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able, not void. When the previous deed to the defendant was revoked, the parties thereto were left to their legal rights and remedies. The defendant could not insist in this suit that the complainant must restore to him the money paid out, as a condition of the relief asked. Although the complainant had notice of the previous transfer by the record of the deed and the power of attorney, he also knew that Grignon was not bound by it, and could avoid it. See, as sustaining a similar doctrine, the case of Green v. Green, recently decided by the Court of Appeals of this State (15 Alb. L. J. 494), where an infant sold land for a valuable consideration, spent the proceeds, and, on becoming of age, sought to rescind the contract. The court held that it was not necessary for him to restore the consideration if he was unable to do it, but he might, without doing so, repudiate the contract, and take back the lands. In this case the court held that a mere acquiescence by the grantor for three years, after coming of age, without any affirmative act, did not constitute ratification. See, also, Mustard v., Wohlfard's Heirs, 15 Gratt. 329; Price v. Furman, 27 Vt. 268; Bartlett v. Drake, 100 Mass. 176; 1 Am. Rep. 101; Walsh v. Young, 110 Mass. 399; Gibson v. Soper, 6 Gray,

282.

In the case In re Worthington, just decided by the United States Circuit Court for the Western District of Wisconsin, the question arose whether the filing of a transcript of judgment by the clerk of a court upon Christmas day, that day being a holiday under the laws of Wisconsin, was invalid, and rendered such judgment void as a lien upon lands which would be affected by such filing upon another day. The court held, reversing the decision of the District Court, that the act of the clerk was ministerial, and not void, even though done on a non-juridical day, saying that while at the common law no judicial act could be done on Sunday, the authorities seem to agree that mere ministerial acts could be performed, and even the service of process was regarded as a ministerial act, and therefore valid, although performed on Sunday, and the act of 29 Charles II became necessary in order to render it invalid. In the case of Van Vechten v. Paddock, 12 Johns. 177, which was relied upon by the court below in this case, the Supreme Court of this State, in order to decide that the issuing of process on Sunday was void, insisted that the awarding of process was a judicial act, done while the court was in actual session, being thus obliged to resort to an acknowledged fiction to sustain its opinion. The court, in the principal case, says: "If ministerial acts performed on Sunday were not invalid at common law, for a stronger reason those performed on Christmas day would not be invalid." In Van Vechten v. Paddock, supra, the court seems inclined to hold that the service of process on Sunday was

illegal at common law. But in Johnson v. Day, 17 Pick. 106, the court declares that an arrest on civil process on Sunday was legal at common law, and that is the opinion of the judge who decided the case of Pearce v. Atwood, 13 Mass. 324, where the subject is thoroughly discussed. See, also, Lampe v. Manning, 38 Wis. 673; Rob v. Moffat, 3 Johns. 257; Vanderpoel v. Wright, 1 Cow. 209.

The case of Hooker v. De Palos, 28 Ohio St. 251, was an action to recover $500 paid by De Palos to Hooker upon a contract, whereby Hooker agreed to sell De Palos a tract of land lying in the neighborhood of Cincinnati, to be paid for partly in cash and partly in tickets of a gift enterprise, in which the lands sold were to constitute prizes. It was claimed, upon the part of De Palos, that the contract was abandoned by both parties, and that it was agreed that the money received by Hooker should be paid back. This rescission and agreement was denied by Hooker, but the jury found in favor of De Palos. The Supreme Court Commission, in reversing the judgment below, held that the contract of sale was in violation of the statute against lotteries, and against public policy, and, therefore, entirely illegal, and that the parties being in pari delicto in the matter, the law would aid neither of them in enforcing further performance of the contract, or in undoing what had been unlawfully done. The decision is in harmony with the common-law maxim ex turpi causa non oritur actio, and is supported by many cases (though there are statutory exceptions, such as those allowing the recovery of money lost by gaming). See Nellis v. Clark, 20 Wend. 24, where it was said: "Where a contract is entered into for fraudulent or illegal purposes, the law refuses to enable either party to disturb such parts of it as have been executed or carried into effect, and as to such parts as remain executory it will not compel the contractor to perform his engagement, or pay damages for non-performance; thus, in both cases, leaving the parties where it finds them." This language was cited with approbation in Goudy v. Gebhard, 1 Ohio St. 266. And in Perkins v. Savage, 15 Wend. 412, it was held that "where a contract is entered into between two parties, the object of which is to violate the provisions or the spirit and policy of a public statute, and one pays money to the other in furtherance of such contract, and the contract is in part executed by the accomplishment in part of the original design, leaving, however, a portion of the money unexpended, an action will not lie to recover back the unexpended balance." See, also, Miller v. Larson, 19 Wis. 466; Skinner v. Henderson, 10 Mo. 207; Adams' Express Co v. Reno, 48 id. 268; Foote v. Emerson, 10 Vt. 338. It has been held, however, that the mere knowledge of a party of the intent of the other party to put property acquired to an illegal use, would not prevent recovery for work done on such property. Michael v. Bacon, 49 Mo. 474; 8 Am. Rep. 138; Tracy v. Talmage, 14 N. Y. 162.

