gard the amendment as made. It would be quite inadmissible to send the case back for another trial because of such a verbal mistake.

The judgment of the Circuit Court is affirmed.

CONTRACTS BY STATES AS TO LOCATION OF COUNTY SEATS.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1879.

NEWTON ET AL., Plaintiffs in Error, v. COMMISSIONERS OF MAHONING.

In the year 1846 the Legislature of Ohio passed an act whereby it was provided that the county seat of Mahoning county should be "permanently established" at Canfield, upon the fulfillment of certain prescribed terms and conditions, which were fully complied with. The county seat was established accordingly, and remained at Canfield for about thirty years. In 1874 the Legislature passed another act, providing for its removal to Youngstown.

This bill was filled, setting forth that the act of 1846, and what was done under it, constituted an executed contract, within the meaning and protection of the contract clause of the Constitution of the United States, and praying for a perpetual injunction against the remoyal contemplated by the later act. Held, (1) That the contract clause of the Constitution had no application. (2) That the act of 1846 was a public law relating to a public subject, with respect to which a prior had no power to bind a subsequent Legislature. (3) Conceding there was a contract as claimed, it was satisfled on the part of the State by establishing the county seat at Canfield, with the intent that it should remain there. (4) There was no stipulation that the county seat should be kept or remain there in perpetuity. (5) The rule of interpretation in cases like this, as against the State, is, that nothing is to be taken as conceded but what is given in express and explicit terms or by an 'implication equally clear. Silence is negation, and doubt is fatal to the claim.

N error to the Supreme Court of the State of Ohio.

was by Eben

ers against the board of county commissioners of Mahoning county, Ohio, to enjoin the removal of the county seat of said county, which had, under an act of the Legislature of Ohio providing that it should be "permanently established" at Canfield upon the fulfillment of certain prescribed terms and conditions which were fulfilled, been established there. The Legislature of Ohio in 1874 passed another act providing for the removal of such seat to Youngstown, and to restrain the defendants from proceeding under such act; this action was brought in the courts of Ohio; plaintiffs claiming that such act was in violation of the provision of the Federal Constitution forbidding State laws impairing the obligation of a contract.

SWAYNE, J. It is claimed in behalf of the plaintiffs in error that the act of the 16th February, 1846, and what was done under it, constituted an executed contract which is binding on the State; and that the act of April 9th, 1874, and the steps taken pursuant to its provisions, impair the obligation of that contract, and bring the case within the contract clause of the Constitution of the United States. Art. 1, § 10.

These allegations are the ground of our jurisdiction. They present the only question argued before us, and our remarks will be confined to that subject.

The case may be properly considered under two aspects:

Was it competent for the State to enter into such a contract as is claimed to have been made?

And if such a contract was made, what is its meaning and effect?

Undoubtedly there are cases in which a State may, as it were, lay aside its sovereignty and contract like

an individual and be bound accordingly. Curran v. Arkansas, 15 How. 309; Davis v. Gray, 16 Wall. 232.

The cases in which such contracts have been sustained and enforced are very numerous. Many of them are cases in which the question was presented whether a private act of incorporation, or one or more of its clauses, is a contract within the meaning of the National Constitution. There is no such restraint upon the British Parliament. Hence the adjudications of that country throw but little light upon the subject.

The Dartmouth College case was the pioneer in this field of our jurisprudence.

The principle there laid down, and since maintained in the cases which have followed and been controlled by it, has no application where the statute in question is a public law relating to a public subject within the domain of the general legislative power of the State, and involving the public rights and public welfare of the entire community affected by it. The two classes of cases are separated by a broad line of demarcation. The distinction was forced upon the attention of the court by the argument of the Dartmouth College case. Chief Justice Marshall said:

"That anterior to the formation of the Constitution, a course of legislation had prevailed in many, if not in all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements. To correct this mischief by restraining the power which produced it, the State Legislatures were forbidden 'to pass any law impairing the obligation of contracts;' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the Constitution must, in construction, receive some limitation, it may be confined, and ought to be confined, to cases of this description to cases within the mischief it was intended to remedy.

