in carrying it out, except to receive the moneys and gold certificates paid to him on the 28th of February, as aforesaid, and he had no actual knowledge of the proceedings taken by Carter on that day to obtain said gold certificates. When Carter and Smith deposited the $420,000 of gold certificates in the Sub-Treasury, as afore. said, Smith did not know Hartwell, nor did Hartwell know Smith, or know that Smith was connected with any bank or money institution." The case, under another aspect, was before us on a former occasion. Merch. Bk. v. St. Bk., 10 Wall., 604 [77 U. S., XIX., 1008]. We there held, after the most careful consideration, that the legal title to the certificates was, by the purchases made by its cashier, vested in the State Bank. We find no reason to change this view. The finding of the court shows clearly that Hartwell knew when he received the certificates that they did not belong to Mellen, Ward & Co., and that they did belong to the plaintiff, and that Smith represented the plaintiff as its agent. Hartwell was privy to the entire fraud from the beginning to the end, and was a participant in its consummation. It is not denied that Smith acted in entire good faith. What he did was honestly done, and it was according to the settled and usual course of business. Hartwell was the agent of the United States. He was appointed by them, and acted for them. He did, so far as Smith knew, only what it was his duty to do, and what he did constantly for others, and it is not denied that it was according to the law of the land. 12 Stat. at L., 711. Smith no more suspected fraud, and had no more reason to suspect it, than any other of the countless parties who dealt with the Sub-Treasury in like manner. There could hardly be a stronger equity than that in favor of the plaintiff. It remains to consider the law of the case. The interposition of equity is not necessary where a trust fund is perverted. The cestui que trust can follow it at law as far as it can be traced, May v. Le Claire, 11 Wall., 217 [78 U. S., XX.,50]; Taylor v. Plumer,3 Maule & S.,562. In these cases, and many others that might be cited, the rules of law applicable to individuals were applied to the United States. Here the basis of the liability insisted upon is an im plied contract by which they might well become bound in virtue of their corporate character. Their sovereignty is in nowise involved. Atlantic Bk. v. Merch. Bk., 10 Gray, 532, and Skinner v. Bk., 4 Allen, 290, are, in their facts, strikingly like the case before us, and they involved exactly the same point. It was held in each of those cases, after an elaborate examination of the subject, that the defrauded bank was entitled to recover. But surely it ought to require neither argument nor authority to support the proposition, that, where the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property cannot be held by the United States against the claim of the wronged and injured party. The agent was agent for no such purpose. His doings were vitiated by the underlying di honesty, and could confer no rights upon his principal. The appellee recovered, below, the amount claimed. A different result here would be a reproach to our jurisprudence. The judgment of the Court of Claims is affirmed. NOTE.-The Merchants' State Bank of Boston v. United States, No. 160,(See S. C., 6 Otto, 36). Appeal from the Court of Claims. The facts of this case are the same as in the preceding case, No. 159. The action was brought to recover the same sum of money. The two actions were brought because of doubt as to which bank had title to the property when the cause of action arose. No. 160 was argued at the same time and by the same counsel as No. 159. The opinion just delivered in U. S. v. Bank of Boston decides this case. The judgment of the Court of Claims is affirmed. Cited 101 U. S., 184; 104 U. S., 70; 24 Minn., 456; 84 N. Y., 131; 36 Ohio St., 646. THE UNION GOLD MINING COMPANY OF COLORADO, Piff. in Err., D. THE ROCKY MOUNTAIN NATIONAL BANK OF CENTRAL CITY, COLORADO. Where a draft was remitted by a collecting agent to a sub-agent for collection, and the pro, ceeds were applied by the sub agent in payment of the indebtedness of the agent to himself, in ignorance of the rights of the principal, this court held that, there being no new advance made, and no new credit given by the sub-agent, the principal was entitled to recover against him. Estoppel to deny existence of corporation-compe Wilson v. Smith, 3 How., 763. See, also, Bk. of Metrop. v. New Eng. Bk., 6 How., 212. A party who, without right and with guilty knowledge, obtains money of the United States from a disbursing officer, becomes indebted to the United States, and they may recover the amount. An action will lie whenever the defendant has received money which is the prop erty of the plaintiff, and which the defendant is obliged by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial. Bayne v. U. S., 93 U. S., 642 [XXIII., 997]. The United States must use due diligence to charge the indorsers of a bill of exchange, and they are liable to damages if they allow one which they have accepted to go to protest. U. (See S. C., 6 Otto, 640-645.) tent juror-agent. 