ing, that these debts were owing by deceased, that by their terms he was liable for their payment and had paid them, to be permitted to retain his pro rata share as though they had been regularly probated. What we have said can only apply to payments made, or to portions of these notes that have been discharged and satisfied at the time of the final trial in stating the account. Ralston v. Wood, 15 Ill. 159. This we regard as equitable and just, and violates no rule of law and infringes the rights of no party in interest. It is urged that the case of Hughes v. Trahern, 64 Ill. 48, announces a different rule and one which requires the full amount of this claim to be set off. In that case, as in this, the estate of the deceased partner was insolvent; but in that case all of the rights of the parties had matured and attached whilst the parties were living. Here the claim of appellant has arisen after the death of his partner. There when the liability of the deceased partner became fixed, he was living, and creditors had acquired no liens statutory or otherwise, whilst here the rights of creditors attached on the death of Firmin, and before appellant acquired this claim. The case of Stone v. Fargo, 55 Ill. 75, is referred to as settling the doctrine contended for by appellant. Although some of the facts in that case are like this, there was this broad and controlling distinction: there the estate was solvent, while here it is insolvent. But to the extent of permitting appellant to set off to the amouut of his pro rata share of the estate, we recognize and adopt the principle upon which that case proceeds. Inasmuch as the estate was solvent, the rights of creditors were in no wise affected. Se here to the extent of the per cent. this estate will pay on the claims against it, there is not insolvency; and to allow appellant a set-off to that extent does not injure the creditors of the estate. But as the judgment of the court below is not in accordance with the views here expressed, it is reversed and the cause remanded. Judgment reversed. SHELDON, J., dissenting. a It seems to be admitted by the opinion of the majority of the court, had the surety here made these payments of the debts of his principal, Firmin Mack, in the life-time of the latter, that then they would have been a proper set-off. As the payment by the surety of his principal's debts was compulsory one, by force of the obligation of suretyship contracted in the life-time of the principal, I think, as respects this question of set-off, the payments by the surety should be taken to relate back to the time his liability as surety was contracted, and be regarded, for the purpose of set-off, the same as if they had been made in the life-time of the principal, Firmin Mack. DICKEY, J.: I agree with Mr. Justice Sheldon. Our statute makes debts not due provable against an estate. The case of Granger v. Granger, 6 Ohio 55, is not in point; for under the Ohio statute, a debt not due at the death could not be set off against the claim of the administrator for a debt due at the death. On the same principle the case of Walker v. McKay, 2 Met. 294, is not in point. In our State the credits to which an administrator is entitled as assets, consist not merely of the items which may be owing from debtors of the estate, but of the balances which may be found due to the administrator as the representative of the deceased, upon a full settlement of all matters growing out of contracts made with the deceased in his life, whether due or not at his death. When Firmin Mack procured Uriah Mack to sign this note as his security, by implication of law he undertook and promised that, if Uriah should pay this note, he (Firmin) or his legal representatives would refund the money to Uriah. The damage for the breach of this contract became provable against his estate, when the contract was broken. This occured before the amount due from Uriah, as surviving partner, accrued. I think the set-off should be allowed. NATIONAL BANKS-ULTRA VIRES. UNION NATIONAL BANK v. MATTHEWS. Supreme Court of the United States, October Term, 1878. Under the provisions of the act of Congress (Rev. Stats. of the United States, § § 5136, 5137), a national bank is not prohibited from taking a deed of trust on real estate as security for a contemporaneous loan, or even if it were, the defense of ultra vires could not be taken advantage of by private parties, a judgment of ouster and dissolution being the proper punishment for such a violation of its charter. Decree of the Supreme Court of Missouri (reported 3 Cent. L. J. 606) reversed. IN error to the Supreme Court of the State of Missouri. Britton A. Hill, for plaintiffs in error; Noble & Orrick, for defendant in error. Mr. Justice SWAYNE delivered the opinion of the court. This case involves a question arising under the national banking law, which has not heretofore been passed upon by this court. We have considered it with the care due to its importance. There is no controversy about the facts, and so far as it is necessary to advert