other dues to the State, with the collection of which they are severally charged, and the General Assembly of Virginia has also passed statutes repealing all laws which provided any remedy for the enforcement of the right to have them so received.

The bill then proceeds as follows:

"And your petitioner furthermore shows, that confiding in his right to a specific performance of said contract, and in his title to equitable relief, should the same be denied, he hath made arrangements with sundry tax-payers of Virginia to use his above coupons in payment of their taxes and license taxes, now due, by which arrangement, if the said coupons can be used without delay or difficulty, he will receive nearly par therefor, and thus be able to have his coupons collected. But unless they are so accepted in payment when tendered, the said tax-payers will not use them at all, because they are compelled to pay their taxes forthwith under heavy penalties, and to obtain their licenses immediately, or cease from business, so that if the collectors of these taxes continue to refuse to accept these coupons, and so render necessary an appeal to the courts, and a separate action by each tax-payer upon each tender, such refusal will be tantamount to an utter destruction of the rights of your petitioner, because delays will thus occur which the tax-payers cannot submit to for the above-named reasons and others, and thus your petitioner will be deprived of the benefit of the arrangements he has made, as well as of all opportunity of having his coupons so used at any time save in small amounts and at rare intervals." The prayer for relief is as follows:

"In tender consideration whereof, and inasmuch as your petitioner is without adequate relief save in a court of equity, wherein such matters are properly cognizable, and inasmuch as he will suffer great and irreparable loss and damage, exceeding $500 in amount unless relief is afforded him immediately, and the above named officers are required to perform specifically the contract aforesaid, and receive his said coupons in payment of all or any of the dues and taxes above named immediately upon their being tendered therefor by any tax-payer or applicant for a license, and to avoid a multiplicity of suits and prevent an obstruction of justice, he prays that Morton Marye, auditor of Virginia, Samuel C. Greenhow, A. L. Hill, and V. G. Dunnington, treasurers of the cities of Richmond, Norfolk, and Lynchburg, respectively, and R. B. Munford, Charles D. Langley and Charles W. Price, commissioners of the revenue for said cities, respectively, be made parties defendant hereto, with apt words to charge them, and may be required on oath to answer fully the allegatious hereof.

"And that the said defendants, their assistants, clerks, and agents, be required and compelled to specifically perform the said coupon contract according to its legal tenor and effect, and to accept your orator's said coupons, or any of them, from any tax-payer presenting them or any of them in payment of his taxes, license taxes, or other dues, and to receipt therefor, or certify the payment and deposit thereof, in cases of applications for license, in precisely the same form and with precisely the same force and effect as they would do if said tender, payment, or deposit were made in money. And that your honors will decree said coupons to be genuine, legal coupons, legally receivable for all taxes, debts, and demands due the State of Virginia, and especially for all license taxes or assessments by whatever name the same may be called. And to the end that your orator may have full relief in the premises he also prays that a preliminary restraining order and injunction may be issued without delay, enjoining and restraining the said defendants, their assistants, clerks, and agents, and each and every one of them, from refusing to accept any of the coupons

named in the Exhibit A herewith, in full payment pro tanto of the taxes, license taxes, or other dues, due by any tax-payer to the State who may tender the same in payment thereof, and enjoining and restraining them from refusing to execute and deliver forthwith to such tax-payer his tax-bill, duly receipted, or to an applicant for a license a certificate that the amount of coupons tendered by such applicant has been deposited with him in payment of the tax or deposit required or assessed for said license, and from refusing, immediately upon the presentation of such certificate, to grant and issue the license applied for to such applicant, all in the same manner, and to have precisely the same force and effect as if said payments were made in coin or currency."

There is also a prayer for general relief.

There was a final decree on bill, answer, replication and proofs, granting the injunction as prayed for, and the defendants appealed.

