the shareholders from liability to the creditors of the bank, for the reason that it would enable the shareholders to wholly escape liability by transferring their stock to irrpsponsible persons after it became evident that the shares were not only valueless, but that they involved an actual and pending liability for deLts of the bank. After a national bank, therefore, has become insolvent. and has closed its doors for business, its shareholders' liability to creditors must be so far fixed that any transfer of such shares must be held fraudulent and inoperative as against the creditors of the bank. If sharehold. ers, at the time the Lank suspended, can evade liability by a transfer of their shares, those to whom t11ey so transfer can also escape by the same method, even after suit is commenced. It seems, therefore, quite clear to me that those who are shareholders when a bank snspends must bear the burden imposed by the law in favor of creditors. A decree will, therefore, be entered referring the case to one of the masters of this court to hear proof, and report the amount of the deuts of the bank still unpaid, the value of the assets of the Lank still available for the payment of such debts, and the amount of assessment necessary to be made on each share of the capital stock in order to fully meet the indebtedness.
WnOUGIIT-InoN BmDGE Co. v. TOWN OF UTICA and otners.
.tv. D. Illinois.
lIuXICTPAL CORPORATTOXS-OBTAIXING PROPERTY WITHOUT AUTHORITy-RESTITUTION on CmIPENSATION.
T!w obligation to do jnstice rests upon all persons, natural and artifipial, and if a municipality obtains money or property without authorily, tho law. independent of any statute, w.II compel resliLution or compoilsaLion.
In Equity. C. C. J; C. L. Bonney, for complainant. Lawrence, Campbell J: Lawrence, for defendants. BLODGETT, J. This case is one which it appears to me is to be solved solely upon the undisputed facts, and those facts are substantially these:
The towns of Utica and Deer Park, situate in La Salle conntv, in this state. adjoin. and the Illinois river forllls the boundary line between them; Utica lying on the north and Derr Park on the south side of the river. On the fourteenth of FeLruary, 1876. an election was held in the town of Utica, at which a proposition for borrowing money. with whieh to build a across the Illinois river, was carried by a vote of the lrgal voters of the town. On the twentieth of May, 1876. a town meetin"" was held in Deer Park. at which a like pr?position was alloptpd. In of a notice from the highway commiSSIOners of the town of Utica, a joiut meeting of the highway COllimis-
WROUGHT-maN BUIDGE CO. V. TOWN OF UTICA..
sioners of the two towns was held in the vil1nge of Utica on the eig1ltcenlh of March, 1l:l76. 'fhis meeting was attended by all the highway COlli missioners of Utica and one of the commissioners ot Deer Park, making four members of the joint bolly, and having been advised by lawyers in good standing in th@ profession that in such joint meetings a majority of the entire bo,ly was legally competent to transact bnsiness, they procf'elled to pass a resolution to builll a bridge across the Illinois river, at or near the point where the ro:ul running south from the village of Utica Cl'OdSeS said river, the cost of which should not flxceed $35,OOCl, and to advertise for sealed prop03:di'> for the construction of sllch lJridge, and also appo;nteJ a committee to olJtain plam; and specifications for the masonry of such bridge. On the twenty-secoilu of .March a further joint meeting was held, which was attcnded only by the three commissioners of Utica and (me from Deer Pal'k, at which tt.e committee appointell. by the meeting of the 18"h, reported' the plans and specifications for the masonry, which report was acceptell. and the committee discbarged, and the fOl'111 of an ad \'ertisernent for proposals for thf' work was adopted and the sallJe ol\lered pnbli-ll'ell in certain newspapers. 