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It is much to be regretted that the conclusions thus been duly elected as his successor, took the requisito reached may lead to the loss of a large sum in taxes oath of office at five minutes after 11 A. M., and we justly due from tax payers to the municipality repre- may as well assume, what we understand to be the sented by the defendants. But the result must be at- fact (though it does not appear as it ought to), that he tributed to ill-considered legislation, which by attempto immediately filed such oath in the office of the city ing to impose an exceptional and unjust rule of taxa- clerk, as by law required, so that he was duly qualified. tion upon shareholders of National banks has so far Norgood, between the hours of 11 and 12 of the same overshot its mark as to exonerate them from any tax- day, and after Smith had qualified, sigued findings of ation.
law and fact in the case at bar, closing the same with It is insisted for the defendants that the complain- a direction for judgment accordingly. ant is not the proper party to resist the payment of the It appears, though we do not perceive that this is tax, and that the stockholders are the only persons important, that he (Norgood) had arrived at a deterwho can complain; and it is also insisted that an ac- mination of the case before Smith qualified; but such, tion to enjoin the collection of the tax is not the ap- his determination, had not then been reduced to propriate remedy.
writing. At the time of signing the findings and direc. These objections may properly be considered to- tion he had not been made aware that Smith had gether. The general rule that a bill in equity will not qualified. The clerk of the municipal court, upon the lie to restrain the collection of a tax is familiar, but filing of the findings and direction, on the next day the right to the relief sought here rests upon the ground entered judgment accordingly. There is nothing to that it is necessary to prevent a multiplicity of suits show that Smith, in fact, took possession of the office likely to arise, owing to the peculiar position which for which he had qualified, by exercising any of its the complainant occupies toward its shareholders on functions or duties, until after the findings and directhe one side, and the defendants on the other.
tion had been signed and handed to the attorney for The act of 1866 makes it the duty of every banking the successful party to be filed with the clerk. Upon association to retain so much of any dividend or divi- this state of facts, we are of opinion that the judgment dends belonging to its stockholders as may be neces- was valid. sary to pay any taxes assessed in pursuance of that Norgood came into offico under an election or apact, and the case shows that most of the shareholders pointment (it does not appear which), the regularity of the complainaut paid to the complainant the amount and validity of which are not questioned. Under color severally assessed upon their shares for the tax in con- of this election or appointment be was exercising the troversy, or allowed the amount of the assessments to duties of the office at the time of signing the findings be retained from their dividends, but that prior to the and direction spoken of. Inasmuch as Smith bad commencement of this action a considerable number qualified, he was de jure the judge, and Norgood's term of the shareholders filed their protest and forbade the de jure was, under the statute, at an end. Gen. Stat. complainant to pay over the amounts or to retain 1878, ch. 64, $ 133. But as it in no way appears that them for the purpose of paying the tax. The statute Smith had taken possession of the office by exercising imposes a duty on the complaivant in the nature of a any of its duties or functions, Norgood, who was exertrust, but which it can only discharge at the peril of cising its duties under the color spoken of, continued being subjected to numerous suits at the hands of and was in possession of it. His caso is thereforo those whose money it retains. As is said in the sim- that of an officer de facto – a person baving and claimilar case of Cummings v. National Bank, 101 U. S. 157, ing color of title to an office by election or appointment, “it holds a trust relation which authorizes a court of and in the exercise of its functions and duties; tbat is equity to see that it is protected in the exercise of the to say, in possession of it. The acts of such an officer duties pertaining to it. To prevent multiplicity of are valid as respects the public and persons interested suits, equity may interfere."
therein, and as to them cannot be questioned. Brown It is true the statute in terms does not require the v. Lunt, 37 Me. 423; State v. Brown, 12 Minn. 538; bank to pay the taxes assessed against its shareholders, Wilcox v. Smith, 5 Wend. 231; People v. Peabody, 6 but by necessary implication it authorizes the bank to Abb. Pr. 228; id. 296; People v. Cook, 8 N. Y. 67; do so, and thus brings the case precisely within the Plymouth v. Painter, 17 Conn. 585; In re Boyle, 9 facts of Cummings v. National Bank. That case must Wis. 265. be regarded as a decisive authority against the objec- That one person in possession of an office may be the tions urged here, to the right of the complainant to the officer de facto, while some other person is the officer relief demanded.
