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able, not void. When the previous deed to the illegal at common law. But in Johnson v. Day, 17 defendant was revoked, the parties thereto were left Pick. 106, the court declares that an arrest on civil to their legal rights and remedies. The defendant process on Sunday was legal at common law, and could not insist in this suit that the complainant that is the opinion of the judge who decided the must restore to him the money paid out, as a condi- case of Pearce v. Atwood, 13 Mass. 324, where the tion of the relief asked. Although the complain subject is thoroughly discussed. See, also, Lampe ant had notice of the previous transfer by the record v. Manning, 38 Wis. 673; Rob v. Moffat, 3 Johns. of the deed and the power of attorney, he also knew 257; Vanderpoel v. Wright, 1 Cow. 209. that Grignon was not bound by it, and could avoid it. See, as sustaining a similar doctrine, the case The case of Hooker v. De Palos, 28 Ohio St. 251, of Green v. Green, recently decided by the Court of was an action to recover $500 paid by De Palos to Appeals of this State (15 Alb. L. J. 494), where an Hooker upon a contract, whereby Hooker agreed to infant sold land for a valuable consideration, spent sell De Palos a tract of land lying in the neighborthe proceeds, and, on becoming of age, sought to hood of Cincinnati, to be paid for partly in cash rescind the contract. The court held that it was and partly in tickets of a gift enterprise, in which not necessary for him to restore the consideration the lands sold were to constitute prizes. It was if he was unable to do it, but he might, without claimed, upon the part of De Palos, that the condoing so, repudiate the contract, and take back the tract was abandoned by both parties, and that it lands. In this case the court held that a mere ac- was agreed that the money received by Hooker quiescence by the grantor for three years, after com- should be paid back. This rescission and agreement ing of age, without any affirmative act, did not con- was denied by Hooker, but the jury found in favor stitute ratification. See, also, Mustard v. Wohlfard's of De Palos. The Supreme Court Commission, in Heirs, 15 Gratt. 329; Price v. Furman, 27 Vt. 268; reversing the judgment below, held that the conBartlett v. Drake, 100 Mass. 176; 1 Am. Rep. 101; tract of sale was in violation of the statute against Walsh v. Young, 110 Mass. 399; Gibson v. Soper, 6 lotteries, and against public policy, and, therefore, Gray, 282.

entirely illegal, and that the parties being in pari

delicto in the matter, the law would aid neither of In the case In re Worthington, just decided by the them in enforcing further performance of the conUnited States Circuit Court for the Western District tract, or in undoing what had been unlawfully of Wisconsin, the question arose whether the filing done. The decision is in harmony with the comof a transcript of judgment by the clerk of a court mon-law maxim ex turpi causa non oritur actio, and upon Christmas day, that day being a holiday under is supported by many cases (though there are statuthe laws of Wisconsin, was invalid, and rendered tory exceptions, such as those allowing the recovery such judgment void as a lien upon lands which of money lost by gaming). See Nellis v. Clark, 20 would be affected by such filing upon another day. Wend. 24, where it was said: “Where a contract is The court held, reversing the decision of the Dis- entered into for fraudulent or illegal purposes, the trict Court, that the act of the clerk was ministerial, law refuses to enable either party to disturb such and not void, even though done on a non-juridical parts of it as have been executed or carried into day, saying that while at the common law no ju- effect, and as to such parts as remain executory it dicial act could be done on Sunday, the authorities will not compel the contractor to perform his enseem to agree that mere ministerial acts could be gagement, or pay damages for non-performance; performed, and even the service of process was re- thus, in both cases, leaving the parties where it garded as a ministerial act, and therefore valid, finds them.” This language was cited with approalthough performed on Sunday, and the act of 29 bation in Goudy v. Gebhard, 1 Ohio St. 266. And Charles II became necessary in order to render it in Perkins v. Savage, 15 Wend. 412, it was held that invalid. In the case of Van Vechten v. Paddock, 12 "where a contract is entered into between two parJohns. 177, which was relied upon by the court be- ties, the object of which is to violate the provisions low in this case, the Supreme Court of this State,

or the spirit and policy of a public statute, and one

pays money to the other in furtherance of such conin order to decide that the issuing of process on

tract, and the contract is in part executed by the Sunday was void, insisted that the awarding of pro- accomplishment in part of the original design, leavcess was a judicial act, done while the court was in ing, however, a portion of the money unexpended, actual session, being thus obliged to resort to an ac

an action will not lie to recover back the unexpended

balance.” See, also, Miller v. Larson, 19 Wis. 466; knowledged fiction to sustain its opinion. The

