proof of honest loss incurred in the execution of the trust.

There is nothing which sets in motion the statute of limitation as to the sum received in 1872. The guardian was entitled to receive and hold the money, and the plaintiff was an infant until he died. The deceased never repudiated his trust. The statute never even commenced to run in the lifetime of the guardian. 80 N. Y., 538; 16 W. Dig., 557.

It was of no consequence whether the guardian converted the fund to his own use, and there was no error in refusing to find that fact. The liability comes from the receipt of plaintiff's money for certain legal purposes and uses and from the entire failure to apply the money as he was bound to do. An action for money had and received will always lie when it is against equity and good conscience that the defendant should hold it.

Judgment affirmed.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur.

TRUSTS. EQUITABLE ASSIGNMENTS. CORPORATIONS.

N. Y. SUPERIOR COURT. GENERAL TERM.

Benjamin F. Butler, applt., v. Alphonse Duprat, respt.

Decided Dec. 1, 1884.

To constitute a declaration of trust the acts or words relied on must be unequivocal. The question is mainly one of intent. As a rule the remittance of funds with instructions to pay them over will not be construed as constituting an irrevocable

trust so long as the funds are at the risk of the remitter. The treasurer of a corpora tion cannot so remit funds as to constitute an irrevocable trust without special authority.

Funds remitted to a trust company, with instructions to pay them to the holder of negotiable obligation of the remitter, which is by its terms payable there, remain at the latter's risk.

An appropriation not amounting to a declaration of trust will not be held irrevocable, except to protect some one who has parted with value on the faith of it.

Funds drawn out of bank by the treasurer of a corporation, on express authority of the board of directors, and thereafter held by him apart from his own funds, cannot be considered as held by him personally, but they are to be considered as in the possession of the corporation or of himself as treasurer of the corporation.

Appeal by plaintiff from judg ment in favor of defendant.

On June 26, 1880, the then treasurer of the Colorado Cattle Co. remitted $11,672.50 to the Union Trust Co., with a letter stating that he enclosed a cheque for the amount of the semi-annual interest on bonds falling due July 1. The Trust Co. acknowledged the receipt, and wrote that the sum was "placed to the credit of the Colorado Cattle Co.'s coupon account." The coupons for the interest were negotiable in form, and payable at the office of the Trust Co. On January 24, 1881, defendant, who had become treasurer of the Cattle Co., drew out the balance of the deposit, by order of his board of directors, and kept the sum so drawn out in his private safe, in an envelope marked "Colorado Cattle Co." Plaintiff was a holder of some of the coupons, and had not presented them for payment when the

balance of the fund was drawn out. This action was brought to follow the fund on the theory that the deposit constituted an irrevocable trust for the coupon holders; that part of the trust fund came into the hands of defendant, and that defendant took it as a volunteer and with notice of its character. The Judge below held that the sum withdrawn from the Union Trust Co. as aforesaid was, at the time of the beginning of this action, in the possession of the Colorado Cattle Co. or of defendant as treasurer of said Cattle Co., and not of defendant personally, and that no cause of action against defendant was made out.

It was specially found by the Judge below, as matter of fact, that in the making of the deposit by the treasurer of the Colorado Cattle Co. with the Union Trust Co., it was not in the contemplation of any of the parties to the transaction that the deposit should constitute a trust fund, applicable to the purpose of a payment of the coupons alone, regardless of future instructions on the part of the Cattle Co., and that the then treasurer of the Cattle Co. was not authorized to deposit funds with the Union Trust Co. in an irrevocable trust for coupon holders.

William J. Hardy, for applt. E. B. Whitney, for respt. Held, That there being no reason for disturbing the findings of fact made below the judgment of dismissal must be affirmed.

Whether a remittance of funds, with instructions to pay to a third

party, constitutes a revocable appropriation or an irrevocable trust is mostly a question of intent. "To create a trust the acts or words relied upon must be unequivocal." 80 N. Y., 423. As a rule such a remittance will not be construed as creating an irrevocable trust so long as the funds are at the risk of the remitter and not of the intended payee. 2 Story's Eq. Jur., § 1045.

From the words of the coupons in question it appears that the coupons are payable to bearer at a specified time and place, and that consequently they are negotiable promises for the payment of money, and that as such they are subject to the same rules to which promissory notes are subject. 66 N. Y., 14. As to promissory notes it is well settled, in this State at least, that "funds in bank" is no defense available to the maker of a note payable at the bank to an action upon the note, except (if the amount be paid into court) as to interest and costs. In other words a deposit of money in bank to meet a note payable there is not a payment, but only a tender. 17 Johns., 248; 8 Cow., 271; 48 N. Y., 520; 58 Id., 435.