de jure, is of course, though it is said that there cannot A decree is ordered for the complainant.
be an officer de jure and an officer de facto both in pos
session of the same office at the same time. Boardman VALIDITY OF ACTS OF OFFICER DE FACTO.
v. Halliday, 10 Paige, 223. The act of Norgood in signing the findings and direction for judgment being
valid, it was the duty of the clerk to enter the judgMINNESOTA SUPREME COURT, OCTOBER, 1880.
ment accordingly, as he did. The judgment was
therefore valid, and the court below erred in vacating CARLI V. RHEN ER.
and setting it and the findings and direction aside. S., who had been elected judge, qualified, and thus under a The order appealed from is therefore reversed.
statute became de jure a judge in the place of bis predecessor N., whose term then expired. Thereafter, upon the same day, before S. began to perform the duties of NEW YORK COURT OF APPEALS ABSTRACT. the office, N. directed judgment in an action he had before tried. Held, that his acts in so doing were those
BANKING - MEANING OF WORD DISCOUNT" INof an officer de facto, and were valid.
CLUDES PURCHASE OF NOTES — NEGOTIABLE INSTRU
MENT - INDORSEMENT BY PARTNER OF FIRM NAME water. The opivion sufficiently states the facts. WITHOUT AUTHORITY - BONA FIDE HOLDER - DE
FENSE - CORPORATION - NOTICE. - 1) L., who was & L. E. Thompson, for appellant.
member of the firm oí C. P. & Co., and also a member Gregory & Comfort, for respondent.
of the firm of J. S. Sons, defendants herein, indorsed BERRY, J. Norgood was and acted as the judge of in his own name a promissory note made by C. P. & the municipal court of Stillwater for the two years Co., and also added the firm signature of defendants prior to April 7, 1880. On that day Smith, who had as second indorsers. This uute he transferred to the
firm of L. S. & Co., note brokers, with whom he had in the City of Brooklyn v. Savely et al., appellants. private dealings and to whom he was individually in- Opinion by Danforth, J. debted in an amount exceeding the amount of the [Decided October 12, 1880.] note, with directions to sell it and apply the amount realized upon his indebtedness, which was done by
PRACTICE- ENTRY OF JUDGMENT – FILING MEMOplaintiff, a bank purchasing the same before due for
RANDUM BY JUDGE NOT SUFFICIENT. — Plaiutiff, in
whose favor a decision of affirmance had been renits face value, less a rebate at the rate of nine per cent per annum. The indorsement of the note by L. was
dered by the General Term, filed with the clerk the made without the knowledge of the other members of
decision, signed by one of the judges, and nothing the defendants' firm. The plaintiffs had no knowl
else. Held, not an entry of judgment. The Code edge of the nature of the paper or the transactions be
($ 1236) requires that each judgment shall be entered tween L. and the firm of note brokers. Held, that
in the judgment book and attested by the clerk, and although the note brokers could not claim to have
also ($ 1354) that on an affirmance upon appeal, the taken the paper in good faith so as to hold defendants
judgment-roll shall consist of a copy of the judgment liable as indorsers (Coinstock v. Hier, 73 N. Y. 269), the
annexed to the papers on which the appeal was heard. indorsement was not void but only voidable, for it was
The memorandum handed down by the General Term, made by L. within the general scope of his authority
of the decision of the appeal, is not the judgment, but as a member of defendants' firm, and plaintiff having simply the authority for an entry of the judgment. no notice of the circumstances and coming by the paper
Eno v. Crooke, 6 How. 462. On filing such decision a fairly could hold the defendants as indorsers. Peacock
formal judgment of affirmance should be prepared and v. Rhodes, 2 Doug. 633. (2) Plaintiffs' president applied
entered in the judgment book and attested by the to the firm of note brokers for negotiable paper, and
clerk. Order affirmed. Knapp, receiver, appellant, v. this note being shown to him, he purchased it for the
Roche. Opinion by Finch, J.