0'1 the third dayof April, 1876, a joint meeting of the board of high way cum missioners of the two towns was held for the purpuse of receiving and opening the bills, or proposals, for the buihfing of the cuntemplated oridge. This meeting was attended lJyall the IJighway commissioners of buth towns. The 1.lids were opened, and, by l:nanimons consent, of all the commissioners, further business was snspendf'd and the proposals taken nn,ler advisement. On the twenty-fifth of May, 1876, a further jn',nt meeting was held, which was attenlled only uy the three 'Lighway cOlnlllissioners of Utica and one from Deer Park, at which mellting a contract for the sulJstrllctllre of the uridge was awarrlect t3 Messrs. Fife &; Hetherington, for which a written agreement was dnly mafle and exeuuted, signed by the three commissioners of Utica anrl one commissioner from Deer Park, and the contract for the iron snperstl:Ucture was awarded to the complainant in this case, and what purported to be a written agreement lJetween complainant of the first part, anll. the conllnissioners uf high ways of the tuwn of Deer Park of the second part. was executed and rleHvered, bearing date on tbe twenty-fifth day of 1876. '.rhis agreement seems to have been dnly executed by complainant, through its proper otlicers, lJutwas unly signed by the three highway commissioners of the town of Utica and one highway COllJmissioner of the town of Deer Park. Anot'ler of the highway commissioners of Deer Park signed the contract at or alJout the time the bridge was completed, giving as a reason for not signing at the time the COllllllis3ioners signed, that be chose to wait, before signing, until the time for the election by which the vote in his town to lJon'ow money to lJuilt1 the bridge had passed. By the contracts with Fife &, Hetherington, the substructure-that is, the abutments and piers of masonry on which the iron bridge was to rest-was to be completed on or lJefore the fifteenth of August, 1876, and they were to be paid 85 per cent. oi their contract price as the work progressed, and the remaining 15 per cent. 'on the completion of their work. The contract with complainants provided for the completion of the h'on superstructure of the lJrirlge by the fifteenth of October, 1876, and the complailllant was to lJe paid the slim of 817,400 for saitl snperstrudure. A contract was also made lJetween complainant and the lii 6 hway commissioners of Utica, contemporaneously wil h the hridge contract, by whieh it was agreed in suhstance that Utica shonld only be liahle to complainant for one-half the cost of the snperstrueture, until Utica shoulll. have collected the other one-Im!f from Deer Park, and iu case Deer Park failed or refnsed to pay its one-half of the cost of the bridge, the hig-hway commissioners of Utica woulll. bring suit against Deet' Park to r"cover the money rlne from D:>er Park fo, the constructioll of the bridge. On the first of Jnue. IP76, and before complainant had done any on the bridge, a notice was served uy the supervisor of Deer Park on the highway COllllUis.
sioners of Utica, Fife & :Hetherington, and the complainant, to tho ef;ect that tlle authorities of Deer Park-that is, the superdsor, clerk, and CUllllllissioners ,uf highways-had decided, under legal advice, that the town uf Deer Park had no authority, under said vole, to issue its uuuds for the purpuse of lmilding said bridge, and that the cummissio\1ers of high ways uf the town could not lawfully enter into a contraet fur the uuilding of ;;uch bridge, and that no liability of the town on such contract would be recognized, all( they were also forbidden the use of the highways of Deer Park for the purpose of con. ,structinO' such bridge, The bndge was completed according to contract by about the twenty-third day of December, 18/G, there having been some delay in the work on the substructnre which delayed complainant in the completion of the superstructure, and on the day last mentitEwd a joint meeting of all the high way commissioners of the two towns was held, at which the bridge was accepted and an agreement in writing made between the highway commissioners of the two towns for the ,maintenance of the bridge in good oruer, at the equal cost of the two towns. 