to them, they may be briefly stated. On the first of March, 1871, Hugh B. Logan and the defendant in error, Elizabeth Beard, executed and delivered to Sterling Price & Co. their joint and several promissory note for the sum of $15,000, payable to the order of that firm two years from date, with interest at the rate of ten per cent. per annum. The payment of the note was secured by a deed of trust, executed by the defendant in error, of certain real estate therein described. On the thirteenth of the same month, the note and deed of trust were assigned to the bank. The answer of the bank avers that the bank "accepted the said note and deed of trust as security for the sum of $15,000, then and there loaned to said Sterling Price & Co. on the security of Price & Co. failed * * * said note and deed of trust." to pay the loan at maturity. The bank directed the trustee in the deed of trust to sell. The defendant in error thereupon filed this bill in the proper State court to enjoin the sale. A perpetual injunction was decreed upon the ground that the loan by the bank to Price & Co. was made upon real estate security; that it was forbidden by law. and that the deed of trust was, therefore, void. The decree was made upon the pleadings. No testimony was introduced upon either side. The plaintiffs in error removed the case to the Supreme Court of the State. There the decree of the lower court was affirmed. See Matthews v. Skinker, 3 CENT. L. J. 606. Hence this writ of error. Our attention has been called to but a single point which requires consideration, and that is whether the deed of trust can be enforced for the benefit of the bank. The statutory provisions which bear upon the subject are as follows: 66 · SEC. 5,136." Every national banking association is authorized to exercise by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt, by receiving deposits, by buying and selling exchange, coin and bullion, by loaning money on personal security, and by obtaining, issuing and circulating notes according to the provisions of this title." "SEC. 5,137. A national banking association may purchase, hold and convey real estate for the following purposes, and for no others: First, such as may be necessary for its immediate accomodation in the transaction of its business. Second, such as may be mortgaged to it in good faith by way of security for debts previously contracted. Third, such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. Fourth, such as it shall purchase at sales under judgments, decrees or mortgages held by the association, or shall purchase to secure debts to it. But no such association shall hold the possession of any real estate purchased to secure any debts due to it for a longer period than five years." Rev. Stat. U. S. 1,999; 13 U. S. Stat. at Large, 60. Here the bank never had any title, legal or equitable, to the real estate in question. It may acquire a title by purchasing at a sale under the deed of trust, but that has not yet occurred, and never may. Section 5,137 has, therefore, no direct application to the case. It is only material as throwing light upon the point to be considered in the preceding section. Except for that purpose it may be laid out of view. Section 5, 136 does not, in terms, prohibit a loan on real estate, but the implication to that effect is clear. What is so implied is as effectual as if it were expressed. As the transaction is disclosed in the record, the loan was made upon the note as well as the deed of trust. Non constat that the maker who executed the deed would not have been deemed abundantly sufficient without the further security. The deed, as a mortgage would have been, was an incident to the note; and a right to the benefit of the deed, whether mentioned or delivered or not, when the note was assigned, would have passed with the note to the transferee of the latter. The object of the restrictions was obviously threefold. It was to keep the capital of the banks flowing in the daily channels of commerce; to deter them from embarking in hazardous real estate speculations, and to prevent the accumulation of large masses of such property in thei hands, to be held, as it were, in mortmain. The intent, not the letter, of the statute constitutes the law. A court of equity is always reluctant in the last degree to make a decree which will effect a forfeiture. The bank parted with its money in good faith. Its garments are unspotted. Under these circumstances the defence of ultra vires, if it can be made, does not address itself favorably to the mind of the chancellor. We find nothing in the record touching the deed of trust which, in our judgment, brings it within the letter of the meaning of the prohibitions relied upon by the counsel for the defendant in error. In First National Bank v. Haire, 36 Iowa, 443, the bank refused to discount a note for a firm, but agreed that one of the partners might execute a note to the other, that the payee should indorse it, that the bank should discount it, and that the maker should indemnify the indorser by a bond