It is much to be regretted that the conclusions thus reached may lead to the loss of a large sum in taxes justly due from tax payers to the municipality represented by the defendants. But the result must be attributed to ill-considered legislation, which by attempting to impose an exceptional and unjust rule of taxation upon shareholders of National banks has so far overshot its mark as to exonerate them from any taxation.

It is insisted for the defendants that the complainant is not the proper party to resist the payment of the tax, and that the stockholders are the only persons who can complain; and it is also insisted that an action to enjoin the collection of the tax is not the appropriate remedy.

These objections may properly be considered together. The general rule that a bill in equity will not lie to restrain the collection of a tax is familiar, but the right to the relief sought here rests upon the ground that it is necessary to prevent a multiplicity of suits likely to arise, owing to the peculiar position which the complainant occupies toward its shareholders on the one side, and the defendants on the other.

The act of 1866 makes it the duty of every banking association to retain so much of any dividend or dividends belonging to its stockholders as may be necessary to pay any taxes assessed in pursuance of that act, and the case shows that most of the shareholders of the complainant paid to the complainant the amount severally assessed upon their shares for the tax in controversy, or allowed the amount of the assessments to be retained from their dividends, but that prior to the commencement of this action a considerable number of the shareholders filed their protest and forbade the complainant to pay over the amounts or to retain them for the purpose of paying the tax. The statute imposes a duty on the complainant in the nature of a trust, but which it can only discharge at the peril of being subjected to numerous suits at the hands of those whose money it retains. As is said in the similar case of Cummings v. National Bank, 101 U. S. 157, "it holds a trust relation which authorizes a court of equity to see that it is protected in the exercise of the duties pertaining to it. To prevent multiplicity of suits, equity may interfere."

It is true the statute in terms does not require the bank to pay the taxes assessed against its shareholders, but by necessary implication it authorizes the bank to do so, and thus brings the case precisely within the facts of Cummings v. National Bank. That case must be regarded as a decisive authority against the objections urged here, to the right of the complainant to the relief demanded.

A decree is ordered for the complainant.

been duly elected as his successor, took the requisite oath of office at five minutes after 11 A. M., and we may as well assume, what we understand to be the fact (though it does not appear as it ought to), that he immediately filed such oath in the office of the city clerk, as by law required, so that he was duly qualified. Norgood, between the hours of 11 and 12 of the same day, and after Smith had qualified, signed findings of law and fact in the case at bar, closing the same with a direction for judgment accordingly.

It appears, though we do not perceive that this is important, that he (Norgood) had arrived at a determination of the case before Smith qualified; but such, his determination, had not then been reduced to writing. At the time of signing the findings and direc. tion he had not been made aware that Smith had qualified. The clerk of the municipal court, upon the filing of the findings and direction, on the next day entered judgment accordingly. There is nothing to show that Smith, in fact, took possession of the office for which he had qualified, by exercising any of its functions or duties, until after the findings and direction had been signed and handed to the attorney for the successful party to be filed with the clerk. Upon this state of facts, we are of opinion that the judgment was valid.

Norgood came into office under an election or appointment (it does not appear which), the regularity and validity of which are not questioned. Under color of this election or appointment he was exercising the duties of the office at the time of signing the findings and direction spoken of. Inasmuch as Smith had qualified, he was de jure the judge, and Norgood's term de jure was, under the statute, at an end. Gen. Stat. 1878, ch. 64, § 133. But as it in no way appears that Smith had taken possession of the office by exercising any of its duties or functions, Norgood, who was exercising its duties under the color spoken of, continued and was in possession of it. His caso is thereforo that of an officer de facto - a person having and claiming color of title to an office by election or appointment, and in the exercise of its functions and duties; that is to say, in possession of it. The acts of such an officer are valid as respects the public and persons interested therein, and as to them cannot be questioned. Brown v. Lunt, 37 Me. 423; State v. Brown, 12 Minn. 538; Wilcox v. Smith, 5 Wend. 231; People v. Peabody, 6 Abb. Pr. 228; id. 296; People v. Cook, 8 N. Y. 67; Plymouth v. Painter, 17 Conn. 585; In re Boyle, 9 Wis. 265.

