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A CTION of partition. Motion for an order requiring thorized by law and in violation of their duty. To A the chamberlain of the city of New York to pay establish this it is strenuously argued that in the abover moneys deposited with him. The opinion sutfi sence of an explicit order of the court to invest the ciently states tho facts.

fund in boud and mortgage they had no right to do so, Edward F. Brown, for appellant.

and should have deposited the money in the authorized

trust companies. In case of partition it is provided C. H. Woodruff, for respondent.

(2 R. S. 327, SS 64, 68, 70) that where any of the known FINCH, J. In this action, which was brought for the parties are infants the court may, in its discretion, partition of real estate, a sale was had pursuant to the direct the share of such infants to be paid over to the judgmeut rendered, and the share of the proceeds general guardian or be invested in permanent securibelonging to Mary C. Thompson and others, amount ties, at interest, in the name and for the benefit of such ing in tho aggregate to $13,475.23, was brought into infant; that when the security is directed to be taken court by reason of their infancy and paid over to otherwise than in the name of a known owner, it sball George W. Lane, as chamberlain of the city of New be taken in the name of the clerk, and his successors York, in trust for the infants. No order of the court in office; and that the investments when made shall directing its investment appears to havo been made in be in the public stocks of the State or the United the action. The money was paid to the chamberlain States, or in bond and mortgage upon unincumbered on December 15, 1873, and was immediately deposited real estate of at least double the amount of the loan in by him to the credit of his account in the Fulton Bank. value. Such investment being once made the security It apparently remained there on deposit until the 19th is not to be discharged, transferred or impaired witbof March, 1874, when it was invested in a manner evi out the order of the court, entered in its minutes. dently common in the chamberlain's office, but which These provisions evidently contemplate a case where is criticised by the parties interested in the fund. The the court, by an order in the action, directs an investchamberlain held a mortgage made by one Edward ment. They perhaps assume that such direction will Jones in 1867, which covered certain vacant lots in the be given but do not purport to furnish a rule to control city of New York, and having been originally given the action of the officer in the absence of a special for $15,000 had been reduced to $10,000 and a portion of direction by the court. This difficulty was met and the lots released. On the 19th of March, 1874, the remedied by rule 180 of the Court of Chancery, that chamberlain was ordered to pay over certain moneys, where no direction for the investment of funds paid in the suit of Robins against Robins, to the persons into court is contained in the decree, and the money is entitled, and desiring to keep this Jones mortgage and not applied for within six months thereafter, it shall certain others in which the moneys had been invested, be the duty of the register, assistant register or clerk, he used the moneys deposited in this case to make the with whom the same is deposited, and without any payments required, crediting the suit now before us special order for that purpose, to cause it to be invested with an equivalent interest in the Jones mortgage, and | in public stocks or other permanent securities, and a practically transferring to himself, in trust for the in similar duty was imposed as to accumulation of infants in this case, an interest in such mortgage to the come. Thus both cases were provided for. Where amount of $4,101.25. The balance of the fund was | special direction in the suit itself was given, that order thereupon deposited in the trust company, where it furnished the guide. Where such direction was remained until the following May, when it was invested omitted, the chancery rules required the officer to inin a similar manner and by the same process in certain vest according to its terms. That rule has survived other mortgages held by the chamberlain. At the time the changes of recent legislation and is still operative, of this investment in the Jones mortgage, taxes upon When the Court of Chancery was abolished and its the mortgaged property to the amount of something jurisdiction aud duties imposed upon the Supreme orer $700 were in arrears, but the fact was unknown to Court, the Judiciary Act of 1847, which directed the the chamberlain, and when afterward discovered, the change (Laws of 1817, ch. 280, $ 71) and vested the amount necessary to pay them was called for and they securities brought into the Court of Chancery in wero paid in full. There is no reason to doubt the the clerk of the Court of Appeals, was careful to presufficiency of the Jones mortgage as a security for the serve the rules of the older tribunal respecting the desum unpaid upon it at the time of this transaction. posit and investment of such funds, subject only to The interest was promptly paid, the obligor in the the rules and regulations that might thereafter be prebond was responsible, and in February, 1875, this mort scribed by the Supreme Court. The act of 1848 (ch. gage, with others, was delivered over by Mr. Lane, at 277) worked no other change than to substitute the the close of his term of office, to J. Nelson Tappan, the | county treasurers, and in the city of New York, the present city chamberlain. While it remained in his chamberlain, in the place of the clerk of the Court of hands a severe depreciation in value of real estate Appeals, as custodians of this class of trust funds. ensued, and in 1876 an assessment of more than $8,000 It is claimed, however, that the rules of the Supreme was imposed upon the property, with the usual ruinous Court have abrogated rule 180, and prescribed for the effect to the parties interested. The mortgagor aban county treasurers a different duty (Rule 83 of 1849; doned the payment of interest, and the present cham Rule 79 of 1852; Rule 81 of 1858; Rule 82 of 1871; Rule berlain, acting on his own impression of duty, fore 82 of 1874). Through all the changes of the rule referclosed the mortgages, bid the property in for $8,000, red to it steadily did but one thing. It prescribed the and now holds it at the risk and for the benefit of those place of deposit of moneys that were to be deposited, whose funds went into the investment. The taxes and it did no more than that. It did not forbid investremain unpaid, and the result is substantially a total ments in stocks and bonds and mortgages, either loss of a fund which the court took from the infants directly or by implication. Its entire operation is for the purpose of its safety and preservation.