ALTERATIONS OF WRITTEN INSTRUMENTS WHEN PRESUMED TO HAVE BEEN MADE, AND THEIR EFFECT.

AL

LTERATIONS of written instruments may be considered under two heads: I. Apparent; II. Non-apparent. Apparent alterations may be either material or immaterial; and may be made by parties, or by strangers, by consent or without consent. Non-apparent alterations are susceptible of the same division. These will be examined separately as to when they were presumed to have been made, and their effect. This classification may not be perfect; but it is sufficient for the present purpose. Owing to limited space, and to the conflict of authorities, this topic will be treated in reference to deeds and notes; and the authorities cited will be confined to English and New York decisions.

1. Material:

I. APPARENT ALTERATIONS.

A material alteration was formerly defined as "any interlineation, addition, raising, drawing a pen through a line, or through the midst of a material part." 11 Rep. 27. The most philosophical definition is given by Greenleaf: "It is," he says, "any act done upon the instrument by which its meaning or language is changed." Evid., § 566.

The question of materiality is one of law, for the court; whether there is an alteration or not, for the jury. 2 Pars. Cont. 720.

(A.) Alterations by parties may be considered: First. Without consent; Second. By consent. First. Without consent.

(a.) When presumed to have been made.

On this subject the cases are not in harmony. The mooted point is: Were the alterations made before or after execution and delivery? As a general proposition it may be said that the law presumes nothing, but leaves the question of time, when it was done, as well as that of the person by whom, and the intent with which the alteration was made as matters of fact for the jury. 2 Pars. Cont. 721, and cases cited; Greenleaf's Evid., § 564.

As to deeds-In England any alteration was formerly deemed suspicious, if it was not proved to have been made before delivery, Shep. Touch. 55; but, in the absence of opposing testimony, it was presumed to have been made before the execution of the deed, because the law will not presume fraud or perjury in any person. Coke on Litt. 225 (b), n. 1. In a recent case it was held to be a question for the jury, whether in the absence of evidence the alterations were made before the execution. 16 Q. B. 745.

In New York the party offering an instrument in evidence is bound to explain any apparent alterations, and the jury are to decide whether the explanation is satisfactory. 2 Wend. 550. The instrument

with all the circumstances of its attendant history, its nature, and the appearance of the alteration, the possible motives for making it, and its effect upon the parties respectively, ought to be submitted to the jury, and the court cannot presume that the alterations were made after execution from the face of the instrument, whether under seal or otherwise. 2 E. D. Smith, 1.

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As to notes A different rule prevails in England, in respect to notes. Where a note exhibits the appearance of alteration, the party claiming under it is bound to explain every apparent erasure or interlineation. 5 Bing. 183.

In New York, there is no distinction between sealed and unsealed instruments. 8 Barb. 314. (b.) Their effect.

A material alteration, as a general rule, renders an instrument void for two reasons: First, to prevent fraud; and second, to insure the identity of the instrument. Greenleaf's Evid., § 566. This doctrine was first applied to deeds, 11 Rep. 271. It was afterward extended to negotiable paper, 4 T. R. 320; to bought and sold notes, 15 East, 29; wills, 16 Q. B. 747; guaranty, 11 M. & W. 800; charterparty, 1 N. & N. 593; and insurance policies, 1 B. & B. 426. The principle was established as to all these instruments on the ground that a duty arose in regard to them analogous to that arising out of deeds.

