev. Stat. 1845, p. 97. It was otherwise if the trust was merely passive, such as those described in the section defining real estate as subject to the lien of judgments already quoted. Miller v. Davidson, 3 Gil. 518; Baker v. Copenbarger, 15 Ill. 103; Thomas v. Eckard, 88 id. 593. The rule at common law and the corresponding jurisdiction of chancery as to equitable estates are fully explained in Morsell v. First Nat. Bank, 91 U. S. 357; Lessee of Smith v. McCann, 24 How. 398; Freedman's Savings & Trust Co. v. Earle, 110 U. S. 710. Prior to the enactment of 1 & 2 Vict., ch. 110, it was settled in England that at law a judgment against the party having a power of appointment, with the estate vested in him until and in default of appointment, was defeated by the subsequent execution of the power in favor of a mortgagee. Doe v. Jones, 10 Barn. & C. 459; Tunstall v. Trappes,

3 Sim. 300. And it was held to be immaterial that the purchaser had notice of the judgment (Eaton v. Sanxter, 6 Sim. 517), or that a portion of the purchase money was set aside as an indemnity against it. Skeeles v. Shearly, 8 Sim. 153; S. C., on appeal, 3 Mylne & C. 112. In this case Sir John Leach, the vicechancellor, decided that the effect of the transmission of the estate by appointment was that the appointee

takes it in the same manner as if it had been limited to him by the deed under which the appointer takes in default of appointment, and consequently free and disconnected from any interest that the appointer had in the tenements in default of appointment; that as the appointee is in no sense the assignee of the appointer, he cannot be affected by judgments which affect only the estate and interest of the appointer, and that being so, the circumstance of his having notice of such judgments is immaterial. The statute of 1 & 2 Vict., ch. 110, altered the law in this respect by making judgments on actual charge on the debtor's property, where he has at the time the judgment is entered up, or at any time afterward, any disposing power over it which he might, without the assent of any other person, exercise for his own benefit, so that it would continue to bind the property, notwithstanding any appointment. 2 Sugd. Powers (7th Lond. ed.), 33; Burton Real Prop. (8th Lond. ed.) 283; Hotham v. Somerville, 9 Beav. 63. In Illinois the definition of that real estate which is made subject at law to the lien of judgments was enlarged by the act of July 1, 1872 (Hurd's Rev. Stat. 1883, p. 676), so as to include

* Appearing in 5 Supreme Court Reports.

"all legal and equitable rights and interests therein and thereto;' " but the rights of the parties in this suit are not affected by it, and must be governed by the principles of the common law in force when they became fixed. It is indeed a rule well established in England, and recognized in this country, that where a person has a general power of appointment, either by deed or by will, and executes this power, the property appointed is deemed in equity part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees. This rule is stated by Mr. Justice Gray in Clapp v. Ingraham, 126 Mass. 200, to have had its origin perhaps in a decree of Lord Somers, affirmed by the House of Lords, in a case in which the person executing the power had in effect reserved the power to himself in granting away the estate. Thompson v. Towne, Prec. Ch. 52; S. C., 2 Vern. 319. But it was frequently afterward applied to cases of the execution of a general power of appointment by will of property of which the donee had never any ownership or control during life. In re Harvey's Estate, L. R., 13 Ch. Div., 216. That doctrine however has no application in the present case. (2) A power of appointment does not pass to the assignee in bankruptcy of the person in whom the power resides. Jones v. Clifton, 101 U. S. 225. dies v. Cochrane. Opinion by Matthews, J. [Decided Dec. 1, 1884.]

