leased or impaired. Such powers are functions of the board of directors, not of an executive officer. Power to Transfer the Bank Stock.--It is an inherent power of a bank cashier to transfer the shares of its stock on the corporate books.35 36 Admissions and Declarations of the Cashier. -The same rules apply to the admissions and declarations made by a cashier to a customer that do to any other of his acts. If they are within the scope of his ordinary duties, or are otherwise authorized, they are binding, but if not, they are of no obligating effect,37 Thus, in Cochico Nat. Bank v. Haskell,38 where the cashier, on inquiry, informed the surety on one of its notes, that the same had been paid, with the intention that he should rely upon it, and the surety did so, and was prejudiced thereby, it was held that the bank was estopped to deny that the note was paid. But, on the other hand, in the case of Mapes v. Second Nat. Bank of Titusville, where the indorser, before becoming such, was told, by the cashier, that he considered the maker, for whose accommodation the indorsement was made, perfectly good financially, and that he would be safe in making such indorsement, by which statements the indorsement was procured to be made, it was held, that although wilfully false, they did not avail to bind the bank, not being within the course of the cashier's ordinary duties. Although money paid by the cashier to a bona fide holder on forged bills, or forged checks on the bank, is not recoverable, he cannot obligate the bank by his mere admissions of the genuineness of such bills or 34 Gallery v. Albion Nat. Exchange Bank, 41 Mich. 169; Daviess County Savings Ass'n v. Sailor, 63 Mo. 24. See, however, Bank v. Klingensmith, 7 Watts, 523. 35 Case v. Bank, 100 U. S. 446; Smith v. Northampton Bank, 4 Cush. 1, 11; Commercial Bank v. Kortright, 22 Wend. 348, 351. 36 Gould v. Cayuga County Nat. Bank. 56 How. Pr. 505; Merchants' Bank v. Marine Bank, 3 Gill, 96; Cochico Nat. Bank v. Haskell, 51 N. H. 116. $7 United States v. City Bank of Columbus, 21 How. 356; Bank of Metropolis v. Jones, 8 Pet. 12; Harrisburg Bank v. Tyler, 3 Watts & S. 373; Merchants Bank v. Marine Bank, 3 Gill. 96; Salem Bank v. Gloucester Bank, 17 Mass. 1, 29; Mapes v. Second Nat. Bank of Titusville, 80 Pa. St. 163; Wyman v. Hallowell & Augusta Bank, 14 Mass 58. 38 Supra. 3 Supra. checks; nor can he by his admissions of the legality of its void debts.40 Power to Receive Notice.-Notice received by the cashier, in the course of the duties of his office, concerning matters pertaining to its business, is notice to the bank.41 Place and Time of the Act.-It is by no means essential, in all cases, that the act of the cashier be done within banking hours, or at the counter or in the office of the bank, to be of binding effect upon it.42 Thus in Houghton v. First Nat. Bank, 43 it was held that his representations made within the scope of his ordinary duties are binding though made elsewhere. So, in Bissell v. First Nat. Bank, it was decided that his indorsement 44 made in the street, after banking hours, may bind the bank. Likewise, in Merchant's Bank v. State Bank, it was held that the fact that a check which had been indorsed "good," was not certified by the cashier at his banking house, was no objection to the validity of the act. 45 Power to Receive Special Deposits.-It is an accommodation often extended by banks to their customers to receive special deposits for gratuitous keeping. If this be habitually done by the bank, it will be considered one of the powers of the cashier,46 but otherwise not. 47 As is perfectly familiar, the taking of such deposit, does not raise the relation of debtor and creditor, as does that of an ordinary cash deposit, but that of bailee and bailor. The bank is ordinarily only liable for gross negligence respecting it, and to this responsibility 40 Merchants' Bank v. Marine Bank, 3 Gill. 96; Wyman v. Hallowell Bank, 14 Mass. 58; Salem Bank V. Gloucester Bank, 17 Ib. 1. 41 Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 117; New Hope etc. Bridge Co. v. Phoenix Bank, 3 N. Y. 156; Branch Bank at Huntsville v. Steele, 10 Ala. 915; Bank of America v. McNeil, 10 Bush. 54; Gaston v. American Exchange Nat. Bank, 29 N. J. Eq. 98; Fall River Union Bank v. Sturtevant, 12 Cush. 372; Security Bank v. Cushman, 121 Mass. 490. 42 Pendleton v. Bank of Kentucky, 1 T. B. Mon. 171, 182. See, however, Bullard v. Randall, 1 Gray, 605. 43 26 Wis. 663. 44 69 Pa. St. 415. 45 10 Wall. 604. 46 First Nat. Bank v. Graham, 79 Pa. St. 106. 47 Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278; s. c. 19 Am. Rep. 181. the cashier cannot add by any acts of his, unless he be specially authorized thereto.48 Power with Reference to Suits.