mont statute. The Act of Congress, however, was merely designed to furnish to the public dealing with the bank a knowledge of the names of its corporators, and to what extent they might be relied on as giving safety to dealing with the bank. It had no such purpose as the Vermont statute, and was wholly deficient in the information needed for the purposes of taxation by the State, as conceded to it by the Act of Congress itself. Some legislation of Vermont was, therefore, necessary to the proper exercise of the rightful powers of the State, and, so far as it required this list, was not in conflict with any provision of the Act of Congress.

"This leads to the second objection to the validity of the State statute, namely, that its purpose was to tax bank shares at other places than those where the bank was located. This case does not raise that question: 1. Because the bank whose cashier is the plaintiff in error was located in the town of Brattleboro, and the judgment against him is for refusing to deliver the list of shareholders to the clerk of that town, and not for his refusal to deliver such a list to any other town than the one where it was located. The delivery of a list to this clerk, of the shareholders in that town, would have been in aid of the taxation of the shares at the place where the bank was organized and did business, and such taxation is legal within the narrowest definition of the Act of Congress. 2. But if it be true that so much of this statute as is supposed to authorize other towns, in which shareholders reside, to tax such shares, is unconstitutional, that does not invalidate the part of it we have been considering. It will be time enough to decide the provision of the State law authorizing such taxation unconstitutional when an attempt is made to collect such a tax, and the party resisting it shall bring the case here. The cashier has no right to make a case for him in advance. His rights are not affected by the acts here demanded of the cashier. This court does not sit here to try moot cases, to solve a question which may never be raised by any party entitled to raise it.

"The judgment of the Supreme Court of Vermont is affirmed."-Central Law Journal.

Recent Decisions.

SUPREME COURT OF ILLINOIS.

January Term, 1877.

OFFICIAL BOND-POWER TO REFORM WHEN DEFECTIVE.

A Court of Chancery will not assume jurisdiction to reform an official bond that is defective and not binding upon the principal or sureties.

Scott J., delivered the opinion of the Court.

This bill was filed in the McLean County Circuit Court, by the Trustees of Schools, T. 25, N. R. 2, E. 3d P. M., against Albert L. Otis and his sureties, to so reform his official bond as Treasurer of that township that his sureties might be liable for the default of the Treasurer. As written, the bond is

made to the Board of Trustees in said county," in the penal sum of $25,000, and bound Otis as Treasurer of township 14, N. R. 3 E., in said county, to faithfully discharge the duties of such office. The principal allegations of the bill are, that at the time of the execution of the bond it was the agreement and understanding that defendants should execute a bond payable to the Board of Trustees of T. 24, N. R. 2, 3d P. M., with the condition annexed that the principal should faithfully discharge the duties of such office, and "that by mutual mistake on the part of said Board of Trustees, who accepted and approved said bond, and on the part of said parties who executed said bond, the said bond, in the penal part thereof, failed to state fully who were the payees of said bond, and, in the conditional part thereof, designated the "three" instead of "two." range as "The prayer of the bill is that the bond be corrected, and for a decree against the principal and his sureties for the amount the Treasurer is in arrears to the township. The court sustained the demurrer interposed, and dismissed the bill. Complainants bring the case to this court, on appeal.

Whether a Court of Chancery will assume jurisdiction to reform an official or other bond against sureties is a question upon which the authorities are not harmonious. The point has never been directly decided by this court; but on first impression we are inclined to adopt the doctrine of those cases that declare the extent of the obligation of a surety is to be determined by the agreement he actually signed, and that it cannot be varied, changed, or enlarged by any decree of court, as founded in the better reasoning, and more fully sus tained by authority. One reason that lies at the foundation of this series of cases is that no equities arise in favor of a party seeking a reformation of a bond, not binding at law, against a mere surety who has received no consideration for the agreement it is alleged he intended to make, but did not. The surety may stand upon the terms of the bond he has executed, and if that does not bind him, upon what equitable principle can it be said his agreement shall be reformed so that he shall be made to bear the burden that will otherwise fall on the parties seeking relief. Under our statute of frauds no man can be charged upon a promise to answer for the debt, default, or miscarriage of another person, unless such promise or agreement shall be in writing. On principle, it would seem to admit of no doubt, if a party has made no such promise or agreement in writing for himself, no court can make any for him, whatever his intentions may have been. It is not his agreement unless he assents to it after it is reformed. As sustaining, in a measure, the views expressed, we cite Phelps vs. Garron, 3 Paige, 322; Ontario Bank vs. Mumford, 2 Barbour Ch. 596; Miller vs. Stuart, 9 Wheaton 681; State vs. Meday, 17 Ohio, 567; Ludlow vs. Simmons, 2 Caines' Cases in Error, 1. The bond which complainants seek to have reformed is the official bond of the township Treas urer made to the Trustees of Schools. It is conceded that the bond, as writ ten, is so defective it is not binding at law, either upon the principal or sureties; and we do not see how a Court of Chancery can correct it so as to make it obligatory upon the latter. The effect would be, if that should be done, to make a contract for them, by decree of court, which they never made for themselves, compelling them to assume large pecuniary liabilities, without any consideration whatever. But, independently of this view of the law, the de