That one person in possession of an office may be the officer de facto, while some other person is the officer de jure, is of course, though it is said that there cannot be an officer de jure and an officer de facto both in possession of the same office at the same time. Boardman 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 judgment accordingly, as he did. The judgment was therefore valid, and the court below erred in vacating and setting it and the findings and direction aside. The order appealed from is therefore reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

BANKING-MEANING OF WORD "DISCOUNT "— INCLUDES PURCHASE OF NOTES - NEGOTIABLE INSTRUMENT - INDORSEMENT BY PARTNER OF FIRM NAME WITHOUT AUTHORITY - BONA FIDE HOLDER-DEFENSE-CORPORATION - NOTICE. 1) L., who was a member of the firm of C. P. & Co., and also a member of the firm of J. S. Sons, defendants herein, indorsed in his own name a promissory note made by C. P. & Co., and also added the firm signature of defendants as second indorsers. This note he transferred to the

firm of L. S. & Co., note brokers, with whom he had private dealings and to whom he was individually indebted in an amount exceeding the amount of the note, with directions to sell it and apply the amount realized upon his indebtedness, which was done by plaintiff, a bank purchasing the same before due for its face value, less a rebate at the rate of nine per cent per annum. The indorsement of the note by L. was made without the knowledge of the other members of the defendants' firm. The plaintiffs had no knowledge of the nature of the paper or the transactions between L. and the firm of note brokers. Held, that although the note brokers could not claim to have taken the paper in good faith so as to hold defendants liable as indorsers (Comstock v. Hier, 73 N. Y. 269), the indorsement was not void but only voidable, for it was made by L. within the general scope of his authority as a member of defendants' firm, and plaintiff having no notice of the circumstances and coming by the paper fairly could hold the defendants as indorsers. Peacock v. Rhodes, 2 Doug. 633. (2) Plaintiffs' president applied to the firm of note brokers for negotiable paper, and this note being shown to him, he purchased it for the bank at the price agreed upon and the note brokers executed a bill of sale thereof to the bank, and received from the president authority to draw for the purchase price upon the bank, which they exercised. The bank, by the act under which it was incorporated (Laws 1838, ch. 260, § 1), was empowered "to carry on the business of banking by discounting bills, notes and other evidences of debt," "by buying and selling gold and other bullion, foreign coins and bills of exchange," etc. Held, that this statute authorized the transaction whereby plaintiff obtained title to the note mentioned. It was directly within the power to carry on business by discounting" "notes and other evidences of debt." "Discount" is "reduction." Roget's Thesaurus. In McLeod on Banking, a work of authority, at page 43, it is said: "In the language of the money market it is usual to estimate the value of money by the discount or profit it yields, and to buy or purchase a debt is always in commerce termed to discount it." See also, id., p. 291. There is nothing in the statute to indicate that the word "discount" is used in any other than the general sense referred to. In Tracy v. Tallmage, 18 Barb. 456, it is said "to discount includes to buy, for discounting at most is but another term for buying at a discount." Although the judgment in that case was modified in 14 N. Y. 462, it was not in disaffirmance of tho views cited. See Johnson v. Nat. Bank of Gloversville, 74 N. Y. 329; Laws 1870, ch. 193. In authorities holding a different doctrine, Niagara Co. Bank v. Baker, 15 Ohio St. 68; Farmers', etc., Bank v. Baldwin, 23 Minn. 198, the decisions were upon violations of positive law, and are distinguishable from this case. If the noto had been discounted for the firm of note brokers at the same rate, the title of plaintiff would have been just the same. (3) If tho transfer of tho noto was in violation of any statuto it would not avail as a defense. Defendants were not a party to the transaction and payment of the note to plaintiffs would relieve them from a claim by any other person upon it. The transaction out of which the cause of action arose became the property of the plaintiff; was not forbidden; it was not improper in itself, and if it was not within the exact letter of the law from which the plaintiff derived its existence, the fault is one which should give no advantage to the defendants. Whitney Arms Co. v. Barlow, 63 N. Y. 63; Kent v. Quicksilver Mining Co., 78 id. 159, 185; Gold Mining Co. v. Nat. Bank, 96 U. S. 640. (4) One of the members of the firm of note brokers was a director of plaintiff. Held, that that did not affect plaintiff with knowledge of the character of the note or its transfer to the firm. Judgment affirmed. Atlantic State Bank

in the City of Brooklyn v. Savely et al., appellants. Opinion by Danforth, J.

[Decided October 12, 1880.]