plainly limited to uninvested funds while they remain Mary C. Timpson), becoming of age, called for her uninvested. We conclude, therefore, that rule 180 is money, and being unable to obtain it, moved at Special | yet in force, and furnishes the standard by which to Term for an order requiring the late and the present test the action of the chamberlain, modified only by chamberlain to pay it over to her. That motion was the rule of the Supreme Court as to the place of denied; the denial affirmed at the General Term and deposit. an appeal taken to this court.

The chamberlain deposited the moneys resulting The right to compel Lane or Tappan to pay this from the sale in this action in the Fulton Bank, and money is founded upon allegations that their treat kept them there for a brief period. This deposit was a ment of the fund committed to their care was unau- ' violation of rule 82. But no injury resulted. The violation was harmless. The fund was in no manner the infants is great. Their property has been taken lost or diminished by that act. Soon after, a portion from them by the law in order to protect it from harm, of the fund was invested in the Jones mortgage, and ) and the protection has ended in a total loss. There is the balance deposited with the trust company, where much of shame and disgrace in a system which leaves it remained till the after investments were made. such a result possible, but the remedy is not with us.

The manner in which they were made by massing in We cannot redress one wrong by committing another. one mortgage the moneys of different beneficiaries is! The conclusion we have reached on the merits rencomplained of by the appellant. The sole objections | ders it unnecessary to consider whether the motion pointed out seem to be that by this process there was a made in this case or an action against the late chamtransfer of securities in violation of the statutory rule berlain was the proper remedy. in partition, and an investment in a mortgage subject. The order should be affirmed. to prior incumbrances, which is equally forbidden. There was no transfer of the mortgage. It remained all the time vested in the chamberlain. He did not

STATE LAWS REGULATING REMOVAL OF transfer it at all; he only changed one of the beneficia

DEAD BODIES VALID- CHINESE ries for whom it was held. Nor, in making this

RELIGIOUS CUSTOMS. change, did he subject the moneys invested to any prior lien or incumbrance, because the interests of the

UNITED STATES CIRCUIT COURT, DISTRICT OF CALother beneficiaries were vested in them earlier. What

IFORNIA, MAY 24, 1880. ever the date of their interest, all stood on an equality, no one having any preference over the other, the mort