cision may be placed on the same ground as in Atter vs. Cairo Dem. Co., 72 Ill. 434. The cases, in some respects, are analogous. That was a bill to reform a replevin bond which contained the name of no obligee or payee. The decision is based on the ground that the bill contained no allegation that it was the intention to fill the blank in the bond with the name of defendant in replevin, and that the omission was the result of mutual mistake. The bond in this case contains the name of no payee or obligee. The allegation is "that by mutual mistake on the part of said Board of Trustees who approved and accepted said bond, and on the part of the said parties who executed said bond, the said bond in the penal part thereof failed to state fully who were the payees of said bond." This allegation is too vague to warrant the interposition of a Court of Chancery, even under that class of decisions which declare such instruments may be reformed. It makes no difference, it is alleged, it was the intention of defendants to make their bond to complainants in accordance with the provisions of the statute, to secure the faithful discharge, by the township treasurer, of his duties as such officer. That very point was decided in Atter vs. Cairo Dem. Co., supra, where it is said “it may be it was the intention of the parties, as alleged, that the instrument should be a replevin bond, in the suit about to be instituted, but that is not sufficient." The same view of the law was taken in Phelps vs. Garron, by the Chancellor, in delivering his opinion in that case. The demurrer was very properly sustained, and the decree dismissing the bill must be affirmed.

Decree affirmed.

Trustees of Schools, etc., vs. Albert L. Otis et al.

Abstract of Decisions.

SUPREME COURT OF KANSAS.

July Term, 1877.

1. A NOTE NOT NON-NEGOTIABLE BY THE ADDITION OF AN ATTORNEY'S FEE. -A note, otherwise negotiable, is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting, including reasonable attorney's fees, if suit be instituted thereón. Such a stipulation does not affect the certainty of amount, requisite in negotiable paper, due at maturity, and only creates an uncertainty in amount which, in case of non-payment after maturity, and after the element of negotiability has ceased, and in event of suit brought, may be recovered therein.

2. PROTEST AND SERVICE OF NOTICE THEREOF.-It is incumbent upon a party seeking to charge an indorser to prove a legal notice, but this, like any other question of fact, is to be settled upon the testimony as it is given, and need not be proved beyond the possibility of mistake. Where the holder and the party to whom notice is to be given reside at different places, it is generally sufficient if notice is sent by the mail of the day next succeeding the day of dishonor.

3. DISHONORED PAPER-TO WHOM HOLDER OF MAY GIVE NOTICE.-The holder of dishonored paper may give notice directly to all prior parties, or only to his immediate predecessor on the paper. In the latter case, such predecessor has the same time to give notice to his indorser as though he himself had been the holder and had the paper protested. A banker or agent, to whom paper has been transmitted for the purpose of obtaining acceptance or payment, is, so far as the question of notice is concerned, to be considered as though he were the real holder and his principal a prior indorser. A note, payable in Topeka, was, on August 5th, legally presented there, and notice thereof forwarded by mail by the banker, who held the note for collection, to the owners at Fort Scott. Notice, when received, was sent by them by mail to the indorser at Atchison. It took a letter two days to go by mail from Topeka to Fort Scott, and two days to go in like manner from Fort Scott to Atchison. The indorser received the notice on August 10th-the 9th was Sunday. Held, that a finding that legal notice had been given must be sustained, although it appeared that there was a daily mail between Topeka and Atchison, and that all parties except the notary knew where the indorser resided, and although it was not shown at what exact hour the notice was deposited in the post-office at Topeka or Fort Scott, or received by the owner or the indorser, or what hours the mail left Topeka or Fort Scott, or reached Fort Scott or Atchison.