As to deeds- The English courts at one time declared any deed apparently altered in a materia! way, whether by a party or a stranger, to be void. 11 Rep. 27. This strictness arose from the necessity of pleading a deed with profert. 4 T. R. 320. When that rule was relaxed, the doctrine was modified. It was abolished by the Common Law Procedure Act. The rule of Pigot's case is still in force when the altered deed is relied on as the foundation of a right sought to be enforced; but it does not apply when the instrument is produced as the proof of some right or title created by or resulting from its having been executed. 11 M. & W. 778-800. A distinction has been taken between alterations made before, and those made after, the delivery of a deed. The former do not affect the instrument. Shep. Touch. 69. The latter may be considered as to the executory and executed operation of the deed. If the executory covenants are in words which the law would supply they are valid; otherwise not. 10 Coke, 88. Whereas, executed covenants, where an estate is vested or right transferred, cannot be avoided. 2 Hy. Blk. 263. If the estate lie in grant any alteration by the party avoids it as to him. 7 Nels. Abr. 625. So, if the deed be altered fraudulently. 11 M. & W. 778.

The New York decisions are to the effect that any alteration, after execution, by one claiming a benefit, or by his privity, destroys the instrument as to him, and he can never sue upon it (8 Cow. 71), nor can

his innocent assignee. 2 Barb. Ch. 133. The instrument's past operation is not counteracted; executed contracts are not rescinded; estates and titles which have vested are not divested; but no future benefit can be derived by the party from the deed, and no covenants, obligations or other executory contracts can be enforced by him through its instrumentality. 22 Wend. 388.

As to notes In England, ever since the celebrated case of Master v. Miller, it has been the rule that any material alteration in negotiable paper, with or without the privity of the parties, avoids it. In this case the date of a bill of exchange had been altered so as to accelerate the payment, and it was held void in the hands of an innocent holder. Here the holder's title became vested after the alteration. If it had been complete before the alteration occurred, he could have recovered from the maker. Such an alteration operates as a satisfaction of the bill and the debt it was given to secure. 3 B. & A. 660. Alterations in the date, sum or time for payment, or the insertion of words authorizing transfer, or expressing the value to be received on some particular account, adding the name of a maker or drawer, an unwarranted place of payment after issue, or addition of a seal, are material alterations. See Smith's L. C. 1275, 7th Am. ed. An alteration by accident or mistake does not affect the liability of the parties whose signatures are canceled. 15 East, 17. If the alteration is material it avoids the note, and it makes no difference that it would operate to the benefit of the maker, as in the case of an unauthorized addition of the name of a person to a joint and several note. 5 E. & B.; overruling, 8

A. & E. 736.

The doctrine of Master v. Miller, 4 T. R. 320, has been followed in New York, but every apparent alteration will not vitiate the instrument. 2 Johns. Ch. 198. If a note is proved to be materially altered in its amount or otherwise, it is thereby avoided in toto as a security, so that no action can be maintained upon it, even for the original consideration. 55 N. Y. 412. Material alterations in notes would be: Adding a place of payment, 19 Johns. 391; inserting words of negotiability, 19 Johns. 391; payee writing his name under maker's, and the addition of sureties, 46 Barb. 379; addition of another drawer or maker, 23 Barb. 554; alterations of contemporaneous memoranda, 49 N. Y. 396; of date, 6 Sup. Ct. 437; inserting with interest, 56 N. Y. 54; raising check, 50 id. 21. So, canceling "to the order of " and inserting "bearer,"

have been held material. 55 id. 22. The willful destruction of a negotiable instrument bars recovery. 12 Wend. 173.

The inference to be drawn from the authorities as

to when the alteration was made is, that in England the presumption in the case of deeds and notes differ. The former are presumed to have been

altered before delivery, but the holder of a negotiable instrument is bound to explain any apparent alteration. In New York, in both cases, the jury are to judge when the alterations were made. This would seem to be the better opinion. Smith's L. C. 1283. As to the effect of alterations, it would appear that the party by whose act or privity the alterations were made will not be relieved against his own fraud or folly; that in deeds vested interests shall not be divested, and that in notes the alteration of the instrument by the party satisfies the debt. Second. Alterations by consent will now be examined.

