Mason v. Fearson. 9 H.

used in contracts and private affairs. But under the circum. stances existing here, it is founded on sound principles and numerous precedents.

The form of expression adopted here, it must be remembered, is employed in laws, and not contracts, and of course, if a well established construction had been before given to it in laws by the courts under certain circumstances, it must be presumed to have been well known, and intended here under like circumstances. What are these circumstances? Whenever it is provided that a corporation or officer "may" act in a certain way, or it "shall be lawful" for them to act in a certain way, it may be insisted on as a duty for them to act so if the matter, as here, is devolved on a public officer, and relates to the public or third persons.

Thus, in Rex and Regina v. Barlow, 2 Salkeld, 609: "Where a statute directs the doing of a thing for the sake of justice or the public good, the word 'may' is the same as the word 'shall;' thus, 23 Hen. VI. says the sheriff may take bail; this is construed he shall, for he is compellable so to do." Carthew, 293.

On this see further The King v. The Inhabitants of Derby, Skinner, 370; Backwell's case, 1 Vernon, 152–154; 2 Chitty, 251; Dwarris on Stat. 712; Newburgh T. Co. v. Miller, 5 Johns. Ch. 113; City of New York v. Furze, 3 Hill, 612, 614; Minor et al. v. The Mechanics' Bank, 1 Pet. 64. Without going into more details, these cases fully sustain the doctrine, that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do. The power is conferred for their benefit, not his; and the intent of the legislature, which is the test in these cases, seems under such circumstances to have been "to impose a positive and absolute duty." But under other circumstances, where the act to be done affects no third persons, and is not clearly beneficial to them or the public, the words "may" do an act, or it is "lawful" to do it, do not mean "must," but rather indicate an intent in the legislature to confer a discretionary power. Malcom v. Rogers, 5 Cowen, 188; 1 Pet. 64; 5 Johns. Ch. 113.

[ * 260 ]

So, in private contracts or trusts, such language may confer a discretion. 5 Johns. Ch. 113. But in the case of a law and of public officers, and as to acts affecting third persons, as here, that the authority thus conferred must be construed to be peremptory is not only manifest from the above precedents and their analogies, but has been virtually settled by this court in the 8th of Wheaton, before cited, on the act of 1812, which, we have already seen, used language the same in substance as that of 1824 on this particular point.

Strader v. Baldwin. 9 H.

The argument that the owner of these lots need not have suffered by all of them being sold, and at a low price, because he might have redeemed them, has little force when the same oversight, or accident, or misfortune, which prevented the seasonable payment of the tax, is likely to prevent the redemption, and when this argument, if sound, would apply to any other defect in the sale, and operate against the force of it, on the ground that the owner might redeem.

But instead of such loose constructive leniency towards a purchaser under a special law, it is well settled that where a tax title is to be made out by a party under such a law, as by the defendant in this case, it must be done in all material particulars fully and clearly. Stead's Executors v. Course, 4 Cranch, 403; Waldron v. Tuttle, 3 N. Hamp. 340. In the language of some of the cases, it must be done "strictly," "exactly," "with great strictness." 6 Wheat. 127; 8 Wheat. 683; 4 Pet. 359.

The purchaser, setting up a new title in hostility to the former owner, is not to be favored, and should have looked into it with care before buying, and not expect to disturb or defeat old rights of freehold without showing a rigid compliance with all the material requisitions of the laws under which the sale was made. Finally, it tends to fortify the view here adopted, that the statutes in several States on the subject of such sales allow only so many lots to be sold as will pay all the taxes against the same owner, such course being manifestly the most just. 4 Cranch, 403; 4 Wheat. 81, note. Judgment below reversed.

22 H. 422; 4 Wal. 435.

JACOB STRADER, ROBERT BUCHANAN, JOHN MCCORMICK, JOHN R. CORAM, JOSEPH SMITH, JAMES JOHNSON, and GEORGE C. MILLER, Trustees of the Commercial Bank of Cincinnati, v. HENRY BALD

WIN.

9 H. 261.

If the state court decide in favor of the only right claimed under an act of congress, a writ of error, under the 25th section of the judiciary act of 1789, (1 Stats. at Large, 85,) does not lie.

Walker, for the plaintiffs in error.

Lincoln, contrȧ.

GRIER, J., delivered the opinion of the court.

This case was brought here by a writ of error to the supreme court of Ohio.

As the power of this court to review the decisions of state tribu

Brabston v. Gibson. 9 H.

nals is limited to certain specified cases and conditions, the [*262] *first inquiry which necessarily presents itself is, whether we have jurisdiction.

The plaintiffs in error instituted this suit in the superior court of Cincinnati. The declaration has the common counts in assumpsit. The defendant appeared and pleaded his discharge under the act of congress of the 19th of August, 1841,1 to "establish a uniform system of bankruptcy," &c. The plaintiffs denied the validity of this discharge, on the ground that the debt was incurred by defendant while acting as clerk or book-keeper in the Commercial Bank, and therefore "acting in a fiduciary capacity."

The supreme court of Ohio gave judgment for the defendant, and the plaintiffs prosecuted their writ of error to this court.

The 25th section of the judiciary act, which is the only source of our authority in cases like the present, gives this court jurisdiction to "reëxamine" the judgment of a state court only where the decision "is against the title, right, privilege, or exemption specially set up or claimed " under an act of congress.