-A cashier is a competent officer of the bank to authorize the institution of a suit in its behalf on its matured paper.19 It is not, however, within the scope of the powers ordinarily conferred on such officer, to appear and defend suits against the bank.50 Nor is it to waive the service of a petition praying a forfeiture of its charter, or the filing of an answer which virtually confesses the forfeiture of the charter and admits the necessity of the immediate liquidation of the bank. 51 Nor, again, is it within the scope of his general powers to bind the bank to indemnify an officer for levying upon property on an execution in its favor.52 Akron, O. L. K. MIHILLS. PAYMENT OF JUDGMENT AFTER JUDICIAL SALE OF LAND-INFORMATION OF SALE. REED v. RADIGAN. Ohio Supreme Court, Oct. 21, 1884. Where a judgment debtor pays the judgment in full, after a sheriff's sale of his lands to satisfy it, it is error in the court thereafter to confirm such sale against the debtor's objection. Error to the District Court of Licking County. On the 8th of March, 1881, the sheriff of Licking County, by virtue of an order of sale issued to him from the Common Pleas Court of his county, to satisfy certain decrees which were the only liens upon certain real estate of Townsend Reed, the plaintiff in error, sold to Michael Radigan, the defendant in error, such real estate for the sum of $3,250.00, who paid the same into the hands of the sheriff. On the 10th of March, 1881, the sheriff made his report to the court of the sale. The proceedings up to and including the sale were in all respects in conformity to law. During vacation, before any motion had been 48 Chattahoochie Nat. Bank v. Schley, 58 Ga. 369; Foster v. Essex Bank, 17 Mass. 479; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82; Lloyd v. West Branch Bank, 15 Pa. St. 172; Lancaster County Nat. Bank v. Smith, 62 Ib. 47; Scott v. Nat. Bank, 72 Ib. 471; Smith v. First Nat. Bank, 99 Mass. 605. 49 Bristol County Savings Bank v. Keavey, 128 Mass. 298. 50 Branch Bank at Mobile v. Poe, 1 Ala. 396. 52 Watson v. Bennett, 12 Barb. 196. S. C., 6 Ohio L. J. 198. To appear in 42 Ohio St. filed to confirm the sale, Reed paid the decrees in full with all interests and costs. On the 5th of April, 1881, Reed filed a motion to set aside the sale, upon the ground that the decrees, with interest and costs, had been paid in full. Thereafter, at the April term of court, 1882, this motion was overruled, and the motion of Radigan to confirm the sale was allowed, the sale confirmed, and the sheriff ordered to convey to the purchaser. The several rulings of the court, upon these motions were excepted to by Reed. The District Court on error, affirmed the judgments and rulings of the common pleas; and to reverse the judgment of affirmance the present proceedingis prosecuted. J. B. Jones, for plaintiff in error; Dennis & Dennis, for defendant in error; M. A. Daugherty, for plaintiff in error in reply. OWEN, J., delivered the opinion of the court: The sale by the sheriff was made, in all respects, in conformity to the provisions of the statutes. If there was any reason why the sale should not have been confirmed, or why it should have been set aside, it is to be found in the fact that, after sale and before confirmation, the debtor, whose lands were sold, satisfied the decrees upon which they were sold. Section 5398 (Rev. Stat.) provides that: "If, upon the return of any writ of execution, for the satisfaction of which lands have been sold, it be found by the court, on careful examination of the proceedings of the officer, that the sale has been made, in all respects, in conformity to the provisions of this title, the clerk shall be directed to make an entry on the journal that the court is satisfied of the legality of such sale, and that the officer make to the purchaser a deed for the lands," etc. It is maintained by the defendant in error, that, the proceedings having conformed to the requirements of this enactment, there was no discretion in the court, and that it was its plain duty to confirm the sale and order a deed to the purchaser; and that, having paid the purchase money in full, he became invested with an interest in the land which could not be subsequently divested by any act of the debtor or of the court. If this construction of the provision above cited is to prevail, it will follow that in all cases where the purchaser is mislead as to the title of the lands sold; in all cases where the lands are appraised at a sum far below their true value; in all cases where, without the fault of either party to the proceedings, competition in bidding is prevented, whereby the sale is at a sacrifice; where the judgment is suspended by appeal after the sale; and in a variety of cases where a confirmation of the sale will work hardship and sacrifice, the court is powerless to avert the wrong by the easy and simple means of setting aside or refusing to confirm the sale. Such a construction of the statute and of the powers of the court is not only against the common understanding of the profession, and at variance with the uniform practice of the courts, but we believe it is, both upon principle and authority, untenable. It should be borne in mind that the primary object of the sale by the sheriff is to make the money due the creditor (Rorer on Judicial Sales, § 20), and when this is accomplished, there is no substantial reason why the proceedings should go farther. The purchase money paid at a sheriff's sale is held by the officer making the sale "as