Such consent may be express or implied; express, by that which is directly given orally, or in writing; implied, that manifested by actions, etc., which raises a presumption that consent has been given. Alterations by consent are generally confined to blanks in written instruments.

(a.) When presumed to have been made:

There is no presumption as to time, as blanks are always filled after delivery. The only question that arises is, as to whether this consent can be implied.

As to deeds-The English rule is, that such consent must be expressly given by a sealed instrument 6 M. & W. 210. But, in some cases, the consent may be implied; as, for example, where a blank was filled up by writing in one's Christian name. 11 M. & W. 465. So, also, filling in a date. 17 C. B. 179.

In New York no consent can be implied, and such material alterations can only be made with the express assent of the parties to be charged. 19 Johns. 391; 24 N. Y. 330.

As to notes All the authorities agree that such consent may be presumed in the case of negotiable paper. Doug. 516; 7 Cow. 336.

(b.) Their effect:

As a general proposition it may be said that alterations, by filling up blanks in notes, are valid; but the English and New York courts differ as to the sufficiency of parol authority in the case of deeds. The former hold that no instrument can afterward become a deed by being completed and delivered by a stranger in the absence of the party who executed it, or by one unauthorized under seal. In New York the position taken by the courts is, that parol authority is sufficient to fill up a deed, but, to sign it, a power under seal is necessary.

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the numerous auditory filling the court chamber. The following day M. Cremieux came into the court room after the judges had assembled. The crowd was im

WHEN ADMINISTRATOR NOT GUILTY OF A

DEVASTAVIT.

mense. The archbishop and the clergy, the command-IN the case of Tate et al., appellants, v. Norton, re

ing general of the division, the superior and other officers of the army, and all the influential citizens and strangers in the city had invaded and taken possession of the auditorium, and the space between the judges and the part set apart for the lawyers, was reserved for the ladies, who attended in great numbers, and who were curious and anxious to hear the great advocate. The presiding justice, Tixier la Chapelle, in the midst of a profound silence, said: "M. Cremieux, you can now commence your summing up." M. Cremieux did not rise from his seat. What occurred? Let us give it as related by himself.

"I had heard the chief-justice, and I was about to commence, when I found, to my consternation, that I had not a single thought for my exordium, and that after the word 'Sirs,' I had nothing more to say. I was horrified. I leaned my head over the table: the attorney asked me what I was looking for; I was looking for my exordium. You understand, I did not answer him; but suddenly my senses returned to me; the commencement of my speech was found." "M. Cremieux," said the chief-justice, "I informed you that you had the floor." I bowed, rose and said: “If it please the court, an incident in the life of Henry IV reverts to my mind, and I will relate it to you." This introduction excited astonishment and curiosity. I was saved. I continued thus:

"The good king was at Rouen. He learned that the next day an important cause was to be argued in the grand chamber of the parliament. He had never attended a sitting of the court, and he desired to be present. This fact excited a great commotion in the city. When the king took his seat, and the parliament had been called to order, the counsel for the appellant commenced his address. The counsel was a famous lawyer, eloquent, replete with knowledge, of rare intelligence, a distinguished orator, the Marié of the period." (At this unexpected compliment addressed to his brother lawyer, who had been so admired the day before, the advocate was interrupted by loud applause.) He continued thus: "He pleaded valiantly; he developed his case during an entire sitting, and charmed his audience so well that the king said: 'Well,' gentlemen, 'he has won his cause.' 'Sire,' said the chief-justice, 'your majesty has not heard the counsel for the other side.' 'To-morrow, then,' replied the king, 'I shall be curious to hear what he has to say.' The next day, the king present, and the assembly marvellously attentive, the counsel for the respondent commenced his reply. Did he plead well? Did he plead badly? I cannot myself say (laughter); but he had a just cause; right and equity sustained it. Animated by the ability displayed by his adversary, he, perhaps, surpassed himself, so well, indeed, that at the close the king exclaimed: 'Ventre saint gris, gentlemen, you must be well learned, wise and honest, to judge and pronounce judgment.' 'Thus,' said M. Cremieux, 'this exordium came to my mind, when I did not know how to commence my summing up. It was well received, and, perhaps, was not without some influence in assisting me to win my case. Believe me, it is a good thing to make the judges feel well-disposed toward you.'"