Bran

VENDOR AND PURCHASER-PURCHASE OF SECURITIES -PAYMENT-DISCHARGE OF LIEN-PAROL EVIDENCE AS TO CONSIDERATION-PRACTICE-SUBROGATION.-(1) On or about the 19th of December, 1870, H. T. and M. T. purchased of D). a tract of land in the city of Chicago, which they afterward caused to be laid off into blocks and lots. The blocks were numbered 1, 2 and 3. A part of the purchase money was paid by them in cash, and for the balance they executed four joint notes, each for the sum of $5,373.67%, payable at different times, with interest, secured by a deed of trust on the property to A. as trustee. Prior to September, 1872, M. T. sold some of the lots, partly for cash and partly on credit. On the 5th of September, 1872, an oral agreement was made by which M. T. was to take all the cash and notes that had been received from sales, and all the unsold parts of block 2, and all but eight lots of those unsold in block 3, pay the debt to D., and give H. T. all of block 1, and eight lots in block 3, clear of the incumbrance of the trust deed to A. In part execution of this agreement, M. T. at the time conveyed to H. T. his interest in block 1, and in the eight lots in block 3. H. T. did not convey to M. T. until December 20, 1872. On that day, for the consideration of $100, as expressed in the deed, he released and quitclaimed to M. T. in fee simple all his title and interest in the unsold lots in block 2, and in block 3, except the eight lots which had been conveyed to him by M. T., and at the same time transferred to M. T. all his interest in the moneys and securities which had been received for the lots sold. M. T., finding himself unable to pay the note of D., which became due in December, 1872, and the interest on the other notes, entered into an agreement with H., by which H. was to take the property off his hands, as he took it from H. T., pay the debt to D., and relieve the premises conveyed to H. T. from the lien of the trust deed to A. Under this agreement M. T. conveyed the part of the property to which he held the title to H. by deed, for the expressed consideration of $16,000, and transferred to him all debts due for lots sold. This deed was dated December 28, 1872. H. at the same time orally assumed the payment of the debt to D., that being the only consideration for the transfer. At the time of this transfer H. borrowed from R., through H. & B., his agents, $10,000, for which he executed two notes,

payable three years from date, one for $6,000 and the other for $4,000-and secured them by two deeds of trust to H., one of the agents, as trustee, each upon different parts of block 2. Together these deeds covered the whole of the block. H. and B. were only authorized to make loans for R. on unincumbered property. They knew at the time they paid the money over to H. that block 2 was incumbered by the deed of 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 blook. H. did pay the note and the interest past due, and also the note falling due in December, 1873; but instead of getting a release from A. of block 2 he, without the knowledge of H. and B., took one of block 3, thus leaving block 2 still under the incumbrance of a lien, prior to that for the benefit of R., to the extent of the two notes to D., falling due four and five years from date. When the note maturing in December, 1874, fell due H. was unable to meet it, but in January, 1875, he sold nineteen lots in block 2, for which he received $6,000 in cash. With this, and other moneys advanced by H. & B., B. went to the bankers, to whom both the remaining notes due to D. had been sent for collection, and paid the money for them, and took them away uncancelled, they having been previously indorsed in blank by D. One payment of $6,000 was made on the 15th of January, and the other, being $5,641.87, on the 29th. On the day the last payment was made, and after the notes had been taken up, B. went to A. with them, and requested him to release block 2 from the lien of the trust deed to him. He stated to A. that he was the owner of the notes, and thereupon A. executed a release of block 2, which B. signed and acknowledged with him. In this release B. is described as the legal holder of the unpaid notes." After this H. paid H. & B. the money they had advanced to take up the notes from the bank. Held, that R. was not a purchaser of the notes due to D., but that said notes were paid by H. with his own

money, according to the agreement made with M. T., and that when said notes were taken up from the bank with the money of H., they were in legal effect paid, and from that time the lien on block 1 was discharged. (2) That parol evidence of oral agreements is admissible to prove any other consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it. (3) Where relief has been asked in a bill on some other different and distinct ground, equity will not relieve by way of subrogation. The doctrine of subrogation held not applicable to the facts of this case. Richardson v. Traver. Opinion by Waite, C. J.

[Deoided Dec. 8, 1884.]

