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_ from debt, when it is induced by no fraudulent | apointed and qualified, the judge or * * * motive, when it makes no more than a reasonable register shall * * * assign and convey to provision for the wife, when it confers any bene the assignee all the estate, real and personal, of fit on lier, I can conceive of no reason why a court the bankrupt, with all his deeds, books and papers of equity should decline to uphold it. Though relating thereto, and such assignment shall relate the grant may not cortain every provision which a back to the commencement of the proceedings in chancellor would direct to be inserted in a settle- bankruptcy, and by operation of law shall vest the ment ordered by himself, though it contains reser- | title to all such property and estate, both real and vations tending to impair the full benefit of the personal, in the assignee." The second provides provision made for the wife, yet if the grant con that all property conveyed by the bankrupt in fer any substantial benefit on the woman, so long fraud of his creditors, all rights in equity, choses as she is in the actual enjoyment of that benefit, a in action, patent rights and copyrights, all debts court of equity should and will protect her.
due him, or any person for his use, and all liens Again, complainant's counsel, whilst they ad- | and securities therefor, and all his rights of action mit that a husband may, by direct conveyance to for property or estate, real or personal, and for his wife, make a provision for her which will be any cause of action which he had against any perenforced in equity, whilst they substantially admit son arising from contract or from the unlawful that the provision made by Clifton for his wife taking or detention or injury to the property of the was reasonable, whilst they admit that the grants bankrupt; and all his rights of redeeming such made by him are not void, simply because of the property or estate, together with the right, title, powers reserved in them, yet they somehow insist power and authority to use, manage, dispose of, that all these things combined vitiate the deeds. sue for, and recover or defend the sanie, as the Their contention is that, as the legal title remained bankrupt might have had if no assignment had in the husband, notwithstanding the alleged con- | been made, shall, in virtue of the adjudication of veyances, and that as this legal title is coupled bankruptcy and the appointment of his assignee, with absolute dominion over the property, as a
* * * be at once vested in such assignee.”' legal consequence of the reserved powers, the It will be perceived that powers of revocation whole rigiit and property remained in the hus- and powers of appointment, though they be such band, and passed on his bankruptcy to his as as may be exercised by the bankrupt for his own signee. But if, as we have seen, the husband may benefit, are not enumerated among the things make a conveyance to his wife which will be up which pass to the assignee either by virtue of the held in equity; if, as we have also seen, the reser assignment or of the adjudication in bankruptcy. vation of a power of revocation or of new appoint
The "power" which is enumerated and does pass, ment does not render such settlement void, it is is only the power to sell, manage, dispose of, sue impossible to conceive that the union of the two for and recover, or defend the property and rights particulars in the same instrument would destroy which do pass. it. It is inconceivable that the mere union of two A power is not property or an estate. A power objections, each of which is a phantom, can ren to convey or appoint property may be lodged in der the compound substantial.
one having no interest whatever in the property It must not be overlooked that complainant him- ! over which the power is to be exercised, or in one self has appealed to a court of equity. In this having an estate or interest in it. But in cither court Mrs. Clifton's title is as complete as if she case the power is distinct from the estate. It may had been a feme sole when the conveyances were be that a grant of property to A, to dispose of it as made to her. The husband's right and interest are he should please, would invest him with a comnot recognized in this court. Every argument, plete title; but a grant to A for life, with remaintherefore, which is founded on the notion that any der to such persons as he should by deed or will substantial title or interest remains in him can appoint, will not give him the absolute interest, have no force in this forum.
although he might acquire it by the exercise of the The last proposition of complainant's counsel is power. 1 Sugden on Powers, 120; Maundrill v. that by operation of the bankruptcy act the prop- Maundrill, 10 Vesey, 246; Reed y. Shergold, 10 erty embraced in these settlements, or at least the Vesey, 371; Burleigh v. Clough, 52 N. H. 272; Colpowers therein reserved, which might be exercised lins v. Carlisle's heirs, 7 B. Mon., 13; McGaughey's by the grantor for his own benefit, passed to his admr. v. Henry, 15 B. Mon., 383. So a conveyance assignee in bankruptcy.
