FIRST NAT. BANK OF OMAHA". MASTIN BANK.

433

subordination to that matter, and therefore is to be construed and limited accordingly. ld. § 62. "Applying these rules to the power of attorney under consideration, it appears that the particular subject-matter was the business of Wheeler in the state of Iowa, relating to his real estate, including leasing, collecting moneys due for rents or as purchase money, .and including the satisfaction of mortgages. With· respect to .all business of this general nature within "the state of Iowa, Ripley, as Wheeler's agent, had "unrestricted power and authority ,"and was to act as his "general attorney in fact." The settlement a transaction relating to the particular subject-matter of the agencyS!;and.therefore the agent had discretionary power to accept the mortgaged premises in full for the debt. It is also insisted that no sufficient conside:ration for thecontra-et, relied upon has been shown. This point is not well taken. The agreement w,give up without contest all theland cOl,lered,by the mortgage in of: debt was a good and sufficient Fonsideration for the .agreement to reJease. The val ue of thelland does not, appear, nor·,is it ,"!tmay have been more tbah the mortgage debt, or it may have to it. The.time of obtaining title and posseasionmay have been regarded of great importance. There is some evitendhlgto show thanhere was a defense of usury to part of the claim,: which was waived. But, independently of this, we are of Ophiion that·there was a sufficient consideration. Decree for complainant.

]l'msT NAT.

OF OMAHA 11. MASTIN BANK

et ale

(Circuit Oourt. W. D. Missouri, W. D. October. 1880.)
AsSIGmmn'rOR BENEI!'I'r OJ!' CREDITORS--WllAT PASSES-MJSTAXE.

'J)heFil'Bt National Bank was directed by the Mastin Bank, with which it had a running account, to deposit what was. due the latterwlth a third bank. Through a mistake in its accounts,'the National Bank placed more money to the'Mastin Bll-nk'scredit than was aotually due it·. The Mastin Bank ,made a general:assignits assignee del;llanded and received from the third bank all of said money. Held, t'hat the excess could 'be recovered from him, a8 he possessed only the eqUities of his assignor. '

In Equity. Suit by the First National Bank of Omaha against the loJt;astin Bank aJ;ld Kersey Coates, assignee thereof, to recover $1,816.22. The facts ItS agreed upon are substantially ItS follows: August 27, 1878, the Mllstin Bank r.equested the First National Bank of Omaha, with which it had a running account, to deposit to its credit such an amount as was due it, in even hundreds of. dollars, with the Metropolitan Nationa,lBank of New Yprk, and $8,800 was accordingly remitted to saicibank; the books of the First National Bank of Omaha showing , somewhat over that amount to be clue at the time. The First National J3ank.of Omaha had sent to the Mastin Bank for collection a draft drawn by one Faut, wl;lich was collected July 17, 1878; th.e proceeds thereof v.48F.no.6-28 . '

being: ,plaued!by1the"lasD-nmhed bank to ,tl1e i6redit,: Of the But BanbofdDmaha .11ad.:fll\led td:i:lhnl'ge saidltem, and :the amount 1;o:theJ. MetropoEtau,Natio1ialA3ankofNmv York the srim>iiud'the'Mastin Ban!tl; Afew,days thereafter the:MMtin Bank (ailed,:ank.bmade :anassignment to him, all its 'l!:ssets; He demanded and 'received from the Metropolitan Na.tional BaDktftbe entire amount 80 placed: to As ;soon aB"thei First N!J,tionaL Bank of Omaha bedameawareof,its:mistake, it qemahded said 81,816.22 from the;,MastinBank;tbe Metropolitan National Bank of New York, ,and -and this stiitis brought to recover that, , J. M. Woolworth, for complaiIiant'i '" ' , Brumback & F81"l!!J; for respondent.
i

I ; ;,' ,: ()

t,;- ,:,;