1. A person who has borrowed money from a bank and failed to pay it, cannot make the defense when sued for it, that the bank had no right to loan the money. 2. A juror, who has conversed with another person in relation to the facts of the cause and received an impression as to them, but expresses his oped by the evidence, and render a verdict in ac willingness and ability to accept the facts as develcordance with them, is competent in a civil action. 3. If a company is informed of the borrowing of money by its agent, in its name, and within a reasonable time thereafter fails to disavow such acts of its agent, the jury are authorized to consider the company as assenting to what was done in its name. [No. 157.] Argued Jan. 9, 1878. Decided Jan. 21, 1878. S. v. Barker, 12 Wheat., 560; Bk. v. U.S., 2 How.; IN ERROR to the Supreme Court of the Ter 711; U. S. v. Bk., 15 Pet., 377. ritory of Colorado. The case is stated by the court. Mr. Wheeler H. Peckham, for plaintiff | charge to the number of forty, one of which in error: The rule that a contract prohibited is a contract void, is simple, clear and certain. It attains the desired object. To fritter away such general principles on the occasion of hard cases is one of the most dangerous tendencies of judgemade law. Certainty, which is the best element of the law, can only be found by a strict adherence to its clear principles. We cite a few illustrative cases: Bk. v. Lamb, 26 Barb.,595, and cases cited in the able opinion of Davis, J.; Miller v. Post, 1 Allen, 434; Libby v. Downey, 5 Allen, 299; Fergusson v. Norman, 35 Eng. C. L., 37; Ernest v. Nicholls, 6 H. of L. Cas., 401. Becker himself, as president, had no power to borrow money of plaintiff (Bk. v. Canal Co., 4 Paige, 127; Ins. Co.v. Ins. Co., 7 Wend., 31); and having no original power, of course had no power to ratify. Hotchin v. Kent, 8 Mich., 526. was subdivided into three parts. It asked for a new trial upon ten grounds severally set forth; and the assignment of errors below discloses one hundred and thirty-three allegations of error. There was but a single question in the case, to wit: were the acts of Sabin the acts of the Gold-Mining Company, either by original authority or by ratification? As it was finally put to the jury, was there a ratification of his acts by the Company? We shall consider the objections most seriously urged and having the greater plausibility. The first objection to the recovery arises from the amount of the debt. The plaintiff is a na tional Bank organized under the Act of Congress of 1864, 13 Stat. at L., p. 108. By the 29th section of that Act, it is provided as follows: "The total liabilities to any association of any person, company, corporation or firm, for money borrowed, including in the liability of a firm What Becker said then was not admissible as the liabilities of the several members thereof, proving ratification of the act of Sabin. The rule is familiar, that the declarations of an agent are admissible only when and as they form part of the res gesta; in other words, when they themselves constitute the contract or act to be proved. Properly speaking, they are not declarations or admissions at all, and whenever they are admissions only, are not admissible. 1 Greenl. Ev., sec. 113; Bowen v. Bk.,11 Hun, 226, and cases cited; Trustees v. Ins. Co., 28 N. Y., 153. In Luby v. R. R. Co., 17 N. Y., 133, the court said: The declarations must constitute the fact to be proved, and must not be the mere admission of some other fact." See, also, Bank v. Bank, 60 N. Y.,278. error: A consideration of the Bank Act, and the place in it of the provision in question, shows very plainly that Congress never intended that a bank which was over generous or incautious enough to permit a party to become liable to it for an excessive amount, should be punished by a forfeiture of the entire debt, while he should enjoy his booty free from all liability. Harris v. Runnels, 12 How., 79; Fleckner v. Bk., 8 Wheat., 338; O'Hare v. Bk.,77 Pa. St.,96; Pangborn v. Westlake, 36 Ia., 546; Lindsey v. Rutherford, 17 B. Mon., 245; Vining v. Bricker, 14 Ohio St., 331; Fackler v. Ford, 24 How.,322 (65 U. S., XVL, 690). Mr. Justice Hunt delivered the opinion of the court: shall at no time exceed one tenth part of the amount of the capital stock of such association actually paid in." R. S., sec. 5200. After obtaining and holding to its own use the money of the Bank, can the Mining Company be allowed to interpose the plea that the Bank had no right to loan the money? In Harris v. Runnels 12 How., 79, the court say "That where the defendant sued upon a note sets up the illegality of the consideration, the whole statute must be examined to discover whether the Legislature intended to prevent courts of justice from enforcing contracts in relation to the act prohibited. When a statute prohibits an act, or annexes a penalty for its commission, it does not follow that the unlawfulness