This bill is without precedent, and should have been dismissed. It is a clear case, as stated, of damnum absque injuria. So far as the contract with the complainant was, that the State should pay to him his coupons at maturity, there is no doubt a breach; but he asks no relief as to that, for there is no remedy by suit to compel the State to pay its debts. So far as the contract was to receive the coupons of the complainant in payment of taxes and other dues to the State, there is no breach, for he does no allege that any of them have been tendered by any tax-payer or debtor to the State in payment of taxes or other dues; nor that there has been a refusal on the part of any tax collector, or other officer of the State charged with the collection and receipt of taxes and dues to the State, to receive them in payment therefor. Personally the complainant has no right to offer them for such purpose, for he owes no taxes or other debt to the State. There is nothing shown in the bill by which he is prevented from transferring them to others who would have the legal right to use them in that way, except that being discredited for such uses by the previous refusals of the officers of the State to receive other but similar coupons, the complainant can find no one willing to purchase them from him at a reasonable price for such purposes. This damage is not actionable, because it is not a direct and legal consequence of a breach of the contract, and is not distinguishable from the damage any creditor might suffer from the known inability or unwillingness of his debtors to perform their obligatious. Such discredit might and often does result in the bankruptcy and financial ruin of the creditor, but no action lies to recover damages for the consequential loss, which the law does not connect with the default, as cause and effect. To enable the complainant to avail himself of the benefit of his contract with the State, to receive his coupons in payment of taxes, he must first assign them to some one who has taxes to pay, as he has not; but when he does so, by the assignment, he has lost his interest in the contract and his right to demand its performance, all right to which he has transferred with the coupons. It is only when in the hands of tax-payers or other debtors that the coupons are receivable in payment of taxes and debts due to the State.

The bill as framed therefore calls for a declaration of an abstract character, that the contract set out requiring coupons to be received in payment of taxes and debts due to the State is valid; that the statutes of the General Assembly of Virginia impairing its ob ligations are contrary to the Constitution of the United States, and therefore void; and that it is the legal duty of the collecting officers of the State to receive them when offered in payment of such taxes and

debts.

But no court sits to determine questions of law in

BRINKERHOFF V. BOSTWICK.*

B., a stockholder of an insolvent National bank, in behalf of himself and all others similarly situated, brought an action against the directors of said bank to recover damages occasioned by the negligent and wrongful acts of said directors whereby the property and effects of the bank had been stolen, wasted and squandered, and the bank rendered utterly insolvent. The action was commenced January 10, 1880, and alleged the commission of the wrongful acts to have been between 1871 and 1876. Held, that the action was not brought "to enforce a liability created by law," within the meaning of section 394, Code Civ. Proc. That the limitation applicable to said action is ten years, as prescribed by section 388.

PPEAL from a judgment of the General Term of A the Second Department affirming a judgment in favor of the defendant, entered upon a new suit di rected at Circuit.

The National Bank of Fishkill was organized in April, 1865, with a capital of $200,000, and continued to do business thereafter until January, 1877, when it became insolvent, and the defendant, Henry Bostwick, was appointed its receiver. From the time of its organization until that time Bostwick and the other defendants were its directors. At the time of the appointment of the receiver the entire capital of the bank had been lost, and there was a large deffciency of assets to pay its creditors, and the stockholders were rendered liable for a large sum of money to make up such deficiency.

In January, 1880, the plaintiff, Theodore Brinkerhoff, a stockholder, suing in his own behalf and for the benefit of all the other stockholders of the bank, commenced this action against the defendants, alleging in his complaint that they during all the time mentioned had been directors of the bank, and that by their misconduct, carelessness and negligence and their inattention to its affairs, the property and effects of the bank had been stolen, wasted and squandered, so that the bank was rendered utterly insolvent, and its stockholders were thus greatly damaged; and relief was demanded, that the damages which the bank and its stockholders had sustained by reason of the matters stated be ascertained and determined, and that the defendants, who were directors of the bank, be adjudged to pay such damages, and that the defendant Bostwick, as receiver of such bank, recover, collect and receive such damages for the benefit of the creditors and stockholders of the bank.

The defendants demurred to the complaint upon various grounds, but the demurrer was finally overruled in this court. 88 N. Y. 52. Thereafter upon their petition to the court other stockholders were allowed to come in and be made plaintiffs in the action, and the * Reversing 34 Hun, 352.

defendants withdrew their demurrer and answered the complaint, denying all the allegations of misconduct contained therein, and setting up the three years' and the six years' limitations in bar of the action.

The action was brought to trial at a Circuit Court, and after some evidence had been given to sustain the allegations of the complaint, the defendants objected to certain evidence offered, on the ground that "the plaintiffs in this action cannot maintain the action for any transactions or thing whereby loss resulted to the plaintiffs which happened more than three years before the commencement of the action," and the court decided that the action was subject to the limitation of three years; to which decision the plaintiffs excepted.

