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ties held for clients. As to these, the defend- der Disconto-Gesellschaft v. 0. S. Steel Corp. aut occupied the position of a bailee, with (D. C.) 300 F. 741, 746. The debtor in this the result that the loss may have been the instance, though domiciled in the United clients' rather than its own. Other classes of States, may have had what was equivalent assets were moneys in other banks and obli- to a residence in Russia while it was doing gations of the Russian state. If the defense business at its Russian branch. There is were to prevail, the loss sustained by the de- doubt whether its residence in Russia can be fendant through these unfortunate invest- said to have continued after its branch had ments would be shifted from itself and cast been seized and its business had been closed. on its depositors. The situation is not changed, R. C. & I. Bank v. Comptoir, etc., supra ; though it be shown that the new or national Banque Internationale v. Goukassow, (1923] ized bank in appropriating the assets assum- 2 K. B. 682; White, Child & Beney, Ltd., ed the liabilities. Upon that head the answer v. Simmons, [1922] 127 L. T. 571. The deciis lacking in certainty and precision. If, sion of this case does not require that such however, the defendant be given the benefit doubts should be resolved. If there is jurisof the most favorable construction, there is diction in these conditions to confiscate the still no suggestion of a novation, releasing incorporeal right, no power short of soverthe defendant and substituting its successor. eignty in all its plenitude has a competence Very likely the defendant, upon payment of so high. the plaintiff's claim, would have been sub [3] The defendant places some reliance rogated to his rights under the covenant of upon the doctrine of frustration. The conassumption, if such a covenant there was. tract with the plaintiff was subject, it is Its obligation as the primary debtor in its said, to the implied condition that the busirelation to its own creditors continued unim- ness of the branch in Russia would be perpaired.

mitted to continue. Such a condition might be If merger and seizure of assets do not important if the plaintiff were claiming damavail as a defense, the question remains ages. It has no bearing upon this action, in whether the defendant gains anything by which the remedy is restitution. Cantiare the subsequent decree which confiscated the San Rocco v. Clyde Shipbuilding & Eng. Co. accounts of depositors as a "revolutionary (1924) A. C. 226; Dolan v. Rodgers, 149 N. tax.” At the time of this decree the Russian Y. 489, 44 N. E. 167 ; 2 Williston, Contracts, assets were already lost. The defendant did $ 885. The plaintiff paid his money upon the not surrender them or any part of them for faith of the defendant's promise that an the purpose of discharging a tax or other equivalent amount in rubles would be paid liability imposed on its depositors. The to him thereafter. The consideration fails question is not here whether credit would to the extent that performance is frustrated. have to be allowed if payment had been [4] The defendant's last reliance is upon made for such a purpose out of assets that the intention of the parties. Nothing in its would otherwise have been retained by the statement of that intention exempts from lidepositary. The ruling of the Supreme ability. It was "intended” by the parties that Court in Williams v. Bruffy, 96 U. S. 176, the said agreement "should be performed in 24 L. Ed. 716, suggests the difficulties that Russia," and that “the performance thereof even then would have to be surmounted. should be governed by the laws of Russia Certain we think it is that a decree of confis- and by the orders or decrees of any governcation directed against depositors does not ment which might exercise authority therereduce the liabilities of a bank which has in." Two defects at least make this statealready yielded up its assets in virtue of a ment insufficient: decree of confiscation directed against itself. (a) If the obligations of the parties were In such a situation the later decree, if it is varied by agreement, the making of that to be given any effect at all, must speak the agreement is the ultimate and issuable fact voice of a power recognized by us as sover which should have been stated in the an. eign. Troublesome questions of situs and of swer. There is a studious omission to make jurisdiction would even then remain. The any statement of the kind. Instead there is intangible chose in action, at least when it an averment of intention, which for all that is the result of a deposit in a bank, has for appears was undisclosed by word or deed. some purposes a situs as the residence or “Assent in the sense of the law is a matter place of business of the debtor, though the of overt acts, not of inward unanimity in creditor be far away. Blackstone v. Miller, motives, design or the interpretation of 188 U. S. 189, 23 S. Ct. :77, 47 L, Ed. 439; words." Holmes, J., O'Donnell v. Clinton, Security Bank v. California, 263 U. S. 282, 145 Mass. 461, 14 N. E. 747; White v. Cor68 L. Ed. 301, 31 A. L. R. 391; Matter of lies, 46 N. Y. 467; 1 Williston, Contracts, i Houdayer, 150 N. Y. 37, 44 N. E. 718, 34 L. 95; Anson, Contracts, & 34. R. A. 235, 55 Am. St. Rep. 642; Direction (b) If an intention undisclosed were equir.