IN RE WONG YUNG QUY. gage peng neid for all. We cannot see any legal ob- | A statute of California provides that a permit from local jection to the practice adopted in the chamberlain's authorities shall be required for the disinterment and office of aggregating in one mortgage the funds of removal of a dead body, for which permit $10 fee shall several beneficiaries. The court which has supervision be paid. The statute does not apply to removals from of these funds has been cognizant of the custom and

one cemetery to another in the same county. In a prohas never forbidden it.

ceeding against a Chinese subject who disinterred and It aids to a prompt investment of funds and has much of convenience to recom

removed the body of another Chinese subject for the

purpose of transportation to China, without procuring a mend it. No rule of law forbids it, and we are not

permit, held, that the statute is not in contravention of prepared to say it should be discontinued.

the provision of the Federal Constitution that "ConIt was further objected that when these funds were gress shall have power to regulate commerce with forinvested in the Jones mortgage there were taxes in eign nations" (art. 1, 82, subd. 3), or of the one that no arrears constituting an incumbrance upon the mort. Stato shall, without the consent of Congress, lay any gaged property. That was true; but as soon as their duty upon exports (art. 1, 82, subd. 2), or of that which existence was ascertained, the amount necessary for

prohibits any State from denying to "any person within their payment was called for and they were discharged

its jurisdiction the equal protection of the laws" (14th

Amendment). Held, also, that it is not in violation of in full. We discover, therefore, nothing in the con

the provision of the treaty between the United States duct of Mr. Lane to justify the order which was sought and China that “Chinese subjects in the United States against him. He invested these funds, and had a right shall enjoy entire liberty of conscience, and shall be to do so. The securities chosen at the time were ample, exempt from all disability or persecution on account of and to all reasonable judgment, prudent and safe their religious faith or worship," even though the religinvestments. The fund, thus intact and represented

ious sentiments of the Chinese may require that they

shall remove the bodies of their deceased friends to by good securities, was at the close of his term of office

China for burial. handed over to his successors. That ended the responsibility of Lane, and we see no reason to continue or LABEAS CORPUS to inquire into the legality of prolong it. His successor, Mr. Tappan, continued to proceedings in a court of the State of California, receive the interest upon these investments until the resulting in the imprisonment of the petitioner. The two misfortunes happened from which has come all opinion states the facts. the mischief. Real estate largely depreciated in value, George E. Bates and J. M. Rothchild, for petitioner. and the property covered by the Jones mortgage, while falling in price, was fatally weighted by the added load

Crittenden Thornton, for respondent. of a city assessment amounting to some $8,000. The SAWYER, C. J. On April 1, 1878, the Legislature of mortgagor became discouraged and defaulted in his California passed an act entitled “An act to protect interest. The chamberlain thereupon foreclosed the public health from infection, caused by exhumation mortgage, bid in the property, and holds what the and removal of the remains of deceased persons," secdepreciation in value and the rapacity of municipal tions 1, 2, 3, 4, and 6 of which are as follows: assessments has left of the investment for the benefit "Sec. 1. It shall be unlawful to disinter or exhume of the infants. It is objected that he ought not to from a grave, vault, or other burial place, the body or have foreclosed this mortgage without the order of the remains of any deceased person, unless the person or court, and that in doing so he discharged the mortgage persons so doing shall first obtain from the board of in violation of the statute. We do not deem this fore health, health officer, mayor, or other head of the closure a discharge within the prohibition of the stat municipal government of the city, town, or city and ute. Practically the security remains the same and county where the same are deposited, a permit for said still vested in the chamberlain, and changed only in purpose. Nor shall such bodies or remaius disinterred, form, and while it would have been wiser to have asked | exhumed, or taken from any grave, vault, or other direction of the court, we cannot say that the fore-l place of burial or deposit, be removed or transported closure was improper or illegal. The right to hold the in or through the streets or highways of any city, town, mortgage involved both the right and duty of collect or city and county, unless tho person or persons reing all sums due upou it, and that in turn the right and moving or transporting such body or remains shall duty of using the ordinary modes of collection. In first obtain from the board of health or health officer deed, if he had not foreclosed, but allowed the debts (if such board or officer there be), and from the mayor to accumulate without an effort to collect, it is not or other head of the municipal government of the city impossible that a just complaint might have drawn or town, or city and county, a permit in writing so to with it the consequences of negligence.