of the act was meant to avoid a contract, made in contravention of it. When a statute provided that slaves should not be brought into this State without a previous certificate signed by two freeholders, and the slaves were brought in without such certificate and sold, the contract is not void, but the purchaser must pay his note given for the purchase money." Mr. Justice Wayne says, that the rule is allowed, not for the benefit of either party to the illegal contract, but altogether upon grounds of public policy. In O'Hare v. Bk., 77 Pa., 96, the question was made upon the statute we are considering and it was objected that the bank could not recover the amount of the loans in excess of the proportion specified. The court held that the section of the statute referred to was intended as a rule for the government of the bank, and that the loan was not void. See, also, PangThe Rocky Mountain Bank brought its ac-born v. Westlake, 36 Iowa, 546; Vining v. Bricktion to recover a balance of overdraft, due upon er, 14 Ohio St., 331. the account kept in the name of the Union GoldMining Company at that Bank. The balance of overdraft, exceeding $20,000, was created by drafts or checks drawn by one Sabin, acting in the name of the Mining Company and claiming to be its authorized agent, and he also made deposits from time to time to the credit of the Mining Company. The jury rendered a verdict in favor of the Bank for the amount of the overdraft with interest ($30,358.32), and from the judgment entered upon that verdict the present writ of error is brought. The defendant presented formal requests to We do not think it required by public policy, or that Congress intended that an excess of loans beyond the proportion specified should enable the borrower to avoid the payment of the money actually received by him. This would be to injure the interests of creditors, stockholders and all who have an interest in the safety and prosperity of the bank. We are of the opinion that this objection is not well taken. It is contended that there was error in admitting Perrin to sit as a juror in the cause. It appears that he had previously conversed with 41 649 another party in relation to the facts of the case, and had received from him an impression in relation to them. He expressed an entire willingness, as well as an ability, to accept the facts as they should be developed by the evidence, and to render a verdict in accordance with them. He was evidently an intelligent man, and well qualified to act as a juror in such a case. When his name was called, he was sworn to answer truly to such questions as should be put to him touching his competency to sit as a juror in the case. Questions were put to him by the respective counsel, and were answered by him, the result of which was as above stated. At the close of his examination, the record states as follows; viz.: "By the Court. Well, I think he is competent. Here the defendant challenged the juror Perrin, for cause. The Court denied the challenge, and the defendant then and there excepted to the ruling of the Court." It is not so stated in words, but it is assumed that thereupon Perrin took his seat as a juror, and acted as such during the trial. The facts as stated by the juror do not justify a challenge for cause in a civil action. Rogers v. Rogers, 14 Wend., 131; Jackson v. Com., 23 Gratt., 919; Freeman v. People, 4 Den., 9; Lowenberg v. People, 5 Park. Cr., 414; Sanchez v. People, 22 N. Y., 147. The decision of the challenge was submitted to the judge, and we see no just cause of complaint in his decision. Numerous objections were made to the admission and rejection of evidence, which do not require consideration. We refer only to the one objection to the statements or admissions of Becker, the President of the Mining Company. These were made at various times at Colorado and at New York. The defendant was a Mining Company or ganized under the laws of the State of New York, but whose mines and whose business so far as it had any were in Colorado. Sabin leased a part of their mines, and professed to carry on another portion of them on account of the Company, and professed to borrow the money for the use of that business. if an act has been done by an agent in excess of his authority, if the principal on being informed of the acts fails to disavow them in a reasonable time, his silence may be considered as an acquiescence and assent to the acts done. On the 16th of December, 1868, Becker, the president, closed up the accounts of the Company with Sabin, and paid him the balance due to him. Sabin's books and the bank-books were then present, and Becker knew the amount of the indebtedness which had then been incurred by Sabin to the Bank in the name of the Company. This settlement was in the presence of the cashier of the Bank, and made by his aid. This was clear and distinct notice to Becker of the action of this agent of his Company in its name. Becker, as President of the Company, was the suitable man to receive the information; and what he said and did about it, and what action