Skinner v. Henderson, 10 Mo. 207; Adams' Express court, in the principal case, says: “If ministerial Co v. Reno, 48 id. 268; Foote v. Emerson, 10 Vt. 338. acts performed on Sunday were not invalid at com- It has been held, however, that the mere knowledge mon law, for a stronger reason those performed on of a party of the intent of the other party to put Christmas day would not be invalid.” In Van property acquired to an illegal use, would not pre

vent recovery for work done on such property. Vechten v. Paddock, supra, the court seems inclined Michael v. Bacon, 49 Mo. 474; 8 Am. Rep. 138 ; to hold that the service of process on Sunday was Tracy v. Talmage, 14 N. Y. 162.


with all the circumstances of its attendant history, ALTERATIONS OF WRITTEN INSTRUMENTS

its nature, and the appearance of the alteration, WHEN PRESUMED TO HAVE BEEN MADE,

the possible motives for making it, and its effect AND THEIR EFFECT.

upon the parties respectively, ought to be submitted ALTERATIONS of written instruments may be

to the jury, and the court cannot presume that the considered under two heads: I. Apparent; II.

alterations were made ter execution from the face Non-apparent. Apparent alterations may be either of the instrument, whether under seal or otherwise. material or immaterial; and may be made by par- 2 E. D. Smith, 1. ties, or by strangers, by consent or without consent. As to notes — A different rule prevails in England, Non-apparent alterations are susceptible of the same in respect to notes. Where a note exhibits the apdivision. These will be examined separately as to pearance of alteration, the party claiming under it when they were presumed to have been made, and is bound to explain every apparent erasure or intheir effect. This classification may not be perfect; terlineation. 5 Bing. 183. but it is sufficient for the present purpose. Owing to In New York, there is no distinction between limited space, and to the conflict of authorities, this sealed and unsealed instruments. 8 Barb. 314. topic will be treated in reference to deeds and (6.) Their effect. notes; and the authorities cited will be confined to A material alteration, as a general rule, renders English and New York decisions.

an instrument void for two reasons: First, to pre

vent fraud; and second, to insure the identity of I. APPARENT ALTERATIONS.

the instrument. Greenleaf's Evid., $ 566. This doc1. Material:

trine was first applied to deeds, 11 Rep. 271. It A material alteration was formerly defined as was afterward extended to negotiable paper, 4 T. R. “ "any interlineation, addition, raising, drawing a 320; to bought and sold notes, 15 East, 29; wills, pen through a line, or through the midst of a mate

16 Q. B. 747; guaranty, 11 M. & W. 800; charterrial part.” 11 Rep. 27. The most philosophical party, 1 N. & N. 593; and insurance policies, 1 B. definition is given by Greenleaf: “It is,” he says, & B. 426. The principle was established as to all "any act done upon the instrument by which its

these instruments on the ground that a duty arose meaning or language is changed.” Evid., $ 566.

in regard to them analogous to that arising out of The question of materiality is one of law, for the deeds. court; whether there is an alteration or not, for the As to deeds — The English courts at one time dejury. 2 Pars. Cont. 720.


any deed apparently altered in a materiał (A.) Alterations by parties may be considered : way, whether by a party or a stranger, to be void. First. Without consent; Second. By consent.

11 Rep. 27. This strictness arose from the necesFirst. Without consent.

sity of pleading a deed with profert. 4 T. R. 320. (a.) When presumed to have been made.