The plaintiffs in this case have set up no act of congress in their pleadings, under which they support their claim or title to recover. It is the defendant who has pleaded a privilege or exemption under a statute of the United States, and relies upon it as his only defence. If the decision of the state court had been against him, his right to have his case reëxamined by this court could not be doubted. But the decision has been in favor of the right set up under the statute, the validity of which was denied by the plaintiffs. We have no jurisdiction to entertain a writ of error to the supreme court of Ohio at their suggestion.

This case must, therefore, be dismissed, for want of jurisdiction. 18 H. 243; 1 Wal. 512.

ANN BRABSTON, Plaintiff in Error, v. TOBIAS GIBSON.

9 H. 263.

The bona fide indorsee of a negotiable note is not barred from recovering thereon under the law of Mississippi, by the resale of the property which formed the consideration, by the vendee to the vendor, nor by the redemption of it under a conditional sale, for which the note was the consideration.

Demand on the maker of a note, payable at a bank, need not be averred or proved; failure to make the demand, and damage therefrom, is matter of defence.

THE case is stated in the opinion of the court.

15 Stats. at Large, 440.

Brabston v. Gibson. 9 H.

Johnson, (attorney-general,) for the plaintiff.

Gilpin and Walker, contrà.

M'LEAN, J., delivered the opinion of the court.

[* 276 ]

This writ of error is brought to review a judgment of the

circuit court for Louisiana.

The action was founded on two promissory notes given by Tobias Gibson, and dated the 24th of December, 1839, in which he promised to pay to William Harris, for value received, at the "Agricultural Bank of the State of Mississippi," in one note, [*277 ] $6,000, the 1st of February, 1845, and in the other, $7,000, the 1st of February, 1846. These notes were given in part consideration for a plantation and slaves in Louisiana, sold by William Harris to Gibson, to secure the payment of which and other notes a mortgage was executed on the property. The words "Ne varietur" were indorsed on the notes to identify them with the sale of the estate.

On the 21st of January, 1840, these notes were assigned, in the State of Mississippi, to the plaintiff, as collateral security for the payment of a note to her of the same date, given by Harris, who was a citizen of Mississippi, for $6,000, payable twelve months after date. In the sale of the above property, there was reserved to the vendor a right to repurchase it within ten years; and it appears there was a redemption of the property at the price for which it was sold, and a reconveyance to Harris was executed on the 18th of September, 1841. Two notes on Gibson were given up as a part of the consideration for the repurchase, but the above two notes for $13,000, having been assigned by Gibson to the plaintiff, were not surrendered, but Harris agreed that they should be given up and cancelled, and a mortgage was executed on the property to indemnify Gibson against him. The first mortgage for the consideration money was cancelled. Harris became bankrupt, and took the benefit of the bankrupt act1 in 1843.

The cause was submitted to the court on the facts agreed, and a judgment was rendered for the defendant. On several grounds, the plaintiff asks the reversal of this judgment.

The notes were given in Louisiana, but they were made payable and indorsed in Mississippi; consequently, they are governed by the law of Mississippi. The law of the place where a contract is to be performed, and not the place where it was executed, applies. The indorsement of a note subjects the indorser to the obligations imposed by the law where the indorsement is made.

15 Stats. at Large, 440

Brabston v. Gibson. 9 H.

It is contended that, under the law of Mississippi, the defendant is not bound. The law referred to is in Howard and Hutchinson's Digest, 373, which declares that "all bonds, obligations, single bills, promissory notes, and all other writings for the payment of money or any other thing, shall and may be assigned by indorsement," &c., and the assignee may bring an action, &c., "and in all actions commenced or sued upon any such original bond, obligation, bill single, or promissory note, or other writing as aforesaid, the defend[*278] ant shall be allowed the *benefit of all want of lawful consideration, failure of consideration, payments, discounts, and set-offs, made, had, or possessed against the same previous to notice of the assignment."

The only question in the case which can arise under this statute is, whether the admitted facts constitute a defence to the action. The facts not being within the statute, cannot be set up as a defence under it. They do not show "an illegal consideration, a failure of consideration, payment, discount, or set-off." There was no pretence of payment of these notes in the redemption of the property. They were declared to remain in force, and to be subject to extinguishment when obtained. The case cited, of Parham v. Randolph, 4 How. Miss. 453, was where the note was given for land, the title to which failed; the failure of the consideration was held a good defence against the note in the hands of an assignee. That case was clearly within the statute.

These notes being negotiable, were assigned to the plaintiff, for a valuable consideration, without notice, prior to the act of redemption. That act being a voluntary one by Harris, the assignor of the notes, it could in no respect prejudice the rights of his assignee. Under the laws of Louisiana, the right of redemption may be enforced against a purchaser of the thing liable to be redeemed, though that fact was not named in the second sale. And when a vendor recovers the possession of land, by virtue of the power of redemption, he takes it free of all incumbrances created by the purchaser.

But these principles can have no application to negotiable paper, though given for a thing purchased which the vendor may redeem. The purchaser who holds land or other property liable to be redeemed, reconveys the property only on the payment of the consideration money. And whether this payment be made by returns of the notes given, in money, or in some other manner acceptable to the parties, cannot be material. In the present case, it seems, Gibson was content to take a mortgage on the property reconveyed, to indemnify him against the outstanding notes.

From the fact that the notes were not given up, and an indemnity