"The general correctness of these observations cannot be controverted. That the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the Legislature to legislate on the subject of divorces. ** *If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the Legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States."

The judgment of the court in that case proceeded upon the ground that the college was "a private eleemosynary institution, endowed with a capacity to take property for purposes unconnected with the government, whose funds are bestowed by iudividuals on the faith of the charter."

In the latter case of East Hartford v. The Hartford Bridge Co., this court further said: "But it is not found necessary for us to decide finally on this first and most doubtful question, as our opinion is clearly in favor of the defendant in error on the other question; namely, that the parties to this grant did not by their charter stand in the attitude toward each other of making a contract by it, such as is contemplated in

the Constitution, and so could not be modified by subsequent legislation. The Legislature was acting here on the one part, and public municipal corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the Legislature as to this ferry must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the Legislature. * * *

"It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislativo improvements and amendments, as well as supervision over its subordinate public bodies."

The legislative power of a State, except so far as restrained by its own Constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation. Butler et al. v. Pennsylvania, 10 How. 402.

The police power of the States, and that with respect to municipal corporations, and to many other things that might be named, are of the same absolute character. Cooley's Const. Lim., pp. 232, 342; The Regents v. Williams, 9 Gill & J. 391.

In all these cases there can be no contract and no irrepealable law, because they are "governmental subjects," and hence within the category before stated.

They involve public interests, and legislative acts concerning them are necessarily public laws. Every succeeding Legislature possesses the same jurisdiction and power with respect to them as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil.

All these considerations apply with full force to the times and places of holding courts. They are both purely public things, and the laws concerning them must necessarily be of the same character.

If one may be bargained about, so may the other. In this respect there is no difference in principle between them.

The same reasoning, pushed a step farther in the same direction, would involve the same result with respect to the seat of government of a State.

If a State capital were sought to be removed under the circumstances of this case with respect to the county seat, whatever the public exigencies or the force of the public sentiment which demanded it, those interested, as are the plaintiffs in error, might, according to their argument, effectually forbid and prevent it, and this result could be brought about by means of a bill in equity and a perpetual injunction.

It is true, a State cannot be sued without its consent, but this would be a small obstacle in the way of the assertion of so potent a right. Though the State cannot be sued, its officers, whose acts were illegal and void, may be. Osborn v. The Bank U. S., 9 Wheat. 739; Davis v. Gray, 16 Wall. 204.

A proposition leading to such consequences must be

unsound. The parent and the offspring are alike. Armstrong v. The Commissioners, 4 Blackf. 209, was, in some of its features, not unlike the case before us. The act declared that "so soon as the public buildings are completed in the manner aforesaid, at the place designated, the same shall be forever thereafter the permanent seat of justice of said county of Dearborn." Certain private individuals there, as here, had stipulated to build a court-house, and their compliance was a condition precedent. The condition had been performed. It was held that "the act did not create a contract." The subject was fully considered. It was held further, that a subsequent Legislature might competently pass an act for the removal of the county seat so established. In that case both had been done and both were sustained. The reasoning of the court was substantially the same with ours touching the eighth section of the act of 1846 here in question. Elwell and others v. Tucker, 1 id. 285, was also a case arising out of the removal of a county seat. The court said, "The establishment of the time and place of holding courts is a matter of general legislation, respecting which the act of one session of the General Assembly cannot be binding on another." See, also, Adams v. The County of Logan, 11 Ill. 336, and Bass v. Fonthroy, 11 Texas, 693. They are to the same effect.

Secondly. But conceding, for the purposes of this opinion, that there is here a contract, as claimed by the plaintiffs in error, then the question arises, What is the contract; or, in other words, to what does it bind the State?