Decided October 15, 1880.] bank at the price agreed upon and the note brokers executed a bill of sale thereof to the bank, and received PRESCRIPTION -- EASEMENT OF RIGHT OF WAY -- WHAT from tho president authority to draw for the purchase NOTICE REQUIRED – EVIDENCE OF ACTUAL NOTICEprice upon the bank, which they exercised. The bank, NOTICE TO AGENT.-(1) While it is said in some of the by the act uuder which it was incorporated (Laws text-books and cases that to constitute an easement by 1838, ch. 260, $ 1), was empowered “to carry on the prescription tho user must havo been for the requisite business of banking by discounting bills, notes and time “with the knowledge and acquiescence of the other evidences of debt,” “by buying and selling gold owuer of the servient tenement (Washb. on E., 3d ed., and other bullion, foreign coins and bills of exchange,' 160; 2 Washb. R. P. 300; Blake v. Everett, 1 Allen, 243; etc. Held, that this statute authorized the transac- Colvin v. Burnett, 17 Wend. 568; Parker v. Foote, 19 id. tion whereby plaintiff obtained title to the note men- 309) all that is meant is that the user must have been not tioned. It was directly withiu the power to carry on clandestine or by stealth, but open, notorious, visible business“ by discounting ""notes and other evidences and undisputed, and when such a user is under claim of debt.” “Discount" is “reduction." Roget's The- of right adverse, the owner of the servient tenement saurus. In McLeod on Banking, a work of authority, is charged with notice thereof and his acquiescence is at page 43, it is said: “In the language of the money implied. The case Hannefin v. Blake, 102 Mass. 2, market it is usual to estimate the value of money by which has reference to an underground drain, is alono the discount or profit it yields, and to buy or purchase in upholding any different doctrine. See Parker y. a debt is always in commerce termed to discount it." Foote, 19 Wend. 309; Curtis v. Keesler, 14 Barb. 511; See also, id., p. 291. There is nothing in the statute to Coolidge v. Learned, 8 Pick. 504; Tracy v. Atherton, indicate that the word “discount” is used in any 36 Vt. 503; Townsend v. Downer, 32 id. 183; Wallaco other than the general sense referred to. In Tracy v. v. Fletcher, 10 Fost. 446; Patridge v. Scott, 3 M. & W. Tallmage, 18 Barb. 456, it is said to discount includes 220. (2) In the case at bar plaintiff and his predecessors to buy, for discounting at most is but another term owned for more than forty years a house in the city of for buying at a discount.” Although the judgment in Troy adjoining a house and lot owned by defendants, that case was modified in 14 N. Y. 462, it was not in which defendants had let during that time upon short disaffirmance of tho views cited. See Johnson v. Nat. leases to tenants. During all the time there was a Bank of Gloversville, 74 N. Y. 329; Laws 1870, ch. 193. passage-way across defendants' lot used by plaintiff In authorities holding a different doctrine, Niagara only, and not by defendants or their tenants, and Co. Bank v. Baker, 15 Ohio St. 68; Farmers', etc., which had a gate that was kept up by plaintiff opening Bank v. Baldwin, 23 Minn. 198, the decisions were into the street. Defendants lived in the city of Troy upon violations of positive law, and are distinguishable and personally attended to renting their premises and from this case. If the noto had been discounted for to repairing the same, and to collecting the rents the firm of notc brokers at tho same rate, the titlo of monthly and quarterly. Held, that even admitting plaintiff would havo been just the same. (3) If tho that actual notico of user was necessary, there was transfer of the noto was in violation of any statuto it suflicient evidence that defendants had notice thereof. would not avail as a defense. Defendants wero not a (3) One of defendants was blind, but he consulted with party to the transaction and payment of the note to the others about the property, and another defendants plaintiffs would relieve them from a claim by any his brother, had, during nearly thirty years, been ageut other person upon it. The transaction out of which of all the defendants in the management of this proptho cause of action arose became tho property of tho erty. Held, that there was notice of adverse user to plaintiff; was not forbidden; it was not improper in the blind defendant. Whero one tenant in common itself, and if it was not within the exact letter of the acts for all the tenants, there is no reason why his law from which the plaintiff derived its existence, the knowledge should not be attributed to his co-tepants. fault is one which should give no advantage to the de-|(4) The fact that during the time of this user the premfendants. Whitney Arms Co. v. Barlow, 63 N. Y. 63; ises of defendants had been leased for short terms did Kent v. Quicksilver Mining Co., 78 id. 159, 185; Gold not affect the running of the time of prescription: Mining Co. v. Nat. Bank, 96 U. S. 640. (4) One of the Daniel v. North, 11 East, 372; Cross v. Lewis, 2 B. & members of the firm of note brokers was a director of C. 686; Galo & W. on Easements, 117. Judgment plaintiff. Held, that that did not affect plaintiff with affirmed. Ward v. Warren et al., appellants. Opinion knowledge of the character of the note or its transfer by Earl, J. to the firm. Judgment affirmed. Atlantic State Bunk [Decided Oct. 5, 1880.]