by A to B and his heirs in trust for A for life, re* We have seen that the title which the bankrupt mainder to such persons or uses as A. should apat the time of his bankruptcy held in the property point, and in default of appointment in trust for C claimed was held in trust for his wife. Now, by and his heirs, would leave or vest in A a life estate the express terms of the statute, property so held only. Or, if A should convey to B in trust for himdoes not pass to the assignee in bankruptcy. Sec self for life, reserving to himself an absolute power tion 5,053 of the Revised Statues provides that of revocation, still A would have only a life estate "Do property held in trust by the bankrupt shall in the property limited. The power of revocapass by the assignment."
tion reserved would neither render the conveyance To ascertain what property does. pass to the as void nor have the effect of enlarging his estate. signee in bankruptcy, reference must be had to sec The learned judges who decided the case of Wiltions 5,014 and 5,046. The first of these sections lard y. Ware, 10 Allen, 263, certainly so understood provides that " as soon as the assignee shall be ap- | the rule, else they need not have troubled themselves with the perplexing question presented in himself. It was conceded that in the first case the that case, whether the power of appointment re power must be asserted, but in the latter it was served in the deed, which was there the subject of strongly insisted that, as the donor had the same consideration, had been actually exercised.
power over the estate which he had over his own The bankruptcy statute of 13 Eliz. "enables the estate, it should, in equity at least, be equally subcommissioners to dispose of any estate for such ject to his debts. But the court rejected the disuse, right or title as such offender (bankrupt) tinction, remarking: “ If the argument in support then shall have in the same which he may lawfully of this appeal prevails, there must be an end of depart withal.” And the statute of 21 James I. | the distinction between the non-execution and the directs bankrupt laws to be expounded most favor
defective execution of a power.” ably for the relief of creditors. I quite agree with In Thorpe v. Goodale, 17 Ves. 388; s. C. 17 Ves. Sir Edward Sugden when he says that was a power 460, one who had been adjudged a bankrupt was is a mere right” to declare the trust of an estate seized for life of a certain estate, with a general upon which declaration the statute of uses imme power of appointment, with remainder in default diately operates, and, as it is therefore clearly a of appointment to the heirs of his body. The suit use, interest or right which the bankrupt “ may was by his assignee to compel him to execute the lawfully depart withal," there is considerable power. Held by Lord Eldon that equity cannot ground to contend that the bargain and sale of the compel the execution of the power. The learned commissioner should have the same operation as chancellor, it is true, says that the question whether the execution of the power by the bankrupt whilst the power passed, by operation of law, to the assolvent would have had, but such was never in fact | signee was not before him, but he refers to the the construction of these statutes. In Townshend opinion imputed to Lord King in such terms as to v. Windham, 2 Vesey, Sr. 3, and in Thorpe v. show that he approves it. Sir Edward Sugden says, Goodall, 17 Vesey, 338, Lord King is said to have in his work on Powers, vol. 1, p. 225, that upon a held that in the case of a tenant for life, with bill filed by the assignees against the purchaser in power to charge £100, the power was not such an this same case, the Vice Chancellor was of opinion interest as would pass to the assignees.