The rules of interpretation touching such contracts are well settled in this court. In Tucker v. Ferguson, 22 Wall. 574, we said: "But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend either in scope or duration beyond what the terms of the concession clearly require." There must have been a deliberate intention clearly manifested on the part of the State to grant what is claimed. Such a purpose cannot be inferred from equivocal language. Providence Bank v. Billings, 4 Pet. 514; Gilman v. Sheboygan, 2 Black, 513.

It must not be a mere gratuity. There must be a sufficient consideration, or no matter how long the alleged right has been enjoyed, it may be resumed by the State at its pleasure. Christ's Church v. Phila., 24 How. 300. No grant can be raised by mere inference or presumption, and the right granted must be clearly defined. Charles River Bridge v. Warren Bridge, 11 Pet. 420.

"The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms or by an implication equally clear. The affirmative must be shown. Silence is negation and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court." Fertilizing Co. v. Hyde Park, 97 U. S. 659.

The 8th section of the act of 1846 declares: "That before the seat of justice shall be considered permanently established in the town of Canfield, the proprietors or citizens thereof shall" do certain things, all of which, it is admitted, were done in due time. This is the whole case of the plaintiffs in error. It will be observed that there is nothing said about the county seat remaining, or being kept, at Canfield forever, or for any specified time, or "permanently." At most the stipulation is that it shall be considered as permanently established there when the conditions specified are fulfilled. If the Legislature had intended to assume an obligation that it should be kept there in perpetuity it is to be presumed it would have said so. We cannot

certainly not in this case-interpolate into the statute a thing so important, which it does not contain. The most that can be claimed to have been intended by the State is, that when the conditions prescribed were complied with, the county seat should be then and thereupon "permanently established " at the designated place. We are, therefore, to consider what is the meaning of the phrase 'permanently established." Domicile is acquired by residence and the animus manendi, the intent to remain. A permanent residence is acquired in the same way. In neither case is the idea involved that a change of domicile or of residence may not thereafter be made. But this in nowise affects the pre-existing legal status of the individual in either case while it continues. So the county seat was permanently established at Canfield when it was placed there with the intention that it should remain there. This fact, thus complete, was in nowise affected by the further fact that thirty years later the State changed its mind and determined to remove, and did remove, the same county seat to another locality. It fulfilled at the outset the entire obligation it had assumed. It did not stipulate to keep the county seat at Canfield perpetually, and the plaintiffs in error have no right to complain that it was not done. Keeping it there is another and a distinct thing, in regard to which the eighth section of the act is wholly silent. In Mead v. Ballard, 7 Wall. 290, land was conveyed on the 9th of August, 1848, upon the express understanding and condition" that a certain institution of learning then incorporated "shall be permanently located on said land," between the date of the deed and the same day in the succeeding year. The trustees passed a resolution, within the year, locating the institution on the premises, and at once contracted for the erection of the necessary buildings. The buildings were completed, and the institution was in full operation by November, 1849.

66

In the year 1857 the buildings were destroyed by fire and were not rebuilt. A part of the land was sold by the grantee. The heir of the grantor sued in ejectment to recover the premises. This court, speaking by Mr. Justice Miller, said: "It is clear to us * * * that when the trustees passed their resolution locating the buildings on the land, with the intention that it should be the permanent place of conducting the business of the corporation, they had permanently located the institution, within the true construction of the contract. Counsel for the plaintiff attach to the word 'permanent' a meaning inconsistent with the obvious intent of the parties-that the condition was one which might be fully performed within a year. Such a construction is something more than a condition to locate. It is a covenant to build and rebuild - -a covenant against removal at any time-a covenant to keep up an institution of learning on that land forever, or for a very indefinite time. This could not have been the intention of the parties."