cently decided, the Supreme Court of the United States pass upon an interesting question in relation to administrators. The facts of the case were these: Joseph W. Clay, of the State and county of Arkansas, died intestate in May, 1853. He left a widow, Sarah G. Clay, since deceased, and three minor childrenJoseph W. Clay, also since deceased; Mary S. Clay, since married to Thomas G. Tate; and Caroline Clay, since married to Raynor W. Whitfield. The four parties last named are the appellants.

Thomas Fletcher, the brother of the widow, was appointed by the probate court of the proper county administrator of the estate, and qualified as such in July, 1853. Immediately after qualifying he took possession of all the property which belonged to the intestate at the time of his death. It consisted of lands, stock, farming utensils, slaves, and a small amount of money. The value of the lands at that time does not appear. The appraisers estimated the other property at $129,445.54. The slaves were an important item. They were inventoried at $113,400, leaving the balance of other assets $16,045.54. The indebtedness of the estate represented by the claims presented and allowed by the administrator amounted to $103,436.62. According to the law of Arkansas the widow was entitled to the possession and use for life of one-third of the lands, and of one-third of the slaves, irrespective of the claims of creditors. She was also invested with the absolute ownership of one-third of the personal property.

The condition of the estate, as regards the means of meeting its liabilities, is thus clearly presented. It requires no argument to show that forced sales by the administrator to pay the debts would have involved disaster, if not ruin, to the family of the deceased. Such is the teaching of all experience. The intestate had been largely engaged in raising cotton. The administrator put himself as it were in the place of the deceased. Every thing was carried on and conducted as before his death. Payments were made to the widow from time to time, the children were supported and educated, the taxes were paid, crops were raised, the cotton was sold, and the debts were discharged as fast as the circumstances permitted.

In 1855 the legislature passed a law whereby the probate courts were empowered to authorize administrators to do as the administrator in this case did, provided that the time limited for the settlement of estates, which was three years, should not be extended. The administrator here claims that he received such authority pursuant to this act. This fact does not appear. But it does appear that he made five full settlements with the probate court - the first one in 1855, and the last in 1870. The accounts are in the record. They exhibit all his receipts and disbursements, and fully the manner in which he was discharging the duties of the trust. It does not appear that exception was taken by or in behalf of those concerned, nor that the probate court interposed any check or objection. The administrator made no charge for compensation, and was allowed none. By the year 1858 he had paid nearly all the debts. Before the late civil war began he had paid them all but the debt upon which this suit is founded.

The commencement of the war was the beginning of the troubles of the trust. The State was a battlefield. Troops on both sides were there. The slaves were sent to Texas for safety. The mules and other live stock were swept away by the advancing and receding tides of the conflict. The lands hardly paid the expenses of cultivating them. Finally the slaves as property were stricken out of existence. This involved a loss to the estate, according to the original inventory, of more than an hundred thousand and thirteen dollars of the assets. The administrator became wholly unable to pay this debt. The answer avers that but for the war he could by the year 1863 have extinguished this demand also, and have then handed over to the heirs a large and unincumbered estate for distribution among them. The record shows that this was not an over-sanguine calculation. The calamity was unforeseen, and one for which the administrator was not responsible. The claim sought to be collected by this proceeding was an account due from the intestate to Sweeney, Greene & Co. They became insolvent and assigned it to Hewitt, Norton & Co. They also became insolvent and assigned it to the creditors for whose benefit this suit was instituted. The object of the bill is to subject the lands of the intestate to the payment of the debt. It is alleged that all the other assets have been exhausted. The appellants in their cross-bill claimed, among other things, that the conduct of the administrator in the management of the estate was unwarranted and illegal, and that he was guilty of a devastavit. The court below granted a decree for the payment of the amount due, and in case of default that the lands be subjected to the payment. In affirming this decree the Supreme Court says: The power of courts of equity in this class of cases is ample. Their flexible jurisdiction is always applied as the substantial interests of right and justice may require. Hooke v. Payne, 7 Wall. 429; Yates v. Hambly, 3 Atk. 363; S. P., 2 id. 263; Thompson v. Brown, 4 Johns. Ch. 631.