4. PLEADINGS-SUIT BY AN ASSIGNEE IN BANKRUPPCY IN A STATE COURT.Where a petition alleges that plaintiffs are the assignees in bankruptcy of a corporation, and have full authority to prosecute and maintain this action; that the defendant indorsed the note sued on to them as such assigns, giving copy of the indorsement, and that they are now the holders and owners thereof, and these allegations are not challenged by motion or answer: Held, that a judgment in favor of the plaintiffs would not be reversed because the petition failed to allege any indebtedness of the indorser to the corporation, or any special authority from the bankrupt court to the assignees to discount notes, etc.-Seaton vs. Scoville et al.

SUPREME COURT OF TENNESSEE.

September Term, 1876.

1. VOLUNTARY CONVEYANCE-TITLE.-A voluntary conveyance of property, made for the purpose of defrauding the creditors of the grantor, will pass the title to the grantee, and the property will be subject to levy or sale as the property of the latter, at the suit of his creditors.

2. REPRESENTATIVES AND PRIVIES.-Though the conveyance be subject to disaffirmance for fraud at the suit of the creditors of the grantor, it can not be impeached by the representatives, heirs, or devisees of the grantor, or by any person claiming under him.

3. SHERIFF'S DEED. —Recitals in a sheriff's deed are conclusive as against third parties.-Fowlkes vs. Harris.

1.

FRAUDULENT SALE-TITLE IN VENDEE.-A sale of goods procured by the fraud of the vendee passes the title to him, subject to the right of the vendor to avoid the sale for the fraud; the sale is voidable, not void.

2. ADVERSE TITLE.-If the goods be seized as the property of the vendee, by valid judicial proceedings, a bona fide purchaser under such proceedings will acquire a title superior to the rights of the original vendor to avoid his sale, and the plaintiff, in such proceedings, will acquire a like superior right to the proceeds of the sale.-Dickson vs. Culp.

Notes of Recent Decisions.

REMOVAL OF CAUSES: WHO MAY REMOVE: ACTS OF MARCH 3, 1875, AND JULY 27, 1876.-Under the Act of March 3, 1875, the right to remove a cause from a State Court to the United States Circuit Court exists in all cases where there are substantial parties, citizens of different States, on opposite sides of the cause, although there are parties on opposite sides who are citizens of the same State. The Act of July 27, 1866 (14 Stat. 306), so far as it authorizes a defendant to remove a cause as to him, is not repealed by the Act of March 3, 1875. A bill was filed in the State Court, alleging that certain property on which M. held a mortgage was subject to a trust for the benefit of the complainant, charging one G. with receiving the rents and profits, and praying an account of such receipts, and charging B., the trustee, with breach of trust. All the parties except M., who was a citizen of Pennsylvania, were citizens of the State where the bill was filed. The suit on the petition of M. was transferred to the United States Circuit Court. On a motion to remand, held, that the cause was properly transferred. U. S. Circuit Court, S. D. Georgia, June 1877. Girardey vs. Moore (Cent. Law Jour.)

REMOVAL OF CAUSE: WHOLE SUIT MUST BE REMOVED: GROUNDS OF REMOVAL. In the removal of a cause from a State to a Federal court, the whole suit must be removed; a fragment of a suit cannot come to the Federal court for trial, because a party interested in that fragment, or some single issue, is a citizen of another State from that of the plaintiff. It is not enough that citizens of different States must be interested in the same issue or contorversy, which arises in the course of a case, but they must have such an interest that when the question to which they are parties is settled, the suit is thereby determined, or the right of removal is not given. U. S. Circuit Court, N. D. Illinois, June 1877. Carraher vs. Brennan (Chic. Leg. News.)

TELEGRAPH LINES: REAL ESTATE, AND TAXABLE.-Telegraph lines are considered as partaking of the nature of realty, in analogy to the new doctrine that railroads and rolling stock are so treated, and consequently, under the Act of March 24, 1875, such property is held by the Court liable to State and County tax. Sup. Ct. Tennessee, January 20, 1877. W. U. Tel. Co. vs. State (Tenn. L. Rep.)