RECEIVER — OF CORPORATION ESTATE IN HANDS the company, and it was cancelled. G. died on the OF, LIABLE UPON COVENANT OF CORPORATION TO PAY 16th of September, 1872. On the 12th of November RENT. A corporation which had leased from plaint- plaintiffs, his administrators, tendered the amount of iffs certain real estate for a term of years was dis- the premium to the Chicago agents, and demanded the solved and its affairs placed in the hands of a receiver. policy. Ileld, that the policy never became valid as to The assets of tho corporation wero sufficient to meet G., and the company were not liable under it. Where all its obligations and leave a surplus for distribution there is a condition subsequent, and it is broken, relief among stockholders. Held, that by the dissolution of may be given upon equitable terms, but where it is prethe corporation tho lease was not terminated and the cedent, and neither fulfilled nor waived, no right or covenant to pay rent did not cease to be obligatory. title vests, and equity can do nothing for the party in Uuder the statute, upon tho dissolution of a corpora- default. Daris v. Gray, 16 Wall. 229. Here there was tion, its assets become a trust fund for tho payment of clearly no performance by the applicant, and it is its debts, and these include debts to mature as well as equally clear that hence there was no contract or obliaccrued indebtedness, and all engagements entered gation whatsoever on the part of the company. It into by the corporation which have not been fully sat- was the business of the applicant, if, after sending forisfied or cancelled. These cannot be cancelled without ward his application, he continued to desire a policy, the consent of tho party holding them, and receivers to keep up the proper communication with the Chicago of dissolved corporations are authorized to retain out agents, and during his life-time to avail himself of the of their assets a sufficient amount to cancel and dis- offer which the company had made. The proposition charge such open and subsisting engagements. R. S., of the company expired with his life. After his death part 3, chap. 8, tit. 4, art. 3. The lease in question was his legal representatives could not act vicariously for one of the class of engagements designated in the him. To allow them to enforce such a claim would be statute as open and subsisting. The receiver is au- contrary to the plainest principles of both law and thorized by the statute to contract for its extinguish-equity. Ins. Co. v. Young's Admr., 23 Wall. 106; Piedment, but until this is done the lessors are entitled to mont Life Ins. Co. v. Ewing, 92 U. S. 380. Decree of payment of the rent as it accrues. The position of U. S. Circuit Court, N. D. Illinois, affirmed. Gid. receiver is analogous to that of executor. If he waives dings et al., appellants, v. Northwestern Mutual Life the term he cannot be charged as assignee of the lease, Insurance Co. of Milwaukee. Opinion by Swayne, J. but if the landlord does not choose to re-enter the [Decided Nov. 8, 1880.] estate of the testator, may be liable for the rent in tho due course of administration See Martin v. Black,
MARRIED WOMAN — DISAFFIRMANCE OF CONTRACTS 9 Paige, 644. Tho case Quain's Appeal, 22 Penn. St. 510, MADE BY, WHEN INFANT - WHEN NEED NOT BE, DURdoes not affect this rule, Orders of General and
ING COVERTURE-ESTOPPEL-INFANT NOT BOUND BY. Special Terms reversed. People of New York v. Na- - Complainant S., a married woman, and an infant, in lional Trust Co. Opinion by Rapallo, J.
1847, joined with her husband in conveying, for a valua[Decided October 12, 1880.]
ble consideration, lands belonging to her, to E. At the time, complainant signed a statement that she had at
tained her majority. Tho husband had by threats inUNITED STATES SUPREME COURT AB- duced her to join with him in selling the lands. STRACT.