PRACTICE-ENTRY OF JUDGMENT-FILING MEMORANDUM BY JUDGE NOT SUFFICIENT. - Plaintiff, in whose favor a decision of affirmance had been rendered by the General Term, filed with the clerk the decision, signed by one of the judges, and nothing else. Held, not an entry of judgment. The Code (§ 1236) requires that each judgment shall be entered in the judgment book and attested by the clerk, and also (§ 1354) that on an affirmance upon appeal, the judgment-roll shall consist of a copy of the judgment annexed to the papers on which the appeal was heard. The memorandum handed down by the General Term, of the decision of the appeal, is not the judgment, but simply the authority for an entry of the judgment. Eno v. Crooke, 6 How. 462. On filing such decision a formal judgment of affirmance should be prepared and entered in the judgment book and attested by the clerk. Order affirmed. Knapp, receiver, appellant, v. Roche. Opinion by Finch, J. [Decided October 15, 1880.]

PRESCRIPTION

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-

EASEMENT OF RIGHT OF WAY -- WHAT NOTICE REQUIRED — EVIDENCE OF ACTUAL NOTICE— NOTICE TO AGENT.-(1) While it is said in some of the text-books and cases that to constitute an easement by prescription tho user must have been for the requisite time "with the knowledge and acquiescence of the owner of the servient tenement (Washb. on E., 3d ed., 160; 2 Washb. R. P. 300; Blake v. Everett, 1 Allen, 248; Colvin v. Burnett, 17 Wend. 568; Parker v. Foote, 19 id. 309) all that is meant is that the user must have been not clandestine or by stealth, but open, notorious, visible and undisputed, and when such a user is under claim of right adverse, the owner of the servient tenement is charged with notice thereof and his acquiescence is implied. The case Hannefin v. Blake, 102 Mass. 297, which has reference to an underground drain, is alone in upholding any different doctrine. Seo Parker v. Foote, 19 Wend. 309; Curtis v. Keesler, 14 Barb. 511; Coolidge v. Learned, 8 Pick. 504; Tracy v. Atherton, 36 Vt. 503; Townsend v. Downer, 32 id. 183; Wallaco v. Fletcher, 10 Fost. 446; Patridge v. Scott, 3 M. & W. 220. (2) In the case at bar plaintiff and his predecessors owned for more than forty years a house in the city of Troy adjoining a house and lot owned by defendants, which defendants had let during that time upon short leases to tenants. During all the time there was a passage-way across defendants' lot used by plaintiff only, and not by defendants or their tenants, and which had a gate that was kept up by plaintiff opening into the street. Defendants lived in the city of Troy and personally attended to renting their premises and to repairing the same, and to collecting the rents monthly and quarterly. Held, that even admitting that actual notice of user was necessary, there was sufficient evidence that defendants had notice thereof. (3) One of defendants was blind, but he consulted with the others about the property, and another defendant. his brother, had, during nearly thirty years, been agent of all the defendants in the management of this property. Held, that there was notice of adverse user to the blind defendant. Whero one tenant in common acts for all the tenants, there is no reason why his knowledge should not be attributed to his co-tenants. (4) The fact that during the time of this user the premises of defendants had been leased for short terms did not affect the running of the time of prescription. Daniel v. North, 11 East, 372; Cross v. Lewis, 2 B. & C. 686; Galo & W. on Easements, 117. Judgment affirmed. Ward v. Warren et al., appellants. Opinion by Earl, J.

[Decided Oct. 5, 1880.]

ance works a reinvestiture of the estate in the infant, and he is presumed not to have sufficient discretion for that. Why should not the greater disability of coverture be attended with the same consequences? If a wife cannot contract about any land which is not her separate property, how can she, without the concurrence of her husband, do any act, the effect of which is to transfer the title to land from another to herself? The question is whether complainant did disaffirm her deed within a reasonable time after she attained her majority. What is a reasonable time is nowhere determined in such a manner as to furnish a rule applicable to all cases. The question must always be answered in view of the peculiar circumstances of each case. State v. Plaisted, 43 N. H. 413; Jenkins v. Jenkins, 12 Iowa, 195. It is an acknowledged rule that when there are two or more co-existing disabilities in the same person when his right of action accrues, he is not obliged to act until the last is removed. 2 Sugd. on Vend. 103 (482); Mercer v. Selden, 1 How. 53. This is the rule under the statute of limitations. But complainant could not sue until after her divorce, and until the right the husband acquired by his marriage terminated. And had she given notice during her coverture of disaffirmance of her deed, it was in the power of her husband to disaffirm her disaffirm

ance.