in repudiating the doings of Sabin was taken by the Company, or whether there was no disavowal, might well be learned from its chief officer. Mr. Potter and Mr. Kountze were officers of the Bank, and their conversations with Becker were of a similar character. The court expressly informed the jury that these conversations were allowed for the purpose of showing Becker's knowledge of the indebtedness and the demand upon him for its payment, and not for the purpose of showing a promise on the part of the defendant. We see no error in this branch of the case. The Judge's charge on the subject of the ratification by the Company of the acts of Sabin contained all that it was necessary to say to the jury. It was, in substance, that if Sabin was the agent of the Company in working its mines in Colorado in 1867 and 1868, without authority to borrow money in its name, but did in fact borrow large sums of the plaintiff in its name; if, on the 16th of December, 1868, the president of the defendant's Company was informed of such borrowing and of the amounts, and a demand was made for the payment thereof, and if within a reasonable time thereafter the defendants failed to disavow the acts of their omit-agent in so borrowing the money, the jury would be authorized to consider the Company as as senting to what was done in its name. We consider this charge entirely correct. Vianna v. Barclay, 3 Cow., 281; Hazard v. Spear, 4 Keyes, 469; Cairnes v. Bleecker, 12 Johns., 300. The judgment is affirmed. Becker spent much time in Colorado in attending to the Company's business there; and, ting the questionable position of Sabin, he was the only representative in that region. The effort of the plaintiff on the trial was to show an original authority in Sabin to draw checks in the name of the Company, and, failing in that, to establish a ratification of his acts by which the Company would be chargeable. To this end, the knowledge of Becker of what was done by Sabin, and his action in relation thereto, were given in evidence. The effect of this evidence and of the objections thereto is much diminished by the charge given by the Judge, that the jury might assume that. prior to the 16th of December, 1868, Sabin had no authority to borrow money in its name, but that it was competent to the defendant to ratify the acts and assume the indebtedness created in its name. He further charged them that if Sabin was its agent, and borrowed money in its name which was expended in the defendant's business, that the payment thereof was demanded of the defendants, they were to consider whether the defendants, with knowledge of the fact, assented to such demand, and approved the act of Sabin in obtaining the money; that 1877. the value of the jurisdiction of the case. 10 IN ERROR to the Supreme Court of the and this court has no To give this court jurisdiction in an appeal from the Supreme Court of the District of Columbia, the matter in dispute must exceed $1,000, [No. 917.] Submitted Jan. 14, 1878. Decided Jan. 28, 1878. State of Illinois. The case is stated by the court. Messrs. J. W. Noble & J. C. Orrick and M. Millard for plaintiff in error. Messrs. James K. Edsall, Atty-Gen.of Illi APPEAL from the Supreme Court of the Dis-nois, and R. A. Halbert, for defendant in error. of Columbia. The case is sufficiently stated by the court. Mr. S. R. Bond, for appellees, cited Bk. v. 771; Terry v. Hatch, 93 U. S., 44 (XXIII., 796). Mr. Chief Justice Waite delivered the opin ion of the court: The We have no jurisdiction in this case. litigation below involved in the appeal was between Keogh and the Orient Fire Insurance Company, as to the ownership of a fund in court for distribution, amounting to $1,411.44. Each of the parties claimed the whole; but the court divided it between them, giving Keogh $729.16, and the Insurance Company $682.29. Keogh alone appeals. The Insurance Company is satisfied. It is clear, therefore, that the value of the matter in dispute here is only $682.29. To give us jurisdiction in appeals from the Supreme Court of the District of Columbia, the matter in dispute must exceed $1,000. R. S., sec. 705. Appeal dismissed. THE ST. CLAIR COUNTY TURNPIKE COMPANY, Piff. in Err., 0. PEOPLE OF THE STATE OF ILLINOIS, ex rel. JOHN B. BOWMAN. (See S. C., 6 Otto, 63-69.) Mr. Justice Bradley delivered the opinion of the court: This was a proceeding by information in the nature of a quo warranto, instituted on the 13th of October, 1873, in the St. Clair County Circuit Court, Illinois, by the People of the State of Illinois, at the relation of one Bowman, against the St. Clair County Turnpike Company, charging the Company with unlawfully holding and exercising, without warrant therefor, the franchise of maintaining a toll-gate near Cahokia Creek, upon a street in the City of East St. Louis, called Dyke Avenue, and collecting tolls for passing through the same on said street. The Company justified under its charter, or Act of incorporation, and several supplements thereto. The plaintiff replied that the land occupied by Dyke Avenue had been dedicated