Manning v. Fitch, 138 Mass. 273. This was not the case of an ordinary breach of warranty of quality upon the sale of an article of commerce. The machine was sold for use by the plaintiff in America. The warranty was that it would do the plaintiff's work here, which, it seems, required a somewhat different machine from one fit for use in England. The precise scope and object of that warranty was that the plaintiff should attempt to work with the machine here, and until then the plaintiff could not know whether the machine would do its work or not. When the plaintiff found that the machine would not work as agreed, a natural and reasonable course was to attempt to put it into condition for use as warranted. The result of the defendant's contention is that when a man sells a machine with a warranty that it is fit for certain work in a distant place, for which it is known to be purchased, and the machine is worth its price in the market where it is made and delivered on shipboard, only nominal damages can be recovered, however unfit the machine may be for the purpose for which it is sold. This cannot be; and whether the expense of a reasonable attempt to adapt it to the contemplated use be regarded as a de 'uction from the actual value of the machine, or whether it be added as a distinct item of damages, it clearly ought to be allowed in some form, and enough is not disclosed to enable us to say that the form adopted did injustice in this case. See Smeed v. Foord, 1 El. & El. 602. Exceptions overruled. PEOPLE V. ULSTER COUNTY SAV. INST. In re MITCHELL. (Court of Appeals of New York. June 17, 1892.) SAVINGS BANKS-INSOLVENCY POWER OF COURT -RESUMPTION OF BUSINESS-SCALING DEPOSITS. Laws 1882, c. 409, § 278, (2 Rev. St. 8th Ed., p. 1573,) declaring that when suit is brought against a savings institution, alleging its insolvency and demanding its dissolution, the court may grant such relief and render such judgment as the interests of the parties seem to require, allows the court to scale down deposits and authorize the resumption of business, where the effect of this will be to allow the institution to continue on a solvent basis. Appeal from supreme court, general term, third department. Action in the name of the people against the Ulster County Savings Institution, alleging its insolvency, and demanding a dissolution. The special term made an order closing the institution and appointing a receiver, upon which it moved for leave to resume business. This was granted, and from an order of the general term (18 N. Y. Supp. 960) affirming the decision of the special term, Lewis A. Mitchell, who, as assignee of certain deposits in the institution, was enjoined from prosecuting his claim, appeals. Affirmed. The opinion of Mr. Justice FURSMAN at special term is as follows: "The defendant was incorporated as a savings institution by act of the legislature passed April 12, 1851, (Laws 1851, c. 152.) It has accumulated up to the commencement of this action deposits to an amount exceeding two millions of dollars. Its business affairs have been managed by thirteen trustees, except that by death and resignations the number at this time is reduced to eleven. The treasurer and assistant treasurer were appointed in 1867, and have held their respective offices continuously from that time down to the time of their removal, in September and October last, respectively. About the 17th of September, 1891, a defalcation, resulting from the misapproriation and abstraction of its funds on the part of the treasurer and assistant treasurer, was discovered. Thereupon, at the instance of the trustees, the superintendent of the banking department began an official examination of the affairs of the bank, and afterwards the bank was closed and a report of its condition made to the attorney general pursuant to statute. Afterwards this action was commenced by the attorney general for the dissolution of the bank and the appointment of a receiver, and such proceedings were had that a temporary receiver was appointed, who duly qualified and entered upon the discharge of his duties. A careful and accurate examination of the affairs of the bank by the superintendent disclosed that on the 1st day of November last its liabilities were $2,474,465.89, and its assets $2,108,547.39; thus leaving a deficiency of $365,918.50. This deficiency is less than fifteen per cent. of the liabilities of the bank, and it is now claimed and insisted that the bank can resume business as a solvent institution upon a basis of 85 per cent. of its liabilities, and application is made to this court for permission to do so. This application is made upon petitions on the part of all the trustees of the bank, and of the receiver, and by depositors representing upwards of $900,000 of deposits. The petitions show that the total number of depositors is in the neighborhood of 6,000, and that of those who are not petitioners a large number of depositors representing small amounts, who are widely scattered over Ulster county, some of