'rhe town of Utica issued its bonds to the amount of 819,000, the proceeds of which were applied to the payment of Fife &, Hetherington on their contract, as the money became due; and the town of ,Utica also paid to complainant S2,G09.45, to apply on complainant's contract for the superstructure; that is, when the materials for the superstructure arrived at Utica, the freight on the llame, amounting to S2,GO\JA5, was paid oy that town and charged or deoited to the com plainant. At the Septemher meeting, 1877, of the hoard of sn pervisors of · La county, the sum of 87,000 was appropriated to aid Utica and Deer I'ark in the construction of this bridge, and as it then appeared that Utica hall paid all that hall been paid towarLis the work, it was orderecl that S3,50U of said appropriation be paid to Utica, and the same was so paid, and at the · ;,Iarch meeting of said ooard, I8S2, the balance of said appropriation was onlered paid to the town of Utica. After the completion of the bridge, the · town of Deer Park refusing to lilake any payment Whatever to complainant, and the town of Utica refusing to nUlk" any further p:tyment than the S2,G09.45 paid for freight on materials, complainant hrougllt an action of assumpsit against the two towns in the circuit court; of La Salle county, which resulted in a jUdgment by default against Utica and against Deer Park, on trial of the issues by the court. Damages were assessG,1 against each tOWIl serarately at 810,09G.82, and one-half the eosts. From this jUtlgment an aplwal was taken by the town of Deer Park to the appellate court of the second district of this state, where the judgment was reversed, (3 Brad\\'. 572,) the appellate court holding, in substance, that there was no leg-al l'alJility on the part of either town to pay complainant for this oridge; the conclusion being briefly that there was no such joint action by the ooanl of highway ('omn1issioners of the two towns as made the contract with complainant oind· jng on either town. Thereupon, said cause having Oeea remandetl to the circait court, Was hgain tried and the issues found for the defendants and jUdgment given against complainant, which judgment was afterward affirmed hy said 'lppellate court, and on appeal to the court of this state the last jUdgment of said circuit and appellate courts was affirmed. 101 Ill. 518. Complainant now brings this bill, upon the ground that, in making the contracl for the construction of saitl bridge, complainant acted under a mistake as to matters of law and fact; and, inasmuch as complainant has no remedv at law, prays that it be allowed by the decree and judgment of this court t';, take down and remove said bridge.
can be no doubt, from the testimony in the case, that complamant built this bridge in good faith, in the expectation that it wUl:ld be paid for by one or both of these towns. At the time the
WROUGHT-IRON BRIDGE CO. V. TOWN OE' UTICA.
contract for the construction of the bridge was made with complainant both these towns had, by a vote of their electors, authorized by the laws of the state, (Rev. St. c. 121, § 111,) decided to borrow money with which to build the bridge. From the nature of the work, the substructure was first to be built, and, as a matter of course, it was the first work to be paid for. There seems to have been no opposing party in the town of Utica in regard to the policy of the entel'prise, and as this money became due to the contractors for the piers and abutments, it was paid to them by the commissioners of highways of Utica, so that by the time complainant's contract was completed Utica had exhausted its funds in the payment for the substructure, and complainant was to look to Deer Park for payment for the iron superstructure, although by the contract with complainant the town of Utica had agreed to pay one-half the cost of the superstructure. I do not care to spend time upon a metaphysical discussion of the question whether complanant acted under a mistake of fact or a mistake of law in making this contract, or in the building of this bridge in pursuance of the contract. It is not a supposable case that complainant would have built the bridge if it had not expected to be paid for it. The action of the authorities of both towns, up to the time the formal contract was made, justified such dxpectation, and while the complainant may have been wrongly advised in the matter as to how many members of the board of highway commissioners constituted a quorum in a joint meeting of those boards, there can be no doubt that the complainant would not have built the bridge but for the expectation that the bridge would be paid for, w'-jch expectation was, as it seems to me, fully justified by the fact that both towns had voted to raise the money for the purpose. To have assumed that the towns were legally bound by the contract of less than a majorityof the highway commissioners of both towns, acting in joint session, may have been a mistake of law; to have assumed that they would honestly carry out the expressed will