'elU!eg,ndoubtedly is within: all the provisions of thtfabove-cited section -af·the ;constitutiori, which, after prescribing ooIllpensation, declares: shall be paid or secured before suoh taking, in. resulting from the injury or destruction of private property are put upon the sante footing as damage& sustafued iby a direct aP'Propriation. This is as it should be. N!>'W1 'in Western Pennwylvanw. R. 00. v. Johmton, 59· Pa. St. 290, it w8she1dthat a land-owner's claim for damages, arising from the taking of ptoperty,is paramottntto a mortgage given by the railroad company before .the damages were:assessed and paid, or secured to be paid; and in JJycO'lJting Gas .Water Oo.v. Moyer, 99 Pa. St. 615, this principle was applied to a case of consequential damages, it being there decided that a mill-owner's claim for damages, resulting from a decrease in the flow of water in his which thecoinpany caused by interfering with the run which supplied his mill, was 8 continuing lien on the corporate property, extinguishable only by: payment, or security fOl payment. In the former of these cases it was distinctly ruled, also, that the claimant's paramount right was not lost or waived by allowing the corporation to construct its railroad without first making payment or giving security. What superior equit.ies have the mortgage bondholders here? We perceive none. It cannot be pretended that the petitioner, by word or act, misled them. Moreover, inquiry whether the railroad company had discharged the claims for construction damages was a matter of common prudence. If these creditors made no investigation, they have only themselves to blame. In fine, the mortgagees, having no other or better title than that of the railroad company itself, can with no more justice maintain a railroad, mounted on trestle-work on the street in front of the petitioner's property, to his permanent injury, without making him compensation, than'the corporation could. The petitioner's exceptions to the master's conclusions of·law must be sustained, and alI other exceptions overruled. Let a decree be drawn in accordance with this opinion.
WYMAN t1. CITIZENS'NAT. BANK OF FARIBAULT.
. NATIONAL BANXS-LENDING MONEY UNLAWFULLy-PENALTY.
S. § 5200, pro.viding that tbe amount for which any one indi.. viduaf or.tlrm shilll be indebted to a national bank shall not exceed a certain sum, when sucll a bank violates the provision by lending to one person an amount in excess of the limit, such person cannot set up the violatIon of the statute as a defense to his liability on the note. If a peJ;lalty is to be enforced A against the bank, it can be done.only at the instance of the contract entered into by tlie bank in violation of this section 18 not void.
CITIZENS' NAT. BANK.
A bill of complaint is filed by the complainant asking that a promissory note signed by him as a joint maker be declared void, and that the defendant be required to deliver up the note for cancellation. The bill charges, in substance, that on the twelfth day of January, 1886, the firm of Jesse Ames' Sons borrowed of defendant $5,000, for which a promissory l1ote" 'WM given, payable in four months, and that plaintiff, not a tnember ¢' the firlJ;h signed said note as a maker .th.=lreof; that the firm procured and. induced him to. sign the note for the $ole purpose of evad· ing thepr.oVisions of the' banking law, (section 5200, Rev. St.n. S.;) and that tqe facts were weU known to the defendant. It also appears in the bill that ·the bank has obtained a judgment, in which the amount of this against Jesse Ames'Sons, but the complainant was not ma.de 'a party to the suit, and no judgment was obtained against him. Adernurrer is interposed. D.:A.&CCYlnbe, for complainant. OJle, Bramha1L &: MorriB, for defendants.