remove or transport such body or remains in and We conclude, therefore, that no remedy for the loss through such streets and highways." exists against either Lane or Tappan. The wrong to I “Sec. 2. Permits to disinter or exhume the bodies or

remains of deceased persons, as in the last section, may out a permit, and was arrested in the act, tried and be granted, provided the person applying therefor shall convicted for the offense created by said statute in the produce a certificate from the coroner, the physician court having jurisdiction, and sentenced to pay a fine who attended such deceased person, or other physician of fifty dollars, or in default of such payment, to imin good standing cognizant of the facts, which certifi prisonment in the city and county jail for a period of cate shall state the cause of death or disease of which twenty-five days. Failing to pay the fine, and being the person died, and also the age and sex of such de imprisoned in pursuance of the judgment, he obtained ceased; and provided further, that the body or remains a writ of habeas corpus, and he now asks to be disof deceased shall be inclosed in a metallic case or cof- charged on the ground that the provision of said act, fin, sealed in such manner as to prevent, as far as prac-| requiring the payment of said fee for a permit, violates ticable, any noxious or offensive odor or eflluvia escap | the treaty with China, known as the Burlingame ing therefrom, and that such case or collin contains | Treaty, and the Constitution of the United States, and the body or remains of but one person, except where is therefore void. All the other provisions of the act infant children of the same parent or parents, or having been complied with, the only question is as to parent and children are contained in such case or the power of the Legislature to require the petitioner coffin. And the permit shall contain the above con to take out a permit at a cost of ten dollars as a conditions and the words, "Permit to remove and trans dition of disinterment and removal of the remains of port the body of , age , sex - ;' and his relative from their place of burial. the name, age and sex shall be written therein. The 1 The first point made is that the act, in the requireofficer, municipal government of the city or town, or ment in question, violates subdivision 3, section 8, art. city and county, granting such permit, shall require to I, of the National Constitution, which provides that be paid for each permit the sum of $10, to be kept as a “Congress shall have power to regulate commerce separate, fund by the treasurer, and which shall be with foreign nations." We are unable to perceive any used in defraying expenses of and in respect to such violation of this provision of the Constitution, under permits, and for the inspection of the metallic cases, the broadest construction claimed by petitioner for coffins, and inclosing boxes herein required; and au ac the term "commerce," even if it includes the transcount of such moneys shall be embraced in the ac portation of the remains of aliens to their own country counts and statements of the treasurer having the cus for final sepulture. There is no reference to alieus or tody thereof."

to any extra-territorial act of any kind anywhere in “ Sec. 3. Any person or persons who shall disinter, the statute, except in the last clause of section 3, which exhume, or remove, or cause to be disinterred, ex is a wholly independent and different provision from humed, or removed from a grave, vault, or other re that under consideration, creating an additional ofceptacle or burial place, the body or remains of a de fense, and might be wholly omitted without affecting ceased person, without a permit therefor,shall be guilty the remainder of the act. It is not necessary now to of a misdemeanor, and be punished by a fine not less consider the question of the validity of that provision. than fifty nor more than $500, or by imprisonment in The act deals with matters wholly within the State -the county jail for not less than thirty days hor more within its territory - with the remains of parties who than six months, or by both such fine and imprison have lived and died within its jurisdiction, and which ment. Nor shall it be lawful to receive such body, have been buried and which still remain buried in its bones, or remains on any vehicle, car, barge, boat, soil; and professedly and apparently for sanitary purship, steamship, steamboat, or vessel, for transporta poses. The statute knows nothing of the objects or tion in or from this State, unless the permit to trans motives of the exhumation, except as provided in secport the same is first received and is retained in tion 6 that the act shall not apply to removals from evidence by the owner, driver, agent, superintendent, one place of interment to another in the same county. or master of the vehicle, car, or vessel.”