In Harris v. Shaw, 13 Ill. 463, land was conveyed on condition that the county seat should be " permanently located" upon it. The location was made accordingly with that intent, but some years later the county seat was removed. The grantor sued to recover the land. The court said it was no part of the contract that the county seat should remain forever on the premises; that the grantor must be presumed to have known that the Legislature had the power to remove it at pleasure, and that he must be held to have had in view at least the probability of such a change when he made the deed.

There is no point arising under either the former or the present Constitution of Ohio which in our judgment requires any remark.

The results of the elaborate research of one of the counsel for the defendants in error show that the phrase permanently established" is a formula in long and

66

frequent use in Ohio, with respect to county seats established otherwise than temporarily. Yet it is believed this is the first instance in the juridical history of the State in which such a claim as is here made has been set up.

This practical interpretation of the meaning of the phrase, though by no means conclusive, is entitled to grave and respectful consideration.

The judgment of the Supreme Court of Ohio is affirmed.

FOREIGN LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK, FEBRUARY, 1880.

GEBHARD V. CANADA SOUTHERN RAILWAY CO. A Canada railroad company executed and issued bonds in Canada which by their terms were payable in the city of New York. In an action in New York upon the bonds to recover interest, the company set up an act of the Canadian Parliament, authorizing the company to substitute new bonds at a reduced rate of interest. Held, that the defense was not available; (1) because the law of the place of performance of the contract, and not of the place of its execution, governed, and th's law could not be affected by extraterritorial legislation; (2) because the act of the Canadian Parliament was invalid, on the ground that it violated fundamental principles of justice, and (3) because such act violated the fundamental principles of the Federal law.

WALLACE, J. The plaintiff sues upon certain obligations executed and issued by the defendant representing installments of interest due and unpaid upon the defendants' issue of first mortgage bonds. The case, for convenience, may be considered as though the action were brought to recover several installments of interest due on the first day of January, 1877, upon the first mortgage bonds of the defendant. These bonds were executed and issued in Canada, but by their terms were payable at the city of New York.

The defendant is a Canadian corporation, and insists in defense that it is discharged from the payment of these bonds by virtue of an act of the Parliament of the Dominion of Canada, passed in April, 1878, whereby the defendant was authorized to issue new bonds, payable in thirty years, in substitution of its first mortgage bonds, and bearing a lower rate of interest. This act declares that the assent of the holders of the first mortgage bonds shall be deemed to have been given to the substitution of the new bonds. The plaintiff in fact never assented to the substitution of the new bonds in the place of the first bonds.

On first impression the defense seems an extraordinary one. It rests upon the theory that the original bonds, having been issued in Canada, are contracts controlled as respects the obligation, and its discharge by the law of Canada, and that the Canadian Parliament, in the exercise of its unlimited powers, has discharged or modified the obligation of the contract, and that even though this be an arbitrary or unjust act it is conclusive upon the rights of the parties.

Several general propositions applicable to the case are elementary. The law of the place of the contract determines the nature, the obligation and interpretation of the contract. But when the contract is to be performed in a different place to that in which it is made, the law of the place of performance, in conformity to the presumed intention of the parties, determines the nature, obligation and interpretation of the contract. A defense or discharge, good by the law of the place of the contract is good wherever the contract is sought to be enforced, but when the place of the performance is not the place where the contract was made, the defense or discharge is valid or invalid, according to the law of

the place of performance. The doctrine that a defense or discharge, good by the law of the place of the contract, is good everywhere, is subject to several qualifications, one of which is that the discharge or defense must not be of such character that it would conflict with the duty of the State where it is sought to be enforced, toward its own citizens to recognize it. The laws of a State have no extraterritorial vigor, and are enforced by other States only upon considerations of comity, and these always yield to those higher considerations which demand of every State the protection of its own citizens against the unwarrantable acts of a foreign sovereignty. These familiar general propositions require no citation from the authorities to support them. Applying them here the defense cannot succeed.