When that rule was relaxed, the doctrine was modiOn this subject the cases are not in harmony. The fied. It was abolished by the Common Law Promooted point is: Were the alterations made before cedure Act. The rule of Pigot's case is still in or after execution and delivery? As a general prop- force when the altered deed is relied on as the osition it may be said that the law presumes foundation of a right sought to be enforced; but it nothing, but leaves the question of time, when it does not apply when the instrument is produced as was done, as well as that of the person by whom, the proof of some right or title created by or reand the intent with which the alteration was made sulting from its having been executed. 11 M. & W. as matters of fact for the jury. 2 Pars. Cont. 721, 778-800. A distinction has been taken between aland cases cited; Greenleaf's Evid., $ 564.

terations made before, and those made after, the As to deeds — In England any alteration was delivery of a deed. The former do not affect the formerly deemed suspicious, if it was not proved to instrument. Shep. Touch. 69. The latter may be have been made before delivery, Shep. Touch. 55; considered as to the executory and executed operabut, in the absence of opposing testimony, it was tion of the deed. If the executory covenants are presumed to have been made before the execution in words which the law would supply they are of the deed, because the law will not presume valid; otherwise not. 10 Coke, 88. Whereas, exefraud or perjury in any person. Coke on Litt. 225 cuted covenants, where an estate is vested or right (b), n. 1. In a recent case it was held to be a ques- transferred, cannot be avoided. 2 Hy. Blk. 263. tion for the jury, whether in the absence of evi- If the estate lie in grant any alteration by the party dence the alterations were made before the execu- avoids it as to him. 7 Nels. Abr. 625. So, if the tion. 16 Q. B. 745.

deed be altered fraudulently.

11 M. & W. 778. In New York the party offering an instrument in The New York decisions are to the effect that any evidence is bound to explain any apparent altera- alteration, after execution, by one claiming a benefit, tions, and the jury are to decide whether the expla- or by his privity, destroys the instrument as to him, nation is satisfactory. 2 Wend. 650. The instrument and he can never sue upon it (8 Cow. 71), nor can

his innocent assignee. 2 Barb. Ch. 133. The in- altered before delivery, but the holder of a negotiastrument's past operation is not counteracted; exe- ble instrument is bound to explain any apparent cuted contracts are not rescinded; estates and titles alteration. In New York, in both cases, the jury which have vested are not divested; but no future are to judge when the alterations were made. This benefit can be derived by the party from the deed, would seem to be the better opinion. Smith's L. C. and no covenants, obligations or other executory 1283. As to the effect of alterations, it would apcontracts can be enforced by him through its instru- pear that the party by whose act or privity the altermentality. 22 Wend. 388.

ations were made will not be relieved against his As to notes — In England, ever since the cele- own fraud or folly; that in deeds vested interests brated case of Master v. Miller, it has been the rule shall not be divested, and that in notes the alterathat any material alteration in negotiable paper, tion of the instrument by the party satisfies the debt. with or without the privity of the parties, avoids it. Second. Alterations by consent will now be exIn this case the date of a bill of exchange had been amined. altered so as to accelerate the payment, and it was Such consent may be express or implied; express, held void in the hands of an innocent holder. Here by that which is directly given orally, or in writing; the holder's title became vested after the alteration. | implied, that manifested by actions, etc., which If it had been complete before the alteration oc- raises a presumption that consent has been given. curred, he could have recovered from the maker. Alterations by consent are generally confined to Such an alteration operates as a satisfaction of the blanks in written instruments. bill and the debt was given to secure. 3 B. & A. (a.) When presumed to have been made: 660. Alterations in the date, sum or time for pay- There is no presumption as to time, as blanks are ment, or the insertion of words authorizing transfer, always filled after delivery. The only question that or expressing the value to be received on some par- arises is, as to whether this consent can be implied. ticular account, adding the name of a maker or As to deeds — The English rule is, that such condrawer, an unwarranted place of payment after sent must be expressly given by a sealed instrument issue, or addition of a seal, are material alterations. 6 M. & W. 210. But, in some cases, the consent See Smith's L. C. 1275, 7th Am. ed. An alteration by may be implied; as, for example, where a blank accident or mistake does not affect the liability of was filled up by writing in one's Christian name. 11 the parties whose signatures are canceled. 15 East, M. & W. 465. So, also, filling in a date. 17 C. B. 17. If the alteration is material it avoids the note, 179. and it makes no difference that it would operate to In New York no consent can be implied, and the benefit of the maker, as in the case of an un- such material alterations can only be made with the authorized addition of the name of a person to a express assent of the parties to be charged. 19 joint and several note. 5 E. & B.; overruling, 8 Johns. 391; 24 N. Y. 330. A. & E. 736.