The conduct of the administrator in the present case, though without the sanction of strict law, did not involve a violation of duty for which a court of equity will hold him responsible, nor the commission of a devastavit.

In Thompson v. Brown, supra, the intestate had been a member of a trading firm. The administrator permitted his capital to remain in the concern. He also put in other capital belonging to the estate. The survivors failed and became insolvent. It was sought to make the administrator liable for both the capital which he left in and that which he put in. In an able and learned examination of the subject by Kent, Chancellor, he was held bound for the latter but not for the former. In his opinion the chancellor remarked: "It is said that a court of equity will someimes appoint a person to carry on a trade for an infant partner. Montague on Partnership, 187, and Sayer v. Bennet, there cited. And Lord Mansfield, in the case of Barker v. Parker, 1 Term, 295, observed, that he remembered many instances of trade being carried on under the direction of a court of equity." See, also, Wedderburne v. Wedderburne, 22 Beav. 84, and Ryves v. Coleman, 3 Atk. 439. In Thompson v. Brown, the chancellor quoted with approbation the language of Lork Hardwick, in Knight v. The Earl of Plymouth, 3 Atk. 480; Dickens, 120, as follows: "If there was no mala fides, nothing willful in the conduct of the trustee, the court will always favor him. For a

trust is necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety. It is an act of great kindness in any one to accept of it. To add hazard or risk to that trouble and to subject a trustee to losses which he could not foresee would be a manifest hardship and would be deterring every one from accepting so necessary an office." The same rule was applied by this court in Markey v. Langley, 92 U. S. Rep. S. C. 155.

A clearer case for the application of this principle can hardly occur than is presented by the one before us. Throughout the record there is not the slightest imputation or apparent ground for any imputation against the administrator. Even a want of care, diligence, or good judgment is not alleged. His management was eminently successful until the war occurred. That could neither be foreseen nor averted. It fell with crushing weight upon him. His plan for the redemption of the estate was at once broken up. The means of prosecuting it further were finally lost. In the wreck nothing was left but the lands, and they without the means of turning them to any account. To hold him responsible for these consequences would be alike contrary to the dictates of reason and justice and to the settled law of equity. Remonstrance or objection from any quarter until after the institution of this suit is nowhere disclosed. In the light of this record nothing that he did can be lawfully challenged.

RAILROAD-AID BONDS.- DEFECTS IN FOR-
MALITIES REQUIRED BY STATUTE.-
EFFECT OF NOTICE TO TRUSTEE
FOR BONDHOLDER.

the case of County Commissioners of Johnson, plaintiff in error, v. Thayer et al., decided by the Supreme Court of the United State at the term lately held, some interesting questions in relation to railroad-aid bonds were passed upon. By the statute of Kansas under which the bonds upon which this action was brought were issued it is provided: "That the board of county commissioners of any county, to, into, through, from, or near which, whether in this or any other State, any railroad is or may be located, may subscribe to the capital stocks of any such railroad corporation, in the name and for the benefit of such county, not exceeding in amount the sum of three hundred thousand dollars in any one corporation, and may issue the bonds of such county, in such amounts as they may deem best, in payment for said stocks." In this case the electors voted to take stock in a corporation to aid in the construction of a road "commencing at or near the Union depot, on the south side of and near the mouth of the Kansas river, and near Kansas City, thence to Olathe, Johnson county; thence in a southerly direction through said county to the south boundary of the State of Kansas." One ground of objection was that the description of the road to which aid was voted was not sufficiently specific, and the question involved was this: Was it necessary that the particular road to which a subscription was intended to be made should be described in the proposition submitted to the popular vote, or was the general language used in this case a compliance with the law? The court says: We think this was a sufficiently specific statement to be submitted to the voters for their approval or disapproval.

We cannot, however, think that this is a vital point,

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