(145 N.E.) alent to one revealed, what has happened is rubles. In that view the election made or not fairly within the range of what is said permitted at the trial will determine the reto have been foreseen. These decrees do not sult. regulate the performance of the agreement. The doctrine of frustration will be inapThey wipe the agreement out and annul its plicable, whether the contract be rescinded obligation. Performance has been thwarted. or affirmed, since the plaintiff makes no Restitution remains due.

claim for profits in excess of his investment. The order should be affirmed, with costs, [6] There is no need to consider the deand the questions certified answered in the fendant's liability for interest. Interest is negative.

not demanded for any period prior to the

date of the dishonor of the drafts. If the HISCOCK, O. J., and POUND, MCLAUGH- plaintiff may be held to have received some LIN, CRANE, ANDREWS, and LEHMAN, benefit from the defendant through the enJJ., concur.

joyment of banking facilities while the ac

count was running, the defendant's intermeOrder affirmed.

diate use of his money without interest must

be held to be a full equivalent. On Motion for Reargument.

The motion for a reargument must be de

nied. CARDOZO, J. (5) We did not intend by our opinion to foreclose consideration by the HISCOCK, C. J., and POUND, MCtrial court of the measure of recovery. LAUGHLIN, CRANE, and ANDREWS, JJ.,

The complaint is equivocal. If it is based concur. upon the theory of rescission with an accompanying right to restitution, the recovery LEHMAN, J. I concur in the denial of must be measured by the money paid by the the motion for a reargument, but in my plaintiff for which no equivalent has been opinion the plaintiff may recover only the received. 2 Williston on Sales (2d Ed.) & 600, value of the rubles in his deposit account, pp. 1503, 1505, 1506; 2 Sedgwick on Dam- regarded for that purpose as a res, whether ages, $ 733A. If it is based upon the theory the action be technically for breach of conof the breach of an outstanding contract, we tract or to enforce a quasi contractual obliassume, though we do not decide, that the re- gation. covery must be measured by the value of the Motion denied.

[2] There was further evidence that Bar. COMMONWEALTH V. TSAFFRAS. rett at various times had acted as such (Supreme Judicial Court of Massachusetts.

examiner. The evidence, under the cases Middlesex. Jan. 9, 1925.)

above cited, was sufficient to justify a find

ing that Barrett was a public officer legally 1. Criminal law e400(3)–Testimony that witness was examiner for registrar of motor appointed. It was not necessary to produce vehicles was competent.

his written commission, or the formal rec

ord of his appointement. In prosecution for bribery of public officer, testimony of officer that his occupation was

[3] The burden was on the commonwealth that of examiner for registrar of motor ve to prove that Barrett was an executive of. hicles, and that date of his appointment was ficer. There was evidence describing the July 22, was competent.

acts performed by examiners, and that Bar2. Criminal law m400(3)–Testimony held to rett had performed many of them. The authorize finding that public officer was legal- examiners go to various places to conduct ex. ly appointed.

aminations of applicants for licenses to operTestimony of public officer that his occupa- ate motor vehicles; examine the application was that of examiner for registrar of mo- tions and the applicants; apply tests; de tor vehicles, and other evidence that he had at cide whether the applicant comes to the various times acted as such examiner, held to standard required; and report in writing to justify finding that he was a public officer legal- the registrar their decision on the granting ly appointed; production of written commis- of the application. Although the applicant sion or formal record of appointment being un

can appeal to the registrar, the decision of necessary. 3. Bribery Cm (2)-Examiner for registrar of chief part of their duties. By statute, G. L

the examiner is generally final. This is the motor vehicles is public officer.

C. 90, § 29, they are given, with respect to In view of Gen. Laws, c. 90, $ 29, examiner for registrar of motor vehicles' is a public offi- the enforcement of the laws relating to motor cer, so as to support charge of bribery, rather vehicles, all the powers of constables (erthan a mere employee of registrar.

cept the service of civil process) and of 4. Criminal law mal168(6)-Defendant not police officers, including the power to arrest

prejudiced because question whether duties any one violating the provisions of G. L C. of public officer were executive was left to 90. They may serve all processes issued by jury.

the courts, the division of highways of the Duties of examiner for registrar of motor department of public works and of the reg. vehicles are executive, and defendant, charged istrar of motor vehicles. They may investi. with bribery of public official, was not preju- gate accidents in which motor vehicles are diced because judge, instead of ruling as mat

concerned. Barrett, as an examiner, had ter of law, left to jury to determine whether caused persons whom he had seen violating duties performed by examiner were executive. the motor vehicle laws to be arrested and

Exceptions from Superior Court, Middle- punished. The examiners are appointed by sex County; Fosdick, Judge.