whom reside in other counties, and also in other states, and that deposits to the amount of upwards of $150,000 are represented by persons whose residence and address cannot be ascertained. The petitions also show that, so far as can be learned, it is the universal desire of the depositors that the business of the bank shall be resumed; and it is asserted by counsel, and remains undisputed, that no depositor has expressd any unwillingness. "A careful study of the situation as presented by the petitions, by the official certificate of the superintendent of the bank. ing department, and by the various arguments and suggestions of counsel, induces in my mind the belief that such a course will be beneficial to all parties, in case it is found that there is power in the court to authorize it. Such a course will continue in existence a long-established and hitherto useful institution, which has only now been impaired by the extraordinary misconduct of its treasurer and assistant treasurer. It will save to depositors a large amount of their funds, which must necessarily be consumed in expenses in ion of those most familiar with the sav case the action proceeds, or the bank is ings banks of the state, and whose duty put in liquidation, and its assets distributed ratably among its creditors. It will save, moreover, to a large number of persons who are debtors to the institution, the loss that cannot be avoided from shrinkage in values, resulting from forced collections of mortgages, and will probably result in assisting to sustain generally the credit of business men who have at this time deposits in the bank. It has been the policy of this state for a long series of years to permit savings institutions, whose assets from any cause have shrunk below their liabilities, to resume business wherever it could be done upon a solvent basis; and this course has been uniformly, so far as I have been able to ascertain, recommended by the banking department. In 1879 this course was taken by Bank Superintendent Henry L. Lamb in the case of the Oswego City Savings Bank, and the supreme court permitted that institution, under like circumstances, to scale down its liabilities to depositors 10 per cent., and thereupon to resume business. Since that time the bank has been prosperous, and its deposits have steadily increased. In 1883, Bank Superintendent A. B. Hepburn, in bis annual report to the legislature, approved the policy thus pursued by Superintendent Lamb. In that report he says: 'No one can make a study of the failed savings banks without perceiving how much better it would have been for depositors in many instances had the deposits been scaled so as to render the bank solvent, and they have been allowed to continue business. This department, and the courts, now have by law sufficient power over the tenure of office of savings bank managers to secure the removal of incompetent or unfaithful men. With the funds still in the hands of trustees, under the direction of the court, and subject to the supervision of the superintendent, the depositors would have realized much more money, and the expensive management and costly and interminable litigation which succeeds insolvency as the night the day, would have been avoided. It seems that our courts now have the power to reduce each individual deposit to an amount sufficient to render an insolvent savings bank solvent, and authorize the managers of the bank to charge against each separate depositor such amount.' Referring to the Oswego City Savings Bank he adds: The eminent success attending the scaling process in the only instance in which it as been tried in this state is a strong, practical argument in favor of providing by statute for carrying out what seems to be a law already.' In 1885 Superintendent Willis S. Paine expressed his approval to the legislature as follows: In the single instance in the history of the savings banks of this state in which the scaling process has been resorted to as a possible means of saving depositors from ultimate loss, the experiment has met with such marked success it is probable that in the future this remedy will be applied in preference to placing the affairs of temporarily embarrassed banks in the hands of receivers for liquidation.' It will thus be seen that the opin it has been to exercise a supervision over their affairs, so far as the same has been expressed, indicates the propriety of permitting savings institutions to resume business wherever it can be done upon a solvent basis. "The remaining question is one of power. The statute which authorizes the institution of actions like the present provides that the court before which such proceedings shall be instituted shall have power to grant such orders, and in its discretion from time to time modify or revoke the same, and to grant such relief and render such judgment as the facts or evidence in the case and the situation of the parties and the interests involved, shall seem to require.'1 The power thus conferred seems to be sufficient