The plaintiff sues upon a contract which was made in Canada, but was to be performed in the State of New York, the place of payment being the place of performance, and a discharge of the obligation which derives its vitality solely from the authority of a foreign sovereignty is of no more effect than would be the case if New York were the place where the contract was made. One of the most common instances in illustration of the rule is where the defense of usury is interposed, in an action brought here upon an obligation made in a foreign State and bearing a higher rate of interest than is permitted by the laws of that State. When the obligation is payable here, the cases all agree that the usury laws of the foreign State have no application.

Another class of cases more analogous to the present, because they involve the effect of an ex post facto discharge of the obligation, is where a discharge in hankruptcy has been obtained under the laws of the State where the contract was made. Such a discharge is not a defense when the place of performance of the obligation is in a different State. The question has frequently been considered by the Supreme Court of the United States, and although generally discussed in connection with constitutional questions, it has been ruled, with the concurrence of all the judges, that irrespective of other considerations, the discharge is inoperative when obtained in a different State from that where the debt was payable, because the contract and its obligation cannot be affected by the legislation of other States. See opinions of Grier, Daniel, Woodbury, JJ., in Cook v. Moffat, 5 How. 295.

The decision of the present case may probably rest upon this ground alone, but if the obligations in suit were Canadian contracts the defense would be untenable. The act of the Canadian Parliament is an attempt to impair and destroy the obligation of a contract. Undoubtedly it was supposed, in view of the financial embarrassments of the defendant, that the new obligations authorized by the act would be acceptable to the holders of the original bonds, and would be of equal if not of greater value. But the plaintiff was entitled to the money due by the terms of his bonds, and any legislative act which attempts to deprive him of it, by compelling him to accept something different, violates fundamental principles of justice, and is in effect an arbitrary confiscation of the plaintiff's property. Although by the theory of the British Constitution Parliament is omnipotent, the jurists and statesmen of England have denied its right to transcend the boundaries which confine the discretion of Parliament within the ancient landmarks.

When it was proposed by the act of Parliament to impair vested property rights by re-modelling the charter of the East India Company in 1783, the attempt was denounced by Lord Thurlow and Mr. Pitt, "as a total subversion of the law and Constitution of the country," and some of the greatest jurists and judges of England have declared that an act of Parliament

against common right and natural equity is void. Angell on Corporations, § 767.

In our own country we regard such acts as so subversive of natural rights as not to be within the authority delegated to the legislative department of the government. It is sometimes supposed that because the Constitution of the United States prohibits the States from passing such laws, and is silent as to the United States, the authority to pass them resides in Congress by implication. This is an erroneons assumption. As said by Nelson, J., 13 Wend. 328: "It is now considered a universal and fundamental proposition in every well-regulated and properly administered government, whether embodied in a constitutional form or not, that private property cannot be taken for private purposes, nor for public, without just compensation, and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable even against the plenitude of power of the legislative department." The same views are expressed by the learned author of Cooley's Constitutional Limitations, p. 176, as follows: "However proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibition can never be essential when the extent of the power apportioned to the legislative department is found, upon examination, not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot by implication confer power. A contract is property; to destroy it partially is to take it, and to do this by arbitrary legislative action is to do it without due process of law. Sinking Fund cases, 99 U. S. 746-7.

If any of our own States had passed such an act as the one under consideration, it would have been the duty of the courts of that State to treat it as an unlawful exercise of power, and certainly it cannot be expected that this court will tolerate legislation by a foreign State, which it would not sanction if passed here, and which if allowed to operate would seriously prejudice the rights of a citizen of this State.

Comity can ask no recognition of such unjust foreign legislation, and the case falls under the qualification of the general rule which prescribes that when the foreign law is repugnant to the fundamental principles of the lex fori, it will be ignored. Judgment is ordered for plaintiff.

NEW YORK COURT OF APPEALS ABSTRACT.

- COUNTER-CLAIM.

