At common law, a father is bound to support his legitimate children, and the obligation continues during their minority. We may assume this obligation to exist in all the states. In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged him to do; that is, to support his minor children. The contract was a recognition of such liability on his part. We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not, in any event, terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reasonable one) in fulfillment thereof should be so discharged. It is true his promise is to pay to the mother; but, on this branch of the contract, it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose. "In Re Baker, 96 Fed. 954, in the district court of Kansas, it was held that a judgment in a bastardy proceeding against the putative father, adjudging him to pay a certain sum to the mother of the child for its maintenance, was not such a debt as would be released by the discharge of the father in bankruptcy, and it was put upon the ground that, by virtue of the judgment and bond given thereon, tho father became liable for the maintenance of the illegitimate son the same as if he were his legitimate offspring, and that the bankruptcy law was never intended to affect the liability of the father for the support of his children. "In the case of Re Hubbard, 98 Fed. 710, the district court of Illinois held that a discharge in bankruptcy did not release the bank. rupt from the obligation to obey an order made by a state court requiring him to pay a certain sum for the support of his minor children. Kohlsaat, District Judge, said: "The bankruptcy act was passed to relieve persons bringing themselves within its provisions from the incubus of hopeless indebtedness; but it was not intended to nor does it subvert the higher rule, which casts upon a parent the care and maintenance of his offspring. The welfare of the state, as also every principle of law-statutory, natural, and divine-demand that, so long as he has any substance at all, he shall apply it to the maintenance of his children. Creditors, as well as all citizens, are interested in the enforcement of this rule.' "As the defendant would still remain liable for the support of his minor children, even if discharged from this contract under the act, and he would remain liable for past support, why should it be held that Congress intended that such a contract, to do what the law enjoins upon him as a duty, should be released? There is no language in the act which plainly so provides, and we ought not to infer it. "The amendments to the bankruptcy act passed in 1903 (32 Stat. at Large 797, c. 487), contain an amendment of section 17 of the act of 1898, which relates to debts not affected by a discharge, and it provides, among those not released by a discharge in bankruptcy, a debt due or to become due for alimony or for the maintenance or support of wife and child. It is true that the provisions of the amendatory act are not to apply to cases pending before their enactment. They are only referred to here for the purpose of showing the legislative trend in the direction of not discharging an obligation of the bankrupt for the support and maintenance of wife or children. "The judgment is affirmed."' Bankruptcy. The obligation of a lessee for rent accruing after his bankruptcy belongs to the class of contingent liabilities which is not barred by his discharge: Bernhardt v. Curtis, 109 La. 171, ante, p. 445, 33 South. 125. FLETCHER v. BASS RIVER SAVINGS BANK. MORTGAGEE IN POSSESSION-When will not be Allowed for Repairs.-If, not intending to keep possession, but entering solely for the purpose of more effectually foreclosing his mortgage under a power contained therein, a mortgagee makes repairs which are not needed to preserve the estate from loss or injury while he is in possession, and are not made for that purpose, but solely that a higher price may be obtained at the sale, he goes beyond his duty and is not entitled to be allowed the sum expended for such purpose. (p. 634.) Contract for money had and received by the defendant for the use of the plaintiff, being a surplus of the moneys resulting from the foreclosure of a mortgage executed by the plaintiff to defendant. The trial judge found in favor of the plaintiff for one hundred and seventy-four dollars and seventy-seven cents and interest, and reported the case for the determination of this court. H. H. Baker, for the plaintiffs. C. C. Paine, for the defendant. HAMMOND, J. The only evidence at the trial was the auditor's report, and the only question before us is whether the judge was warranted in his finding for the plaintiffs. Upon the evidence the judge might properly have found that at the time the defendant entered to foreclose on September 7. 1898, it intended to advertise the property immediately for sale under the power contained in the mortgage; that at that time the house was somewhat out of repair, "in that the chimney needed repairing, the roof of the ell leaked, one of the gutters was decayed, the piazza was broken and some of the window glass was out, trees and vines had grown too near the house and the paint was badly worn"; that the repairs were of the kind for the expense of which an allowance should be ordinarily made to a mortgagee, but that the house would not "have been of any less value at the time of the sale if the repairs had not been made, than it was at the time of the entry," and that the repairs were not "necessary in order that the house might be in as good condition at the time of the sale as at the time of the entry." The judge might also have found that from the time of the entry it was the intention of the defendant to purchase the property at the sale if necessary