Plaintiffs' counsel then offered evidence tending to establish a cause of action, as alleged in the complaint, against the defendants for losses arising from transactions between the years 1871, and December 31, 1876, and defendants' counsel objected to the competency of such evidence on the same grounds as before, which objection was sustained by the court and the plaintiffs duly excepted. Plaintiffs' counsel thereupon stated that they could offer no evidence of a transaction by defendants tending to establish the cause of action alleged in the complaint which had not happened at some time between the year 1871 and December 31, 1876. The court thereupon ruled that none of such evidence was admissible under the statute of limitations, to which ruling plaintiffs duly excepted, and then rested their case; and upon motion of defendants' counsel the court dismissed the complaint on the ground that the three years' limitation applied; and plaintiffs excepted.

From the judgment entered at the Circuit the plaintiffs appealed to the General Term, and from judgment of affirmance there to this court.

E. A. Brewster, O. D. M. Baker and John F. Schlosser, for appellants.

S. Hand, for respondents.

EARL, J. If the cause of action alleged in the complaint was barred by lapse of time as to the original plaintiff, Theodore Brinkerhoff, then the plaintiffs were properly nonsuited. The important questions to be determined are whether the action was barred by any of the limitations specified in the Code, and if so, by which one of them. We are of opinion that it was not barred by section 394, which controlled the decision of the trial judge, and which provides that "this chapter does not affect an action against a director or stockholder of a moneyed corporation or banking association to recover a penalty or a forfeiture imposed. or to enforce a liability created by law; but such an action must be brought within three years after the cause of action has accrued."

The claim on the part of the defendants is that the word "a liability created by law" in this section means simply a legal liability. On the other hand, it is claimed on the part of the plaintiffs that these words mean a liability created by some statute; and we are of that opinion. The phrase is not such as would have been used, and certainly is not such as is commonly if ever used, in statutes to describe a liability existing at common law independently of any statutory provision. Such expressions as "required by law," regulated by law," "allowed by law," "made by law," "limited by law," as prescribed by law," "a law of the State," are of frequent occurrence in the codes and other legislative enactments; and they are always used as referring to statutory provisions only. The phrase "created by or under the laws of the State" occurs several times in the Code, and is always used in the sense of a thing brought into existence by or under

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statute law. Code, §§ 1775, 1784, 1785, 1797, 1798, 1812. The liability referred to is one created by the same law which imposes penalties and forfeitures, and they are always imposed by statute law. The section would have taken a different form if the Legislature had meant by the phrase "liability created by law," because then their sense would have been precisely expressed if the words "to recover a penalty or forfeiture imposed, or to enforce a liability created by law," had been entirely omitted from the section, and then all actions against directors and stockholders of moneyed corporations must have been commenced within the three years.

The construction we give to this section is made quite obvious if we trace the history of the law embodied therein. It was copied from section 109 of the Code of Procedure, as amended in 1849, which was similar except as to time of limitation. Section 109 was section 89 of the Code of 1848, and there read as follows: "This title shall not affect actions against directtors or stockholders of a moneyed corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by the second title of the chapter of the Revised Statutes entitled 'of moneyed corporations,' but such action must be brought within six years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created;" and that section was copied from section 44, chapter 4, part 3, of the Revised Statutes. The second title of the chapter of the Revised Statutes, entitled "of moneyed corporations," was one imposing liabilities upon directors and stockholders of moneyed corporations for a variety of matters and acts particularly specified, and that title was largely copied from the act, chapter 325, of the Laws of 1825, where similar liabilities were imposed upon directors with a provision that no statute of limitation should bar any suit in law or equity against them for any sum of money for which they were made liable by that act. The title and chapter of the Revised Statutes referred to were in force in 1849, and also in 1877, when section 394 of the Code took its present shape; and the same liabilities against directors and stockholders are imposed by the provisions of the act, chapter 409 of the Laws of 1882, entitled, "An act to revise the statutes of this State relating to banks, banking and trust companies." It is clear therefore that the words, "liabilities created by law could have, and can now have full scope by confining the liabilities to such as are imposed by statute law only. It cannot be supposed that it was intended by the Legislature to change the policy which had characterized the legislation of this State for many years, when in 1849, for the first time, the reference to the liabilities created by the Revised Statutes was left out of the section of the Code, and the phrase "a liability created by law" substituted. Statutory liabilities were still intended, and the new phrase comprehended not only liabilities created by the title and chapter of the Revised Statutes referred to, but also those created by other statutes and the Constitution of 1846, art. 8, § 7. The same Legislature which amended the Code in 1849, by leaving out the reference to the Revised Statutes, passed the act, chapter 226 of the laws of that year, to impose liabilities upon stockholders of moneyed corporations, and thus to give effect to the constitutional provision referred to, and the section of the Code was probably amended to bring within its scope the new liabilities thus created.

