was considered by the court an acceptance. This case, therefore, cannot be regarded as definitely settling the doctrine even in Iowa.

Much reliance is also placed on the decision of Mr. Justice McLean in the Circuit Court in U. S. v. Wright, 1 McLean, 509, where Wright was sued as surety on a collector's bond for delinquency committed by the collector after he had sent his resignation to the President but before it was accepted. Justice McLean held that the resignation was complete when received, and that the defendant was not liable. In announcing his decision he used this broad language: "There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the Executive to compel him to remain in office." Chief Justice Beasley of New Jersey, in commenting upon this language in State v. Ferguson, already cited, justly observes: "It is hardly to be supposed that it was the intention of the judge to apply this remark to the class of officers who are elected by the people and whose services are absolutely necessary to carry on local government; or that it was the purpose to brush away with a breath the doctrine of the common law, deeply rooted in public policy upon the subject. However true the proposition may be as applied to the facts then before the Circuit Court, it is clearly inconsistent with all previous decisions, if extended over the class of officers where responsibility is the subject of consideration."

But conceding that the law in some of the States is as contended for by the plaintiff in error-and he cites cases to this purpose decided in Alabama, Indiana, California and Nevada-and conceding that Justice McLean's decision may have been correct in the particular case before him, the question is, what is the law of Michigan? and we think it has been shown that the common-law rule is in force in that State.

Now, in the present case it is true that the defendant in his return avers that he resigned his office on the 7th day of June, 1876. But he does not stop here. He goes on to show precisely what he did do. His whole return on this branch of the subject is as follows:

"That at the general election of April 3, 1876, this respondent was duly elected the supervisor of said township of St. Joseph, and on April 8, 1876, respondent qualified and entered upon his office as such supervisor. That respondent continued in said office of supervisor until the 7th day of June, 1876, when this respondent resigned his office as such supervisor. That such resignation was in writing, of which the following is a true copy:

"To the township board of the township of St. Joseph, county of Berrien and State of Michigan: I hereby tender my resignation of the office of supervisor of this township. St. Joseph, June 7, 1876.

"EDWARD M. EDWARDS.'

"That said writing, of which the above is a copy, was signed by this respondent and after being so signed was by respondent delivered to and filed by the township clerk of said township of St. Joseph, and that said writing was so delivered to and filed by said township clerk on the 7th day of June, 1876. That since said 7th day of June, 1876, this respondent has not been the supervisor of said township of St. Joseph. That he has not acted or assumed to act as such supervisor in any particular. That respondent has not since said June 7, 1876, had charge of any of the records or papers of said office of supervisor."

It does not appear that the resignation was ever acted upon by the township board or that it was ever presented to or seen by them, or that the board was ever convened after the resignation was filed. According to the common-law rule the resignation would not be complete, so as to take effect in vacating the office, until it was presented to the township board and either

accepted by them or acted upon by making a new appointment. A new appointment would probably be necessary in this case, because the township board was not the original appointing power. The supervisor is not their officer, representative or appointee. They only represent the township in exercising the power vested in them of filling a vacancy when it occurs. This makes them the proper body to receive the resignation, because they are the functionaries whose duty it is to act upon it.

We think, therefore, that the return made to the alternative mandamus did not sufficiently show that the defendant had ceased to be supervisor of the township.

Other excuses for not obeying the mandamus are propounded in the return as follows:

"Respondent further says that he has never had served upon him in the cause in which said alternative writ issued, any process, notice or paper of any kind except said alternative writ.

"And respondent further shows that the township clerk of said township of St. Joseph has never made and delivered to respondent any certified copy of any statement on file or of record in his office of the moneys to be raised by taxation either for the purpose of paying the alleged claim of the relator or for any other purpose, and no statement whatever of the clerk of said township with reference to the amount of money to be raised for township purposes has ever been delivered to respondent."

The plea of non-service of the writ is inadmissible. The appearance of the defendant and the actual making of the return are a sufficient answer to it. Nonservice may be good ground for a motion to set aside proceedings based on supposed service, but is not a good return to the writ.

The excuse that the clerk did not deliver to the defendant a certified statement is evasive. Why did he not do so? Was there collusion between them as stated in the petition for mandamus? The defendant does not state that the clerk refused to deliver him a statement; nor that he, the defendant, applied to the clerk for one. His own act in repudiating his office might well have prevented the clerk from delivering a statement to him. It is to be presumed that on reassuming his duties the clerk will recognize his official character and furnish the requisite statement. But if the clerk should refuse, it would still be the defendant's duty as supervisor to see that the claim of the relator, which is a fixed and indisputable liability of the township, and has been duly presented, is placed before the board of supervisors and put in the way of payment by means of taxation.