the registrar and may be removed by him

for cause. Their compensation, and terms John Tsaffras was convicted of offering a bribe to a public officer of the Common- of service, are determined and their duties

defined by him. One exercising such powers wealth, and he excepts. Exceptions over

is a public official, rather than a mere emruled.

ployee of the registrar. He has and exercises A. K. Reading, Dist. Atty., and R. T. "some of the powers of government.” Brown Bushnell, First Asst. Dist. Atty., both of

V. Russell, 166 Mass. 14, 26, 43 N. E. 1005, Boston, for the Commonwealth.

1010, 32 L. R. A. 253, 55 Am. St. Rep. 357. E. J. Tierney and J. J. Flaherty, both of

[4] The defendant was not prejudiced be Lowell, for defendant.

cause the judge, instead of ruling as matter WAIT, J. [1] The testimony of Barrett of law, left to the jury to determine wheththat his occupation was that of an examiner

er the duties performed were "executive." for the registrar of motor vehicles, and that The instructions given were sufficient, and the date of his appointment was July 22,

were not prejudicial to the defendant. The

dis. 1923, was competent. Exception to its ad- duties, obviously, are executive mission must be overruled. Commonwealth tinguished from legislative or judicial. v. McCue, 16 Gray, 226; Webber v. Davis,

The judge, clearly, could not rule that 5 Allen, 393; Commonwealth v. Kane, 105 Barrett was not an executive officer of the Mass. 423, 11 Am. Rep. 373; Commonwealth commonwealth; that the evidence did not v. Tobin, 108 Mass. 426, 11 Am. Rep. 375; establish the commission of any crime or Commonwealth v. Wright, 158 Mass. 149, the violation of any law of the common33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. wealth; and that the jury must return a ver475; Barry v. Smith, 191 Mass. 78, 77 N. E. dict of not guilty. He was right in re 1099, 5 L. R. A. (N. S.) 1028, 6 Ann. Cas. fusing to direct a verdict of not guilty. 817.

Exceptions overruled.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as

(146 N.E.)

MEMORANDUM DECISIONS

2 Margaret GARDNER V. EVANSVILLE IM- STATE ex rel. Edward BARBER v. Thos. W. PROVEMENT COMPANY OF VANDER.

HUTCHINSON, etc. (No. 24747.)
BURG COUNTY. (No. 24151.)

(Supreme Court of Indiana. Dec. 17, 1924. (Supreme Court of Indiana. Dec. 10, 1924.)

Modified Jan. 7, 1925.)

Appeal from Circuit Court, Warrick Coun

Henry W. Moore and Felix Blankenbaker, ty; Marshall R. Tweedy, Judge.

both of Terre Haute, for appellant. James W. Davis and A. H. Maxam, both

Thos. W. Hutchison, of Brazil, Ind., for of Booneville, for appellant.

appellee. Daniel H. Ortmeyer, of Evansville, for appellee.

PER CURIAM. Come now the parties,

and evidence is heard, and the court, being GAUSE, J. Appellant brought this action advised, now finds for the relator, that he in the court below against appellee for par- is entitled to relief as hereinafter set out. tition, claiming to be the owner of the un- It is thereupon adjudged, decreed, and comdivided one-third of certain real estate. manded that a peremptory writ of mandaFrom a finding and judgment that appellant mus issue to the defendant, and that as was the owner of said interest and entitled judge of the Clay circuit court, of Clay counto partition, appellee appealed to the Appel- ty, state of Indiana, he be and hereby is dilate Court. That court, in Evansville Im- rected, ordered, and commanded forthwith provement Co. v. Gardner (1920) 75 Ind. to cause the records of said court relating App. 401, 128 N. E. 471, set out the facts, to the proceedings in said court on the 5th which it stated were undisputed, and decid-day of May, 1924, in cause No. 669 of the ed that upon those facts appellant was es causes then pending in said court, wherein topped to claim any interest in said real es- the State of Indiana was plaintiff and the tate, and reversed the judgment of the low. relator herein, Edward Barber, was defend. er court and ordered a new trial.

ant, to be so amended and corrected that Upon the second trial, the lower court said record shall be made to recite that upmade a special finding of facts, and upon

on the overruling of the motion for a change those facts concluded that appellant was es- of venue from the judge, as filed by said detopped from claiming any interest in the real fendant, Barber, the said defendant exceptestate. The facts as found by the trial court ed to such ruling; and that forth with he on the second trial, and which are involved also, as judge of said Clay circuit court, in this appeal, are substantially the same shall cause the said record of the proceedfacts as set out in the opinion of the Appel. ings in said action in said court on the 15th late Court in the former appeal.