that the power did not pass to the assignee. He Holmes v. Coghill, 7 Ves. 498, was thus: Sir John cites Thorp v. Frere (N. C., M. T. 1819), but I have Coghill, under a settlement made by himself in not been able to find the case reported. 1757, reserved the power to himself to charge the These decisions doubtless led to the enactment estate, situate in certain counties, with any sum of 6th Geo. IV., 16, 5, 77. This statute provides not exceeding £2,000. Sir John was also entitled | that "all powers vested in any bankrupt, which to other estates, remainder in tail to his oldest son. | may be legally executed for his own benefit (except The son arrived of age in 1787, and thereafter he the right of nomination to any vacant ecclesiastical and the father suffered a recovery, and then made benefice), may be executed by the assignees for the a settlement. This settlement embraced all or benefit of creditors in such manner as the banksome of the property mentioned in the settlement rupt might have executed the same." A provision of 1757. It expressly extinguished the power re substantially the same has, I believe, been incorserved in the settlement of 1757, but it directed the porated into every bankrupt act which has been trustees to raise such sum, not exceeding £2,000, passed in England since the date of the above as Sir John should direct, and pay the same to him statute, but no similar provision is to be found in or his assigns; or, if the same should not be raised our statute, and I must conclude that it was omitted and paid over in his lifetime, then upon trust to ex industria. It certainly cannot be inferred that raise the same at such time and pay the same to the draftsman of our statute was unfamiliar with such person as Sir John should appoint. By his this provision. It may be found in both of the will, dated in 1775, and therefore before this settle-i English bankrupt acts of 1861 and 1869. And we ment, Sir John gave the sum of £2,000, to be raised | know that many of the provisions in our original under the power, to be applied to the payment of and amended acts were copied from these statutes. his debts. There was a codicil to this will which But whether it was omitted intentionally or not bore date subsequent to the settlement of 1787, but may not be material. Our statute certainly conit took no notice of this power. The bill was filed i tains no such provision, and it is impossible to conby creditors. Held by the Master of the Rolls, Sir strue it as passing to the assignee anything which Wm. Grant-First: That the power reserved in the the English statutes enacted prior to 6 Geo. IV. original deed of 1757 was discharged by the deed were held not to pass. of 1787. Second: The will refers only to the As the power reserved by the son in his settlepower reserved in the deed of 1757, and conse ments might be exercised for his own benefit, it is quently it is no execution of the power reserved clear that if he was a bankrupt in England his asin the deed of 1787. Third: There is an evident signee, in virtue of the recent statutes there, might difference between a power and an absolute right exercise the power for the benefit of his creditors; of property. Fourth: Equity will aid the defec but as we have no such statute here, as a power is tive execution of a power, but it cannot itself exe neither real nor personal property, nor an estate of cute a power. The case was affirmed on appeal, any kind, it is equally clear that this power did not 12 Ves. 206. On the appeal it was urged that there pass to his assignee. is a difference between an estate to be created I have no doubt that, in respect to the property under a power which must be limited to a third | which does pass under our statute to the assignee, person and one which may be limited to the donor all the power and dominion which the bankrupt
had over it before bis bankruptcy likewise passes. pass to his assignee in bankruptcy, in view of the Nor have I any doubt that the bankrupt, in virtue terms of our statute and its omissions, there is of the general provisions of the statute, as well as scarcely more ground for the contention that a in virtue of the express terms of section 5050, may power which may be exercised by the donee for his be required to execute any instruments, deeds and own benefit passes to the assignee, either in virtue writings which may be proper to enable the assignee of the assignment to him or of the adjudication in to possess himself fully of the assets; but it is only bankruptcy, than a power which must be exercised in respect to the assets of the bankrupt which have by the donee for the benefit of a stranger. passed to the assignee that he can be required to
Let an order be entered dismissing the bill with execute any instruments, deeds or writings. He costs. can not be required to execute a mere power, since a power is not assets or property, or embraced among the things and rights which the statute de
NOTES OF RECENT DECISIONS. clares shall pass to the assignee. But, complainant's counsel insist that the jus
THE STATUS OF INDIANS AND THEIR OFFSPRING. tices of the supreme court have given construction
Ex parte Reynolds. United States District Court, to our statute to the effect that it does embrace
Western District of Arkansas, 18 Alb, L. J. 8. Opinpowers to dispose of or charge property. In proof ion by PARKER, J.-1. Indians who maintain their of this they refer to schedule B, which forms part tribal relations are the subjects of independent gov. of every bankrupt's petition, and which schedule ernments, and as such not in the jurisdiction of the was prescribed by the justices under authority of United States, within the meaning of the constitution law (section 4490).