We think the return was insufficient, and the demurrer was well taken. The judgment of the Circuit Court is therefore affirmed.

PURCHASE BY A NATIONAL BANK OF ITS OWN SHARES.

UNITED STATES SUPREME COURT, APRIL 18, 1881.

JOHNSTON V. LAFLIN.

The owner of shares in a National bank, which he believed to be solvent, sold them to a broker for a consideration, executing a power of attorney in blank, authorizing their transfer on the books of the bank. The shares were purchased by the broker, but without knowledge of the owner, for the president of the bank. The latter caused the name of his clerk to be inserted as attorney, the clerk then transferring the shares to the president as trustee, on the bank's official stock register. The president purchased the stock for the bank and with its funds. The clerk knew of this fact, but neither the broker nor the owner did. Held, that the sale to the broker could not be impeached as in viola

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tion of the statute forbidding the purchase by a National bank of its own shares.

PPEAL by plaintiff from a decree of the Circuit Court of the United States for the Eastern District of Missouri, in an action by Walter S. Johnston, receiver of the National bank of the State of Missouri, against Sylvester H. Laflin and James H. Britton. The facts appear in the opinion.

FIELD, J. The questions raised in this case are important to owners of shares in the National banks, but they are not difficult of solution. The delay in their decision has been caused by the great pressure of business upon the court and not from any doubt as to their proper disposition. The appellant, the complainant below, is the receiver of the National Bank of the State of Missouri, appointed by the comptroller of the currency on the 27th of June, 1877. The bank failed on the 20th of that month. The defendant James H. Britton was its president and had been so for some years. On the 16th of May, 1877, and for some time previously, the defendant Laflin was a stockholder of the bank, owning eighty-five shares of full-paid stock. He was not a director of the bank, nor had he any personal knowledge of its actual financial condition. It is to be presumed that he regarded that condition as sound, for up to the time of the failure he continued to deposit funds with it for the company of which he was a resident director at St. Louis. On the day mentioned, May 16, 1877, he sold his eighty-five shares to a broker, to whom he delivered his certificate of the stock, with a blank power of attorney indorsed thereon, authorizing the attorney, whose name might be subsequently inserted by the broker, or any other party becoming the owner of the certificate, to transfer it on the books of the bank in such form and manner as might be necessary or required by its regulations. Laflin did not at the time know for whom the stock was bought; information on the subject was withheld from him. He received for the price agreed the broker's check on a banking-house in St. Louis, which was paid the same day, on presentation. The broker was however in fact acting for Britton, the president of the bank, who represented that he was purchasing for himself or for a party whose name he did not disclose. There was no intimation that he was making the purchase for the bank or in its interest. He gave the broker his individual check on the bank for the price of the stock, which was paid on presentation. Subsequently, but on the same day, he received the certificate and thereupon directed a book-keeper in the bank, named Geralt, to fill up the power of attorney with his, the book-keeper's, name, and to transfer the certificate to his, Britton's name, as trustee, on the transfer book or stock register of the bank, which was accordingly done. He had at the time, to his individual credit at the bank several hundred dollars more than sufficient to meet the check. He had for years dealt largely on his own account in its stock and there was nothing in the transaction between the broker and himself to awaken suspicion as to its legality or propriety. Some days afterward, on the 29th of the same month, at an election of directors, he represented and voted on the stock purchased.

It appears, however, that whilst the shares stood on the official stock register in the name of Britton as trustee, without stating for whom he was trustee, the transaction was entered on the stock ledger in an account with him as "trustee of the bank." And by his directions the book-keeper credited his individual account with the amount of the check given for the shares and charged the same amount to the "sundry stock account." In other words, the entries on the books-other than the official stock register-showed that the stock was purchased by Britton for the benefit of the bank and paid for with its funds. But neither

Laflin nor the broker had any notice of the manner in which the transfer was made, or of the entries on the books of the bank, or that the purchase had been made with its funds. The book-keeper, Geralt, who made the transfer and the entries, had, however, actual knowledge of the facts.

The present suit is brought by the receiver of the bank to set aside the purchase of the eighty-five shares, to compel Laflin to repay the money received and Britton to retransfer to him the shares on the books of the bank, and to have him declared to be still a stockholder in respect of those shares.

The statute declares that the capital stock of every National banking association shall be divided into shares of one hundred dollars each, and be transferable on its books in such manner as may be prescribed by its by-laws or articles, and that every person becoming a stockholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder. There was no by-law of the association here regulating transfers of its shares, but each certificate of stock contained this provision: "Transferable only on the books of the said bank, in person or by attorney, on the return of this certificate, and in conformity with the provisions of the laws of Congress and the by-laws which may be in force at the time of such transfer."