to protect itself, and that it did purchase it in accordance with that intention, and that the repairs were not made in good faith for the purpose of occupation nor were necessary for the preservation of the property while the defendant was mortgagee, but in order that it might present a more attractive appearance and bring a higher price at the sale; or in other words that the repairs were not made in good faith to protect the interests of all concerned in the property of a mortgagee in possession, but solely for the purpose of enabling the mortgagee to make a better sale. Upon such findings can the plaintiffs recover? It is contended by the defendant that since these repairs, so far as respects their nature, were such as a mortgagee in possession may properly make and for the expense of which he may be allowed, the general rule applies; and that it is immaterial whether the mortgagee intended to foreclose by holding possession for three years or by the more summary process of a sale under the power, or whether the repairs were needed to preserve the property so that it would be in the same condition at the sale as at the entry. A mortgagee who has entered for foreclosure is not yet the owner of the land. He holds it as trustee for the owner. As a rule he has no authority to make the estate better at the expense of the owner. The mortgagor as the owner is the only person 7 who has the right to exercise his judgment as to whether the estate shall be made more valuable by an outlay of money. Yet the mortgagee while in possession is bound to use reasonable means to preserve the estate from loss or injury, and those means he may use even although, as in a case where at the entry the property is in a dilapidated condition, the result is that the condition of the estate is made better than at the time of entry: Woodward v. Phillips, 14 Gray, 132. We should be slow to say that where a mortgagee in good faith for the purpose of preserving the estate from loss or injury while in his possession had made repairs like those in this case, he should not be allowed therefor, although the result was that its condition was better at the time of foreclosure than at the time of entry, and although he subsequently foreclosed by a sale rather than by possession for three years. But the mortgagee is to be held to good faith. If, not intending to keep possession, but entering upon the estate simply and solely for the purpose of more effectually foreclosing by an immediate sale to himself or to some third person under the power contained in the mortgage, he makes repairs which are not needed to preserve the estate from loss or injury while he is in possession and are not made for that purpose but solely that a higher price may be obtained at the sale, then it may be fairly said that he has gone beyond his duty and his right as mortgagee. We cannot say that the finding of the court was not warranted by the evidence. According to the terms of the report there must be judgment for the plaintiffs for one hundred and seventy-four dollars and seventy-seven cents, with interest from January 12, 1899. A Mortgagee in Possession is not entitled to compensation for improvements made upon the premises further than is necessary for their repair and preservation: See the monographic notes to Cleland v. Clark, 81 Am. St. Rep. 184, 185; Caldwell v. Hall, 4 Am. St. Rep. 69. JACKSON v. CITY OF BROCKTON. [182 Mass. 26, 64 N. E. 418.] APPEAL OR WRIT OF ERROR-Waiver of.-The right to take an appeal or prosecute a writ of error is not waived by accept. ing payment of a judgment, when the error in it respects the computation of interest, and the plaintiff was not aware of the error when he accepted payment. (p. 636.) INTEREST-From What Time Allowable on Accounts.-When a claim is liquidated and should have been paid before suit brought, and the auditor in his report has allowed interest, the plaintiff, in the entry of judgment, is entitled to have interest allowed from the date of the right to such entry. (p. 636.) R. O. Harris and A. F. Barker, for the plaintiff in error. W. I. Lane, for the defendant in error. 26 HOLMES, C. J. This is a writ of error on a judgment in an action on an account annexed. The error assigned is that it appears by the record that judgment was entered upon an auditor's report for the amount of damages found by the auditor and costs, whereas the plaintiff was entitled also to interest from the date of the writ. It is agreed that the plaintiff was paid the amount of the judgment and gave a receipt for it, he being ignorant of the error at the time. It does not appear of record that the judgment has been satisfied. It was not contended that the record does not disclose an error, or that in this proceeding it can be assumed that the interest was remitted by the plaintiff when the record shows no justification for the failure to add it. The argument for the defendant was only that this error is not such as to entitle the plaintiff to have the judgment reversed, and that if he ever had that right he lost it by accepting payment. The former proposition is thrown out merely by way of suggestion. We see nothing in it, and can conceive no reason why a plaintiff should not have a judgment corrected in this way, if, As to on the face of the record, it gives him too small a sum. the second, no doubt it is a commonplace that a party may preclude himself from setting up error in a judgment by taking 27 advantage of it, and this rule has been applied not only when execution has been taken out and satisfied, as in Cassell v. Fagin, 11 Mo. 207, 47 Am. Dec. 151, Ullery v. Clark, 18 Pa. St. 148, Knapp v. Brown, 45 N. Y. 207, and Paine v. Woolley, 80 Ky. 568, but, in the case of an appeal from an assessment |