She became of age in 1819. In 1870 she pro
cured a divorce from her husband for his wrong, OCTOBER TERM, 1880.
and immediately thereafter, for the first time,
disaffirmed the conveyanco to E., and brought suit to APPEAL_EFFECT OF IRREGULAR BOND ON.- Where
recover the lands. At the timo complainant acquired the bond upon appeal was insufficient in form either
title to the lands as to the rights of ma ied women, for the purposes of a supersedeas or an appeal, as con
the common law prevailed in Indiana, where they were taining no security for costs, held, that does not neces
situated, though laws giving to married women the Barily avoid the appeal, but the court might impose
control of their separate property were passed in 1817 such terms on the appellants for the omission as under
and 1852. The wife did no act affirming the sale. Held, the circumstances should seem to be proper. Martin
that sho was entitled to recover the lands. By the v. Hunter's Lessee, 1 Wheat. 361; Davidson v. Lanier,
marriage, complainant's husband acquired a vested 4 Wall. 454. Motion to dismiss appeal from U.S. Cir.
freehold interest in her lands, and became entitled to cuit Court, Louisiana, allowed, unless appellant files
the rents and profits. His control over the usufruct proper bond. Seward et al., appellants, v. Comean et al.
thereof became absolute. His interest extended durOpinion by Waite, C. J.
ing the joint lives of himself and his wife, or at least LIFE INSURANCE NON-PAYMENT OF PREMIUM IN- so long as the marriago relation continued. It was an VALIDATING POLICY.– Tho charter of a Wisconsin life interest capable of sale. When, therefore, the deed insurance company contained this: “Every person was made to E., it gave to the grantee the wife's right, who shall become a member of this corporation by ef- subject to disaffirmance, and the husband's right to the fecting insurance therein shall, the first time he effects possession and eujoyment of the profits absolutely. insurance, and before ho receives his policy, pay the When the wife subsequently came of age she continued rates that shall be fixed upon and determined by the powerless to disturb the possession of the grantee so trustees." G. presented an application to the Chicago long as her coverture lasted, for the grantee held not agents of the company in August, 1872, for insurance only her right but that also of her husband. The most on his life for $6,000. This was forwarded to the com- she could have done was to give notice that she would pany by tho agents. Tho company decided to issue a not be bound by her deed. That she was not bound to policy, and the same month sent to the agents a policy do. The land was not her separate estato. In regard in terms insuring the lifo of G. for $6,000, which con- to it she was sub potestate viri, incapable of suing or tained this: “ This policy shall not take effect and be making any contract without her husband's assent, excomo binding on the company until the premium be cept such as might relate to separate property. She actually paid, during tho life-timo of the person whose could not even receive a grant of land if her husband life is assured, to the company or to some person au- dissented. Her disability during her coverture was thorized to receive it, who shall countersign the policy even greater than that of an infant, and it is settled on receipt of the premium.” This policy tho agents that an infant cannot disaffirm his deed while his inkept until the 2d of October, wben the premium, which fancy continues. Zouch v. Parsons, 3 Bur. 1808; Roof was $302.52, not having been paid, they returned it to v. Stafford, 7 Cow. 183. The reason is, that a disaffirmance works a reinvestiture of the estate in the infant, number of cases which hold that silence during a much and he is presumed not to have sufficient discretion for less period of time will be held to be a confirmation of that. Why should not the greater disability of covert- the voidable deed. But these cases either rely upon ure be attended with the same consequences? If a Holmes v. Blogg, 8 Taunt. 35 (which was not a case of wife cannot contract about any land which is not her an infant's deed), or subsequent cases decided on its separate property, how can sbe, without the concur- authority, or they were rested in part upon other cirrence of her husbaud, do any act, the effect of which cumstances than mere silent acquiescence, such as is to transfer the title to land from another to herself?standing by without speaking while the grantee has The question is whether complainant did disaffirm made valuable improvements, or making use of the her deed within a reasonable time after she at- consideration for the deed. The preponderance of tained her majority. What is a reasonable time is authority is that in deeds executed by infants, mere nowbere determined in such a manner as to furnish a inertness or silence, continued for a period less than rule applicable to all cases. The question must always that prescribed by the statute of limitations, unless be answered in view of the peculiar circumstances of accompanied by affirmative acts, manifesting an ineach case.
