power to perform by conveying to another. While the conveyance may not have been made until an hour or two after the filing of the petition, yet the demand of $600 by the agent as a condition of So conveyance was tantamount to a repudiation of the contract, and that was before any suit. Brainard's subsequent contract in receiving the $500 from Darst, and executing a personal deed, was a ratification of the acts of his agent, and related back to the time of such acts. Darst was no bonafide purchaser. If he was anything more than a tool of Comstock, which seems doubtful, Comstock was his agent to buy, and the knowledge of the agent was his knowledge. Finally, counsel urge that there is no equity in enforcing the contract, and says: "Observe Pollock's method in his attempt to procure 160 acres, of $10 per acre, Nebraska land, for $3, or dollars for cents." I think few cases arise in which specific performance is more equitable and just. The price was named by the vendor. Mr. Pollock told him he had a tax title, and claimed that it was good, but the vendor knew beforehand of this tax title. Whether it was good or not is undisclosed. It may, for aught that appears, have been a perfect title. At any rate, there was no concealment-no misrepresentations-by the purchaser; and the vendor freely fixed his price. More than that, he finally took just t4at price from another. Comstock, who, on the 5th, talks as though Brainard ought to have $600, hastens the next day to sell the land for $500. I cannot resist the conviction that Comstock was seeking to speculate off his principal, and wanted to pocket $100 himself, and that, finding himself baffled in his scheme, sought revenge by conveyance to Darst. I am satis· fied to know that the burden of this litigation is to rest upon him. A decree will be entered in favor of complainant, quieting his title as against Brainard, and, upon the payment of $500 into the registry of this court, perpetually enjoining the ejectment suit brought by Comstock, and compelling conveyance from Comstock to complainant in specific performance of the original contract.
WITTERS, Receiver, etc., v. FOSTER, Adm'r, etc.
(OVrcuit Oourt, D. Vermont. March 18,1886.)
1. ACTION-SURVIVAL OF-REV. ST. § 955.
The laws of the United States prescribe methods only forreviving suits that do survive, but do not prescribe what suits shall survive.
SAME-REVIVOR OF ACTION AGAINST DIRECTOR OF NATIONAL BANK FOR NEGLIGENT PERFORMANCE OF DUTY-VERMONT STATUTES.
Under the laws of Vermont an action against a director of a national bank for negligent performance of duty in not requiring a bond from the cashier, and otherwise the affairs of the bank, abates by his death, l\)ld cannot be revived against hIS administrator.
Ohester W. Witters, for orator. Albert P. Oross, for defendant.
WHEELER, J. This is a bill of revivor. The original bill charged the intestate, in connection with others as directors of the bank, with neglect of duty in not requiring a bond of the cashier, and in no' holding meetings and appointing committees and receiving reports as required by the by-laws; in allowing persons to become indebted to an amount exceeding one-tenth of the capital; and in reckoning assets as good as a basis of dividends, when they were in fact worth. less, contrary to the provisions of the statutes. Sections 5200, 5202, 5204. Objection is made to reviving the suit upon the grounds that the court has not jurisdiction since the act of June 3, 1882, and that the cause of action does not survive. The cause of action rests upon the requirements of the laws of the United States, and by-laws made pursuant to such laws, and therefore is one arising under those laws, ju· risdiction over which is not taken away by that act. The important question is whether the cause of action survives. This question is to be determined by the law of the state of Vermont, where the bank was situated and the intestate died. Henshaw v. Miller, 17 How. 212. The laws of the United States .prescribe meth· ods only for reviving suits that do survive, but do not prescribe what suits shall survive. Rev. St. § 955. The statutes of Vermont applicable to this case provide that actions of trespass and trespass on the case; for damages done to real or personal estate, shall sur· vive. Rev. Laws, § 2133. This statute is not any more broad than the English statute of 4 Edw. III. c. 7. Barrett v. Copeland, 20 Vt. 244; Dana v.Lull, 21 Vt. 383; Bellows v.Allen, 22 Vt. 108; TVinhall v. Sawyer, 45 Vt. 466; REDFIELD, J., Manwell v. Briggs, 17 Vt. 176. The ground of the orator's claim against the intestate was his per. Bonal and official guilt, not the misappropriation or misapplication of any property of the bank in his possession, nor the interference by him with any property of the bank in possession or in action, but the omission of duties which, if performed, might benefit the assets of the bank. In Hambly v. Trott, Cowp. 372, Lord MANSFIELD said: "All private criminal injuries or wrongs, as well as public crimes, are buried with -the offender." There are many cases under such statutes where it is held that actions resting upon such personal wrong-doing, al. though followed by pecuniary damage, do not survive. Baily v. Baily, 1 T. Raym. 71, which was for neglect to return a cow taken for agist. ment; Stebbins v. Palmer, 1 Pick. 71, which was for breach of prom· ise of marriage; Holmes v. Moore, 5 Pick. 257, which was for divert· ing water from a mill; Read v. Hatch, 19 Pick. 47, which was for fraudulently recommending a trader to credit; Barrett v. Copeland,
IN RE HUNT.
20 Vt. 244, which was for making a false return as constable; Hen,haw v. Miller, 17 How. 212, which was for a false representation as to credit; and Winhall v. Sawyer, 45 Vt. 466, which was for unlawfully transporting a pauper into a town to charge the town with her support. There are no cases which have .been cited or noticed that are really to the contrary. 'In Dana v. Lull, 21 Vt. 383, which was for neglect of a deputy-sheriff in not keeping property attached on a writ to respond to the execution, the deputy had the specific property in his hands which he was in duty bound to keep; and in Bellow8 v. Allen, 22 Vt. 108, which was for not paying over money by a deputysheriff collected on an execution, the deputy actually had the money in his hands and detained it. There was an acquisition by the deputy at the expense of the other party in each case. The cause of action does not appear to survive by the laws of Vermont, as now understood. Bill of revivor dismissed.
In re HUNT, etc., Bankrupt.
(District (Jourt, D. New Jer8eg. March 1, 188fJ.)
CONTRACTS-WAGERING CONTRACTs-RULE IN NEW JERSEY.
All contracts for speculation in stocks upon margins, where the broker and the customer do not contemplate or intend that the stock purchased or sold shall become or be treated as the stock of the customer, but the real transaction is the mere dealing in differences between prices,-that is, in the payment of future profits or losses, as the event may be,-are contracts of wager, ill New Jersey, because they depend upon a chance or casualty, and are void. Where a bankrupt has failed by reason of wagering contracts in stock speculations in another state, he will not be entitled to his discharge in New Jer· sey, where he resides.
BANKRUPTCy-DISCHARGE-GAMBLING IN STOCK IN ANOTHER STATE.
SAME-FAILURE TO KEEP PROPER BOOD OF ACCOUNT.
Where a merchant drew large sums of moneY' from his business, from time to time, to use in stock speculation, and put slIps of paper, with the amountr so withdrawn. in the money drawer. 8S mem<Yranda for his book·keeper, so that when he failed his cash-book showed a balance of thousands of dollars which did not exist. his discharge as a bankrupt will be refused, on the ground that he did not keep proper books of account.
On Specifications against Discharge.