fore that court in the case of Price v. Mott, 52 | payment there can be no redemption. We can Pa. 315, and the case of Bubb v. Tompkins was add nothing to the force of the Pennsylvania cited and approved. cases on that subject. They appear to be direct in point, and very conclusive in argument. There can be no controversy with the quotation from Blackwell on Tax Titles, to the effect that it is the payment that makes the redemption; but when the party applies for redemption, and makes the payment demanded, he has answered ¡the full spirit of the law as cited. The query is submitted, Would there be a redemption if the treasurer issued a certificate without any payment? The facts in such a case would be so widely different as to devest bearing on the argumentative force of the query, it may be said to be at least doubtful if, with the certificate issued, and the record disclosing a redemption, the deed could issue without some proceeding for its correction. It seems to us, both on authority and reason, that, when the certificate issued, there was such a redemption as would prevent the issuing of a deed, and that the refusal to pay the deficiency when notified by the treasurer did not avoid the redemption. The case of Dietrick v. Mason, 57 Pa. 40, is also directly in point. In that case the officer also accepted a less sum than was necessary to redeem, and a deed issued, and it was held that the deed was void. The court said: "But it seems that in making out the statement the treasurer by miscalculation made it $1.58 less than the true amount. It is argued that Dart and Fitch were bound to render the full amount and that no duty lay upon the treasurer except to receive what might be offered him. This is not the law. The parties acting in the re-it of all applicability to the case in hand. As demption are the owner and the officer. The owner must apply for the redemption, but the treasurer must furnish him with the means of making his tender. The treasurer is the legal custodian of the books, and the entries of the taxes and costs, containing the information necessary to know the same, to be tendered. This information it is his duty to give, and he cannot even simply lay the books before the owner, and compel him to search them for himself. The knowledge of the latter may not be adequate to find what he needs. It is therefore In the district court the amount necessary to the duty of the treasurer to state the taxes and redeem fully at that time was ascertained, and, costs to be paid, and, if he mistake the amount, as a condition upon which the decree favorhis miscalculation or omission shall not defeat able to defendants was entered, they were to the redemption. The owner, having called for pay the ascertained amount into court for plainthe amount, and paid all demanded for the re- tiff within a specified time. From that part of demption, cannot be involved in the loss of his the judgment the defendants appealed. Howland by the mistake of the officer; but the treas-ever, within the required time, the amount urer must make good the deficiency to the purchaser. The same principles apply to taxes subsequent to the sale." was paid. The payment was a performance of C. HARDIN & Sons v. IOWA RAILWAY & CONSTRUCTION -The criticism by appellant upon these cases as authority is that "there was no negligence or fault of the fee owner. It was entirely the fault of the officer." We must infer that, but for the fault or negligence urged as against appellees, the cases would be good authority. Now, the fault or negligence on the part of appellees is the failure to make the additional payment when notified of the mistake after the redemption. There is no pretense of fault or negligence on the part of Mahony at the time of redemption, or that he knew of a mistake in amount till notified thereafter. If, then, there had been no notice to Mahony, and a failure to pay, the cases cited and the one at bar would be parallels on principle, and the redemption valid. We must then meet the question if a valid redemption will be avoided 2. It will be presumed that directors of 1. Depositions will be suppressed if taken upon notice insufficient both as to the persons upon whom it was served and as to time of service; and affidavits of counsel, at least so far as they are in conflict, will not be read on appeal for the purpose of showing agreements between counsel as to the taking of such depositions. a corporation were rightfully in session where the record shows that they met and took official action. tors to execute a note for a certain sum of money and interest does not authorize the inclusion in the note of a stipulation for a further sum as an attorney's fee, if collected by an attorney. 4. On foreclosure of deeds of trust on by a mere notice by the officers to the redemptioner that there was a mistake in the amount paid, and a request for payment refused. The dangers to be reasonably anticipated from the 3. Authority given by a board of direcestablishment of such a rule are too manifest to require reference. If a certificate may be thus avoided within one month, may it not be done within a year, or five or ten years; and, in the mean time, what is the condition of the land as to title? If, upon such notice, for any reason, the redemptioner refused payment, the deed may issue, and, with uncertainties as to an actual liability for payment, his land is lost, or at best the title involved. It is urged with much earnestness that it is the payment that constitutes the redemption, land across which a railroad is constructed, the decree should not except the right of way from the sale, where the deeds make no exception thereof, and it is not shown that the company holds its right of way by