State v. Plaisted, 43 N. H. 413; Jenkins tention to assent to the conveyance, will not bar the v. Jenkins, 12 Iowa, 195. It is an acknowledged rule infant's right to avoid the deed. And those coufirmathat when there are two or more co-existing disabili- tory acts must be voluntary. As was said, one who is ties in the same person when his right of action ac- under a disability to make a contract cannot confirm crues, he is not obliged to act until the last is removed. one that is voidable, or, what is the same thing, cannot 2 Sugd. on Vend. 103 (482); Mercer v. Selden, 1 How. disafirm it. Affirmance or disaffirmance are in their 53. This is the rule under the statute of limitations. nature mental assents. They necessarily imply the But complainant could not sue until after her divorce, action of a free mind, exempt from all constraint or aud until the right the husband acquired by his mar- disability. The complainant, having been a feme riage terminated. And had she given notice during covert until 1870, and never having done, during her her coverture of disaffirmance of her deed, it was in coverture, any act to confirm the deed which she made the power of her husband to disafirm her disafirm- during her infancy, could effectively disafirm it in ance. 2 Bish. on Marr. Wom., S 392. Giving notice, 1870, when she became a free agent, and her potice of therefore, which was all she could do, would have been disaffirmance and her suit avoided her deed made in a vain tbing. The law does not compel the perform- 1847. And she was not estopped by her statement that ance of things that are vain. Bishop, in the work she was of age. An estoppel in pais is not applicable referred to, says that if an infant, who is also a married to infants, and a fraudulent representation of capacwoman, makes an instrument voidable because of her ity cannot be an equivalent for actual capacity. Brown infancy, the disability of coverture enables her to post- v. McCune, 5 Sandf. 228; Keen v. Coleman, 39 Penn. pone the act of avoidance to a reasonable time after St. 299. A conveyance by an infant is an assertion of the coverture is ended. $ 516. In support of this his right to convey. A contemporaneous declaration he refers to Dodd v. Benthal, 4 Heisk. 601, and Mather- of his right or of his age adds nothing to what is imson v. Daris, 2 Cold. 443. These cases certainly sustain plied in his deed. An assertion of an estoppel against the rule stated. In the former it was decided that an him is but a claim that he has assented or contracted. infant, who is also a married woman, has the option to But he can no more do that effectively than he can dissent from her deed withiu a reasonable time after make the contract alleged to be confirmed. Decree of her discoverture, though her coverture may continue U. 8. Ciro. Ct., Indiana, reversed. Sims, appellant, v. more than twenty years. And it this were not so, the Everhardt et al. Opinion by Strong, J. disability of coverture, instead of being a protection [Decided Oct. 25, 1880.) to the wife, as the law intends it, would be the contrary. But the continued coverture of complainant,
KENTUCKY COURT OF APPEALS ABSTRACT. after she attained full age, is not the only circumstance of importance to the inquiry whether she disafirmed
OCTOBER, 1880. her deed within a reasonable time. The circumstances under which the deed was made are to be considered. CONFLICT OF LAW – FOREIGN JUDGMENT – JURIS There was evidence that she was constrained by her DICTION – CNTICING PARTY INTO STATE TO SERVE husband to execute the deed: that his conduct toward PROCESS. — A, by a device, induced his debtor B, who her was abusive, violent, and threatening in order to owned a horse and wagon that was exempt under the induce her to conseut to the sale; that she was intimic laws of Kentucky, to go with it into the State of dated by him; that a look from him would make her Tennessee, where such property was not exempt, in do almost any thing, and that she was in a weak and order to attach the horse and wagon, which he did, nervous condition. It is not strange that a woman and B not answering, recovered judgment, and so colbound to such a husband should delay during her lected his debt. On his returu to Kentucky B sued A coverture disaffirming a contract which he had forced for damages by reason of the proceeding and recorher to make. The most that is alleged against her is ered judgment. Held, that the judgment in favor of that she was silent during her