day of July, 1924, to be so amended and corAlthough the finding of facts on the second rected as to recite that 190 days from that trial is more in detail than as stated by the date are allowed in which to present and Appellate Court, all the facts stated by the file all bills of exceptions; and that forthAppellate Court in its opinion, and upon with he also, as such judge, shall certify which it based its opinion that appellant was and sign each of the bills of exceptions numestopped, were found upon the second trial, bered 1, 2, 3, 4, and 5, respectively, as preand no new material facts were found, nor | pared and presented to him by the attorany facts that are inconsistent with, or which neys for said defendant, and shall cause the modify, the facts upon which the former same to be filed with the clerk of said Clay opinion was founded. It follows, therefore, circuit court; and that forthwith he also, as that the law as declared by the Appellate such judge, shall certify and sign a bill of Court in the former appeal is the law of the exceptions containing the evidence introcase, and governs in this appeal. Westfall duced, and also that which was offered and v. Wait (1905) 165 Ind. 353, 73 N. E. 1089, excluded at the trial of said action, noting 6 Ann. Cas. 788; Alerding v. Allison (1908) that exceptions were taken wherever the offi. 170 Ind. 252, 83 N. E. 1006, 127 Am. St. Rep. cial reporter's notes show that to be the 363.

fact, and shall cause to be set out therein as Other questions which are discussed by part of the evidence given copies of all exappellants are not material, in view of the hibits introduced in evidence, and as part of determination that she is estopped to claim the evidence excluded copies of all exhibits any interest in the real estate in dispute. offered to be introduced in evidence and exJudgment affirmed.

cluded, together with a recital of what wag

said by the attorneys in making offers and Kessinger & Hill, of Vincennes, and A. G. objections, and by the court in ruling there- McNabb, of Sullivan, for appellee. on, as taken down at the time by the official reporter; and that forthwith he also, as

REMY, J. Reversed, on authority of such judge, shall cause to be entered of rec. Board of Commissioners of Sullivan County ord in the order books of his court entries reciting the action of the court as the same

v. Town of Carlisle (1924, Ind. App.) 144 N.

E. 859. occurred on each day that said cause was pending therein; and that he cause the clerk of said court to make out and certify a transcript of said record for an appeal to the Supreme Court of Indiana, which it is here

2 by commanded the said clerk shall do with Elizabeth DANIELS V. STATE OF INDIANA. out delay; and that as such judge he re

(No. 12024.) ceive and act upon the petition of said de fendant for leave to appeal to the Supreme (Appellate Court of Indiana. Nov. 7, 1924.) Court as a poor person.

Appeal from Juvenile Court, Marion Coun

ty; Frank Lahr, Judge. Modification of Opinion.

M. W. Franklin, of Indianapolis, for ap

pellant. PER CURIAM. The order heretofore en U. S. Lesh, Atty. Gen. (Cronk & Wilde, of tered in this cause on the 17th day of De- Indianapolis, of counsel), for the State. cember, 1924, is ordered to be and hereby is modified, and made to provide that only so PER CURIAM. Judgment affirmed. much of the Defendant's Exhibit B, to the introduction of which in evidence an objection was sustained, need be copied into the

3 bill of exceptions containing the evidence as will make apparent the facts that it is a Wm. H. EIKENBERRY V. WESTFIELD hotel register of the hotel whose name it

STOCK FARM CO. (No. 11911.) bears, for what dates it was used as such register when the pages were used on which (Appellate Court of Indiana. Nov. 7, 1924.) the name of Clark Richeson was written therein, and a copy of each of the pages on County; Zemri E. Dougan, Judge.

Appeal from Circuit CourtHendricks which the said name of Clark Richeson is shown to have been written. It is further Overson, Manning & Healey, of Kokomo, ordered that the copies of certain bills of for appellant. exceptions numbered, respectively, 1, 2, 3, Oscar L. Pond, of Indianapolis, and Clark and 4, introduced in evidence before this & Nichols, of Danville, for appellee. court at the hearing on relator's application for a writ of mandate, may be withdrawn PER CURIAM. Judgment affirmed. by the respondent, Hon. Thomas W. Hutchinson.

OI GOAR v. Uz WILCOX et al. (No. 11895.) 1 BOARD OF COM'RS OF SULLIVAN COUN. (Appellate Court of Indiana. Nov. 13, 1924.) TY, IND., V. TOWN OF CARLISLE, IND. (No. 11864.)

Appeal from Circuit Court, Henry County ;

Fred C. Gause, Judge. (Appellate Court of Indiana, Division No. 1. Nov. 18, 1924.)

Geo. D. Forkner, of New Castle, for appel

lant. Appeal from Circuit Court, Sullivan Coun. Evans & De Witt, of New Castle, for ap ty; W. F. Wood, Judge.

pellees. Lindley & Bedwell, of Sullivan, for appellant.

PER CURIAM. Judgment affirmed.

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