2 Bish. on Marr. Wom., § 392. Giving notice, therefore, which was all she could do, would have been a vain thing. The law does not compel the performance of things that are vain. Bishop, in the work referred to, says that if an infant, who is also a married woman, makes an instrument voidable because of her infancy, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after the coverture is ended. § 516. In support of this he refers to Dodd v. Benthal, 4 Heisk. 601, and Matherson v. Davis, 2 Cold. 443. These cases certainly sustain the rule stated. In the former it was decided that an infant, who is also a married woman, has the option to dissent from her deed within a reasonable time after her discoverture, though her coverture may continue more than twenty years. And if this were not so, the disability of coverture, instead of being a protection to the wife, as the law intends it, would be the contrary. But the continued coverture of complainant, after she attained full age, is not the only circumstance of importance to the inquiry whether she disaffirmed her deed within a reasonable time. The circumstances under which the deed was made are to be considered. There was evidence that she was constrained by her husband to execute the deed; that his conduct toward her was abusive, violent, and threatening in order to induce her to consent to the sale; that she was intimidated by him; that a look from him would make her do almost any thing, and that she was in a weak and nervous condition. It is not strange that a woman bound to such a husband should delay during her coverture disaffirming a contract which he had forced her to make. The most that is alleged against her is that she was silent during her coverture. But silence is not necessarily acquiescence. It is true that the decisions respecting the disaffirmance of an infant's deed are not in entire harmony with each other. While it is generally agreed that the infant to avoid it must disaffirm it within a reasonable time after his majority is attained, they differ as to what constitutes disaffirmance and as to the effect of mere silence. Where there is nothing more than silence, many cases hold that an infant's deed may be avoided at any time after his reaching majority until he is barred by the statute of limitations, and that silent acquiescence for any period less than the period of limitation is not a bar. Such was in effect the ruling in Irvine v. Irvine, 9 Wall. 627. See, also, Prout v. Wiley, 28 Mich. 164, a wellconsidered case, and Drake v. Ramsey, 5 Ohio, 251. But on the other hand, there appears to be a greater

number of cases which hold that silence during a much less period of time will be held to be a confirmation of the voidable deed. But these cases either rely upon Holmes v. Blogg, 8 Taunt. 35 (which was not a case of an infant's deed), or subsequent cases decided on its authority, or they were rested in part upon other circumstances than mere silent acquiescence, such as standing by without speaking while the grantee has made valuable improvements, or making use of the consideration for the deed. The preponderance of authority is that in deeds executed by infants, mere inertness or silence, continued for a period less than that prescribed by the statute of limitations, unless accompanied by affirmative acts, manifesting an intention to assent to the conveyance, will not bar the infant's right to avoid the deed. And those coufirmatory acts must be voluntary. As was said, one who is under a disability to make a contract cannot confirm one that is voidable, or, what is the same thing, cannot disaffirm it. Affirmance or disaffirmance are in their nature mental assents. They necessarily imply the action of a free mind, exempt from all constraint or disability. The complainant, having been a feme covert until 1870, and never having done, during her coverture, any act to confirm the deed which she made during her infancy, could effectively disaffirm it in 1870, when she became a free agent, and her notice of disaffirmauce and her suit avoided her deed made in 1847. And she was not estopped by her statement that she was of age. An estoppel in pais is not applicable to infants, and a fraudulent representation of capac ity cannot be an equivalent for actual capacity. Brown v. McCune, 5 Sandf. 228; Keen v. Coleman, 39 Penn. St. 299. A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed. Decree of U. S. Circ. Ct., Indiana, reversed. Sims, appellant, v. Everhardt et al. Opinion by Strong, J. [Decided Oct. 25, 1880.]

KENTUCKY COURT OF APPEALS ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-FOREIGN JUDGMENT-JURISDICTION ENTICING PARTY INTO STATE TO SERVE PROCESS. A, by a device, induced his debtor B, who owned a horse and wagon that was exempt under the laws of Kentucky, to go with it into the State of Tennessee, where such property was not exempt, in order to attach the horse and wagon, which he did, and B not answering, recovered judgment, and so collected his debt. On his return to Kentucky B sued A for damages by reason of the proceeding and recov ered judgment. Held, that the judgment in favor of B was proper and the action was not a collateral attack upon the Tennessee judgment, but a direct one. A judgment rendered by a Superior Court of another State may be attacked for want of jurisdiction of the subject-matter, or of the person, regardless of the recitals of the judgment or record. Whar ton on Conflict of Laws, § 811; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light and Coke Co., 19 id. 59. The service of process on B in Tennessee did not conclusively establish the jurisdiction of the court, and unless the jurisdiction properly attached, the judgment was a nullity. The device by which the debtor was induced to go into Tennessee was a fraud, and A could not be allowed to take advantage of his own wrong and thus acquire rights which he could not have had except for the fraud. It