and mortgage upon sufficient real estate executed for that purpose, with a stipulation that in default of due payment of the note, the bond and mortgage should inure to the benefit of the bank. The arrangement was carried out. The note was not paid. The maker and indorser failed and became bankrupts. The bank filed a bill to foreclose. The same defence was set up as here. In disposing of this point the Supreme Court of the State said: "Every loan or discount by a bank is made in good faith, in reliance, by way of security, upon the real or personal property of the obligors, and unless the title by mortgage or conveyance is taken to the bank directly, for its use, the case is not within the prohibition of the statute. The fact that the title or security may inure indirectly to the security and benefit of the bank will not vitiate the transaction. Some of the cases upon quite analogous statutes go much further than this. Silver Lake Bank, v. North, 4J. C. R., 370.' But it is alleged by the learned counsel for the defendant in error that in the jurisprudence of Missouri a deed of trust is the same thing in effect as a direct mortgage-with respect to a party entitled to the benefit of the security-and authorities are cited in support of the proposition. The opinion of the Supreme Court of Missouri assumes that the loan was made upon real estate security within the meaning of the statute, and their judg ment is founded upon that view. These things render it proper to consider the case in that aspect. But, conceding them to be as claimed, the consequence insisted upon by no means necessarily follows. The statute does not declare such a security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so, and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture is prescribed and explicitly defined. In Harris v. Runnels, 22 How. 79, this court said that "the statute must be examined as a whole to find out whether or not the makers meant that a contract in contravention of it was to be void, so as not to be enforced in a court of justice." In that case a note given for the purchase money of slaves taken into Mississippi contrary to a statute of the state, was held to be valid. Where a statute imposes a penalty on an officer for solemnizing a marriage under certain circumstances, but does not declare the marriage void, the marriage is valid; but the penalty attaches to the officer who did the prohibited act. Milford v. Worcester, 7 Mass. 48; Barton v. Hervey, 1 Gray 119; King v. Birmingham, 8 Barn. & Cr. 29. Where a bank is limited by its charter to a specified rate of interest, but no penal consequence is denounced for taking more, it has been held that a contract for more is not wholly void. Bank of the State of Mississippi v. Sharp, 4 Smedes & Mar. 75; Grand Gulf Bank v. Archer, 8 Id. 151; Rock River Bank v. Sherwood, 10 Wis. 230. The charter of a savings institution required that its funds should be "invested in, or loaned on, public stocks or private mortgages," etc. A loan was made, and a note taken secured by a pledge of, worthless bank stock. The borrower sought to enjoin the collection of the note, upon the ground that the transaction was forbidden by the charter, and, therefore, void. The court held the borrower bound, and upon a counter-claim adjudged that he should pay the amount of the loan with interest. Mott v. U. S. Trust Co., 19 Barb. 568. Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to i is not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose. Leazure v. Hillegas, 7 Serg. & R. 320; Gounde v. North Water Co., 7 Barr, 233; Runyon v. Coster, 14 Pet. 122; The Banks v. Poitiaux, 3 Rand. 136; McLindo v. City of St. Louis, 10 Mo. 577. The authority first cited is elaborate and exhaustive upon the subject. So an alien, forbidden by the local law to acquire real estate, may take and hold title until office found. Fairfax v. Hunter, 7 Cranch, 604. In Silver Lake Bank v. North, 4 Johns. Ch. 370, the bank was a Pennsylvania corporation, and had taken a mortgage upon real estate in New York. A bill of foreclosure was filed in the latter State. The answer set up as a defense that by the act of incorporation the plaintiffs were not authorized to take a mortgage, except to secure a debt previously contracted in the course of its dealings; and here the money was lent, after the bond and mortgage were executed." The analogy of this defense to the one we are considering is too obvious to need remark. Both present exactly the same question. Chancellor Kent said: "Perhaps it would be sufficient for this case, that the plaintiffs are a duly incorporated body, with authority to contract and take mortgages and judgments; and if they should pass the exact line of their power, it would rather belong to the government of Pennsylvania to exact a forfeiture of their charter, than for this court, in this collateral way, to decide a question of misuser by setting aside a just and bona fide contract.” * * * "If the loan and mortgage were concurrent acts, and intended so to be, it was not a case within the reason and spirit of the restraining clause of the statute, which only meant to prohibit the banking company from vesting their capital in real property, and engaging in land speculations. A mortgage taken to secure a loan advanced bona fide as a loan, in the course and according to the usage of banking operations, is not surely within the prohibition.” It is not denied that the loan here in question was within this category. This authority, if recognized as sound, is conclusive. See, also, Baird v. Bank of Washington, 11 Serg. & R. 411. Sedgwick (Stat. and Const. Constr. 