of the voters, and borrow the money and pay for the bridge, without captious objection, was an assumption of fact, and the mistake in acting upon this assumption was clearly a mistake of fact. When the bridge was completed, the highway commissioners of both towns met, had the bridge examined by their engineer, and he reported that plaintiff had in all respects complied with its contract; and if the plaintiff had not been acting, as a matter of fact, under the belief that the bridge would be paid for under the contract, which this joint meeting highway commissioners had been so careful to ascertain had been fully performed by the plaintiff, it may be assumed, from all knowledge of human actions, that the plaintiff \\ould never have given to these t\\O towns the possession of the bridge. It was no part of the business of this plaintiff to build bridges gratnitously for the people of these to\\ns, or allY other community. The plaintiff was and is a business
corporation, taking contracts like this with the expectation that it is to be paid for the labor and material it expends in constructing works like this. This case seems to me in all essential principles analogous to the case of Chapman v. County Com'rs, decided by the supreme court oi the United States during its last term. 15 Chi. Leg. News, 193; [So C. 2 Sup. Ct. Rep. 62. J In that case, the county of Douglas, in t!le state of Nebraska, had bought a farm to be used for the support thereon of the (lounty poor, and a deed conveying the farm to the county had been executed and deliyerecl. One thousand dollars of the purchase money was paid, and the county gave it::! obligations, secured by a mortgage on the farm, to secure tile bltlance of the purchase money, and the county took possession and made the improvements. When these obligations given for the purchase money became due, payment was refused by the county on the ground that the notes and mortgage given to secure the same were void for want of power to make them. The seller filed a bill to ohtain restitution of his property. In the opinion the court say, by Mr. Justice MATTHEWS:
"The contract for the sale itself had been executed on the part of the vendor hy the delivery of the <lerd, and his title to it had conseqnently passed to the connty. As the agreement between the parties had failed by re;lson of the Ipgal dis:lhilityof the connty to perform its part acconlin6 to its condition, the rigllt of the vendor to re3cind the contract and to restitntioll of his title would seem to be as clear as it would be just, unless some valid reason to the contrary lIlay be shown. As was said by the court in JInl'I!h v. Fnlton Co. 10 Wall. 676-634, aud repeated in Lonisiana v. Woo,i, 102 U. S. 294-299. the oblig;\tlou to do justice rests u pou all persons, natural and artificial, and if the county the money or property of others without authority, the la w, independent of any statute, will compel restitution or compensation. *"
rhe learned judge, after an examination of the authorities, finds tuet, there is no valid reason why restitution should not be made, and concludes by saying: "Tile conveyance to the county the legal title, but upon a condition
in t.he which it was impossible, in law. for the county to perform. Thpre resulLed, therefore, to the grantor the right to rescind the agreement upun which tlte dee,l was mmle, aud thus convert the county iuto a trustet', by cOEstruction of law, of the title for his benefit. There is nothing, tht'refore, to pre\-ent the relief prayed for heing granted, if it can he done without injustice to the <lefellll:tnt. On this point, it is said, it would be ine'luitable to decree a rescission of the coutract and restoration of possessio.rt of the property, because the parties cannot be placed in statn qnu. * * ... If t he relief asked was an unconllitional recoll\-eyance of the title and surrender of possession, this woul,l undouhtedly be true; but such is not the case. Any such injurious and inequitable results as are deprecated may easily be averted by the simple payment of amount due on account of the purchase mouRy."
Tested by this reasoning of the supreme court, it seemR to me plaintiff's right to the relief asked in this case is clear and undeniable. The delivery of this bridge to the towns of Utica and Deer Park passed to them the apparent legal title, but they have never be-
WROUGHT-IRON URIDGE CO. V. TOWN OF' UTICA.