a title superior to the trust deeds. (October 30, 1889.) YROSS appeals from a decree of the District and, inferentially, that it must be the full CROS amount required by law, and that without such a promissory note, and to foreclose certain securities held as collateral thereto. Affirmed in part. The defendant, the Chicago, Iowa & Dakota Railway Company, employed the defendant, the Iowa Railway & Construction Company, to construct its road. The latter Company borrowed money from plaintiffs to carry on the work of construction, and, to secure its repayment, executed to plaintiffs its promissory note, and also gave, or caused to be given, to them as collateral security for such note certain deeds of trust upon real estate, a chattel mortgage upon rolling stock to be used on the railroad, and certain bonds issued by the Railroad Company. Plaintiffs brought this suit upon the note and sought to realize upon the collateral securities. A decree was rendered favorable to plaintiffs but not giving them all the relief they claimed, and both plaintiffs and defendants appealed to this court. This question whether a note and mortgage executed under circumstances such as are disclosed in this case can provide for attorney's fees, was broadly decided in the negative. Pacific Rolling Mill v. Dayton, S. & G. R. R. Co. 5 Fed. Rep. 852. The creditor holding two securities, one of which unqualifiedly belonged to the debtor, and a third party holding a claim or some right in the other, the first, or that in which there is no conflict of interest, shall be first exhausted and the interest of the third party prejudiced no further than is absolutely necessary. Miller v. Clarke, 37 Iowa, 325. Rothrock, J., delivered the opinion of the court: 1. The appeal of the defendants will first be considered. They complain that a motion for a continuance made by defendants was improperly and erroneously overruled by the court. This objection, it appears to us, cannot be susThe further facts appear in the opinion. tained. The continuance was asked to enable Mr. H. S. Huff, for C. Hardin & Sons: the defendants to take additional evidence. The attorney's fee should have been allowed The record shows that the court was authorized by the court below as the promissory note pro-in holding that ample time had been given for vides for a reasonable attorney's fee, and the that purpose. Statute authorizes it. See Acts 18th Gen. Assembly, 180, 181, chap. 185. Whenever a corporation aggregate is acting within the scope of the legitimate purpose of its institution, all parol contracts made by its authorized agents are express promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action lies. Index Dig. U. S. S. Ct. Rep. vol. 1, p. 485, $270; Bank of Columbia v. Patterson, 11 U. S. 7 Cranch, 299 (3 L. ed. 351). A corporation may, by parol, authorize its treasurer to execute a promissory note in its name. Odd Fellows v. First Nat. Bank, 42 Mich. 461; Merrick v. Burlington & W. Pl. Road Co. 11 Iowa, 74. For the purpose of effecting the object of the corporation its powers are as broad and comprehensive as those of an individual, unless the exercise of the asserted power is expressly prohibited. Thompson v. Lambert, 44 Iowa, 239. As to the declarations of trust all the parties concerned acted under them, the plaintiffs in good faith loaning the money to the defendant Company, and the defendant receiving the money with full knowledge of all the facts: they were the agreements of the plaintiffs and the defendant Company, and all are bound and concluded by the same. Price v. Alexander, 2 Greene (Iowa) 432; Attix v. Phelan, 5 Iowa, 336; Dows v. Morse, 62 Iowa, 231; Wise v. Ray, 3 Greene (Iowa) 430. Every legal presumption should be entertained that an officer has done his duty, and the same presumption would prevail as to the official acts of officers of this class, where the contrary is not shown. Cole v. Porter, 4 Greene (Iowa) 510; Spitler v. Scofield, 43 Iowa, 571; Re Estate of Edwards, 58 Iowa, 431; 1 Greenl. Ev. §§ 38, 40. Messrs. John Porter and C. E. Albrook, for defendants: 2. Next it is claimed that the court erred in suppressing certain depositions of witnesses taken by the defendants. These depositions were taken upon notice that was both insufficient, as having been served upon a clerk or employé of plaintiffs, and as not having been served a sufficient time before the depositions were taken. On this objection, as well as upon the question as to the continuance, we are invited to a perusal of a number of affidavits of counsel as to oral agreements and understandings between them touching the taking of the evidence and the management of the case. It is scarcely necessary to say that these affidavits must be disregarded, at least so far as they are in conflict. Code, § 213. 3. Both of the defendants are corporations, and, as the names indicate, they are railroad companies. As is usual when the building of a railroad is in contemplation, two companies were formed. One was the railroad company proper; that is, the projector of the enterprise. The other was the Railroad Construction Company. The Construction Company undertook to build the railroad for a certain amount of the stock and bonds of the Railroad Company. But stock and bonds are not in and of themselves available for procuring right of way and iron, and making roadbed, and building bridges, and furnishing materials necessary to construct a railroad. It requires money. The plaintiffs are bankers, and they advanced money to the Construction Company, and it gave the note in suit for the money, and also gave, or caused to be given, the securities now sought to be foreclosed. Among other objections raised by defendants to the decree, it is claimed