74) says: "Where it is a simple question of authority to contract, arising either on a question of regularity of organization or of power conferred by the cha-ter, a party who had the benefit of the agreement can not be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains." What is said in the text is fully sustained by the authorities cited. We can not believe it was meant that stockholders and, perhaps. depositors and creditors, should be punished and the borrower rewarded, by giving success to this defense whenever the offensive fact shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other, contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person can not, directly or indirectly, usurp this function of the government. The decree of the Supreme Court of Missouri is reversed and the cause remanded, with directions to dismiss the bill. Mr. Justice MILLER dissenting: I am of opinion that the national banking act makes void every mortgage or other conveyance of land as a security for money loaned at the time of the transaction by the bank, to whomsoever the conveyance may be made; that the bank is forbid to accept such security, and it is void in its hands. The contract to repay the money, and the collateral conveyance for security, are separable con tracts, and so far independent that one may stand and the other fall. In the present case, the money was loaned on the faith of the deed of trust, and that instrument is void in the hands of the bank, but the note, as evidence of the loan of money, is valid against Mrs. Matthews personally. With this latter contract the State courts did not interfere. It enjoined proceedings under the deed of trust against the land, and did no more. Its judgment in that matter ought, in my opinion, to be affirmed. DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. October Term, 1878. MALICIOUS PROSECUTION-INSTITUTION OF BANKRUPTCY PROCEEDINGS-WHAT NECESSARY TO SUSTAIN ACTION.-1. No suit for malicious prosecution can be sustained against an unsuccessful plaintiff unless it is shown affirmatively that he was actuated in his conduct by malice or some improper or sinister motive. Want of probable cause must also concur, and that can not be inferred from malice. And the failure of a suit is not evidence of a want of probable cause or malice. The firm of A & Co., claiming that S was indebted to them, commenced an action to enforce payment. S defended, and while the action was at issue his brother brought suit against him which was not defended and recovered judgment. A & Co. being advised by their attorney that S had committed an act of bankruptcy, filed a petition in the bankrupt court against him asking for a warrant for the seizure of goods, which warrant was granted, and the goods seized. Thereafter the suit of A & Co. against S was decided adversely to A & Co., and the proceedings in bankruptcy were dismissed on the ground that A & Co. had no claim against S. Held, not to be sufficient to entitle S to maintain an action against A & Co. for malicious institution of proceedings in bankruptcy against him.- Stewart v. Sonneborn. In error to the Circuit Court of the United States for the Middle District of Alabama. Opinion by Mr. Justice STRONG. Judgment reversed. Reported in full, 19 Alb. L. J. 89. EX POST FACTO LAW WHEN CRIMINAL STATUTE TAKES EFFECT.-1. The ex post facto effect of a law can not be evaded by giving a civil form to an action that is essentially criminal. 2. The internal revenue statutes were amended March 3, 1875, by substituting 24 cents per pound tax on tobacco for 20 cents per pound, and it was provided that the increase should not apply to tobacco upon which the tax, under existing laws, had been paid. Defendant paid the proper tax at 20 cents, and removed tobacco on forenoon of March 3, and before the amended act was approved so that it could take effect. Held, that the act took effect not at the commencement of the 3d day of March, but at the time it was approved, and that defendant was not liable for a penalty for failure to pay the proper tax. In Lapere's case it was said obiter, "the act became effectual upon the day of its date. In some cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible." The question involved in the Lapere case was whether a proclamation issued by President Johnson, bearing date of June 24, 1865, removing certain restrictions upon commercial intercourse, took effect on that day, or whether it took effect on the day it