This exception is doubtless made for those common “Sec. 4. Any person or persons who shall move or | cases wherein no vault or burial place has been protransport, or cause to be moved or transported, on or | vided for the deceased during life, and the remains are through the streets or highways of any city or town temporarily deposited in a publio receiving vault, or or city and county of this State, the body or remains the vault or grounds of some friend, till the surviving of a deceased person which shall have been disinterred | friends can provide for a place of final sepulture. These or exhumed, without a permit as described in section removals are ordinarily from one place of burial to 3 of this act, shall be guilty of a misdemeanor, and be another in the same or an adjacent cemetery, where punishable as provided in section 3 of this act."

there are several cemeteries lying near each other, as “Sec. 6. Nothing in this act shall be taken to apply in San Francisco, and therefore not so fully within the to the removal of the remains of deceased persons reason upon which the act is founded. The statute from one place of interment to another cemetery or deals with the local inter-territorial fact of burial and place of interment within the same county; provided, exhumation, without regard, in other respects than that no permit shall be issued for the disinterment or that stated, to motive or intention, race or nation, removal of any body, unless such body has been buried citizenship or alienage, future domestic or foreign sepfor two years." Stat. 1877-8, 1050.

ulture. The matter of the burial and exhumation of The petitioner, Wong Yung Quy, is, and Wong Wai the dead, with a view to sanitary objects, has in all Toon was, in his life-time, a subject of the Emperor of times and among all civilized nations been regarded as China, of the Mongolian race, residing in the United a proper subject of local regulation. It is founded States. Wong Wai Toon died in January, 1876, and upon the law of self-protection. The fact that in many was buried in Laurel Hill Cemetery, a public cemetery or even most instances the object of disinterment is to of the city and county of San Francisco. In October, send the remains abroad, cannot affect the question. 1879, petitioner, a relative of the deceased, having | The local sanitary considerations must be the same, complied with all the provisions of said act, except the whatever the purpose of exhumation and transportapayment of ten dollars required by said act to be paid tion through the streets of a city. The fact that the for an exhumation and removal permit, demauded Chinese exhume and transport to their own country from the proper authorities permission to remove the the remains of all or nearly all of their dead (amountremains of said Wong Wai Toon from said cemeters, ing to more than ninety per cent of all such removals), and ship them to China. Refusal having been made while other aliens and citizens comparatively but rarely on the ground of the non-payment of said fee of ten perform these acts, only shows that this generality of dollars require to be paid by said act, the petitioner practice requires more rigid regulations and more proceeded to disinter and remove said remains with: 'careful scrutiny, in order to guard against infectious and other sanitary inconveniences than would other- | Statute, which we held to be constitutional. It being wise be required. In Secor's case, Pratt, J., says: “A within the constitutional power to regulate the disinproper respect for the memory of the dead, a regard terment and removal of the dead, and to provide offor the tender sensibilities of the living, and the due ficers to scrutinize and supervise the operation in order preservation of the public health, require that the to secure a conformity to the laws, we see no reason corpses should not be disinterred or transported from why a fee cannot be charged to and collected from place to place, except under extreme circumstances of those who desire to excrcise the privilege to defray the exigency." 18 Alb. L. J. 488; 31 Legal Int. 268. The expenses of the inspection and supervision. The fee exposure of unburied human remains, or neglect to is charged under the law, not for the transportation or inter the same by the person on whom the duty is cast, for the privilege of carrying the remaius out of the is a misdemeanor at common law. See Rex v. Stewart, country, but to pay the expenses of supervising their 12 Ad. & E. 773; Chapple v. Cooper, 13 Mees. & Wels. | disinterment and due preparation for passing through 252; Ambrose v. Kerrison, 10 Com. B. 776; Jenkins v. the territory of the State, and through the streets of Tucker, 1 H. Black. 394; Willes, 536. And this is populous cities either to other parts of the State or doubtless so in part, at least, upon sanitary considera- | elsewhere, without endangering the health of the peotions generally recognized among enlightened nations. | ple. We see nothing in the language of the act, in the For similar reasons the provision in qu