The statute also declares that no association shall be the purchaser of any shares of its own capital stock, unless the purchase be necessary to prevent a loss upon a debt previously contracted. The purchase by the bank, through its president, in the present case was not made to prevent such a loss. Laflin was not indebted to the bank at the time he sold his shares. The receiver, therefore, starting with the conceded fact that the purchase by the bank was prohibited, and therefore illegal on its part, seeks to charge Laflin with the consequences of such illegality, as though he had dealt directly with the bank, or had known at the time that the purchase was made for it. He assumes such knowledge by Laflin because the party with whose name the blank power of attorney was filled, to make the transfer of the certificate of stock, was cognizant of the facts. His argument is substantially this: The transfer of the stock is not complete until made on the books of the bank, and the attorney who made it knew that the purchase was by the bank and with its funds, and his knowledge was the knowledge of Laflin.

The general doctrine that the principal in a transaction is chargeable with notice of matters affecting its validity, coming to the knowledge of his agent pending the proceeding, is not questioned. Had Geralt, the book-keeper, been appointed by Laflin to make the sale, and had he in negotiating it learned the facts as to the purchase and use of the funds of the bank, there would be ground to invoke the application of the doctrine. But such was not the position of Geralt to Laflin. The sale was consummated, so far as Laflin was concerned, when he delivered the certificate, with the power to transfer it, to the broker. The latter did not mention the name of the principal for whom he was acting. He declined to give it. Laflin had a right therefore to treat him as the principal, and if he was competent to make the purchase the sale was valid. Shares in the capital stock of associations, under the National banking law, are salable and transferable at the will of the owner. They are in that respect like other personal property. The statute recognizes this transferability, although it authorizes every association to prescribe the manner of their transfer. Its power in that respect, however, can only go to the extent of prescribing conditions essential to the protection of the association against fraudulent transfers or such as may be designed to evade the just responsibility of the stockholder. It is to be exercised reasonably. Under the pretense of prescribing the manner of

to action by a private individual injured, and such contract inures to the individual who is interested in its performance. Weet v. Brockport, 16 N. Y. 161, note; Robinson v. Chamberlain, 34 id. 389; Fulton Fire Ins. Co. v. Baldwin, 37 id. 648; Johnson v. Belden, 47 id. 130; City of Brooklyn v. Brooklyn City R. Co., id. 476; McMahon v. Second Ave. R. Co., 75 id. 231; Conroy v. Gale, 5 Lans. 344. If the plaintiffs have been injured by a violation of such a contract, no reason exists why an action would not lie on their behalf against defendant for the recovery of damages. Arnold v. Nichols, 64 N. Y. 117; Clafflin v. Ostrom, 54 id. 581. While if the demand made by plaintiffs was in any way speculative or unreasonable, an action to recover the amount fixed as damages perhaps could not be maintained, direct evidence of damages was not required. From the fact of the violation of the contract, it is to be presumed that the party sustained a loss. Whether in such a contract the amount fixed is a penalty or is to be regarded as damages is to be determined by the actual intention of the parties so far as it can reasonably and fairly be ascertained from the language of the contract and from the nature of surrounding circumstances. Colwell v. Lawrence, 38 N. Y. 71; Cotheal v. Talmage, 9 id. 551; Noyes v. Phillips, 60 id. 408; Lampman v. Cochran, 16 id. 275. The intention cannot be entirely determined by the use of the word "penalty" or the words "liquidated damages." Staples v. Parker, 41 Barb. 648; Beale v. Hayes, 5 Sandf. 640. Nor is the word "forfeit" conclusive. In this case, as under the circumstances, there would be considerable difficulty in making proof of the actual damage by a refusal to sell; the inference is that the sum fixed was intended to be as damages. Under the terms of the contract the determination of number of volumes to be furnished did not rest with the defendant. The applicant might fix the number to the extent of 100 volumes. Plaintiff was entitled to recover interest from the time of the breach of the contract. Judgment affirmed. Little v. Banks. Opinion by Miller, J. [Decided May 10, 1881.]

