ties held for clients. As to these, the defend- | der Disconto-Gesellschaft v. U. S. Steel Corp. ant 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 subrogated to his rights under the covenant of assumption, if such a covenant there was. Its obligation as the primary debtor in its relation to its own creditors continued unim-ness of the branch in Russia would be perpaired. If merger and seizure of assets do not avail as a defense, the question remains whether the defendant gains anything by the subsequent decree which confiscated the accounts of depositors as a "revolutionary tax." At the time of this decree the Russian assets were already lost. The defendant did not surrender them or any part of them for the purpose of discharging a tax or other liability imposed on its depositors. The question is not here whether credit would have to be allowed if payment had been made for such a purpose out of assets that would otherwise have been retained by the depositary. The ruling of the Supreme Court in Williams v. Bruffy, 96 U. S. 176, 24 L. Ed. 716, suggests the difficulties that even then would have to be surmounted. Certain we think it is that a decree of confiscation directed against depositors does not reduce the liabilities of a bank which has already yielded up its assets in virtue of a decree of confiscation directed against itself. In such a situation the later decree, if it is to be given any effect at all, must speak the voice of a power recognized by us as sovereign. Troublesome questions of situs and of jurisdiction would even then remain. The intangible chose in action, at least when it is the result of a deposit in a bank, has for some purposes a situs at the residence or place of business of the debtor, though the creditor be far away. Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439; Security Bank v. California, 263 U. S. 282, 68 L. Ed. 301, 31 A. L. R. 391; Matter of Houdayer, 150 N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, 55 Am. St. Rep. 642; Direction [3] The defendant places some reliance upon the doctrine of frustration. The contract with the plaintiff was subject, it is said, to the implied condition that the busi mitted to continue. Such a condition might be important if the plaintiff were claiming damages. It has no bearing upon this action, in which the remedy is restitution. Cantiare San Rocco v. Clyde Shipbuilding & Eng. Co. (1924) A. C. 226; Dolan v. Rodgers, 149 N. Y. 489, 44 N. E. 167; 2 Williston, Contracts, § 885. The plaintiff paid his money upon the faith of the defendant's promise that an equivalent amount in rubles would be paid to him thereafter. The consideration fails to the extent that performance is frustrated. [4] The defendant's last reliance is upon the intention of the parties. Nothing in its statement of that intention exempts from liability. It was "intended" by the parties that the said agreement "should be performed in Russia," and that "the performance thereof should be governed by the laws of Russia and by the orders or decrees of any government which might exercise authority therein." Two defects at least make this statement insufficient: (a) If the obligations of the parties were varied by agreement, the making of that agreement is the ultimate and issuable fact which should have been stated in the an. swer. There is a studious omission to make any statement of the kind. Instead there is an averment of intention, which for all that appears was undisclosed by word or deed. "Assent in the sense of the law is a matter of overt acts, not of inward unanimity in motives, design or the interpretation of words." Holmes, J., O'Donnell v. Clinton, 145 Mass. 461, 14 N. E. 747; White v. Corlies, 46 N. Y. 467; 1 Williston, Contracts, § 95; Anson, Contracts, § 34. (b) If an intention undisclosed were equiv (145 N.E.) alent to one revealed, what has happened is not fairly within the range of what is said to have been foreseen. These decrees do not regulate the performance of the agreement. They wipe the agreement out and annul its obligation. Performance has been thwarted. Restitution remains due. The order should be affirmed, with costs, and the questions certified answered in the negative. HISCOCK, C. J., and POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. Order affirmed. On Motion for Reargument. CARDOZO, J. [5] We did not intend by our opinion to foreclose consideration by the trial court of the measure of recovery. The complaint is equivocal. If it is based upon the theory of rescission with an accompanying right to restitution, the recovery must be measured by the money paid by the plaintiff for which no equivalent has been received. 2 Williston on Sales (2d Ed.) § 600, pp. 1503, 1505, 1506; 2 Sedgwick on Damages, 733A. If it is based upon the theory of the breach of an outstanding contract, we assume, though we do not decide, that the recovery must be measured by the value of the rubles. In that view the election made or permitted at the trial will determine the result. The doctrine of frustration will be inapplicable, whether the contract be rescinded or affirmed, since the plaintiff makes no claim for profits in excess of his investment. [6] There is no need to consider the defendant's liability for interest. Interest is not demanded for any period prior to the date of the dishonor of the drafts. If the plaintiff may be held to have received some benefit from the defendant through the enjoyment of banking facilities while the account was running, the defendant's intermediate use of his money without interest must be held to be a full equivalent. The motion for a reargument must be denied. HISCOCK, C. J., and POUND, McLAUGHLIN, CRANE, and ANDREWS, JJ., concur. LEHMAN, J. I concur in the denial of the motion for a reargument, but in my opinion the plaintiff may recover only the value of the rubles in his deposit account, regarded for that purpose as a res, whether the action be technically for breach of contract or to enforce a quasi contractual obligation. Motion denied. COMMONWEALTH v. TSAFFRAS. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 9, 1925.) 1. Criminal law 400 (3)-Testimony that witness was examiner for registrar of motor vehicles was competent. In prosecution for bribery of public officer, testimony of officer that his occupation was that of examiner for registrar of motor vehicles, and that date of his appointment was July 22, was competent. 2. Criminal law 400 (3)-Testimony held to authorize finding that public officer was legally appointed. Testimony of public officer that his occupation was that of examiner for registrar of motor vehicles, and other evidence that he had at various times acted as such examiner, held to justify finding that he was a public officer legally appointed; production of written commission or formal record of appointment being unnecessary. 3. Bribery 1 (2)—Examiner for registrar of motor vehicles is public officer. In view of Gen. Laws, c. 90, § 29, examiner for registrar of motor vehicles is a public officer, so as to support charge of bribery, rather than a mere employee of registrar. 4. Criminal law 1168(6)-Defendant not prejudiced because question whether duties of public officer were executive was left to jury. Duties of examiner for registrar of motor vehicles are executive, and defendant, charged with bribery of public official, was not prejudiced because judge, instead of ruling as matter of law, left to jury to determine whether duties performed by examiner were executive. Exceptions from Superior Court, Middlesex County; Fosdick, Judge. John Tsaffras was convicted of offering a bribe to a public officer of the Commonwealth, and he excepts. Exceptions overruled. A. K. Reading, Dist. Atty., and R. T. Bushnell, First Asst. Dist. Atty., both of Boston, for the Commonwealth. E. J. Tierney and J. J. Flaherty, both of Lowell, for defendant. WAIT, J. [1] The testimony of Barrett that his occupation was that of an examiner for the registrar of motor vehicles, and that the date of his appointment was July 22, 1923, was competent. Exception to its admission must be overruled. Commonwealth v. McCue, 16 Gray, 226; Webber v. Davis, 5 Allen, 393; Commonwealth v. Kane, 108 Mass. 423, 11 Am. Rep. 373; Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375; Commonwealth v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475; Barry v. Smith, 191 Mass. 78, 77 N. E. 1099, 5 L. R. A. (N. S.) 1028, 6 Ann. Cas. 817. [2] There was further evidence that Barrett at various times had acted as such examiner. The evidence, under the cases above cited, was sufficient to justify a find ing that Barrett was a public officer legally his written commission, or the formal recappointed. It was not necessary to produce ord of his appointement. [3] The burden was on the commonwealth to prove that Barrett was an executive officer. There was evidence describing the acts performed by examiners, and that Barrett had performed many of them. The examiners go to various places to conduct examinations of applicants for licenses to operate motor vehicles; examine the applications and the applicants; apply tests; decide whether the applicant comes to the standard required; and report in writing to the registrar their decision on the granting of the application. Although the applicant can appeal to the registrar, the decision of the examiner is generally final. chief part of their duties. By statute, G. L. This is the C. 90, § 29, they are given, with respect to the enforcement of the laws relating to motor vehicles, all the powers of constables (except the service of civil process) and of police officers, including the power to arrest any one violating the provisions of G. L. c. 90. They may serve all processes issued by the courts, the division of highways of the department of public works and of the registrar of motor vehicles. They may investigate accidents in which motor vehicles are concerned. Barrett, as an examiner, had caused persons whom he had seen violating the motor vehicle laws to be arrested and punished. The examiners are appointed by the registrar and may be removed by him for cause. Their compensation, and terms of service, are determined and their duties defined by him. One exercising such powers is a public official, rather than a mere employee of the registrar. He has and exercises "some of the powers of government." Brown v. Russell, 166 Mass. 14, 26, 43 N. E. 1005, 1010, 32 L. R. A. 253, 55 Am. St. Rep. 357. [4] The defendant was not prejudiced because the judge, instead of ruling as matter of law, left to the jury to determine whether the duties performed were “executive." The instructions given were sufficient, and were not prejudicial to the defendant. The duties, obviously, are executive as distinguished from legislative or judicial. The judge, clearly, could not rule that Barrett was not an executive officer of the commonwealth; that the evidence did not establish the commission of any crime or the violation of any law of the commonwealth; and that the jury must return a verdict of not guilty. He was right in re fusing to direct a verdict of not guilty. Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) MEMORANDUM DECISIONS Margaret GARDNER v. EVANSVILLE IMPROVEMENT COMPANY OF VANDERBURG COUNTY. (No. 24151.) (Supreme Court of Indiana. Dec. 10, 1924.) Appeal from Circuit Court, Warrick County; Marshall R. Tweedy, Judge. James W. Davis and A. H. Maxam, both of Booneville, for appellant. Daniel H. Ortmeyer, of Evansville, for appellee. GAUSE, J. Appellant brought this action in the court below against appellee for partition, claiming to be the owner of the undivided one-third of certain real estate. From a finding and judgment that appellant was the owner of said interest and entitled to partition, appellee appealed to the Appellate Court. That court, in Evansville Improvement Co. v. Gardner (1920) 75 Ind. App. 401, 128 N. E. 471, set out the facts, which it stated were undisputed, and decided that upon those facts appellant was estopped to claim any interest in said real estate, and reversed the judgment of the lower court and ordered a new trial. Upon the second trial, the lower court made a special finding of facts, and upon those facts concluded that appellant was estopped from claiming any interest in the real estate. The facts as found by the trial court on the second trial, and which are involved in this appeal, are substantially the same facts as set out in the opinion of the Appellate Court in the former appeal. Although the finding of facts on the second trial is more in detail than as stated by the Appellate Court, all the facts stated by the Appellate Court in its opinion, and upon which it based its opinion that appellant was estopped, were found upon the second trial, and no new material facts were found, nor any facts that are inconsistent with, or which modify, the facts upon which the former opinion was founded. It follows, therefore, that the law as declared by the Appellate Court in the former appeal is the law of the case, and governs in this appeal. Westfall v. Wait (1905) 165 Ind. 353, 73 N. E. 1089, 6 Ann. Cas. 788; Alerding v. Allison (1908) 170 Ind. 252, 83 N. E. 1006, 127 Am. St. Rep. 363. Other questions which are discussed by appellants are not material, in view of the determination that she is estopped to claim any interest in the real estate in dispute. Judgment affirmed. 2 STATE ex rel. Edward BARBER v. Thos. W. HUTCHINSON, etc. (No. 24747.) (Supreme Court of Indiana. Dec. 17, 1924. Modified Jan. 7, 1925.) Henry W. Moore and Felix Blankenbaker, both of Terre Haute, for appellant. Thos. W. Hutchison, of Brazil, Ind., for appellee. PER CURIAM. Come now the parties, and evidence is heard, and the court, being advised, now finds for the relator, that he is entitled to relief as hereinafter set out. It is thereupon adjudged, decreed, and commanded that a peremptory writ of mandamus issue to the defendant, and that as judge of the Clay circuit court, of Clay county, state of Indiana, he be and hereby is directed, ordered, and commanded forthwith to cause the records of said court relating to the proceedings in said court on the 5th day of May, 1924, in cause No. 669 of the causes then pending in said court, wherein the State of Indiana was plaintiff and the relator herein, Edward Barber, was defendant. to be so amended and corrected that said record shall be made to recite that upon the overruling of the motion for a change of venue from the judge, as filed by said defendant, Barber, the said defendant excepted to such ruling; and that forthwith he also, as judge of said Clay circuit court, shall cause the said record of the proceedings in said action in said court on the 15th day of July, 1924, to be so amended and corrected as to recite that 190 days from that date are allowed in which to present and file all bills of exceptions; and that forthwith he also, as such judge, shall certify and sign each of the bills of exceptions numbered 1, 2, 3, 4, and 5, respectively, as prepared and presented to him by the attorneys for said defendant, and shall cause the same to be filed with the clerk of said Clay circuit court; and that forthwith he also, as such judge, shall certify and sign a bill of exceptions containing the evidence introduced, and also that which was offered and excluded at the trial of said action, noting that exceptions were taken wherever the official reporter's notes show that to be the fact, and shall cause to be set out therein as part of the evidence given copies of all exhibits introduced in evidence, and as part of the evidence excluded copies of all exhibits offered to be introduced in evidence and excluded, together with a recital of what was Kessinger & Hill, of Vincennes, and A. G. McNabb, of Sullivan, for appellee. Board of Commissioners of Sullivan County said by the attorneys in making offers and objections, and by the court in ruling thereon, as taken down at the time by the official reporter; and that forthwith he also, as such judge, shall cause to be entered of record in the order books of his court entries reciting the action of the court as the same 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 hereby 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 defendant for leave to appeal to the Supreme (Appellate Court of Indiana. Nov. 7, 1924.) Court as a poor person. 2 Appeal from Juvenile Court, Marion County; Frank Lahr, Judge. M. W. Franklin, of Indianapolis, for ap pellant. U. S. Lesh, Atty. Gen. (Cronk & Wilde, of Indianapolis, of counsel), for the State. PER CURIAM. Judgment affirmed. PER CURIAM. The order heretofore entered in this cause on the 17th day of December, 1924, is ordered to be and hereby is modified, and made to provide that only so much of the Defendant's Exhibit B, to the introduction of which in evidence an objection was sustained, need be copied into the bill of exceptions containing the evidence as will make apparent the facts that it is a Wm. hotel register of the hotel whose name it bears, for what dates it was used as such 3 H. EIKENBERRY V. WESTFIELD STOCK FARM CO. (No. 11911.) 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 which the said name of Clark Richeson is shown to have been written. It is further ordered that the copies of certain bills of exceptions numbered, respectively, 1, 2, 3, and 4, introduced in evidence before this court at the hearing on relator's application for a writ of mandate, may be withdrawn by the respondent, Hon. Thomas W. Hutchinson. County; Zemri E. Dougan, Judge. Overson, Manning & Healey, of Kokomo, for appellant. Oscar L. Pond, of Indianapolis, and Clark & Nichols, of Danville, for appellee. PER CURIAM. Judgment affirmed. |