BANK-NATIONAL-POWER TO PURCHASE REAL ESTATE-REV. STAT., § 5137.-A national bank has the power to purchase such real estate as shall be mortgaged to it in good faith by way of security for debts previously contracted; and if in order to secure the same debt it purchases other real estate not mortgaged to it, that does not affect the title to the land it was authorized to purchase. The National Banking Law (Rev. Stat., § 5137) provides that a national banking association may purchase such real estate as shall be mortgaged to it in good faith by way of security for debts previously contracted. The power to purchase the real estate in dispute was therefore clearly conferred by the statute. The fact that in order to secure the same debt it purchased other real estate not mortgaged to it, cannot affect the title to the land which it was authorized to purchase; but if there was any force in this objection to the title, it could not be raised by the debtor, for where a corporation is incompetent by its charter to take a title to real estate, a conveyance to

it is not void, but only voidable. The sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose. National Bank v. Matthews, 98 U. S. 628; National Bank v. Whitney, 103 id. 99; Swope v. Leffingwell, 105 id. 3. Reynolds v. First National Bank of Crawfordsville. Opinion by Woods, J.

[Decided Nov. 24, 1884.]

OHIO SUPREME COURT ABSTRACT.*

CONTEMPT-PROCEEDINGS IN AID OF EXECUTIONREFUSAL TO PAY MONEY-IMPRISONMENT ILLEGAL.

A. had in his possession money which he claimed as a gift from B., who was a judgment debtor of C. In proceedings prosecuted by C. before the probate judge in aid of execution, the judge found that the money had been placed in the hauds of A. by B. to defraud his creditors, and the judge ordered A. to deliver the money to a receiver then appointed by him, to be applied on the judgment, but A. refused to comply with the order. Held, that the probate judge had no power to imprison A. for a contempt, but the receiver must resort to his remedy by action against A. White V. Gates. Opinion by Okey, J.

MANDAMUS-PUBLIC OFFICER-WHEN DOES NOT LIE.

The principle is too firmly established to be questioned, that where a public officer is invested with discretionary power concerning the performance of a public duty required at his hands, or wherever in determining the course of official action he is called upon to use official judgment and discretion, his exercise of them in the absence of bad faith, fraud, and gross abuse of discretion, will not be controlled or directed Free Turnpike Co. v. Sandusky County, 1 Ohio St. 149; State ex rel. Anderson v. Holmes County, 17 id. 608; Lake Co. v. Ashtabula Co., 24 id. 393, 401; Moses Mand. 78; High Ex. Rem., § 24; United States v. Seaman, 17 How. 225. State v. Moore.

by mandamus.

Opinion by Owen, J.

CONTRACT-BENEFIT OF THIRD PERSON-STATUTE OF LIMITATIONS-COSTS-INTEREST ON, FROM DATE OF JUDGMENT.-An agreement made on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name. Crumbaugh v. Kugler, 3 Ohio St. 549; Bagaley v. Waters, 7 id. 367; Trimble v. Strother, 25 id. 381; Thompson v. Thompson, 4 id. 333. And the facts that the instrument evidencing such agreement is under seal, and that such third person is not named therein, do not affect the right to enforce it. Coster v. Mayor, 43 N. Y. 411. The proposition that the rule invoked is confined in its operation to simple and unsealed contracts, is not well founded. Coster v. Mayor, 43 N. Y. 411; McDowell v. Laev, 35 Wis. 171; Rogers v. Gosnell, 51 Mo. 466. The plea of the statute of limitations is equally untenable. The action was properly prosecuted upon the unwritten instrument which evidenced Emmitt's liability. In his "fifth defense" Emmitt avers that a long time prior to the filing of the plaintiff's petition herein he contended that he was not bound to pay the judgment, atterly refused to pay it, and "rescinded said alleged promise." A rescission of the contract sued upon by the parties to it prior to the plaintiff's assenting to it, would have been a good defense. Trimble v. Strother, 25 Ohio St. 378; Brewer v. Maurer, 38 id.554; Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650. But the rescission contemplated by this principle is one by the parties, whereas the averment of Emmitt is that he refused to pay the judgment, and he rescinded the promise. It was not

*To appear in 42 Ohio State Reports.

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