| and laws of the United States, because the Indian na
tions have always been regarded as distinct political It is true that the caption of schedule B implies
communities, between which and our government certhat the petitioner shall include therein " property
| tain international relations were to be maintained. in reversion, remainder or expectancy, including These relations are established by treaties to the same property held in trust for the petitioner, or subject extent as with foreign powers. They are treated as to any power or right to dispose of or charge." It sovereign communities, possessing and exercising the is also true that the directions in the body of that right of free deliberation and action, but in consideraschedule seem to contemplate that the petitioner
tion of protection owing a qualified subjection to the
United States. 2. When the members of a tribe of Io shall mention all “ rights and powers wherein I
dians scatter themselves among the citizens of the (he), or any other person or persons in trust for me
United States and live among the people of the United (him), or for my (his) benefit have any power to States, they are merged in the mass of our people, owdispose of, charge or exercise.
ing complete allegiance to the government of the No one more readily than I would submit to a United States, and equally with the citizens thereof, decision of the supreme court; but I can not regard
subject to the jurisdiction of the courts thereof. 3. this schedule, though nominally prescribed by its
The condition of the offspring of a union between a
citizen of the United States and one who is not a citijustices, as a decision of the court. The judges
zen, e. g., an Indian living with his people in a tribal can not in this way give an authoritative construc
relation, is that of the father. The status of the child tion to the statutes.
in such case is that of the father. The rule of the Besides, the schedule does not purport to be a common law and of the Roman civil law, as well as of construction of the statute, nor does it necessarily
the law of nations, to wit: partus sequiter patrem, imply that all the rights enumerated in it will pass
prevails in determining the status of the child in such
case. to the assignee in bankruptcy. It is true it would seem idle to insert in the schedule anything in
ACTION BY SURGEON FOR CHARGES-EVIDENCE
PRESUMPTION. Wooster v. Paige. Supreme Court which the assignee could have no interest, but the
of California, 1 Pac. Coast L. J. 324.-1. In an action petitioner can not be allowed to judge whether or
for a surgeon's fee, where the value of the services is not a given right or interest will pass to his as
denied and a counterclaim for damages for malpracsignee, and to include or exclude it from his sched
tice is set up, it is proper for the court to instruct the ule at pleasure. His assignee should be fully in jury, as a matter of law, that the plaintiff was a comformed respecting his estate. He is entitled to petent surgeon. 2. In an action for a surgeon's fee, have, and should have, all the information which
where the value of the services is denied, and a
counterclaim for malpractice is set up, the presumption the bankrupt himself has.
is that tbe plaintiff's treatment of the case was skillful This may suggest some explanation of the requi
and “that he was competent for the task which he had sitions contemplated by the form prescribed in the
undertaken, and did his duty to the best of his ability." schedule. Certainly the form, in terms, contem 3. A party can testify as an expert in his own behalf. plates that the schedule shall include a mere naked 4. Upon the question of skill in the surgeon, it is compower to dispose of or charge property in which petent for him to prove a specific instance of successful the bankrupt never had any interest, and which he
trea ment of a different patient for the same disease.
5. In estimating the value of a surgeon's fee, it is not could not dispose of or charge for his own benefit.
competent for the defendant to prove what other comSurely no one would be so bold as to contend that
petent surgeons charged for treating the patient dursuch a power passes in bankruptcy; yet, in my
ing similar periods for the same disease. opinion, in view of the decisions in England before
COMMON CARRIER — DESTRUCTION BY FIRE--ACT referred to, construing bankruptcy acts containing
| OF GOD. Pennsylvania R. R. v. Fries. Supreme more comprehensive terms than ours, in view of 1
Court of Pennsylvania, 35 Leġ. Int. 263. Opinion by the legislation there declaring that powers which a Paxson, J.-A fire which had burned in the woods for bankrupt may exercise for his own benefit shall several days near Osceola, a town upon the Tyrone and Clearfield Railway, was, by a wind which suddenly Court, Q. B. Div., 26 W. R. 679. A lease consprung up, carried into the town, and consumed tained a covenant by the lessee not to allow any nearly all the buildings, and a large portion of the house on the land demised to be used as a "beerproperty of the citizens, as also the cars and property shop.” The lessee carried on the trade of a grocer in of the railroad company, including cars containing a house on the demised premises in partnership with plaintiff's goods, which were standing upon a siding his brother. The brother took out an excise license to ready to be transported upon a branch road. Held, 1. sell beer at the house by retail, to be consumed off the The wind by which this fire was carried into the town premises, and did so sell beer there. Held, a breach was the act of God, and the company was not respons of the covenant. ible for the freight burned. 2. The company was not bound to have an extraordinary force on hand
PARTNERSHIP – EXPIRATION OF TERM – GOODto meet such a contingency. 3. The employees of the
WILL INCLUDED IN “PROPERTY AND EFFECTS."company were not bound to disregard the feelings of
Reynolds v. Bullock. English High Court, Chy. Div., humanity wbich prompted them to succor women and