McQRARY, J. " !1'hefaot'is admitted:bythsagreedstater:nent that plaintiff sent ito the Metropoutiui i NationaLBankin New Yorkl.,r to be' placed to the creditof the MastiniBank,,:the moneyno\V in consequenceo( a 'mistake' of faot;: When: plaintiff sta.ted theaccount,irt ot'der' (0 ascertaintheaurn 'to be sent ,to (the NewYork"lmnk, one item ,tbereofhwas omitted, bY i rUeo11l of an er.rot-,·of, the' accountant, or because the 'batlk bad not received'notice attthat" time' of the ce1>lleetion' by the Mastiiir.'Bank of the Faat: draft. The reslllt of thetranaaction was <that the: pldiptiff sent to the Metropolitan 'N:Mlional Bank,to' be credited-'til the Mastin Bank, more money than was due to the latter; or, in other words, there was placed in .thehands .ofsaid Metropolitan National Bank, $1,816.22, which did not, in equity, belong to the Mastin Bank. It, was, however, placed to tpe credit 9f that banJr, anp, the assignment it into' the'hl:lhds 'M 'the 'Ji.soetweeil' me original parties to this transaction"it"cannot claimed that Mastin Bank acquired any-interest in, or iightto, the money now iii' dispute. It is a principle of equity, port it, one,petaoa; by mistake, delivers to another money or he WilY it hl\ck; and, where the ,be recovered; equity permits him ;l1nd wherever he ,can ,find them;' unless they have passed into the hands of an innocent holdero ,Where both parties intended the delivery of aparticnlar sum of money, and where, by the miBtl1ltll of both:;il'lllrger surri wllis party receiving tbe excess becomes, in eqtlity, a trustee for the real :ownerthereof, and bound to deliver it upon demand to him;: The ground upon which this rule proceediFiB, thatm'isfitke: or ignorance of facts is a proper: su bject i(1)f relief when, it'constitutes:a. materialingredienrin the contract or acts of the' parties, and disllppolnts their riritention., by a: b1utualerror, or where it iainconsistent wit'h good faith, and proceeds:from 'the violation of the, wh'ichatle:imposed by law u pon'the: conscience of either ,party; StorY,'Eq. 1-51. : "J:' It is equally clear thaUheplaintifl" haea rightto!reliefagainst the RSsignee, who claims by(s;generalaaslgnrnentundef the laws of Missouri,
· ':' ,,:. >' ·

.EX ,P.ARrllEL BROWN.

for the reason that the,assignee is. deemed'to ,possess the same equities only as the debtor himse!fw6uldpossess. '1 rd. § 1228: : It is my. opinion that upon the principles of equity the plaintiff is entitled to. recover thesutn of. money in controversy .in this suit; and de-: cree will be, ehtered accordingly.

Ex parte

BROWN.

,' (D¥trlet, Court. E .. D. Norfll, CaroZina. August 7,1.891.)

to

2.

RievenueAct 'N. O. § 22, requiring all merchants to pay "11.8 a' license tax onetenth per centum on total amount of purchases in or out of the state, (except purchases 61 farm froducts from the producer,) for cash or on credit, " is not a taz oD:the.privilege 0 purchasing goods, but on the goods themselves, as part of the generAl, mMS of property in the and does not, in, its application to pnrotlttl1dlf'the state, operate 'as au' 'interference with interstate commerce. , Rnbblnl/, v.: Ta:mna:D,tst., 7 Sup. Ot. Rep. a92,; LeI.8l/ v. Hardin, 10 Sup. Of,. Rep. 681; and ,FertiZiz1lnaCo. v. BOa1'd oj AgrfcuZturc. 43 Fed. Rep. 609,-distinguished.
SAME-TAX ON, IMPORTS. Nor d06Bliucb tax operate asa

COl'!!fIT"I'l'iotfAr. LAw-INTERSTATE COMllEROJi..;-MERClIANTS'LICENSE TA:ll:.

8. SAME__DISCRIMINATION.

tionof C.ost. U. S. al't. 1,5

tax upon lmpQl'tB or exports, within the prohlbicl. 2. ,"

.

The fact that purchases of farm prodlietsfrom the prodncer are excepted from the tax cannot be said to operate as a discrimination ag'llinst farmers residing outside the statel because, it is probable that merchants, will bny more products from resldent than from noll-resident farmers.

At Law. Application by Alexander H. Brown for a writ of habeaa corp1.ultorelease him from imprisonment, because of'a failure to comply with the requirements of the revenUe act of North Carolina. Heard at chambers. Writ refused.' 'for petitioner. 'TJW1TUJ8 Strange, for the State.
SEYMOUR, J. 'This petition for a writ of habea8: COTPus has been' prelicense tax of the state sented· with, the 'purpose of ,t esting the of North Ollr6liria., Mr. Strange was, by consent,heard in opposition to the petition in"behalf ofthe state, and the factBSet forth therein were admitted, 'for the purpOses of ihis application:, to be true. The material parts of the revenue act are found' in section 22 of the act, and are in these' woMs: · i ,I · ' i' Evtirylilerchant; jeweler. Jtrocer. druggist, or other dealer who shallbul and st>U,goOdt\, merChandise, of whatsoever descrjpqon, not spe" ciallv taxed elsewhere in this act. shall, in addition to his ad valorem tax. on his s"tllck.lll\yas;;8,lictID.se taxone--tenlb pl'r r.entum on the total amount in or out ,of the state, (elrcE'pt pu rchases of farm prod uets of the <f9r'Clish or on credit, whetl1er such persons mentioned agent or commission merchant. shall purehasll"as prJncipal or through Every personrMnttOnt>d in this 8i>ctionshall. within ten dayssl'tier the fh"st days of Janl1aty:."tidJuly in eaCh year, dellvpt to thee.el"k'of;the board of county cOllunialSio-uerlil aswotn I'!,the aInOUQt .Of his fot