As to notes — All the authorities agree that such The doctrine of Master v. Miller, 4 T. R. 320, has consent may be presumed in the case of negotiable been followed in New York, but every apparent paper. Doug. 516; 7 Cow. 336. alteration will not vitiate the instrument. 2 Johns. (6.) Their effect: Ch. 198. If a note is proved to be materially al- As a general proposition it may be said that alteratered in its amount or otherwise, it is thereby tions, by filling up blanks in notes, are valid; but avoided in toto as a security, so that no action can the English and New York courts differ as to the be maintained upon it, even for the original consid- sufficiency of parol authority in the case of deeds. eration. 55 N. Y. 412. Material alterations in The former hold that no instrument can afterward notes would be: Adding a place of payment, 19 become a deed by being completed and delivered Johns. 391; inserting words of negotiability, 19 by a stranger in the absence of the party who exeJohns. 391; payee writing his name under maker's, cuted it, or by one unauthorized under seal. In New and the addition of sureties, 46 Barb. 379; addi- York the position taken by the courts is, that parol tion of another drawer or maker, 23 Barb. 554; al-authority is sufficient to fill up a deed, but, to sign terations of contemporaneous memoranda, 49 N. Y. it, a power under seal is necessary. 396; of date, 6 Sup. Ct. 437; inserting with inter

(To be concluded.) est, 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 AN EXORDIUM OF THE DISTINGUISHED destruction of a negotiable instrument bars recovery. FRENCH ADVOCATE, M. CREMIEUX. 12 Wend. 173.

MF The inference to be drawn from the authorities as


most eminent lawyers of France, were the reto when the alteration was made is, that in England spective counsel in an important case before the court the presumption in the case of deeds and notes

at Limoges. M. Marié had occupied an entire sitting, differ. The former are presumed to have been his effort being able, and producing a marked effect on



the numerous auditory filling the court chamber. The

WHEN ADMINISTRATOR NOT GUILTY OF A following day M. Cremieux came into the court room

DEVASTAVIT. after the judges had assembled. The crowd was immense. The archbishop and the clergy, the command- N the case of Tate et al., appellants, v. Norton, reing general of the division, the superior and other off- cently decided, the Supreme Court of the United cers of the army, and all the influential citizens and States pass upon an interesting question in relation strangers in the city had invaded and taken possession

to administrators. The facts of the case were these: of the auditorium, and the space between the judges Joseph W. Clay, of the State and county of Arkansas, and the part set apart for the lawyers, was reserved died intestate in May, 1853. He left a widow, Sarah for the ladies, who attended in great numbers, and G. Clay, since deceased, and three minor childrenwho were curious and anxious to hear the great advo-Joseph W. Clay, also since deceased; Mary S. Clay, cate. The presiding justice, Tixier la Chapelle, in the since married to Thomas G. Tate; and Caroline Clay, midst of a profound silence, said: “M. Cremieux, you since married to Raynor W. Whitfield. The four parcan now commence your summing up." M. Cremieux ties last named are the appellants. did not rise from his seat. What occurred? Let us Thomas Fletcher, the brother of the widow, was give it as related by himself.

appointed by the probate court of the proper county

administrator of the estate, and qualified as such in “I had heard the chief-justice, and I was about to July, 1853. Immediately after qualifying he took poscommence, when I found, to my consternation, that I session of all the property which belonged to the inhad not a single thought for my exordium, and that testate at the time of his death. It consisted of lands, after the word 'Sirs,' I had nothing more to say. I stock, farming utensils, slaves, and a small amount of was horrified. I leaned my head over the table; the money. The value of the lands at that time does not attorney asked me what I was looking for; I was look- appear. The appraisers estimated the other property ing for my exordium. You understand, I did not an- at $129,445.54. The slaves were an important item. swer him; but suddenly my senses returned to me; They were inventoried at $113,400, leaving the balance the commencement of my speech was found.” “M. of other assets $16,045.54. The indebtedness of the Cremieux," said the chief-justice, “I informed you estate represented by the claims presented and allowed that you had the floor." I bowed, rose and said: “If by the administrator amounted to $103,436.62. ACit please the court, an incident in the life of Henry cording to the law of Arkansas the widow was entiIV reverts to my mind, and I will relate it to you." tled to the possession and use for life of one-third of This introduction excited astonishment and curios- the lands, and of one-third of the slavos, irrespective ity. I was saved. I continued thus:

of the claims of creditors. She was also invested with “The good king was at Rouen. He learned that the the absolute ownership of one-third of the personal next day an important cause was to be argued in the property. grand chamber of the parliament. He had never at- The condition of the estate, as regards the means of tended a sitting of the court, and he desired to be meeting its liabilities, is thus clearly presented. It present. This fact excited a great commotion in the requires no argument to show that forced sales by the city. When the king took his seat, and the parlia- administrator to pay the debts would have involved ment had been called to order, the counsel for the ap- disaster, if not ruin, to the family of the deceased. pellant commenced his address. The counsel was a Such is the teaching of all experience. The intestate famous lawyer, eloquent, replete with knowledge, of had been largely engaged in raising cotton. The adrare intelligence, a distinguished orator, the Marié of ministrator put himself as it were in the place of the the period.” (At this unexpected compliment ad- deceased. Every thing was carried on and conducted dressed to his brother lawyer, who had been so ad- as before his death. Payments were made to the mired the day before, the advocate was interrupted by widow from time to time, the children were supported loud applause.) He continued thus: “He pleaded and educated, the taxes were paid, crops were raised, valiantly; he developed his case during an entire sit- the cotton was sold, and the debts were discharged as ting, and charmed his audience so well that the king fast as the circumstances permitted. said: 'Well,' gentlemen, 'he bas won his cause.' In 1855 the legislature passed a law whereby the pro“Sire,' said the chief-justice, “your majesty has not bate courts were empowered to authorize administraheard the counsel for the other side.' "To-morrow, tors to do as the administrator in this case did, prothen,' replied the king, 'I shall be curious to hear what vided that the time limited for the settlement of he has to say.' The next day, the king present, and estates, which was three years, should not be exthe assembly marvellously attentive, the counsel for tended. The administrator here claims that he rethe respondent commenced his reply. Did he plead ceived such authority pursuant to this act. This fact well? Did he plead badly? I cannot myself say does not appear. But it does appear that he made (laughter); but he had a just cause; right and equity five full settlements with the probate court - the first sustained it. Animated by the ability displayed by one in 1855, and the last in 1870. The accounts are in his adversary, he, perhaps, surpassed himself, so well, the record. They exhibit all his receipts and disburseindeed, that at the close the king exclaimed: “Ventre ments, and fully the manner in which he was dissaint gris, gentlemen, you must be well learned, wise charging the duties of the trust. It does not appear and honest, to judge and pronounce judgment.' that exception was taken by or in behalf of those Thus,' said M. Cremieux, 'this exordium came to my concerned, nor that the probate court interposed any mind, when I did not know how to commence my sum- check or objection. The administrator made no charge ming up. It was well received, and, perbaps, was not for compensation, and was allowed none. By the year without some influence in assisting me to win my oase. 1858 he had paid nearly all the debts. Before the late Believe me, it is a good thing to make the judges feel civil war began he had paid them all but the debt upon well-disposed toward you.'"

which this suit is founded.

The commencement of the war was the beginning of trust is necessary in the concerns between man and the troubles of the trust. The State was a battle- man, and which, if faithfully discharged, is attended field. Troops on both sides were there. The slaves with no small degree of trouble and anxiety. It is an were sent to Texas for safety. The mules and other act of great kindness in any one to accept of it. To live stock were swept away by the advancing and re- add hazard or risk to that trouble and to subject a ceding tides of the conflict. The lan hardly paid trustee to losses which he could not foresee would be a the expenses of cultivating them. Finally the slaves manifest hardship and would be deterring every one es property were stricken out of existence. This in- from accepting so necessary an office." The same volved a loss to the estate, according to the original rule was applied by this court in Markey v. Langley, 92 inventory, of more than an hundred thousand and U. S. Rep. S. C. 155. thirteen dollars of the assets. The administrator be- A clearer case for the application of this principle came wholly unable to pay this debt. The answer avers can hardly occur than is presented by the one before that but for the war he could by the year 1863 have ex- us. Throughout the record there is not the slightest tinguished this demand also, and have then handed imputation or apparent ground for any imputation over to the heirs a large and unincumbered estate for against the administrator. Even a want of care, dilidistribution among them. The record shows that gence, or good judgment is not alleged. His managethis was not an over-sanguine calculation. The ca- ment was eminently successful until the war occurred. lamity was unforeseen, and one for which the admin- That could neither be foreseen nor averted. It fell istrator was not responsible. The claim sought to be with crushing weight upon him. His plan for the collected by this proceeding was an account due from redemption of the estate was at once broken up. The the intestate to Sweeney, Greene & Co. They became means of prosecuting it further were finally lost. In insolvent and assigned it to Hewitt, Norton & Co. the wreck nothing was left but the lands, and they They also became insolvent and assigned it to the cred- without the means of turning them to any account. itors for whose benefit this suit was instituted. The To hold him responsible for these consequences would object of the bill is to subject the lands of the intes- be alike contrary to the dictates of reason and justate to the payment of the debt. It is alleged that all tice and to the settled law of equity. Remonstrauce the other assets have been exhausted The appel- or objection from any quarter until after the institulants in their cross-bill claimed, among other things, tion of this suit is nowhere disclosed. In the light that the conduct of the administrator in the manage- of this record nothing that he did can be lawfully ment of the estate was unwarranted and illegal, and challenged. that he was guilty of a devastavit. The court below granted a decree for the payment of the amount due,