security that the purchaser will fulfill his contract in case the sale shall be confirmed by the court." Welch, C. J., in Fiedeldey v. Diserens, 26 Ohio St., 31. "The power of the court is limited to a confirmation or vacation of the sale, as to which they are to exercise sound legal discretion, and in which all parties-the plaintiff, the defendant, and the purchaser-may be heard. Peck, J., in Trust Co. v. Gibbon, 10 Ohio St. 566. It will be found upon an examination of the authorities, that in States where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation (which depends upon the sound discretion of the court), is refused, the rights of the purchaser fall to the ground. Taylor v. Gilpin, 3 Met. (Ky.) 544; Hunting v. Walter, 33 Md. 60; Rorer on Judicial Sales, § 10; Sowards v. Pritchett, 37 Ill. 515; Fiedeldey v. Diserens, 26 Ohio St. 312. In the latter case it was held that: "When land is sold on execution or order of sale, and before confirmation of sale by the court, the judgment or decree is satisfied by payment to the plaintiff, and the sale is therefore set aside, the officer making the sale is not entitled to poundage on the purchase money for which the land was so sold, the same not being 'money actually made and paid,' within the meaning of the statute." In Bassett v. Daniels, 10 Ohio Stat. 617, judgment was rendered against the defendants and an order of sale of real estate allowed. Notice of intention to appeal was entered. Sale was duly made by the sheriff under this order. The proceedings were regular. After report of the sale, the defendants perfected the appeal by bond. At the next term of court the purchasers moved for confirmation of the sale. Confirmation was refused and the purchasers prosecuted error. The court says: "An appeal perfected suspends all proceeding upon the judgment appealed from. An order confirming a sale of lands on execution and ordering the sheriff to make a deed to the purchaser, is a part of the proceeding to enforce a judgment; and a sale of real estate made before an appeal bond is filed will not be confirmed after the appeal is perfected." If the order of confirmation is a part of the proceedings to enforce a judgment, and a proceeding which suspends the operation of the judgment will defeat the confirmation of a sale made under it, it is difficult to see why payment and satisfaction in full, which actually extinguishes the judgment, should be less operative to defeat a confirmation of the sale made under it. Upon all the facts appearing by the record in this case, it was the duty of the court to refuse confirmation of the sale, and in its action in confirming it after the judgment had been satisfied in full, there was error. Judgment reversed. NON-RESIDENT DIVORCES. GREGORY v. GREGORY.* Supreme Judicial Court of Maine, Dec. 20, 1884. DIVORCE.-Maine R. S., ch. 60, § 10, Bona Fide Changes of Domicil.-The statute of Maine which enacts that "when residents of this State go out of it, for the purpose of obtaining a divorce for causes which occurred while the parties lived here, or which do not authorize a divorce here, and a divorce is obtained, it shall be void in this State," is merely an affirmation of a general principle of law, and is not applicable to persons who abandon their residence in the State of Maine, and bona fide establish their domicil in another State, where they afterwards obtain a divorce. On exceptions. opinion. Barker, Vose and Barker, and A. L. Simpson, for plaintiff; Josiah Crosby, for defendant. The facts are stated in the VIRGIN, J., delivered the opinion of the court: Action of dower against the grantee of the demandant's late husband. To the prima facie case in behalf of the demandant, the defendant interposed an alleged divorce a vinculo decreed to her husband by the Recorder's Court in Chicago. If sustained her right of dower is thereby cut off. Stilphen v. Houdlette, 60 Maine, 447. The presiding justice ruled that the divorce was presumed to be legal under the evidence offered, until the contrary appeared. Thereupon the demandant interposed the provisions of R. S., c. 60, § 10, which provides: "When residents of this State go out of it for the purpose of obtaining a divorce for causes which occurred while the parties lived here, or which do not authorize a divorce here, and a divorce is obtained, it shall be void in this State;" and introduced evidence which her counsel contended tended to bring the case within its provisions. The defendant contended that these provisions were not applicable to a resident of this State who had bona fide abandoned his residence here, with no intention of returning, and had bona fide, established his residence in Illinois for one year (as provided by the statute of that State) prior to his application for divorce, and did not return to this State. The presiding judge,for the purposes of the trial, ruled otherwise, and submitted the case to the jury with the instruction (among others), that if they were satisfied that the demandant's husband *S. c. 76 Maine 535, Adv. Sheets. went out of the State for the purpose of obtaining a divorce from the demandant, for some cause