come the equitahle owners. The bridge has not been p'tid for, and they have, then.:fore, no equitable right to keep it without paying for it. As to the ohjections interpos8d by the respective defendants to the relief asked by plaintiff,t is only necessar,Y' to say: The town of Utica insists that it has expended a large snm of money in paying for the piers and abutments on which this bridge rests; has paid also over $2,500 to plaintiff to apply on the superstructure,-all which will be lost if plaintiff is allowed to remove the iron superstructnre; that the town of Utica has actually; in gooJ faith, expended more thin its proportion of the cost of the construction of the bridge as a whole. '1'he reply to this is that this defendant agreed to pay plaintiff onehalf the r.ost of the iron superstructure, and haH repucli'Lted its contmct in that regard, and that this plaintiIT should not ue made a loser by reason of the default of Deer Park to keep faith with Utica and pay its half of the cost of the bridge. While it wa.s agreed that Utica shonld only pay for 'half t.he cost of the superstructure. it was also agreed that it shoJld collect the other half from Doer Park and. pay it to complain'mt, and this it has neglected to do. In behalf of Deer Park, it is urged that the plaintiff placed the bridge there voluntarily, and in fuce of the notice from the ollicers of the town that the town wuuld not for it; chat the bridge is built upon a public highway of the town; aud that the situation 01 bridge is analogous to that of a house knowingly built by one man upon the land of anl)ther. To which it may be answered that the plaintiff had as good right to act ou the faith that the town would pay for the bridge, because the peoplo had voted to do so, as it had to act upon the notice of officers of the town that it would not pay for it. There was no attempt on the part of the town to prevent the construction of the bridge, IJut its proper officers were prompt to accept the bridge, and the people of the io ...-n to use it as soon as it was finisIJed, according to the contract; and, if this town has so far nsed this bridge without intending to pay for it, it cannot complain if the court allows the plaintiff to take it away. The on the part of the county of La Salle is that it has contributed $7,000 towards paying for the bridge, of which it will be deprived if the bridge IS removed. This arciumcnt would have some force if the county had paid the money to the plaintiff; but the payment of that sum to the town of Uttea, which has been applied by that town in the reduction of its own contribution to the bridge, cannot, it seems to me, in any way affect the rights of this plaintiff. If the county authorities saw tit improvidently to appropriate this $7,000 where it would not be applied towards paying for the construction of the bridge, it is the miHfortune of the county, and not the fault of the plaintiff. Utica has paid $2.609.45 to apply on plaintiff's compensation for v.17 110.4-21
the bridge, but this is so small a proportion of the entire cost of the bridge that it ought not to affect plaintiff's right to the relief prayed for, inasmuch as the court can adjust the equities of the parties in that regard. There will, therefore, be a decree entered that, unless the defendants, the towns of Utica and Deer Park, within 90 days from this date, pay to the plaintiff the amount due upon the contract for the construction of this bridge, deducting the $2,609.45 which has been paid, together with interest upon the balance unpaid at the rate of 6 per cent. from the time of the completion of the bridge, the plaintiff will be allowed to take down the bridge and remove it, under the direction of a proper officer of this court; but that, if the defendants, or some of them, shall not elect to make this payment and thereby save the bridge, plamtiff will be allowed to take down and remove the iron superstructure of the bridge; but before plaintiff so removes the bridge, it will be required to repay the town of Utica the sum of $2,609.45 so paid to plaintiff by said town on account of the bridge.
UNITED STATES V. BANKS,
(District Oourt, 8. D. New York.
DEED OF GIFT FRm! TES'fATOR TO DEVISEE-
A devisee, prior to the testator's neath, has no present ebtate or recognizahle legal interest in the property dcvised; and a deed from the testator to the devisee, which is a charge agalllst his future expected interest only, cannot be deemed given or received upon any valuahle or adequate consideration. 2. SAME-ADVAXCDIEXT-SUCCESSJOX TA.'(-Acl' OF JUXE 1864, § 132. A deed of gift to a son, though made as an advancement, aud, as such, chargeable against the son's ultimate share of the father's estate under a will existin.g at the time of the deed, is a" succession," under section 132 of the act of .June 30, 1864, as a conveyance without" valuahle and adequate consideration," and is chargcable with a tax of 1 per cent. on the valne of the property conveyed.
At La1\. Eli/w. Root, U. S. Atty., and TV. TV. Adams, Asst. U. S. Atty., for plaintiff. E. Ellery Anderson, for defendant. BROWN, J. This action is brought under the act of June 30, 1864, to recover the sum of $120, as a succession tax of 1 per cent. upon a lot of land of the agreed value of $12,000, conveyed by David Banks, senior, to his son, the defendant, in February, 1860. In 1865 the grantor had executed his will, in which he made certain legacies to equalize his prior gifts among his four sons. The will further declared that "all advances which mav hereafter be made to either of my sons shall be charged against su"ch son as an advance, and shall