was published and promulgated, which was on the 27th of the same month. It was held by a majority in this court that it took effect from its date. The question was upon the 24th or the 27th of June, and the point of the portion of a day was not involved. While the general proposition may be true, that where no special circumstances exist, the entire day on which the act was passed may be included, there is nothing in Lapere's case to make it an authority on the point before us. In re Howes, 21 Vt. 619, it appeared that the bankrupt act was repealed March 3, 1843. Howes presented his petition on that day, and it was held that he was too late, that on questions of that nature there can be no divisions of a day. In re Welmen, 20 Vt. 653, the question was the same and decided in the same way. While stating the general rule as above, the court say they agree with Lord Mansfield in Coombs v. Pitt, 4 Burr, 1423, that in particular cases the very hour may well be shown when it need and can be done. Arnold v. United States, 9 Cranch, 104, is in affirmance of the same general principle. The act of July 1, 1812, there discussed, provided "that an additional duty of one hundred per cent. upon the permanent duties now imposed by law * shall be levied and collected on all goods, wares and merchandises which shall from and after the passage of this act be imported into the United States from any foreign port or place." The goods were brought into the collection district of Providence on the first day of July, 1812. The court say "the statute was to take effect from its passage, and it is a general rule that where the computation is made from an act done, the day on which the act is done is to be included." See the case of Richardson, 2 Story, 571.-Burgess v. Salmon. In error to the Circuit Court of the United States for the Eastern District of Virginia. Opinion by Mr. Justice HUNT. Judgment affirmed. NEWSPAPER-LIBEL-IMPUTATION OF TALEBEARING LIBELOUS.-Plaintiff, a reporter of another news. paper, sued defendant for publishing an article stating that he, having insinuated himself into the good graces of one Thomas, a sergeant of police, learned from him (though the force had been cautioned against giving news to reporters), his private opinion of matters connected with the police department, and carried them to headquarters, causing the officer's suspension. The article further said: "That on no other journal in the city (than plaintiff's) could such a thing have been possible," and that "there is not a patrolman on the force who does not sympathize with Thomas, and who does not condemn the reporter who made public a private conversation." The publicawas proved and not justified. Held, 1. That such a publication is actionable. There is no pretense of privilege, for the general public has no concern with the lawful doings of private persons, and all mention of them in print must be made under the obligation of publishing no untruths to their prejudice, and of saying nothing at all to their prejudice, unless upon adequate occasion. Where this duty is violated, an action lies for many things where an unwritten slander would not be actionable, because the 'defamation is more permanent and obtains greater publicity. 2. That in determining what is libelous, courts can not declare in advance just what words, charges or subjects must be included in the article complained of. The same words or averments may, according to their purpose or use, be harmless or injurious. See Gen. Hamilton's celebrated argument in People v. Crosswell, 3 J. C. 337. If a published article is untrue and intended and reasonably adapted to harm the person referred to, it is unlawful. The amount of injury and of compensation is for the jury. 3. That this article was calculated to injure plaintiff in public estimation by holding him out as a tale-bearer. He was under no obligation to report the remarks made in private conversation, and the charge would tend to destroy his representation and standing with the press as well as in society. Judgment for defendant reversed, with costs, and new trial granted. Opinion by CAMPBELL, C. J.-Tryon v. Evening News Assn. CONFINEMENT IN Ex --- ASYLUM FOR THE INSANE LIABILITY OF SUPERINTENDENT-EVIDENCE PERTS.-1. A woman was taken, at the request of her family, and without any judicial finding as to her mental condition, to the Michigan insane asylum (a public institution under a medical superintendent and assistants wholly paid by salaries from the State), where she was received and detained by the superintendent for ten months, he in good faith believing her to be and treating her as insane. On her discharge as convalescent she sued the superintendent for false imprisonment, recovering $6,000 damages. Held, 1. The asylum is intended for the accommodation and treatment of the insane, both poor and rich; the law making a distinction only as to the question of where the expense shall fall. 2. Where one is actually insane, the request of his family, without any previous judicial finding of insanity, justifies his reception and detention in the asylum. And danger to the lunatic or to others beyond what is implied in insanity itself need not appear. 