coverture. But silence B was proper and the action was not a collateral attack is not necessarily acquiescence. It is true that tho de- upon the Tennessee judgment, but a direct one. A cisions respecting the disaffirmance of an infant's deed judgment rendered by a Superior Court of another are not in entire harmony with each other. While it State may be attacked for want of jurisdiction is generally agreed that the infant to avoid it must dis- of the subject-matter, or of the person, regardless aflirm it within a reasonable time after his majority is of the recitals of the judgment or record. Wharattained, they differ as to what constitutes disaffirm- ton on Conflict of Laws, $ 811; Kerr v. Kerr, 41 apce and as to the effect of mere silence. Where there N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Thompson is nothing more than silence, many cases hold that an v. Whitman, 18 Wall. 457; Knowles v. Gas Light and infant's deed may be avoided at any time after his Coke Co., 19 id. 59. The service of process on B in reaching majority until he is barred by the statute of Teunessee did not conclusively establish the jurisdiclimitations, and that silent acquiescence for any period tion of the court, and unless the jurisdiction properly less than the period of limitation is not a bar. Such attached, the judgment was a nullity. The device by was in effect the ruling in Irvine v. Irvine, 9 Wall. which the debtor was induced to go into Tennessee 627. See, also, Prout v. Wiley, 28 Mich. 164, a well- was a fraud, and A could not be allowed to take adconsidered case, and Drake v. Ramsey, 5 Ohio, 251. vantage of his own wrong and thus acquire rights But on the other hand, there appears to be a greater which he could not have had except for the fraud. It
is an established principle that a valid act cannot be grades, for being voluntarily in a state of intoxication established by unlawful means, and that legal rights while engaged in, or when required by law to be encannot be acquired by fraud; for, in the language of gaged in, the discharge of official duties. One who Lord Coke, “It avoids all judicial acts, ecclesiastical engages to serve the public in an official capacity has or temporal.” Dunlap v. Cody (31 Iowa, 260), 7 Am. no right voluntarily to unfit himself, to any degree, for Rep. 129. Wood v. Wood. Opinion by Hiues, J. the faithful and intelligent discharge of the duties of CONSTITUTIONAL LAW – IMPAIRING OBLIGATION OF
his position; and the law-making power of the State CONTRACT - STATE LAW ALTERING REMEDY. - A stat
may punish him for so doing, in any manner not proute of Kentucky enacted in 1878, provided that in
hibited by the Constitution. But it cannot provide judicial sales of land there should be a valuation and
for a removal from office of an officer on conviction of appraisement and that two-thirds of the appraised any offense, unless the Constitution expressly authorvalue should be realized before the sale could be made
izes it, where the Coustitution regulates the matter, absolute, and the sale was made subject to redemption and particularly designates when removals from office within one year, during which time the debtor was
shall occur. (2) The phrase "misfeasance in office," entitled to the possession and profits of the land.
at the time of the adoption of the Constitution, had a Held, not to apply to contracts made previous to the
tecbnical signification; to expound which belongs to enactment of the statute, otherwise it would impair of the phrase is well settled to be merely the wrong
the courts, and not to the Legislature. The meaning the obligation of a contract. “The obligation of a
And this contract is that which obliges a person to perform his doing of an official act, and nothing more.
does not embrace the offeuse of intoxication while discontract or to repair the injury done by a failure to perform it." Blair v. Williams, 4 Litt. 86. The laws charging official duties. The Legislature cannot exin force when and where a contract is made enter into
tend a constitutional penalty to cases not designated. it and form a part of it. Von Hoffman v. City of Cooley on Const. Lim. (4th ed.), p. 78; Lowe v. ComQuincy, 4 Wall. 535. The remedy is included in the
monwealth, 3 Metc. (Ky.) 241; Brown v. Grover, 6 Bush,
1;Commonwealthv. Barry, Hardin, 238; Commonwealth obligation of a contract (Blair v. Williams, supra), and cannot be altered so as materially to impair the obliga- tucky v. Williams. Opinion by Cofer, C. J.