-

APPEAL AMOUNT LESS THAN $500 — AMENDMENT his - Plaintiff, in complaint, claimed $639. The answer denied many allegations in the complaint, alleged payment and expressly admitted that defendant was indebted to plaintiff to the amount of $230-“over all payments, off-sets and counter-claims." At the trial before the referee defendant asked to be allowed to amend his answer by alleging therein a counter-claim for $700, but the referee declined to allow the amendment on the ground that the facts offered to be pleaded would not have constituted a counter-claim. Held, that although under Code § 191, if the counter-claim had been alleged in the answer and put in issue by a reply, the case would have been appealable, it not being in the answer was not in controversy; and an appeal would not lie to this court, the amount in controversy being less than $500. Even if the referee placed his refusal to allow the amendment upon an erroneous view of the law, it would not affect the matter. Such an error could be reviewed only like any other error committed upon the trial, and the amount in controversy would have to be determined by the pleadings as they actually

were. Appeal dismissed. Wiley v. Brigham, appellant. Opinion by Earl, J. [Decided April 6, 1880.]

ESTOPPEL-SUCCESSIVE

ATTACH

ATTACHMENT — MENTS USING AFFIDAVIT TWICE-PUBLICATION.

(1) An attachment was granted in an action against non-resident defendant May 13th. The time for commencing publication expired June 12th. No publication was made up to that date, one of the defendants having requested plaintiff to suspend proceedings. Held, that the attachment fell by reason of the omission to commence publication within thirty days (Code $ 638; Taylor v. Troucou, 76 N. Y. 100), and that the request to suspend did not operate as an estoppel to preclude defendants from setting up want of publication or service, A mere request to suspend legal proceedings is not sufficient to place the party who complies with it in the same position as if he had gone on with them. (2) On the 12th of June the plaintiff obtained a second attachment from a judge, using for the purpose the same summons and complaint and affidavit upon which the first warrant had been granted, but giving a new undertaking. Thereafter a new order of publication was made. Held, that the second attachment was valid, and plaintiff had thirty days from the time it was granted to commence publication. The court did not lose jurisdiction of the action by the failure to publish under the first order, and the plaintiff was entitled to use the same affidavit in applying for the second order. The cases of McCoy v. Hyde, 8 Cow. 68, which related to summary proceedings to eject a tenant; Cutler v. Biggs, 2 Hill, 409; Robinson v. Sinclair, 1 How. Pr. 106, relating to affidavits of merits, distinguished. In Barnard v. Heydrick, 49 Barb. 70, it was held that to obtain an order of publication against a non-resident an affidavit might be used which had been made in a different action, and in Langston v. Wetherell, 14 M. & W. 104, it was held, after advisement by the whole court, that in an application to a judge to hold a defendant to bail the plaintiff might use affidavits made and used shortly before on a similar application against the same defendant by a different plaintiff. Mojarietta et al. v. Saenz et al., appellants. Opinion by Rapallo, J. [Decided April 6, 1880.]

CORPORATION

LIABILITY OF DIRECTORS - HOLDING OVER.-Defendants were elected trustees of a corporation formed under the general act of 1848, in February, 1874, for the year ending February 25, 1875. Before the expiration of that year the company became insolvent and discontinued its business. No trustees were elected after February, 1874, and the company ceased to do any business after January 15th, 1875, and none of the defendants acted as trustees after that date. Held, that the defendants would not be liable under the provisions of the act for failing to make a report in January, 1876. Defendants could have continued to act as trustees under section 4 of the act until their successors were elected, and their acts would have bound the company, and if they had continued to act they would have been bound to make the report required by section 12. Craw v. Easterly, 51 N. Y. 679; Easterly v. Barber, 65 id. 252. But they were not bound to hold over. Unless they chose to act, their offices became vacant at the end of the year. It was not necessary for them to resign to produce a vacancy. The vacancy would come from the termination of their term of office. At common law a director holding over after the end of his term became an officer de facto, and as such could do acts binding the corporation. The only change effected by section 4 of the act is to make directors holding over and acting de jure directors until their successors are elected. See, also, Deming v. Puleston, 55 N. Y. 655; Reed v. Keese, 37 N. Y. Super. 269; S. C., 60 N. Y. 616; Vin

cent v. Sands, 33 id. 511; Sanborn v. Lefferts, 58 id. 179. Judgment affirmed. Van Amburgh et al., appellants, v. Baker et al. Opinion by Earl, J. [Decided April 20, 1880.]