26 W. R. 678. The defendant bad taken the plaintiff children from peril for the purpose of giving their ex.
into partnersuip, in his business of a chemist and clusive attention to save the plaintiff's property. 4.
druggist, for a term of twenty-one years. The articles The assumption by the shipper of all risks, and the re
provided that at the expiration of the term a valuation lease of the company therefrom, relieves the company
should be made of the property and effects of the eofrom all liability, except for negligence.
partnership, and the value of the shares therein as
certained, and that all the property and effects of the NATIONAL BANK-INTEREST.–First Nat. Bank of co-partnership should become the absolute property Mt. Pleasant v. Duncan. United States Circuit Court, of the defendant, but subject to the payment of the Western District of Pennsylvania, 35 Leg. Int. 251. | debts, and the plaintiff's share in the property and ef. Opinion by Mr. Justice STRONG.--A national bank is fects. Upon an action for account: Held, that upon the entitled to the same privileges, in regard to charging authority of Hall v. Barrows, 12 W. R. 322, 4 De G. J. interest, as is extended to state banks of issue in the & S. 150, and in the absence of any negative stipula. states in which it has been located.
tion, the good-will was an asset of the co-partnership,
and must be valued, and the value of the shares DOMICIL – WHAT CONSTITUTES - WHAT ACTS
therein ascertained. PROVE CHANGE OF DOMICIL. Hindman's Appeal. Supreme Court of Pennsylvapia, 5 W. N.
EJECTMENT-ESTOPPEL IN PASS-LIMITATIONS.347. Opinion by MERCUR, J.-1. A man's domicil
McArthur v. Eagleson. Queen's Bench of Ontario, 14 is that place in which he has fixed bis habitation,
Canada L. J. 219. Plaintiff intending to return after without any present intention of removing therefrom. a short interval, left his wife and home more than 30 Vattel's definition of domicil as “a fixed place of res years ago, and went to the United States, where he reidence, with an intention of always staying there," is mained until a short time before this action. He had too limited to apply to the migratory habits of the never communicated with his wife or friends whilst people of this country. So narrow a construction absent, and was, until his return, two or three years would deprive a large portion of our people of any ago, believed to be dead. Several years since, and domicil, 2. The ascertainment of a man's domicil de within seven years after his departure, his wife, acting pends not upon proving certain facts, but whether all on this belief, married again, and lived with her new the facts and circumstances, taken together, tend. husband on plaintiffs farm. They both mortgaged the ing to show that a man has his home or domicil in one farm to a building society, which sold it under a place, overbalance all the like proofs tending to estab power of sale in the mortgage. On bis return plaintift lish it in another. Abington y. North Bridgewater, 23 brought ejectment against the purchaser from the Pick. 170, followed. 3. A mere intention to remove company. Held, that he was entitled to recover, and permanently, without an actual removal, works no
that however culpable he may have been in not comchange of domicil; nor does a mere removal from the | municating with his wife, his negligence did not, even state without an intention to reside elsewhere. But as against a purchaser under the bona fide belief that when a person sells all his land, gives up all his business he was dead, estop him from claimingihe land. Held, in the state in which he had lived, takes his movable also (WILSON, J., dissenting), that he was not barred property with him, and establishes his home in an- by the statute of limitations, for the possession of his other state, such acts prima facie prove a change of wife was his possession. domicil. Vague and uncertain evidence of declarations tending to show a contrary intention, not acted EQUITABLE ASSIGNMENT — ORDER ON PROSPECT. upon, can not remove the legal presumption thus IVE DEBTOR TO PAY MONEY TO BECOME DUE ON created.