alleged in this State, and that he did obtain, for some cause alleged in this State, a divorce there, then they should return a verdict for the demandant; which they did. Was this interpretation correct? We borrowed this statutory provision, as we have many others, from Massachusetts, and adopted it in our revision of 1841. In 1817, the court in that commonwealth held that if a citizen of that State removed into another State, for the purpose of obtaining a divorce for a cause occurring in the former, the decree would be void there. Hanover v. Turner, 14 Mass. 227. This case was approved by our court in Harding v. Alden, 9 Maine, 140, 151. In revising the statutes of Massachusetts in 1836, the commissioners proposed and the legislature affirmed the principle by a statute in the following language: "When any inhabitant of this State shall go into any other State or country, in order to obtain a divorce for any cause which had occurred here, and while the parties resided here, or for any cause which would not authorize a divorce by the laws of this State, a divorce so obtained shall be of no force or effect in this State." R. S., (Mass.) c. 76, § 39. In construing this statute, Shaw, C. J., said: "The object of this statute obviously was, to prevent a species of abuse which had been practiced, by obtaining divorces in other States where the parties had no domicil, and where no cause of divorce had occurred. Hanover v. Turner, 14 Mass. 227. But it is confined to persons, inhabitants of this State, who go into other States for the purpose of obtaining clandestine and unauthorized divorces." Clark v. Clark, 8 Cush. 385. So where a wife left her husband's house in Massachusetts, went to Rhode Island, and in a few months thereafter, on notice to her husband, obtained a divorce for his alleged cruelty, the same eminent jurist, speaking for the court, said: "Even before the revised statutes, upon general principles of justice and policy, such a divorce would have been void, partly on the ground that it was a proceeding in fraud of our law,and partly because the court of the foreign State could have no jurisdiction of the subject matter and of the parties." Lyon v. Lyon, 2 Gray, 367. The court also discusses the evidence of the purpose in going to Rhode Island. See also Chase v. Chase, 6 Gray, 157, 161; Smith v. Smith, 13 Gray, 210; Shannon v. Shannon, 4 Allen, 134. So, in a recent case, Gray, C. J.. said; "When a person domiciled in this State goes, in evasion and fraud of the laws of his domicil, into another State, in order to obtain a divorce there, for a cause which had occurred here while the parties reside here, or for a cause which would not authorize a divorce by our law, it is within the power of the State, by its courts or its legislature, to declare or enact that a divorce, so obtained be fore acquiring a domicil in the other State, is or shall be of no force or effect in this State. This application of the general principle has been long recognized by this court, and has been repeatedly affirmed by statute," citing cases and the various revisions, and Ditson v. Ditson, 4 R. I., 87, 93; Sewall v. Sewall, 122 Mass. 156, 161. It seems therefore that the statute is but an affirmation of the general principle of law which makes the domicil of one of the partics at least the test of jurisdiction; and the statute is predicated upon the assumption that the party leaving the State for the purpose of getting a divorce has not acquired a domicil in the other State. That such is the opinion of Gray, C. J.,is made evident from the clause "before acquiring a domicil in the other State," in the foregoing quotation, thereby implying that if he does acquire "a domicil in the other State." the statute does not apply to him. So Mr. Cooley says: "But if a party goes to a jurisdiction other than that of his domicil, for the purpose of procuring a divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation; and any decree they may assume to make would be void as to the other party." Cooley, Const. Lim. (5th ed.) 496. Mr. Wharton also says: "So far as this country is concerned, it is generally settled that residence without domicil will not entitle a party to sue for divorce that will bind extra-territorially. There must be a real domicil; that is to say, the domicil must be adopted as a permanency; though the fact that the object was to acquire the benefit of a more favorable type of jurisprudence does not prevent a domicil from vesting." Whar. Conf. Law. (2d ed.) § 223. We think the terms "residents" and "go out of the State for the purpose" show that the statute was intended simply to affirm the principle of the general law, and is predicated upon the idea of the domicil remaining unchanged. A resident of any State has the undoubted right to change his domicil at will when he acts in good faith. And if his purpose be to seek the jurisdiction of his new domicil in order that he may obtain a divorce according to the laws thereof, we know of no principle of law to prevent. "Should it (the statute) be construed to be broader than the unwritten law, there is firm ground of principle for holding it to be in contravention of the Constitution of the United States." 