It cannot be perceived that there would be any reason or policy for establishing a different limitation of time for the commencment of actions to enforce the common-law liabilities of directors from that established for actions to enforce the same kind of liabilities against other persons, while it might be very

proper that actions to enforce the special liabilities of directors and stockholders for penalties and forfeitures and statutory obligations should be limited to three years.

For all these reasons we feel quite sure that the Legislature intended by the phrase "a liability created by law," in section 109 of the Code of Procedure, and in section 394 of the present Code, a liability created by statute law.

It is not claimed that the liability which the plaintiffs seek to enforce in this action against the directors is one created by any statute, but as we held when the case was here before, it is a common-law liability springing out of their relations to the bank and the manner in which they discharged or omitted to discharge their obligations and duties as directors thereof.

What limitation of time then was applicable to this action? We think the limitation is regulated by chapter 4 of the Code of Civil Procedure. Section 414 provides that the provisions of that chapter shall apply and constitute the only rule of limitation applicable to a civil action or special proceeding, except as men. tioned in that section, and this section does not come within any of the exceptions. It does not come within subdivision three of that section because it was not commenced within two years after the Code took effect.

We think the limitation applicable to this action is ten years, that which is prescribed by section 388 of the Code.

This is unquestionably an equitable action, and the plaintiffs stand in the place of the receiver, and if he had prosecuted the action he would have stood in the place of the bank and had the same rights which it would have had if plaintiff. So this action, for the purpose of determining the limitation of time applicable to it, must be governed by the same law which would have been applicable if the action had been brought by the bank. The action is against the directors as trustees to call them to account for the manner in which they discharged their trust, and is one of which courts of equity always have jurisdiction. Angell & Ames Corp., §§ 312, 314; Robinson v. Smith, 3 Paige, 222; Heath v. Erie R. Co., 8 Blatchf. 347; Brinkerhoff v. Bostwick, 88 N. Y. 52.

In the latter case Rapallo, J., said: "The liability of the directors of corporations for violations of their duty or breaches of the trust committed to them, and the jurisdiction of courts of equity to afford redress to the corporation, and in proper cases to its shareholders for such wrongs, exist independently of any statute."

There is no doubt therefore that as to the original plaintiff in this action the proof of violations of duty and breaches of trust by the defendants could range through ten years prior to the commencement of the action.

But the other plaintiffs became parties to the action upon their petition January 27, 1883, more than six years after the bank became insolvent and its directors had ceased to have any control of its affairs; and hence the claim is made that the action must be treated as commenced as to them at that date, and that therefore a different limitation of time is applicable to them from that which is applicable to the origi nal plaintiff. We are of the opinion that this claim is not well founded. The action was commenced by Theodore Brinkerhoff suing in his own behalf and for the benefit of the other stockholders of the bank; and therefore for the purpose of the statute of limitations the action must be treated as if all the stockholders were plaintiffs. The action is really the action of all the stockholders, as it was necessarily commenced in their behalf and for their benefit. It could not have been commenced by one stockholder for himself alone.