that the president and secretary were not authorized to execute the note. This claim is not well founded. It appears that the execution of the note was expressly authorized at a meeting of the board of directors of the corporation. It is claimed that it does not appear that there was any notice to the directors that a meeting would be held. If this was material, it was for the defendants to show that there was no notice. The record shows that they met and took official action, and it should be presumed that they were rightfully in session. The chattel mortgage given as security for the debt was upon certain rolling stock or cars. It is claimed the mortgage is void because the rolling stock was not the property of the Construction Company when the mortgage was executed. We do not think this claim is well founded. The contract between the Companies required that the road should be finished, and turned over to the Railroad Company. The evidence shows that the title to the property had not passed. The Construction Company was in possession of the road, and operating it, when the mortgage was given. We discover no ground for reversing the decree upon the defendants' appeal. 4. The plaintiffs complain of the decree because the court refused to allow an attorney's fee for the collection of the note. It contained a stipulation for an attorney's fee if collected by an attorney, by suit or otherwise. The learned judge who presided at the hearing must have been of opinion that the president and secretary of the Company who executed the note were not authorized to contract for an attorney's fee. The authority given by the board of directors to execute the note was in these words: Eldora, Iowa, December 30, 1884. Moved by Moorman that the president and secretary of the Company be, and they are hereby, authorized to execute to the City Bank, or C. Hardin & Sons, of Eldora, this Company's note for $9,000, and a chattel mortgage upon the rolling stock of this Company, to secure payment of the same due March 1, 1885, at 10 per cent interest, being for advances heretofore made, with interest, as well as for a $1,000 additional to be advanced. Motion carried. This was an explicit direction to execute a note for $9,000 and interest, and no more. The Company did not, by any official action, authorize the execution of a note in any amount exceeding said sum in any event. We think the court correctly held that the measure of liability was $9,000 and interest. 5. In providing for the sale of the property under the decree, the court made the following order, and entered it as part of the decree: "The sale of any real estate under this decree shall be made subject to the right of way of the Chicago, Iowa & Dakota Railway Company, 100 feet in width, so far as such premises are now occupied and used for the purpose of such right of way; and defendants shall have the right, if they so elect, to determine the order in which the several items of property hereinbefore referred to shall be offered for sale.' To all which both parties except. It is urged that the order, in so far as it provided for a sale subject to the right of way of the defendant the Chicago, Iowa & Dakota Railroad Company, is erroneous. It appears to be conceded that the railroad runs across some of the tracts of land against which the decree operates; but in the deeds of the land, and the trust created therein, no exception is made, and there is nothing in the record from which it can be ascertained why this order was made. We do not think the court was authorized, from the record and evidence, to make the order complained of. If the Railroad Company held its right of way by a title superior to the trust deeds, it should have made some showing of that fact. So far as appears from this record, it has no right of way through the lands. That part of the above order which gives the defendants the right to elect as to the order of sale of the property will be affirmed, and as to the order excepting the right of way from the foreclosure sale the decree will be reversed. In all other respects the cause will be affirmed. MICHIGAN SUPREME COURT. CITY OF PORT HURON, Appt., v. George W. JENKINSON. (....Mich.....) 1. The prior passage of an ordinance prescribing the kind of sidewalk to be built, its dimensions and materials and the time therefor, is necessary in order to make one liable for failure to build it, under a charter giving the common council power to prescribe by ordinance the grade, width and character of sidewalks, their materials and the time for construction, and providing for the punishment of those who fail to comply with the resolution or ordinance. 2. The nonperformance of an act, the performance of which by the person charged therewith is impossible, cannot be made a crime, by either a legislative or municipal body, for which the delinquent may be punished by fine and imprisonment. 