by the owners thereof to the City of East St. Louis, as a public street, and that the Legislature, by an Act passed March 26, 1869, had granted to the said city exclusive power and control over said Dyke Avenue, and imposed upon it the sole right and duty of grading, filling up, paving, sewering, and otherwise improving and keeping said street in repair, and the right to abate and remove obstructions therefrom. The Company demurred, and insisted that this last mentioned Act of the Legislature impaired the obligation of the contract made with itself in and by its said charter and the supplements thereto. The County Court, and the Supreme Court of the State, on appeal, held the justification of the Company to be insufficient, When charter is a contract-perpetual grant—and gave judgment of ouster. corporation-franchises-prescribed term. 1. A charter of a company which gave it the right to erect certain toll-gates and to exact certain tolls for twenty-five years, and as much longer as the State should fail to redeem the franchises so granted by paying the cost of the work, was a contract, but it related only to the turnpike then authorized to be constructed. 2. Where, when the term of the charter had more than half expired, the State gave the company a new and additional privilege of using a bridge and dyke, and of erecting a toll-gate thereon, it cannot be presumed that it was intended to be a perpetual grant. 3. A grant to a corporation aggregate, limited as to the duration of its existence, without words of perpetuity being annexed to the grant, only creates an estate for the life of the corporation. 4. Grants of franchises and special privileges are always to be construed most strongly against the donee, and in favor of the public. 5. The period for the existence of the corporation cannot be extended by implication beyond the prescribed term of twenty-five years, except for the purposes contained in the charter. [No. 768.] Submitted Dec. 10, 1877. Submission stricken out Dec. 11, 1877. Submitted Jan. 7, 1878. Decided Jan. 28, 1878. NOTE.-At common law, devise of lands generally, without words of perpetuity or limitation, confers a life estate only, unless there is manifest intention to give the fee. Rule followed in U. S., unless changed by statute. See note to King v. Ackerman, 67 U. S. XVII., 292. The question before us is, whether any contract was set up by the defendant Company (now plaintiff in error), in its justification, which has been impaired by the subsequent legislation of the State. The charter of the Company, as set out in its plea of justification, was an Act of the Legislature of Illinois, approved February 13, 1847, entitled "An Act to Incorporate the Saint Clair County Turnpike Company." By the 1st section of the Act it was enacted as follows: "That all such persons as shall become stockholders, agreeably to the provisions of this Act, in the Corporation hereby created, shall, and for the term of twenty-five years from and after. the passage of this Act, continue to be a body corporate and politic, by the name of St. Clair County Turnpike Company,' and by that name shall have succession for the term of years above specified; may sue and be sued, complain and defend, in any court of law or equity; may make and use a common seal," etc., conferring the usual corporate powers. By the 2d section it was enacted as follows: "The said Corporation shall have the right to construct and maintain a turnpike road from the bank of the Mississippi River opposite the City of St. Louis, to High Street, in Belleville, 651 Provision was then made for erecting certain toll-gates on the line of the road, and a schedule of tolls was prescribed. The 15th section of the charter is in the following words: St. Clair County, Illinois; said road to be made | Supreme Court of Illinois held that it is not on the great western mail route.' entitled to do so as against the State, or as against the City of East St. Louis, claiming under the authority of the State. It held that the dike and the bridge over Cahokia Creek never became the property of the Corporation: that their use merely was granted to it; so that it cannot be said that they form a part of the road constructed by the Corporation, which the State, in electing to take its road, would have to pay for; that the franchise of charging tolls for their use is entirely distinct and separate from the franchise of charging tolls for the use of the road constructed by the Corporation; and that the fair construction of the Act of 1861 is, that it was designed that the Corporation should have the use of the bridge and dike, with the right to charge tolls thereon, until the period fixed for the termination of the Corporation and the taking of control of its road by the State, and no longer. The State reserves the right to purchase said road at the expiration of said charter, by paying to said Corporation the original cost of said road, laid out and expended in construct ing the same, to be ascertained by examination of the books of said Corporation, by commissioners