ion does surrounding circumstances, or in the nature of the not violate subdivision 2 of section 10, Article 1, of the subject-matter upon which the statute operates, to Constitution, which provides that "no State shall, justify us in holding that the object of the Legislature without the consent of Congress, levy any imposts or was to impose burdens on the commerce or intercourse duties on imports or exports, except what is absolutely between this country and China, rather than to pro necessary for its inspection laws." The case also seems vide wholesome sanitary regulations for the protection to be within the terms of this exception. Besides, the of our people. The statute is general, and operates remains of deceased persons are not " exports" within wholly upon matters within the territorial jurisdiction the meaning of the term as used in the Constitution. of the State, and without discrimination as to remains The term refers ouly to those things which are propto be removed to any considerable distance, whether erty. There is no property in any just sense in the within or without the State, and is within the principle dead body of a human being. 18 Alb. L. J. 487; 17 id. of the case In re Rudolph, recently decided in the 258; Pierce v. Pro. of Swan Point Cemetery, 14 Am. United States Circuit Court for Nevada, upon drum- Rep. 667; 10 R. I. 227, and cases cited. There is no mer's licenses. 10 Cent. L. J. 224; 2 Fed. Rep. 05. impost or duty on exports in any proper sense, or in The exhumation and removal of the dead is not a matter the sense of the Constitution. This provision of the of public indifference, harmless in itself, like the style Constitution was intended to prevent discrimination of wearing the hair, as in the queue case; but it affects in matters of trade. the public health, and its regulation is like the regula There is no violation of the Fourteenth Amendment tion of slaughter-houses and other noxious pursuits, to the National Constitution. There is iro discriminastrictly within the police powers of the State. See E.c | tion against or in favor of any class of residents. It parte Shrader, 33 Cal. 286; Slaughter-House cases, 16 operates upon aliens of all nationalities and upon all Wall. 36.

citizens alike. It applies to all cases of remains to be In Gibbons v. Ogden, 9 Wheat. 203, Mr. Chief Justice removed beyond the boundaries of the county, whether Marshall says: “But the inspection laws are said to be to foreign countries, to other States, or to other parts regulations of commerce, and are certainly recognized of this State. And there are no restrictions upon disin the Constitution as being passed in the exercise of a | interments and removals of Chinese dead to other power remaining with the States. * * * The ob | places within the same county for burial not applicable ject of inspection laws is to improve the quality of to citizeus and all other aliens. It may be that the articles produced by the labor of a country; to fit large number of Chinese removals suggested the necesthem for exportation; or it may be for domestic use. sity for stringent supervision; but we see no reason to They act upon the subject before it becomes an article | suppose that the act was not intended to operate upon of foreign commerce, or of commerce among the States, all within its terms; and the testimony shows.-if it is and prepare it for that purpose. They form a portion | admissible to look at the testimony -- that it is, in of that immense mass of legislation which embraces | fact, enforced against all alike. But whether enforced everything within the territory of a State not surren or not, the subject-matter, as we have seen, is a proper dered to a general government, all of which can be one for regulation; and if the act is not enforced upon most advantageously exercised by the States them- all alike, there is a gross neglect of duty on the part of selves. Inspection laws, quarantine laws, health laws of those appointed for this purpose under the law. If the every description, as well as laws for regulating the provisions of the act affect a larger number of Chinese internal commerce of a State, and those which respect than of any other class, it is not on account of any turnpike roads, ferries, etc., are component parts of discriminations made by the law, but only because unthis mass.” If then, as claimed, the transportation of der their customs there is a much larger number of the remains of deceased persons to China is a part of disinterments and removals by them than by any foreign commerce, these supervising and inspection others. In re Rudolph, supra, and cases cited. laws "act upon the subject before it becomes an arti There is nothing in the provision in question in concle of foreign commerce," and while the remains are flict with Article IV of the Burlingame Treaty, which being “prepared for that purpose.” They simply pro provides that “Chinese subjects of the United States vide that the preparation of the remains for foreign shall enjoy entire liberty of conscience, and shall be transportation, while still within the State and under free from all disabilities or persecutions on account of its jurisdiction, shall be made in such a manner as not their religious faith or worship.” Conceding that the to be detrimental to the public health.