to enable the court to make such orders and such disposition of the institution and its affairs as may appear to be for the best interests of the institution, its creditors, and depositors. Savings banks are quite unlike ordinary banks. Commonly banks are business corporations, have stock and stockholders and paid officers, and conduct their affairs with a view to profit. Their relation to their depositors is in no sense one of trust. They receive deposits to be paid upon the check or draft of the depositors without interest or addition. Their profits, if any, are distributed among their stockholders, and its losses fall upon them, and their property is subject to sequestration at the suit of any creditor. A savings bank is an institution of quite a different character. Its relation to its depositors is in a large sense one of trust and confidence. It has no stock and no stockholders. Its depositors are not entitled to draw checks against it. It does not receive deposits to be paid upon demand simply, but for investment on securities taken for the benefit of the depositors. Its assets are held for distribution among its depositors ratably, and its losses fall in like manner upon its depositors; and no creditor or depositor can by diligence in the pursuit of any legal remedy obtain any advantage over any other creditor or depositor. Its profits and its losses fall upon each depositor according to his just proportion, and no depositor has a right in the distribution of its assets to obtain or receive his deposit in full at the expense of the other depositors. The assets, after deducting the necessary expenses, are held simply as belonging to and as security for all the deposits. It would seem, therefore, that no depositor has any just cause of complaint if he is not permitted to receive his deposit in full, in case the assets are insufficient to pay all the depositors in full. Nor would the trustees be justified in exhausting, or even impairing, the assets of the institution in payment in full of diligent depositors, and thereby leaving those who are less vigilant to receive a less sum than would be theirs if a just and ratable distribution were had. Under these cir 1 Laws 1882, c. 409, § 278, (2 Rev. St. 8th Ed., p. 1573.) cumstances, the assets of the bank being held for all the depositors, and the losses sustained by all; and, there being no right in any depositor to insist upon the pay. ment of his own claim in full at the expense of others, it is clear that the loss already sustained inay and should be thus distributed, and the bank, if possible, permitted to resume business for the benefit of all depositors alike, that in the end each depositor may receive as much as possible. and exercised. The chancellor says: "This court has jurisdiction over all trusts, as well where the trust is held by a corporation as where the trustee is an individual. A savings institution, such as the petitioner, is a mere trustee. It has no stock. It receives the money of depositors for investment, and invests it on securities taken for the general benefit of the depositors. It is merely a large incorporated agency for receiving and loaning money on account of those to whom the money belongs. The interest received upon investments is to be ratably divided among the depositors. The depositors (in the absence of fraud on the part of the managers, from which personal liability would arise) have no recourse whatever for repayment of their principal or interest to anything except the general investments of the institution. The institution now before me was incorporated for the sole purpose of receiving and investing deposits. The design of the legislature in granting the charter was to promote industry and frugality, and preserve and husband the fruit of honest toil. It contemplated no benefit to the managers, but looked only to the security and advantage of the depositors. The trust created is a general or public trust. No depositor has, under the charter or in equity, any right to any particular security in the hands of the institution for his deposit, more than any other depositor. All the assets, after deducting the necessary expenses, are held as a common fund for the security of all the depositors. It follows that no depositor has any reason for complaint if he is not permitted to receive his deposit in full, if there be even any uncertainty as to whether there will be assets enough to pay all the others in full. It follows also that the in "In the case of People v. Mechanics' & Traders' Sav. Institution, 92 N. Y. 7, the action was brought by a creditor (other than a depositor) to compel the receiver to pay certain judgments in favor of one Sistare, and it was substantially held that all creditors of savings banks, including depositors, stand upon an equal footing. The court says: 'Upon insolvency, the assets and property of the corporation is a trust fund for the payment of creditors; and depositors, we think, stand as other creditors, having no greater, but equal, rights