3. A statute which makes criminally liable any person owning, occupying or having any interest in real estate in a city, for failure to construct, keep and maintain good sidewalks, is unconstitutional, as it applies evento tenants, who may be unable to perform the acts required. E (November 8, 1889.) RROR to the St. Clair County Circuit Court to review a judgment reversing the judgment of a justice of the peace against defendant in a prosecution for failure to maintain a good and sufficient sidewalk along the street in front of his premises as required by the provisions of the charter and ordinances of the City of Port Huron. Affirmed. The case sufficiently appears in the opinion. Mr. P. H. Phillips for plaintiff, appellant. No appearance for defendant, appellee. Sherwood, Ch. J., delivered the opinion of the court: This action was brought by the City of Port Huron to recover of the defendant a penalty claimed to have been incurred by him for the violation of an ordinance of said City, requiring him to keep and maintain a good and sufficient sidewalk along the street in front of the prem- | due_notice, shall be liable to prosecution acises owned by him, and which it was his duty cording to such ordinances as the common to construct and maintain. The ordinance of council of said city may adopt." Local Acts the City, for the violation of which complaint 1885, p. 538. was made, reads as follows: Section 1. "All persons owning, or occupying, or having any real estate within the City of Port Huron shall keep and maintain good and sufficient sidewalks along all streets and avenues in front of or adjacent to such real estate. And any such person failing or refusing to build or repair any such sidewalk in front of or adjacent to real estate owned or occupied by him, or in which he is interested, for ten days after notice to him to build or repair any such sidewalk by the superintendent of public works, shall be deemed a violator of this ordinance." Section 14 provides that "violators of this ordinance shall, on conviction thereof, be punished by a fine, not to exceed $100, or by imprisonment in the county jail not to exceed three months." It is claimed the testimony showed a violation of the ordinance; and, after the same was given, the defendant, by his counsel, moved the court (the justice before whom he had been brought by warrant) that the complaint and warrant be quashed, and the defendant be discharged, for the reasons: first, that the charter of the City did not authorize criminal punishment or criminal proceedings in the case for the offense charged, nor empower said City to punish criminally the person so refusing or neglecting to build a sidewalk; second, if the charter was intended to confer such authority, the provision purporting to confer the same is unconstitutional; third, the ordinances referred. to, providing criminal punishment for the offense charged against the defendant, and under which the proceedings were had against him wherein he was convicted, were illegal and void. The justice overruled the motion, found the defendant guilty, and gave judgment that he should pay a fine of $25, and costs of prosecution, and, in default of such payment, he be confined in the county jail for thirty days. This conviction was removed to the Circuit Court for the County of St. Clair by certiorari, where the case was heard before Judge Canfield, who reversed the judgment of the justice, and gave judgment against the City for the costs of the suit. The City now seeks a review of the The ordinances established by the mayor and common council of said City further provide that "whenever the accused shall be tried for the violation or nonobservance of any ordinance, or any provision of the city charter, of the City of Port Huron, and found guilty, either by the court or by a jury, or shall be convicted of the charge made against him, upon a plea of guilty, the court shall render judgment thereupon, and inflict such punishment, either by fine, penalty, forfeiture or imprisonment, together with such costs of pros-questions raised. ecution, as may be authorized by law and the court may order. But such punishment shall in no case exceed the limit fixed by law for the offense charged; and, in rendering such judgment and inflicting such punishment, the court may award against such offender a conditional sentence, and order him to pay a fine, with or without costs of prosecution, and, in default thereof, to suffer such imprisonment as is provided by law and awarded by the court in all cases where the offender shall be convicted of an offense punishable, at the discretion of the court, either by fine or imprisonment, or both; provided, that when any person is convicted of being a disorderly person, under any provision of the charter or ordinances of the City of Port Huron, the court may, in its discretion, require of the offender a recognizance, with sufficient sureties, for good behavior for a term of not less than sixty days, nor more than one year, thereafter; and, when such security for good bebavior is required to be given, the court or magistrate may require and further order that the costs of prosecution, or any part thereof, shall be paid by such person, who shall stand committed until such costs are paid, or he is otherwise legally discharged. But such imprisonment shall not exceed ninety days." The power of the council of the City of Port Huron to pass the ordinance in question is claimed under § 1, chap. 18, of the City Charter, and is as follows: "It shall be the duty of each and every person owning, occupying or having any interest in any real estate within the City to construct, keep and maintain good and sufficient sidewalks along all streets and avenues in front of or adjacent to such real estate; and, upon failure so to do, such person, after But two questions were argued in this court by counsel for the City: The first relates to the constitutionality of the Act under which the ordinance was passed; and second, Does the section of the Act referred to authorize the adoption of the ordinance under which the prosecution was had? The ordinance is clearly within the provisions of the statute; but that is of no consequence in this case, as will hereafter appear. In the affidavit upon which the writ of certiorari was obtained, the defendant made the following allegations of error, and which were presented for the consideration of the circuit court: First. The warrant issued in said cause did not authorize the apprehension or arrest of the deponent, for the reasons that it was not directed