religious sentiment of the Chinese requires that they The principles relating to sanitary laws, recognized in shall remove the remains of their deceased friends to City of New York v. Miln, 11 Pet. 102; Thorpe v. R. & China for final burial, there is nothing in the provision B. R. Co., 27 Vt. 140; Passenger cases, 7 How. 283; | forbidding or unduly obstructing the performance of Railroad Co. v. Huson, 95 U. S. 471, and numerous that rite or religious duty, and nothing that does not other cases, are broad enough to cover the provisions equally apply to aliens and other citizens. It is only in question. In these respects this case differs mater- provided that in the performance of that duty proper ially from the Queue case, reported in 5 Sawyer, 553, precautions shall be taken not to endanger the health and is more like the cases arising under the Cubic Air ļ of the people among whom they have elected to live,

J.

and have died and once been buried. The fee estab- | tracks in the streets of the city, is not the grant of a lished is only to liquidate the portion of the expense of franchise, but is simply a license. No estate or propsupervision and inspection imposed upon the public erty right whatever was granted to it, for the city had resulting from their custom; and like the other ex- | no power to grant any, nor to confer upon it any peuses of disinterment and removal, which the surviv- franchise. The streets are held in trust for the people, ing friends voluntarily incur, is necessarily incident to and are not corporate or municipal property. Theretheir peculiar practice. The custom of the Chinese in fore, where the city reserved the right to revoke the this respect renders the supervision necessary and license for non-compliance with its conditions, it may proper; and we can perceive no impropriety in charg- do so by resolution without obtaining a judgment ing them with the expense incident to it. The amount declaring the forfeiture. Buffalo City Railway Co. v. of ten dollars may seem large, but it is charged alike | N. Y. Cent., etc., R. Co. Opinion by James M. Smith, to all, and is not so large as to justify us in holding that it was manifestly intended to obstruct the per MORTGAGE TO A CORPORATION DE FACTO-ESTOPPEL formance of the duty; and we do not understand that

- BUILDING ASSOCIATION — USURY.- Where a memthe amount is regarded as objectionable if the charge

ber of a corporation de facto executed a mortgage to it is otherwise legal. Besides, it may well be questioned and afterward gave mortgages to other parties, it was whether the treaty making power would extend to the held that neither the mortgagor nor the mortgagees protection of practices under the guise of religious could question the validity of the mortgage on the sentiment, deleterious to the public health or morals,

ground that the corporation had no legal existence; or to a subject-matter within the acknowledged police the certificate of incorporation not having been filed power of the State. See Reynolds v. United States, 98 | as required by statute. The right of a corporation de U. S. 145, with respect to religious belief as affected facto to exercise the powers and privileges of that class by the First Amendment to the National Constitution.

of corporations to which it belongs, cannot be inquired But under the view we take, it is unnecessary to con- l into in a private action to which such corporation is a sider the question now.

party. Persons who become members of a corporaWe are satisfied that the provisions of the act in tion de facto by subscribing to or taking shares of its question do not violate any provision of the National stock, and those who make contracts and deal with it Constitution or of the treaty with China, and that in its corporate capacity, so as necessarily to recognize there is no ground for discharging the prisoner by this its corporate existence by such contracts and dealings, court.

and who accept the benefits thereof, are thereby preLet the writ be discharged, and the prisoner re cluded from denying the legal validity of its incorporamanded to the custody of the officer from whom he tion. And estoppels bind not only the parties, but was taken.

their privies. When a party by his contract, his acts Hoffman, District Judge, concurred.