2 Bish. Mar. & Div. §§ 199 c. 214; Ditson v. Ditson, 4 R. I. 87, 107; Harding v. Alden, supra. The question in such cases is one of jurisdiction, and jurisdiction depends upon domicil. Jurisdiction of a foreign court is open whatever may be the recitals relating thereto in the judgment. Thompson v. Whitman, 18 Wall. 457; Knowles v. G. L. & C. Co., 19 Wall. 58; Sewall v. Sewall, 122 Mass. 161. Myers & Ivie, for complainants, cited the following authorities: National Bank of Montpelier v. Hubbard, 49 Vt. 1; Bank of Bethel v. Parquoig Bank, 14 Wall. 383; Ordway v. Central National Bank, 47 Md. 217; Farmers' and Mechanics National Bank v. Dearing, 1 Otto, 22; Crocker v. National Bank of Chetopa, Thompson's National Bank Cases, 317; Tiffany v. National Bank of Missouri, 18 Wall. 409; Brandon v. Sands, 2 Ves. Jr. -; Overholt v. Monongahela National Bank, 96 Pa. 327; Overholt v. National Bank of Mt. Pleasant, 82 Pa. 490; Karmany v. National Bank of Lebanon, 96 Pa. 66; National Bank v. Trimble, 40 Ohio St. 629; Oates v. National Bank, 10 Otto, 244. TURNEY, J., delivered the opinion of the court: Complainant claims to be the creditor of Barrett, Landis & Co. to the amount of about ten thousand dollars; that his debtors are insolvent and have made an assignment. He charges that the Shelbyville Bank was established under the Banking Act of the United States of 1864. That Barrett, Landis & Co., between the years 1876 and 1878 did a large amount of business with the defendant bank. That the bank received from them several thousand dollars of usurious interest, the rate being one per cent. per month, in violation of the 30th sec. of the act of Congress. He seeks to be substituted to all the rights, claims and forfeitures that Barrett, Landis & Co. have under the provisions of the act of Congress to recover of the bank by reason of the taking, etc., of said usurious interest. That, in any event, he is entitled to recover of the bank the amount of usury collected contrary to the laws of Tennessee. An amended bill was filed, charging a judgment on the debt. The prayer conforms to the allegations of the bill. There were motions to dismiss and demurrers which were overruled. The same defenses are relied on in the answer, *Will be reported in 13 Lea. and are, that no recovery can be had under the statutes of Tennessee; that by section 30 of the act of Congress, the right to recover is confined to the party paying the usury and his legal representative, and that a creditor is not such representative. The first question is settled in favor of the defendants in Farmers' National Bank v. Dearing, 1 Otto, 34, followed by this court in Hambright v. National Bank, 3 La. 40. Section 30 of the act of Congress of 1864, which is section 5,198 of the Revised Statutes, is as follows: "The taking, receiving, reserving or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which note, bill or other evidence of debt carries with it, or which has been agreed to be paid. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representative, may receive back in an action, in the nature of an action of debt, twice the amount of the interest thus paid from the corporation taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred; that suits, actions and proceedings under this title may be had in any Circuit, District or Territorial Court of the United States held within the district in which such association may be established, or in any State, County or Municipal Court in the county or city in which such association is located, having jurisdiction in similar cases." The question to answer is, Can a creditor of the borrower recover? Is he a legal representative in contemplatiou of the act? The construction to be given to the statute must depend upon its class. Of the one before us Justice Swayne says: “The 30th section is remedial as well as penal, and is to be liberally construed to effect the object which Congress had in view in enacting it." 1 Otto, 35. In Oates v. National Bank, 10 Otto, 244, construing an act of Congress, the court says: "The duty of the court, being satisfied of the intention of the legislature clearly expressed in a constitutional enactment, is to give effect to that intention, and not to defeat it by adhering too rigidly to the mere letter of the statute or to technical rules of construction. And we should discard any construction that would lead to absurd consequences. We ought rather, adopting the language of Lord Hale, to be curious and subtle to invent reasons and means to carry out the clear intent of the lawmaking power when thus expressed." The statute makes the amount that may be recovered from the usurer a debt. The plain purpose and intent is to reimburse the borrower to the extent of the unlawful payment. The enactment is merely the declaration of a common law right, with a prescription of the form of action in which the recovery may be. If the statute had stopped short at fixing the rate of interest which might be taken, and declaring the excess unlawful, then the payor would be the creditor of the |