to be paid ratably out of the insolvent estate. In the case of Huntington v. Bank, 96 U. S. 388, speaking of savings banks, the court says: 'It is not a commercial partnership, nor is it an artificial being the members of which bave property interests in it, nor is it strictly eleemosynary. Its purpose is rather to furnish a safe depository for the money of those members of the community disposed to intrust their property to its keeping. It is somewhat of the nature of such corporations as church wardens for the conservation of the goods of a parish, the collega of surgeons for the promotion of medical science, or the society of antiquaries for the advancement of the study of autiquities. Its purpose is a public advantage without any interest in its members. *** It is, like many other savings institution ought not, under such circumstitutions incorporated in England and in this country during the last sixty years, intended only for provident investment, in which the management and supervision are entirely out of the hands of the parties whose money is at stake, and which are quasi benevolent, and most useful because they hold out no encouragement to speculative dealing or commercial trading. Very many such exist in this country. Among the earliest are some in Massachusetts, organized under a general law passed in 1834, which contained a provision that the income or profit of all deposits shall be divided among the depositors with just deduction of reasonable expenses. They exist also in New York, Pennsylvania, Maine, Connecticut, and other states. Indeed, until recently, the primary idea of a savings bank has been that it is an institution in the hands of disinterested persons, the profits of which, after deducting the necessary expenses of conducting the business, inure wholly to the benefit of the depositors in dividends or in a reserved surplus for their greater security.' "Courts of equity in other states have exercised the power here sought. In the Case of Newark Sav. Inst., 28 N. J. Eq. 552, the power to scale down deposits and authorize the resumption of business by savngs institutions was distinctly declared stances, to be permitted to exhaust such of its securities as are immediately convertible into cash without loss in the pay| ment in full of clamorous or alert deposit. ors, and leave for those who are less vigilant, or who may be less informed of the situation, securities which are less available, and on which such loss may be sustained as that the latter may fail to realize the full amount due them. In other words, the vigilant depositor ought not to be permitted to devolve all the losses of the trust on the others, who are as much entitled to payment in full as they are. To insure justice to the helpless is one of the most valuable prerogatives of this court. Equality in the present case is equity. I have no doubt as to the jurisdiction of this court over the subject, and I have no hesitation whatever in exercising it. Under the circumstances, I deem it my duty to see to it that the assets of this trust in the hands of the institution are not inequitably administered. The course now taken in regard to this institution is not without precedent in this court. In the Case of Hoboken Bauk for Savings (1874) like measures were taken by me under similar circumstances with salutary effect and most beneficial results to the depositors.' In 1871 a similar pro. ceeding for scaling down the deposits of a savings bank was taken in Connecticut. In that case a sum equal to 24 per cent. of the deposits then in the bank was scaled by the trustees themselves, and a joint resolution was subsequently passed by the legislature ratifying their action. Afterwards an action was brought by one of the depositors to recover the difference be tween his deposit and the amount to which it was scaled, and the supreme court, without giving any effect to the resolution of the legislature, held that the action of the trustees in thus scaling down the deposits was lawful and proper, and that the depositor could not recover. Like proceedings have been had in New Hampshire, where there is a statute authorizing them. In Massachusetts, in the case of Lewis v. Lynn Inst. for Savings, 148 Mass. 235, 19 N. E. Rep. 365, the rule laid down in the Connecticut case was approved and applied. At page 244, 148 Mass, and page 367, 19 N. E. Rep., the court says: But to the depositors themselves the undertaking of the corporation is that it will receive and combine the deposits, and manage and use them to the best practical advantage, according to the judgment of the trustees, and give to the depositors, in just proportion among themselves, the benefit of the result of such management. There is no absolute promise to repay to any depositor the full amount of his deposit. Such a promise to one depositor would imply that in case of loss he should be repaid out of the deposits of others. The promise or undertaking of the corporation is the same to all. There is no promise to pay one at the