3. That where at the request of the family and without judicial inquisition the superintendent receives and detains a patient who is not in fact insane, though he in good faith believes him to be so, he is not liable in damages for his confinement. Opinion by MARSTON and GRAVES, JJ., COOLEY, J., and CAMPBELL, C. J., contra. holding that he would be liable (except when the patient made no objection), though his good motives would protect him from excessive damages. 4. As to the time when an insane person is cured and should be discharged, the superintendent must decide in the first instance, and his good faith excuses an error in judgment. 5. Where the superintendent has acted in good faith and has had nothing to do with what happened previous to the patient's reception, he can not be held liable (at all events when he is sued alone) for the abduction or for anything beyond the mere confinement in the asylum. 6. The superintendent is not responsible for what was said and done by his assistants, attendants or other patients in the asylum, unless the same was done under his orders or directions. 7. Where in an action for false imprisonment against the superintendent of an insane asylum the plaintiff has introduced evidence that she was a physician and offered evidence as to her practice and its value, the cross-examination may inquire fully as to the kind of practice and the means adopted to acquire it. 8. An expert can not be asked a question which calls for a conclusion upon facts not stated. 9. The plaintiff's sanity or insanity while in the asylum being a material question, her sayings, acts and appearance, and every circumstance which could aid the jury in determining it, are admissible.- Van Deusen v. Newcomer. BUILDING ASSOCIATION-POWERS FORFEITURE OF FRANCHISE.-1. A building and loan association incorporated under the acts of May. 1868, S. & S. 194, 195, has not the power to refuse to loan its funds to its members; nor to establish such rules and regulations, or so conduct its business, as to prevent the loan of its funds to a member who bids the highest premium therefore, nor to borrow money for the purpose of lending it; nor to divide nor distribute its funds among its members in advance of the distribution at the winding up of the corporation; nor to traffic in shares of its own stock. 2. Such corporation, acting in good faith and reasonably, may compromise with a member, and release him from further obligation to the corporation, whether the indebtedness be for a loan or on subscription. 3. Where a corporation has abused or misused its corporate powers, but not in any particular as to whether it is declared by statute the act shall operate as a forfeiture of its charter, the court is vested with a discretion to determine whether the corporation shall be ousted of its franchise to be a corporation or from the exercise of the powers illegally assumed. Judgment that the corporation be ousted from the exercise of the powers mentioned in the first, second, third, fourth and seventh specifications of the information. Opinion by OKEY, J.-State v. Oberlin B. & L. Assn. SET-OFF-NEGOTIABLE PAPER-BANKRUPTCY.—1. The general rules in equity, as at law, is that joint debts can not be set-off against separate debts, unless there be some special equity justifying it. 2. If there are such equities, the bankruptcy of the party against whom they exist, is sufficient ground for the allowance of the set-off against notes not due at the time of the assignment. 3. When a banker induced a firm to continue its deposit account with him, by deceptively holding himself out as being still the holder of several negotiable notes made to him by the principal member of the firm, when in fact he had assigned them as collateral security for a debt; and there was an understanding between the firm and the banker, from the course of dealing between them, that the notes of the individual member were to be paid through the deposit account of the firm, and which he had a right to treat as his own for that and other purposes; on the bankruptcy of the banker: Held, that after satisfying the debt for which the notes of the individual member were held as security, the latter, as against the assignee of the bankrupt, is in equity entitled to set-off the account against the balance due on the notes. 4. In an action on a negotiable note which the plaintiff holds by assignment before due, in consideration of, and as collateral security for a loan made by him to the insolvent payee, against whom the maker is entitled to an equitable set-off to the note the plaintiff will be limited in his recovery against the maker to the amount of the debt which the note secures, and will not, in addition thereto, be allowed the amount of his attorney's fees in prosecuting the action. 5. The set-off as to the Allen note, and the deposit account of R. Hemingray & Co. is allowed in favor of R. Hemin |