to anybody, to any officer or person authorized to make arrests; that no criminal action was alleged therein. Second. That the provisions of the ordinance referred to, authorizing criminal prosecutions to be instituted against persons who fail to build or repair a sidewalk in the City of Port Huron is unconstitutional and void. Third. The judgment of the justice aforesaid was void, as the provisions of the charter aforesaid do not authorize an alternative judgment." By 2, chap. 18, of the city charter, it is provided that "the common council shall have power to prescribe, by resolution or ordinance, the grade, width and character of all sidewalks within said City, and the materials of which, and the time within which, the same shall be constructed or repaired; and may provide for the punishment by fine or imprisonment, or both, of any and every person who fails, neglects or refuses to comply with the provisions and requirements of such resolution or ordinance." It will be seen, from an examination of the | then make his nonperformance of such a duty a two sections of the Statute herein given, that, crime, for which he may be punished by both before a person owning land in the City can be fine and imprisonment. It needs no argument required to build a sidewalk along the street to convince any court or citizen, where law upon which it abuts, the council must have prevails, that this cannot be done; and yet such passed an ordinance prescribing the kind of is the effect of the provisions of the Statute and walk to be built, its dimensions, and the mate- by-law under consideration. It will readily be rial to be used therein, as well as the time seen that a tenant occupying a house and lot in within which it must be made. In the case of the City of Port Huron, and so poor and indithat required of this defendant, the record does gent as to receive support from his charitable not show that this was ever done. The com- neighbors, if required by the city authorities to plaint and warrant are both defective in this build or repair a sidewalk along the street in respect, and the court was without jurisdiction front of the premises he occupies, fails to in the case; and the magistrate should have comply with such request, such omission yielded to the motion to dismiss the proceed becomes criminal; and, upon conviction of the ings, when it was made by counsel for the de- offense, he may be fined and imprisoned. It is hardly necessary to say these two sections of the Statute are unconstitutional and void, and that the provisions are of no force or effect. They are obnoxious to our Constitution and laws; and the two sections of the Statute are a disgrace to the legislation of the State. fendant. This defect would be sufficient to dispose of the case if no other infirmity appeared; but a more serious difficulty is encountered upon an examination of these two sections of the Statute, and the provisions of the by-law enacted by the council thereunder. Neither of them are of any validity whatever. No legislative or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and The judgment of the Circuit Court will be af firmed, with costs to be paid to the defendant by the City. The other Justices concurred. NEW JERSEY SUPREME COURT. TOWNSHIP OF LODI, Plff. in Err., v. STATE OF NEW JERSEY. (......N. J. L.......) sealed bills of exception, present the question whether there is a legal obligation on this Township to maintain and repair this former turnpike. If so, the conviction should be maintained. If otherwise, then this judgment is wrong. The general provisions of the road law A statute changing the policy of the put all public highways in charge of the several State by transferring the burden of repairing townships through which they ran, for the purturnpikes acquired by a county, from the board pose of opening and keeping in repair. Variof chosen freeholders of the county to the sepa-ous provisions of law have been enacted by the rate townships, but excepting therefrom any county having a county public-road board, is in violation of the Constitution, art. 4, § 7, par. 11, prohibiting private, local or special laws regulating the internal affairs of towns or counties. Legislature in respect to the maintenance of turnpike roads abandoned by, or taken by purchase or condemnation from, private corporations. An Act entitled "An Act Concerning Bridges and Turnpikes," approved March 12, one thousand eight hundred and seventy-eight, provided for the forfeiture of the charRROR to the Court of Quarter Sessions of ters of certain turnpike roads, and for the acquiBergen County to review a judgment con- | sition of title by the boards of chosen freeholdvicting defendant of maintaining a nuisance.ers of the several counties in certain cases. The Reversed. ERI (November 27, 1889.) second section of that Act declared that the roads thus acquired should be free, and open to public travel, and directed that such roads "be maintained and worked as other . . . public roads are, or shall be, directed to be maintained and worked." Rev. Supp. 1098, 1099. Under this law, and the several supplements passed thereto, the liability to repair this class of highways was put upon the Township, in virtue of general regulations then existing, controlling that subject. But by an Act passed March 24, 1882, entitled "An Act Concerning Turnpikes" (Id. 1098), it was provided "that any turnpike road, or any part thereof, the title to or right of possession of which shall be acquired by or has become vested in any board of chosen freeholders of any county, for public use, shall be graded, regulated, worked, repaired, maintained and kept up at the cost and expense of said county, and as the said board of chosen |