expense of others. The promise is, in effect, to pay each depositor in full with his dividends, provided the assets are sufficient, and, if they are not sufficient, then to pay each one his proportionate share.' "It seems, therefore, that the application now made is supported by the provisions of the statute above quoted, and by wellconsidered adjudications in this and other states. I think the power of the court is clear, and that the present presents a proper case for its exercise." A. J. Simpson, for appellant. A. Schoonmaker and Simon W. Rosendale, for respondent. No opinion. Order affirmed, with costs, on opinion of FURSMAN, J., below. All concur, except MAYNARD, J., not sitting. STATE ex rel. Fox v. RAINE, Auditor, et al. (Supreme Court of Ohio. June 28, 1892.) SALARY OF OFFICER-INCREASE DURING TERM OF OFFICE-CONSTITUTIONAL LAW. A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes section 20 of article 2 of the constitution of this state, in so far as it may affect the salary of an incumbent of the office during the term he was serving when the statute was enacted. (Syllabus by the Court.) Error to circuit court, Hamilton county. The court of common pleas sustained a demurrer to the petition. The cause was then appealed to the circuit, where the same ruling was made, and the petition dismissed. Thereupon the plaintiff insti tuted the present proceedings to obtain a reversal of the judgment of the circuit court. I. J. Miller, for plaintiff in error. Davidson & Hertenstein and Rufus B. Smith, for defendants in error. PER CURIAM. This action was brought by a taxpayer of Hamilton county to test the constitutional operation of section 897a of the Revised Statutes, passed March 8, 1888, (85 Ohio Laws, 76.) This section only applies to Hamilton county, and is in the following terms: "Sec. 897a. In counties in which, by the last federal census, the population amounted to two hundred and fifty thousand, or upwards, each commissioner shall be allowed for expenses incurred by said commissioner, in the proper discharge of his duties within said county, the sum of ($1,000) one thousand dollars per annum. Said sum to be paid out of the county treasury on the warrant of the county auditor. "Sec. 2. This act shall take effect on and after its passage. Passed March 8, 1888. Volume 85, p. 76." The constitutionality of this statute is assailed upon the ground that it increases the salary of the county commissioners of Hamilton county during the terms for which they had been elected, and for that reason contravenes section 20 of article 2 of the constitution of 1851, which reads as follows: "Sec. 20. The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished." This section of the constitution, as will be observed, denies to the general assembly power to affect the "salary" of any officer during his existing term. In terms the statute in controversy allows a thousand dollars per annum to each county commissioner for expenses incurred in the discharge of his duties within the county, the word "salary" not being used at all; and from this wording of the statute it is contended that it creates no increase of salary, but merely allows compensation for expenses. Constitutional guaranties would afford but slight barriers to encroachments by any of the departments of the government if the forbidden object could be accomlished by simply using a form of words that did not name it in express terms. If the effect of the statute under consideration is to increase the salary of those county commissioners who were serving current terms of office, it is unconstitutional to that extent. The county commissioners of Hamilton county, before the adoption of this statute, were each entitled to $2,000 per annum and necessary traveling expenses when traveling outside of the county on official business. 83 Ohio Laws, 71. This was the full extent of the compensation allowed them by law, and whatever personal expenses they should incur while discharging their official duties within the county was not a charge upon the public treasury. The act in question neither imposed new duties nor created additional expenses. It simply allowed each commissioner of Hamilton county to draw from the public treasury the sum of $3,000, whereas before the act was passed his compensation was limited to $2,000. The $1,000 allowed by the section under consideration, as well as the $2,000 allowed by the former law, is a "reward paid to a public officer for the performance of his official duties," and is therefore "salary." 