CONTRACT — ADVANCES RY PROSPECTIVE DEBTOR
V. Bannister English Court of Appeal, 26 W. R. SOME RECENT FOREIGN DECISIONS. 670. G had contracted to build a ship for the defend.
ant, to be paid for by four installments. Gowed money
to the plaintiff, and before the completion of his conCHRISTIANITY AND THE LAW-CONTRACT-BREACH. tract with the defendant, and when only two install-Pringle v. Town of Napenee, Queen's Bench of ments had been paid, gave the plaintiff an order upon Ontario, 14 Canada L. J. 219. Christianity is part of the defendant for the defendant to pay the plaintiff the recognized law of this Province, and, therefore, to £100 out of the moneys due or to become due to G an action for breach of contract to let a public hall, a from the defendant. To enable G to complete bis plea setting up that the purpose for which said hall was contract, the defendant subsequently made advances intended to be used was for the delivery of certain lect to G to a greater amount than £100, and at the compleures containing an attack upon Christianity was a tion of the vessel G had no more to receive on account good defense, and plaintiff was not entitled to recover. of the contract. Held, by BRAMWELL and COTTON,
L. J.J., diss. BRETT, L. J., that the order was a good LESSOR AND LESSEE — BREACH OF COVENANT
equitable assignment of the money when it became COVENANT NOT TO USE HOUSE AS “BEER-SHOP
due, and that the defendant could not set off advances BEER SOLD TO BE CONSUMED OFF THE PREMISES.
subsequently made to enable G to complete his con. Bishop of St. Albans V. Battersby. English High tract.
ABSTRACT OF DECISIONS OF SUPREME
appear at a certain date. A few days before the date,
plaintiff notified the master of the lodge that he could COURT OF ILLINOIS.
not be present at the time appointed without interfer
ing with his business duties. He was tried in his ab[Filed at Ottawa, June. 21, 1878.]
sence, found guilty, and expelled. The court below
gave judgment for the defendant. On appeal this Hon. JOHN SCHOLFIELD, Chief Justice.
coart say: "The fees paid by plaintiff in error were SIDNEY BREESE,
voluntarily paid, and there is no pretense that he was T. LYLE DICKEY,
in that respect overreached or in anywise defrauded. BENJAMIN R. SHELDON,
Associate Justices. It can not be pretended that his expulsion works a resPICKNEY H. WALKER.
cission of the contract under which the initiation fees JOHN M. SCOTT, ALFRED M. CRAIG,
were paid, and there is therefore no ground, of which we are aware, upon which the present suit can be main
tained. We held, in People ex rel. v. Board of Trade, TAXES-ASSESSMENT - CONSTITUTIONALITY.--This
80 III. 134,that we would not interfere to control the enwas a joint application, made by the South Park com
forcement of the by-laws of merely voluntary associamissioners and the county treasurer of Cook county,
tions, such as the defendant in error, but that such orfor judgment for an installment of a special assess
ganization must be left to enforce their rules and regment made by the South Park commissioners, pursu
utions by such means as they may adopt for their ant to a statute entitled “ An act to enable the corpor
government.” Affirmed. — Robinson 0. Yates City ate authorities of two or more towns, for park pur
Lodge. poses, to issue bonds," etc. The only point made by appellant is, that the said act is void because its title
TAXES--ASSESSMENT – LEVY-STATUTE.-This proshows that the act itself is intended to embrace more
ceeding is one instituted and prosecuted by the county tban one subject, contrary to section 13 of article 4 of
collector of Cook County for the collection of certain the constitution. Held, by the court, that the said act
special assessments, levied by the town of Lake upon is not in violation of any constitutional provision, as
the real estate within its bounds. The mode of collec
tion is that pointed out in article 9 of the General Inembracing more than one subject or matters not expressed in its title. The body of the act is germane to
corporation Act for Cities and Villages, passed in 1872, the title of the bill. Affirmed. -Traynor v. Peo
and incorporated into the Revised Statutes of 1874. ple, and six other cases.