or his statements, has qualified his own rights, and

another succeeds him as heir, grantee, or executor, he SUPERIOR COURT OF BUFFALO.

succeeds only to the right as thus qualified when his

title commenced. 1 Greenleaf on Ev., § 189. ThereSPECIAL TERM ABSTRACT:

fore, as the mortgagor was estopped from showing

that the association was not a corporate body, for the CHATTEL MORTGAGE - RIGHTS OF JOINT MORT purpose of invalidating his mortgage, his grantees or GAGEES.- One part owner of a chattel mortgage, not mortgagees are also estopped. His title being subject holding the same as partners, can make no agreement to the lien of the mortgage, any subsequent grant or with the mortgagor which will affect the rights of the incumbrance by him must necessarily be subject to other; as for example, by permitting mortgagor to the same lien. See Merch. Exch. Bauk v. Com. Wareretain possession after default in payment of an in house, 49 N. Y. 613, note; Mason v. Lord, 40 id. 476; stallment. Gock v. Keneda, 29 Barb. 120; White v. Stewart v. Bramhall, 74 id. 85; Real Est. Trust Co. v. Osborn, 21 Wend, 72; Tyler v. Taylor, 8 Barb. 585. Seagrave, 49 How. 489. (2) A bond and mortgage And such an agreement does not even preclude the given by a member of a building association to secure mortgagee making it from taking possession of the a loan, and conditioned to pay seventy cents contribuchattel by virtue of the clause in the mortgage that tion and forty cents interest each and every week the mortgagee may, at any time he deems hiinself un- during the existence of the association, and also all safe, tako possession. Hanrahan v. Roche. Opinion dues, fines and penalties which may be imposed upon by James M. Smith, J.

the mortgagor as a member of it, pursuant to the ConCONSIDERATION – MARRIAGE.- Where, at the time

stitution, etc., is within the provision of the act of of a loan made by plaintiff to defendant, the latter 1851, ch. 122, § 7, and is exempted from the statute of was under a legal obligation to marry plaintiff's

usury. Citizens' Mut. Loan Assoc. v. Webster, 25 daughter, the performance of that obligation can form

Barb. 263. In Melville v. Amer. Benev. Assoc. 33 no cousideration of a promise by the plaintiff, made

Barb. 108, the mortgage was given previous to the act subsequent to the loan, to forgive him the debt if he

of 1851. Erie County Savings Bank v. Balduin. fulfilled his obligation. Gerlach v. Steinke. Opinion

Opinion by James M. Smith, J. (Affirmed at General by Jamies M. Smith, J.

Term, but no opinion delivered.) CORPORATION DE FACTO — MUNICIPAL CORPORATION PRACTICE – VACATING ORDER OF ARREST — REFER- RAILROADS IN CITIES.-(1) Where twenty-four per ENCE - ENTRY OF ORDER.- (1) Section 719 of the Code, song subscribed articles of incorporation, while the which provides that an application to vacate an order statute required twenty-five, and filed the same pur- of arrest must be finally decided within twenty days suant to the statute, and exercised the powers and after it is submitted for decision, is directory merely, franchises which would have belonged to them if duly and a decision made after that time is valid. See Peoincorporated, they become de facto a corporation, and ple ex rel. v. Dodge, 5 How. Pr. 47; Burger v. Baker, 4 a defendant in an action brought by the corporation Abb. 11; Stewart v. Slater, 6 Duer, 81; O'Brien v. cannot question the validity of its incorporation. | Bowes, 4 Bosw. 663; Heroy v. Kerr, 21 How. 409. And That can be done only in an action by the people, the court or judge may, even after the twenty days, brought for the purpose of testing its right to the cor- refer it to a referee to take proofs of the facts stated porate powers and franchises which it has assumed. in the atlidavits, and the reference, though unexecuted (2) A resolution of the common council of a city giv- at the hearing of the motion to vacate it, will not be ing to a railroad corporation permission to lay its / set aside. See Brinkley v. Brinkley, 56 N, Y. 192.

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