v. Chambers, 1 J.J. Marsh. 160. Commonwealth of Kention to any extent. Green v. Biddle, 8 Wheat. 1; Edwards v. Kersey, 6 Otto, 601. The remedy has been said to be the breath or vital existence of the obliga- MICHIGAN SUPREME COURT ABSTRACT. tion. Without it, tho legal obligation is not enforce
OCTOBER, 1880. able, so that “want of right and want of remedy are the same thing" in effect - the non-existence of either
EJECTMENT-DEVISEE MAY BRING, BEFORE PROBATE being equally fatal to the claims of a party in a court of justice. For the efficacy of the law lies in the
OF WILL— A devisee of lands may, before the probate
of the will under which he derives title, bring an action reinedial part of it, which is the very essence of the " protection of the law” guaranteed by the Constitu- doubtedly some technical rules of common-law plead
in ejectment to recover such lands. There were untion. There is a great difference between taking away ing which required an executor to make profert of his or dispensing with part of the remedy and regulating letters in pleading. But for any other purpose the how or when it may be employed. If the remedy is decisions are uniform that probate merely furnishes preserved as it existed when the contract was made, the means of establishing by a peculiar kind of record legislative requirements, when reasonable, fixing a
evidence the validity of an existing right; aud that time for invoking its enforcement, or designating the forms by which it inay be enforced, are not in conflict
for every valuable purpose touching the existence and with the coustitutional provision. But the Legislature the same effect as if it had been had at the time of the
transfer of title the probato was retroactive, aud had cannot do things in such manner as to operate as a
testator's death. And so far as the statutes have been destruction or decrease of the value of the remedy, nor can it thereby dispense with any part of its force: applied to devises there is no material difference. The Green v. Biddle, silpra.
executor may release a cause of action. Co. Litt. 2926. The ability to comply with
He may sell goods. Mayor of Norwich v. Johnson, 3 the obligation to perform, or render redress for not performing the contract, cannot be lessened, weakened, good though he die before probate. 3 Dyer, 367. He
Mod. 92. He may enter on a term and the entry be impaired or taken away by the force of a law purporting to regulate the remedy. Blair v. Williams, supra; and the sale will stand. Brazier r. Hudson, 8 Simons,
may sell a term of years, though he die before probate, Lapsley v. Brashears, 4 Littell, 651; Planters' Bank v.
67. In Wankford v. Wapkford, 1 Salk. 299 and notes, Sharp et al., 6 How. 301; Bronson v. Kinzie, 1 id. 311. The State has the right to alter tho remedy, subject to down. And the practical result is said in Brazier v.
the doctrine is quite fully discussed, and clearly laid the limitation that the alteration shall not impair the Hudson to be that subsequent probate validates all obligation of contracts. Tbere is no qualification an
acts that would be valid after. This may be a somenexed to this limitation upon the power of the Legis- what broad statement, but it is certainly true for most lature, and neither “policy nor humanity” is a safe
purposes, and authorities might be multiplied upon it. guide in construing a constitutional provision which
In the United States the rule has been tho same. After is without ambiguity. There are no degrees in the probate a conveyance previous thereto by a devisee has Constitution, and none should be interpolated by con
been held valid. Spring v. Parkman, 3 Fairf. 127. And struction, although the alteration, to be valid, must be
in De Wolf v. Brown, 15 Pick. 462, it was held the material. A similar statute of Illinois, as to redemp- estate devised vested immediately both as to realty tion from a sale under mortgage, has been denied a
and personalty on the death of testator, so as to auretroactive effect by the Supreme Court of the United
thorize suit for a taking of property connected with a States, in Bronson v. McKinzie, 1 How. 319, wherein
farm before probate. In Sutphen v. Ellis, 35 Mich. tho court says: “If such rights may be added to the
446, it was held that an assignment of a mortgage made original contract by subsequent legislation, it would
by the legatee of such mortgage, who died before the be difficult to say at what point they must stop."
will was proved, was valid. In 3 Redfield on Wills, 23, Hardin's Administrator v. Taylor. Opinion by Hines, J.
a similar doctrine is laid down. In 1 Salk. 302, 303, LEGISLATIVE AUTHORITY AS TO CONTRACT OF before referred to, it is said that an action may be PUBLIC OFFICERS -- REMOVING FROM OFFICE "MIS- brought before probate, but plaintiff cannot declare. FEASANCE IN OFFICE.” —(1) It is within the authority Several authorities are collected in Comyn's Dig. " Adof the Legislature to punish public officers of all ministration," B. 9, to the effect that an action brought