2 Bouvier, 909; Cowdin v. Huff, 10 Ind. 85; 2 Abb. Law Dict. 440. It necessarily follows from the view of the statute we have taken that to the extent that it sought to affect the salaries of officers during the terms which they were serving when it was enacted, it is unconstitutional and void. Judgment reversed. THOMPSON V. WATSON, Attorney General. (Supreme Court of Ohio. Jan. Term, 1891.) MANDAMUS TO ATTORNEY GENERAL ACTION TO TEST CONSTITUTIONALITY OF ELECTION LAW. Rev. St. 6741, defining the use of mandamus, declares that it is to command the "performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." Section 6763 provides that the attorney general may bring quo warranto on his own relation, or he may bring it on leave of the supreme court or of a judge in vacation, on the relation of another person. Section 6762 provides that the attorney general, when directed by the governor, supreme court, or general assembly, shall bring quo warranto. Held, that mandamus does not fie, on the petition of an elector of the state, to compel the attorney general to institute quo warranto to test the constitutionality of an elec tion law. Original application of one Thompson for mandamus to compel the attorney gen eral to institute an action in quo warranto to test the constitutionality of the election law of April 30, 1891. Denied. James H. Thompson, in pro. per. David K. Watson, Atty. Gen., in pro. per. 66 PER CURIAM. The plaintiff's petition alleges that he is an elector of this state, and that the act of the general assembly, passed April 30, 1891, commonly known as the "New" or Australian Ballot Law," in some of its provisions, which are pointed out, is in conflict with the constitution of the state. It also alleges that the plaintiff requested the attorney general to commence an action in quo warranto in this court to test the constitutionality of the statute referred to, and that he declines and refuses to do so. The petition prays in the alternative, either for a writ of mandamus to compel the attorney general to institute the action, or, if that remedy be denied, then that the court may direct the action to be brought by him. It is clear the writ of mandamus cannot be awarded. The proper use of that writ is to command the "performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." Rev. St. § 6741. It is not contended that the law has made it the duty of the attor ney general to commence an action in quo warranto to test the constitutionality of a statute, when requested by any person who may have, or claims to have, an interest in the question. He may, in a proper case, upon his own relation, bring such action, or he may bring it on leave of the court, or a judge in vacation, on the relation of another person. Rev. St. § 6763. He does not ask leave to bring the action, and an application of another person to him to bring it on his own relation is addressed to his discretion, the exercise of which the court cannot control. If be refuses, it must be presumed that his refusal is based upon sufficient cause. Nor do we deem it proper, in a case like this, to direct the attorney general to bring the action. Section 6762 of the Revised Statutes provides that the attorney general, when directed by the governor, supreme court, or general assembly, shall commence the action in quo warranto. But we think the power of the court under this section should, as a general rule, be exercised only when something relating to the court, orits business, renders it necessary or advisable. It was not designed, we apprehend, that the court should be called upon to exercise its authority to direct an action to be brought by the attorney general to test the constitutionality of legislation whenever a citizen who feels aggrieved should request it. Other modes are open to him, as they are to the plaintiff in this case, for bringing such legislation before the courts. Motion overruled. EDWARDS v. GRIFFITHS. (Supreme Court of Ohio. Jan. Term, 1891.) PETITION IN ERROR-GROUNDS FOR DISMISSAL. Want of merits in the assignments of a petition in error is no ground for dismissing the petition. (Syllabus by the Court.) Error to circuit court, Jackson county. Action by Griffiths against Edwards. There was a judgment for plaintiff, and defendant petitions in error. On motion to dismiss. Motion overruled. Ambrose Leach and James Tripp, for plaintiff in error. John Harper and David Davis, for defendant in error. PER CURIAM. The original suit was upon a promissory note, in the execution of which the defendant, Edwards, claimed a mistake had occurred, and the issue between the parties was as to this mistake. By consent of parties the case was tried to the court, which found for the plaintiff, and rendered judgment in his favor for the full amount claimed. A motion for a new trial was made and overruled, and a bill of exceptions containing all the evidence was allowed by the court, and made a part of the record. The ground upon which the plaintiff in error asks a reversal of the judgment is that there is no evidence to support the judgment and findings of the court below; and the defendaut in error now moves to dismiss the action on the grounds (1) that the court has no jurisdiction, and (2) that the record presents only questions of fact for the consideration of the court. The motion is, as we think, based upon a misapprehension of the petition in error. It urges, as a ground of error, that there is no evidence to support the finding and judg ment of the court below. This is a ques |