Section 168 of that act provides that any city or incor
porated town or village may, if it so determine by MORTGAGE-FORECLOSURE-POWER OF NATIONAL ordinance, adopt the provisions of this article without BANKS TO TAKE MORTGAGE ON REAL ESTATE.-This adopting the whole of this act; and where it shall have was a proceeding to foreclose a mortgage. The answer so adopted this article it shall have the right to take all shows that defendant had been the owner of the mort-| proceedings in this article provided for and have the gage property, and had sold it to T, making him an ab benefit of all the provisions hereof.” It is insisted solute deed for the same. Afterwards defendant, that the town of Lake is neither a city or village, claiming to have been defrauded, induced T to rescind and that the words, “incorporated town" must be the contract and to reconvey the property to him. But construed to designate an incorporation other than in the meantime T had borrowed money of the Na that of a city or village, and that as to such incorporational Bank of Mendota, for which he had given a tion this provision is unconstitutional, inasmuch as the mortgage on the property in question to B, the presi title of the act limits its subject-matter to cities aad dent of the bank. The point is made by defendant villages, and does not refer to incorporated towns. that the mortgage to the president is a mortgage to the DICKEY, J., after discussing at length the question at bank itself, and as such it is void under the banking issue, concludes "that the town of Lake was and is a act, which, defendant claims, forbids national banks "village,' in the sense in which that word is used in secfrom making loans upon any but personal security. tion 168 of the General Act of 1872, relating to cities Held, that the mortgage to the president is a mortgage and villages; that it therefore is one of the municipal to the bank. As to the question of the power of a na corporations which by that se: tion are authorized to tional bank to take such a mortgage, SCOTT, J., after avail themselves of the provisions of article 9 of that reviewing the question at length, says: “ The provi act." Scholfield, C. J., and Walker, J., dissent, holdsion declaring upon what security such associations ing that “the 168th section of the chapter, entitled may make current loans, viz., upon personal security, cities, villages and towns,' has no application to inand the subsequent inhibition (in another section of corporations like the town of Lake.” Judgment afthe law) that no mortgage shall be taken on real estate firmed.-Martin v. People, and eight other cases. except by way of security for debts previously con
JUDGMENT BY DEFAULT-APPLICATION TO BE ALtracted, must be understood to forbid absolutely such
LOWED TO DEFEND - WHAT TERMS CAN NOT BE associations making loans upon security afforded by
IMPOSED.--On the 21st of December, 1876, the defendmortgagees on real estate. With the policy of the law
ant in error caused a judgment to be entered by conon this subject we have nothing to do.” Citing Fow
fession before the clerk of the circuit court in vacaler v. Scully, 72 Penn. 456; First National Bank v.
tion, against the plaintiff in error, upon a promissory National Bank, 2 Otto, 122; Matthews v. Skinker, 62
note. On the 30th of December, 1876, the defendants Mo. 329. Reversed.-Fridley v. Bowen.
in the suit below (now plaintitfs in error) moved the BY-LAWS OF VOLUNTARY ASSOCIATION-SUIT BY court to set aside the judgment and for leave to plead to EXPELLED MEMBER TO RECOVER FEES.- This was a the declaration, for the reasons that the judgment was suit by an individual member against a masonic lodge entered for more than the amount due, and there was to recover certain moneys paid as initiation fees. The usury in the loan of the money for which the note was principal facts were these: Plaintiff had been a mem given. Affidavits to substantiate these allegations ber in good standing of the lodge prior to June 7, 1873. were filed. Counter-affidavits were also filed. The The lodge had power by its by-laws, to which plaintiff court ordered plaintiff and defendant each to make subscribed on becoming a member, by giving the ac calculations of what was due, and then taking the cused ample time and opportunity to defend himself, plaintiffs' figures made an order staying the execution te expel a member for unmasonic conduct. On the and granting leave to the defendants to plead to the 7th of June, 1873, he was served with a paper charging plaintiff's declaration, upon the defendants paying into him with unmasonic conduct, and summoning him to court for plaintiff's' use the sum as computed by plain