RAILROAD-AID BONDS.- DEFECTS IN FORand in case of default that the lands be subjected to MALITIES REQUIRED BY STATUTE.the payment. In affirming this decree the Supreme

EFFECT OF NOTICE TO TRUSTEE Court says: The power of courts of equity in this

FOR BONDHOLDER. class of cases is ample. Their flexible jurisdiction is In the case of County Commissioners of Johnson, always applied as the substantial interests of right and

in justice may require. Hooke v. Payne, 7 Wall. 429; Supreme Court of the United State at the term lately Yates v. Hambly, 3 Atk. 363; S. P., 2 id. 263; Thomp- held, some interesting questions in relation to railson y. Broren, 4 Johns. Ch. 631.

road-aid bonds were passed upon. By the statute of The conduct of the administrator in the present Kansas under which the bonds upon which this action case, though without the sanction of strict law, did was brought were issued it is provided: “That the not involve a violation of duty for which a court of board of county commissioners of any county, to, into, equity will hold him responsible, nor the commission through, from, or near which, whether in tbis or any of a devastavit.

other State, any railroad is or may be located, may subIn Thompson v. Brown, supra, the intestate had been scribe to the capital stocks of any such railroad corpoa member of a trading firm. The administrator per- ration, in the name and for the benefit of such county, mitted his capital to remain in the concern. He also not exceeding in amount the sum of three hundred put in other capital belonging to the estate. The sur

thousand dollars in any one corporation, and may issue vivors failed and became insolvent. It was sought to

the bonds of such county, in such amounts as they may make the administrator liable for both the capital deem best, in payment for said stocks." In this case which he left in and that which he put in. In an able the electors voted to take stock in a corporation to aid and learned examination of the subject by Kent,

in the construction of a road “commencing at or near Chancellor, he was held bound for the latter but not the Union depot, on the south side of and near the for the former. In his opinion the chancellor re- mouth of the Kansas river, and near Kansas City, marked: "It is said that a court of equity will some- thence to Olathe, Johnson county; thence in a southtimes appoint a person to carry on a trade for an in- erly direction through said county to the south boundfant partner. Montague on Partnership, 187, and ary of the State of Kansas.” One ground of objecSayer v. Bennet, there cited. And Lord Mansfield, in tion was that the description of the road to which aid the case of Barker v. Parker, 1 Term, 295, observed, was voted was not sufficiently specific, and the questhat he remembered many instances of trade being tion involved was this: Was it necessary that the parcarried on under the direction of a court of equity.” ticular road to which a subscription was intended to See, also, Wedderburne v. Wedderburne, 22 Beav. 84, be made should be described in the proposition suband Ryves v. Coleman, 3 Atk. 439. In Thompson v. mitted to the popular vote, or was the general lanBrown, the chancellor quoted with approbation the guage used in this case a compliance with the law? language of Lork Hardwick, in Knight v. The Earl of The court says: We think this was a sufficiently spePlymouth, 3 Atk. 480; Dickens, 120, as follows: "Ifcific statement to be submitted to the voters for their there was no mala fides, nothing willful in the conduct approval or disapproval. of the trustee, the court will always favor him. For a We cannot, however, think that this is a vital point,

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