to be appointed by the Legislature; and, in case of non-payment or redemption by the State at the expiration of the charter, the said road, with all its appendages, shall remain in the possession of said Corporation, to be used, controlled and possessed under the rights and restrictions in this charter contained, and may demand and receive tolls as herein stated, until such time as the State shall refund said sum of money, the original cost of construction, and which right the State hereby reserves. A supplement to the charter was passed February 16, 1861, the 2d section of which was as follows: In this view we concur. The original charter of the Company gave it the right, in consideration of building the turnpike authorized thereby, and of keeping it in repair, to erect certain toll-gates, and to exact certain tolls for the use of the turnpike, until the expiration of twenty five years from the date of the charter, and as much longer as the State should fail to redeem the franchises so granted, by paying The 17th and last section was as follows: "The Corporation hereby created shall be safe and secure for and during the term of the charter, and until the road shall be redeemed by the State as provided, in all the rights, in terests and privileges granted and intended to be conferred to said Company by the strict let-the cost of the work. This was undoubtedly ter and meaning thereof, the Corporation com- a contract: but it related only to the turnpike plying strictly, clearly and fully on their part.' then authorized to be constructed. Any dona It is conceded that the original route of the tions or franchises which the State might subturnpike, as located under the 2d section, did sequently grant to the Company would stand not embrace Dyke Avenue, where the toll-gate upon their own considerations, and could not complained of has been erected. That avenue fairly be claimed as parcel of the consideration extends from Cahokia Creek to the present bank of the original contract. In 1861, when the of the river, and is connected, by a bridge across term of the charter had more than half expired, Cahokia Creek, with the turnpike as originally the State gave the Company a new and addilocated. tional privilege, namely: the privilege of using the bridge and dike in question, and of erecting a toll-gate thereon. The only consideration required was, that the Company should keep them in repair; but should not even be responsible for any destruction of the dike by high floods. The consideration was continuous, and correlative to the continued use. No term was expressed for the enjoyment of this privilege; and no conditions were imposed for resuming or revoking it on the part of the State. It cannot be presumed that it was intended to be a perpetual grant; for the Company itself had but a limited period of existence. At common law, a grant to a natural person, without words of inheritance, creates only an estate for the life of the grantee; for he can hold the property no longer than he himself exists. By analogy to this, a grant to a corporation aggregate, limited as to the duration of its existence, without words of perpetuity being annexed to the grant, would only create an estate for the life of the corpora tion. In the present case, the Turnpike Com pany was created to continue a corporate body only for the term of twenty-five years from the date of its charter; and although, by necessary implication, a further continuance, with the special faculty of holding and using the turnpike authorized by the Act until redeemed by the State, is given to it for that purpose, yet it is only by implication, arising from the neces sity of the case and, therefore, cannot be extended to other purposes and objects. Grants "The St. Clair County Turnpike Company is hereby authorized to extend their road across Cahokia Creek, using the bridge over said creek which connects the St. Clair County Turnpike Company with the dike on Bloody Island, and over said dike to its western shore opposite the City of St. Louis; and shall keep the road on said dike and bridge in good repair, and build a new bridge if the present one should float away or become unsafe for traveling, but shall not be held responsible for any destruction of the dike by high floods; and the said Company is hereby authorized to erect a toll-gate on said dike, or on or near said bridge, and collect the following rates of toll, viz.: "[Certain tolls being then prescribed.] It is by virtue of this Act that the defendant claims the right to erect and maintain the tollgate, and to exact the tolls in question. The term of the charter expired in 1872; but the defendant, in its plea, alleged that the State had never yet redeemed the franchises granted to it, nor paid or offered to pay the costs of constructing the turnpike, or attempted to exercise the right reserved in the 15th section of the charter. The question is, whether, by virtue of this section, the Company is entitled to hold possession of and take tolls on Dyke Avenue, as well as on the original line of its road. The |