SHERIFF NOT LIABLE FOR RELEASE OF IMPRISONED DEBTOR UPON JUDGE'S ORDER SHOWING JURISDICTION REPEAL-2 R. S. 28. A sheriff who releases an imprisoned debtor upon an order of a county judge exempting such debtor from imprisonment by reason of any prior debt (2 R. S. 28, § 1; id. 34, § 1) is not liable in an action by the creditor for an escape, if the order contains recitals of all the facts needed to give jurisdiction to the judge granting it, and if the order does not contain those recitals the sheriff will be protected if he can show outside the order of discharge that the needed facts existed. Ballymore v. Cooper, 46 N. Y. 236. Three things are needed to give the judge in such a case jurisdiction: First. Power by law to act on the general subject-matter, that is, the discharge of an insolvent debtor, which is given by 2 R. S. 28, § 1; id. 34, § 1; Second. Jurisdiction of the person of the particular insolvent, who must reside or be imprisoned in the same county as the judge. Proof of residence may be made preliminary to presenting a petition by the affidavit of some one other than the petitioner. In re Wrigley, 8 Wend. 134, 138. And the petition verified alone is enough, and the discharge is proof of the place of residence if it state the fact. Jenks v. Stebbins, 11 Johns. 224; Stanton v. Ellis, 12 N. Y. 575. A recital in the discharge, "F. of the town of S. in the county of S." has been held sufficient in collateral proceedings. Barber v. Winslow, 12 Wend. 102. A petition of an insolvent commenced, "the petition of F. of the town of S. in the county of S.," etc., and was accompanied by an affidavit that it is true in all respects." Held, not enough to make proof of residence in the county. Staples v. Fairchild, 3 N. Y. 41; Payne v. Young, 8 id. 158. The judge had jurisdiction if the debtor was

imprisoned in the county (2 R. S. 35, § 2), and although he was in the liberties he was so imprisoned. Being out of jail in the liberties is in the judgment of the law being in prison. Holmes v. Lansing, 3 Johns. Cas. 75; Peters v. Henry, 6 Johns. 121; and this notwithstanding Bylandt v. Comstock, 25 How. Pr. 429. Third. Jurisdiction of the particular case. If the discharge by its recitals shows the presentation of a proper petition, account and inventory, and there is proof aliunde that the proper affidavit was annexed to the petition and schedule, it is enough to protect the sheriff, though as between the debtor and his creditors it might be objected that the statute was not complied with in the proceedings. See Bennett v. Burch, 1 Den. 141; Potter v. Merch. Bk. of Alb., 28 N. Y. 641. The provisions of the 5th article, 2 R.S. 28, have not been repealed by Laws 1831, ch. 300, or by old Code, § 179. Judgment affirmed. Devlin v. Cooper. Opinion by Folger, C. J. [Decided March 8, 1881.]

NEGLIGENCE - VIOLATION OF CITY ORDINANCE NOT NEGLIGENCE PER SE. In an action to recover damages for the death of plaintiff's intestate through the negligence of defendant, it appeared at the trial that defendant's driver left the horses which caused the. accident, attached to a vehicle standing in a street in the city of Brooklyn without any person attending them, and without tying them, and that this was done in violation of a city ordinance. Plaintiff asked the judge to charge that a violation of an ordinance of the city is necessarily negligence, and the judge replied: "It is; I have so told the jury it is negligence." Held, that there was error in the charge so made. The judge went too far in holding that a violation of the ordinance was negligence of itself. The result of the decision is, that the violation of the ordinance is some evidence of negligence, but not necessarily negligence. See Brown v. Buff. & S. L. R. R. Co., 22 N. Y. 191, the doctrine of which is repudiated in Jetler v. Hudson Riv. R. R. Co., 2 Abb. Ct. Ap. Dec. 458; Beisiegel v. New York Cent. R. R. Co., 14 Abb. Pr. N. S. 29; McGrath v. New York Cent. R. R. Co., 63 N. Y. 522; Massoth v. Del. & Hud. Can. Co., 64 N. Y. 524. Judgment reversed and new trial granted. Knupfle v. Knickerbocker Ice Co. Opinion per curiam. All concur except Miller and Danforth, JJ., dissenting, and Rapallo, J., absent. [Decided March 15, 1881.]

SURETYSHIP-CONTRIBUTION-ESTATE OF DECEASED Where one of two joint sureties dies and the remaining surety is compelled to pay the debt, he can maintain an action for contribution against the personal representative of the deceased surety. It was held in Bradley v. Burwell, 3 Den. 61, that the death of one of two sureties did not relieve his estate from liability to contribute, upon the ground that the law implies a contract between cosureties to contribute ratably toward discharging the liability they incur, such contract originating at the time they executo the original undertaking, and that in case of death of either, this obligation devolved upon his legal representatives, and is like any other contract made by one in his life time. The doctrine in cases where the creditor pursues a supposed remedy against the estate of a deceased surety, does not apply to the liability of the sureties between themselves. This court has often held that, as between the creditors and the estate of a deceased surety, the joint obligation of the latter ended with his death, but it is not yet proposed to decide that his several obligation originating at the date of the common signature also terminates with his death. In Norton v. Coons, 3 Den. 130, it was held that while contribution between sureties was founded on a general principle of equity and justice, yet what had been an equitable had be

SURETY LIABLE TO CONTRIBUTE.