NELSON, It is well settled that the federal courts no longer have jurisdiction upon the ground that the defendant is a national bank; but it is insisted that jUrisdiction obtains under section 1 of the act of March 3, 1875; for the amount involved is over $500, and the suit arises, as plaintiff' claims, under a law of the United States. .I think the decisions of the United States supreme court heretofore made warrant the concIu· sion that objections of the character presented to a the bank· iug law by, Ii 'national bank can only be urged by the government, and the substanb60f complainant's bill of complaint is virtually an objection to the breach. In this case the other makers of the note, who received the consideration, could not escape payment mQney was loaned in. violation of the act. This is conceded. The contract is not void as to them, and I see no equity in releasing the complainant, and applying a different rule to him. He knew the obligations assumed when he signed the note to aid the plaintiff in making the loan, and he · was equally liable with the other'. makers. The true rule is that, if the bank is to be punished for a violation of law, the government must en· force the penalty, and not an individual. The banking law, when fully examined, does not make the contract entered into in violation' of section 5200, Rev. St., void, and the stockholders are not to suffer when such ac1aim is made, under the circumstances suggested in the record. . If it is desirable to punish a bank for a violation of law, I have no doubt the proper officer of the government would, on sufficient proofs, com· menceproceedings. Demurrer sustained, and bill dismissed.
,(f!i'reuit Court, J); Mmnuota.
OF GUARDIAN'S AppOINT.
N , ,', The record, ofa probate court ohhe territory of Mimiilsota, in tlie matter of the appointment of, a guardian, (1)"recited that "on this ;thir,',d ,day of ·Decem'ber, 1856," CltPle A., petitioning fQr his appointment as guardian of his n0Il-' resident minor children, they having real estate in the coqnty; (2) ordered a bond to be filed by him; (3) ordered his 'appointment, (reciting the filing of the petition and bond;) and (4);S8t out a copy of the bond, dated December appear from tp,e record the notice required 6th, .It, mdn,ot tp be given to l/.llpersons interested was given. Hel4 that, the courtbein,\, a court of :record, and notsti-icily one of special and limited jurisdiction, and the manner of notice to interested parties required by the statute being left to its discretion, it must be presumed, as, bearing. upon the validity ,of a subsequent guardian's sale, that proper notice was giye:b,. ' , .
If a guardian's bond is given to the wards instead of to the probate court, the approval of it is merely: an error in a matter of proolldure, and 8,subse, quent sale of the ward'l! not thereby invalidated. '
SAME-FoRM OF BOND-WHETHER DEFECT JURISDICTiONAL. '
, Suit for Partition. , ,'Pierce &: George, fl;>r comp1l:limint$. " Ohas.D: Kerr, .
·, NJjlLSON, This, is 'a:bill ,form fora partition of real propedy-. 'the ,complainants claim an unQivNed one-third of the relll estate de:' scrjbed, and allege that the derl:)ndant' owns the, remaining two-thirds. The defendant ill his claims, he is the oW,ner of ,the entire prop,. 1Jrty.' His title to the one-third rests on a sale by the of.nonrew;dent minors ordered by the probate court of Morrison county, Minne#lota, and made pursuant tp,aucp,license on January 17, 1857,and con:' firmed February 2d following; A deed was executed and delivered to thE;l purchaser, Febr.uary 17th. , .· The complainants'title is traced through Dorothy J. Sturgis, the mother of, Sarah J: Kelley, and through her tlister, and a brother. To sustain the complainants' title, an attack is plade upon the proceedings of the probate court appointirig the guardian, and subsequent proceedings resulting in the sale of the minors' interest in the property., ' The evidence introduced to show the appointment of a guardian is the fQllowing record:
"IN THE MATTER OF THE GUARDIANSIDP OF JENETTE A., SARAH JANE, AND JOHN K. STURGIS.
"December Term, A. D. 1856, of the Probate Court of Morrison County. Minnesota Territory, held at Little Falls by CHESSMAN GOULD, Probate Judge. "Now, on this third day of December, A. D. 1856, comes William Sturgis, of said county and territory, by his petition, and says that he is father of Jenette A., Sarah Jane. and JohnK.,Sturgis, minors; that Jenette A. was twelve years of age on the twent,,-fourth day of November, A. D. 1856; that Sarah Jane was ten years of age on the twentieth of October, A. D. 1856; that both