DAMAGES FOR WRONGFUL SALE OF STOCK BY BROKER.- In an action by a broker against a customer, for whom he had purchased and held stock for the balance claimed to be duc for advances, it appeared that the stock was purchased by plaintiff for defendant, defendant furnishing a certain percentage of the price called a margin. In such a transaction there is an implied or express agreement that if the stock depreciates the margin shall be replenished and kept good upon demand; and upon a failure to do so the stock may be sold upon a reasonable and customary notice. In this case the stock having depreciated, plaintiff called upon defendant to make good his margin, and upon his failure to do so sold the stock at a sacrifice without giving notice. Plaintiffs claimed the balance due for their advances less the amount received for the stock. Held, that defendant was not bound by the sale for want of notice, and might insist upon full indemnity for his loss or injury; but this was not necessarily the whole amount of plaintiff's claim. If the market value of the claim at the time of the sale or at a reasonable time thereafter was greater than the amount received for it, defendant would have been entitled to the difference. Beyond this difference he was not injured. Baker v. Drake, 53 N. Y. 20; S. C., 66 id. 518. Judgment reversed. Gruman, appellant, v. Smith. Opinion by Church, C. J. [Decided April 13, 1880.]

REAL ESTATE - FIXTURES-GAS FITTINGS AND MIRRORS CHATTEL MORTGAGE ESTOPPEL.-Gas pipes which run through the walls and under the floors of a house are permanent parts of the building, but fixtures attached to those pipes, where they are simply screwed on projections of the pipes from the walls, which can be detached by simply unscrewing them, are not. Neither are mirrors put up after a house is built, supported in their places by hooks and supports, some of which are fastened with screws to the wood-work and others driven into the walls and capable of being detached without injury to the walls. Such articles are not appurtenances. Winslow v. Merchants' Ins. Co., 4 Metc. 311; Vaughan v. Haldeman, 33 Penn. St. 523; Rogers v. Crow, 40 Mo. 91; Montague v. Dent, 10 Rich. (S. C.) Law. 135; Shaw v. Lenke, 1 Daly, 487; Lawrence v. Kemp, 1 Duer, 363; Beck v. Re Bow, 1 P. Williams, 94. And the mere declaration of the owner that he intends that such articles shall go with the house does not make them realty, nor does the purchase of them with the house as between a mortgagee under a mortgage from the purchaser, even though the mortgagor, when negotiating for the lease, represents that they go with the house, no mention of that fact being made in the mortgage. And a purchaser from the mortgagor without notice of such articles would not be bound by the equities which might exist between the mortgagor and mortgagee by reason of such representations. Judgment affirmed. McKeage v. Hanover Fire Ins. Co., appellant. Opinion by Rapallo, J.

[Decided April 20, 1880.]

STATUTORY CONSTRUCTION -GENERAL WORDS OF REPEAL DO NOT AFFECT SPECIAL STATUTES-MECHANICS' LIEN LAW.-A special act will not be deemed repealed by implication in consequence of the passage of a general law containing a general repealing clause of inconsistent legislature. In re Evergreens, 47 N. Y. 216; Bowen v. Leare, 5 Hill, 225; Village of Gloversville v. Howell, 70 N. Y. 287; Ex parte Del. & Hudson Canal Co., 69 id. 209. The Mechanics' Lien Law of 1844, ch. 305, was in terms applicable to the several