QUEST IN TRUST, FOR EDUCATIONAL AND CHARITABLE PURPOSES-CERTAINTY MUNICIPAL CORPORATIONPROPERTY HELD IN TRUST BY-EQUITY JURISDICTION. -A testator, who died on the 23d of March, 1882, after declaring certain uses as to a small portion of his estate, devised and bequeathed in trust as to all the rest and residue of his estate, to appropriate and apply the net income thereof as follows: "If within twelve months after my decease, my brother, F. B., shall withdraw from the priesthood in the Roman Catholic Church (should he be at the time of my death a priest in said church), and from any and every order or society connected with said church, of which he may be a member, and until he shall become a priest or deacon in said church, or shall connect himself with some order or society of said church, or until the income of said property, or some part thereof, shall be sought to be subjected to the payment of his debts or liabilities by legal process, I direct that the net income of said rest and residue of my estate, be paid to the said F. B. in every year, in such installments as the said trustee, or his successor or successors, may deem best, for and during the term of the natural life of the said F. B." At the time of the testator's death, his brother, F. B., was not a priest or deacon in, nor a member of, or connected with any order or society of the Roman Catholic Church; but on the 31st of July, 1882, he became a member of, and connected himself with an order or society of that church, and has remained so connected ever since. He was unmarried and without issue at the time of the death of the testator, and has so remained. On a bill filed to obtain a construction of the will, it was held (1), that F. B. took an equitable estate under the will, and became entitled to the income thereof from the death of the testator to the time of his becoming a member of the order or society connected with the Roman Catholic Church; (2) that it was not against public policy to make the devise or bequest dependent upon the condition that F. B. should withdraw from the priesthood, or membership of any order or society connected with such church, or refrain from forming any such connection; and the testator bad the right to make the enjoyment of his bounty dependent upon the condition attached to it. Mitchell v. Mitchell, 18 Md. 405; Vidal v. Girard, 2 How. 127, 199; Ex parte Dickson, 1 Sim. (N. S.) 37. Under its charter, the city of Baltimore has the power to accept and hold in trust, any property for educational and charitable purposes. Code Pub. Local Law, art. 4, § 2; see also 2 Kent Com. 280; 2 Dill. Mun. Corp. (3d ed.), § 567, and cases there cited; Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 id. 367; Perin v. Carey, 24 id. 465. On the occurrence of an event, which actually took place, a testator devised and bequeathed the rest and residue of his estate to the mayor and city council of Baltimore, in trust, for the McDonogh Educational Fund and Institute, to be applied to establishing a chair therein, to be called the "Zenus Barnum Chair," to promulgate such course of instruction in said Institute, as would aid in the practical application of the mechanical arts. He then declared that the property so given should be held under the same control and direction as the estate and property now held by said Fund and Institute, and to be so appropriated and applied as to give boys in that institution such useful and practical mechanical education, as would enable them to gain a livelihood by skillful manual labor. There never had been such an incorporated body as the "McDonogh Educational Fund and Institute," but there had been for many years, and still existed, a municipal organization or agency, constituted by ordinance of the city, under the name and style of the "Board of Trustees of the McDouogh Educational Fund and Institute," for the administration of the educational fund devised under the will of

McDonogh. The funds derived from McDonogh's es tate had been devoted exclusively to the purchase, the establishment, and the maintenance of the "School Farm," authorized and directed to be maintained by the will. This farm, with its organized school thereon, with its teachers and pupils, was known as the "McDonogh Institute," and was under the exclusive management and control of the "Board of Trustees of the McDonogh Educational Fund and Institute." Held, (1) that the testator clearly intended that the estate given should be managed and controlled by the "Board of Trustees of the McDonogh Educational Fund and Institute," and should be applied by that municipal agency, in the manner designated in the will, in connection with, and as part of the "McDonogh Institute." (2) That there was no uncertainty, and there could be no difficulty, in the application of the fund to the purpose and object designated by the testator. (3) That the objects and purposes, and the beneficiaries of the trust, were sufficiently certain and defined to render the trust valid, and to enable a court of equity, by virtue of its inherent jurisdiction and power over trusts, to enforce the trust, in accordance with the plan and intent of the testator. Where property is held by a municipal corporation in trust, or where the trust reposed in the corporation is for a charity within the scope of its duties, a Court of Chancery will prevent the misapplication of the trust funds, and compel the execution of the trust. And this jurisdiction is not founded upon the Statute of 43 Elizabeth, ch. 4, but is a part of the original inherent jurisdiction of the Court of Chancery over the subject of trusts. 2 Dil, Mane. Corp. (3d ed.), § 567, 909; Attorney-General v. City of Dublin, 1 Bligh N. R. 312. Barnum v. Mayor, etc. Opinion by Alvey,[C. J.

CARRIER-PERSON HAVING CHARGE OF CHILD-RE FUSAL TO PAY FARE-EJECTING FROM CAR-DAMAGES

-WHEN PUNITIVE NOT RECOVERABLE.-A passenger on a railway train is responsible for the fare of a child under his charge, and upon refusal to pay the same, may, together with the child, be ejected from the train. although he had paid his own fare. If a conductor on a railway train finds a child sitting beside a female passenger, and knows that the father of the child is in the car, or could know upon proper inquiry, he has no right to hold the female passenger responsible for the child's fare. A passenger wrongfully ejected from a railway train is entitled to recover from the railway company such damages as in the judgment of the jury, under all the circumstances of the case, would be a proper compensation for the unlawful invasion of his rights as a passenger, and for the injury to his person and feelings. A passenger on a railway train, though forcibly and wrongfully ejected from the train by an officer of the railway company, is not entitled to punitive damages, if the wrongful act were committed in the discharge of a supposed duty, or without any evil or bad intention. In the Phila., etc., R. Co. v. Quig, ley, 21 How. 202, 214, Mr. Justice Campbell says: Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstan ces of contumely or indignity, the jury are not limi ted to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations." And in the still later case, in the same court, of Milwaukee, etc., R. Co. v. Arms, 1 Otto, 489 493, Mr. Justice Davis said: "Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its