Even if the bank fails with the funds in its hands this is no defense to the note on the part of the maker. 80 N. Y., 100.

This case is distinguishable from the case of Rogers Locomotive Works v. Kelly, 88 N. Y., 234, in which the stipulation was that the money deposited should not be subject to the control of the company which made the deposit

for self-protection, interfere with the powers of Congress. Neither the unlimited powers of a State to tax nor any of its large police powers can be exercised to such an extent as to work a practical as

Opinion by Freedman, J.; Sedgwick, Ch. J., and Van Vorst, J.,

concur.

STATUTES. TERM OF OFFICE.

by the Constitution upon Congress. 95 U. S., 465; 13 Wall., 29; 92 U. S., 259; id., 278; 107 id., 59. It is true, as has been affirmed on several occasions, that there are many powers conferred upon Congress which, until exercised by it, are regarded as dormant and which may therefore be exercised by the States within their limits in the meantime, 50 N. Y., 326; 60 id., 10; but this doctrine is subject to the qualification which has always been recognized, that it is not enough that there is no expressed prohibition upon the States, but that it must also appear that there is no repugnancy or inconsistency in the exercise of the power by the States.

Under the circumstances of the case it appears the exercise of the power contended for by plaintiff would conflict with the policy of the government of the United States in allowing the importation of the teas in question and collecting duties thereon.

Moreover,

Congress has acted in the premises by passing the act of March 2, 1883, entitled "An act to prevent the importation of adulterated and spurious teas." By that statute Congress decided that teas actually on shipboard might be imported. The power to import includes necessarily the right to sell.

Judgment affirmed, with costs.

Vol. 20.-No. 15b.

TERM. FIRST DEPT.

The People ex rel. Edward T. Wood v. E. Henry Lacombe.

Decided Jan. 28, 1885.

Where the term of an executive or administrative office is declared by statute to be for one or more years from a designated day the language must be construed to mean until the hour of the same day at which the successor becomes duly qualified to assume its powers.

When the term of an officer is declared by

statute to be two years, commencing on the first day of January next after his election, and a subsequent statute is passed declaring that the term of his successor shall commence at noon on the first day of January succeeding the latter's election, this subsequent statute has the effect of defining the hour of the expiration of the term of the existing officer as well as the commencement of that of his successor.

The provisions of 1 R. S., Chap, V., Title 6, Art. 1, Sec. 9, familiarly known as the Holding Over Act," apply to the office of Mayor of the city of New York, and consequently no vacancy would accrue in that office by the expiration of a term. Section 2143 of Chap. 410, Laws of 1882, declaring that said act should not create a vacancy in any office, prevented the creation of a vacancy in the office of Mayor of the city of New York, by reason of the fixing by said act of the hour at which the term of the mayor of said city elected under such act should commence. The only vacancy in the office of Mayor of the city of New York which the president of the board of aldermen is empowered to fill by § 32 of Chap. 410, Laws of 1882, is one that occurs during an unexpired term by death, resignation, or the other causes which produce a vacancy according to the statute defining vacancies.

Section 32, of Chap. 410, Laws of 1882, em

powering the president of the board of

aldermen of New York City to fill a vacancy in the office of mayor does not in any event constitute him the mayor of the city, but, at most only empowers him to act as mayor; and the power given to the mayor by Chap. 43, Laws of 1884, of ap

pointment to office without confirmation by the aldermen cannot be exercised by a president of the board of aldermen, elected before the passage of said act, while acting as niayor. It was the intention of the leg.

islature that the sole power of appointment

conferred upon the mayor of New York by Chap. 43 of the Laws of 1884, should be exercised only by a mayor subsequently

elected.

Case agreed upon on submission of a controversy without action.

Franklin Edson was elected in November, 1882, mayor of the city of New York, under Chap. 756, § 7, of the Laws of 1873, which provided that the term of office of mayor should be for two years from the first day of January next succeeding the election. Subsequently Chap. 410 of the Laws of 1882, was enacted, which provided the mayor should hold his office for the term of two years, commencing at noon on the 1st day of January next after his election; and, under this law, Wm. R. Grace was elected mayor in November, 1884, to succeed Edson. Edson assumed that his term of office expired on the 31st day of December, at twelve o'clock midnight, and at that time surrendered possession of the mayor's office in the City Hall. Thereupon Wm. P. Kirk, president of the board of aldermen, claimed to be empower ed by law to perform all the functions of mayor between midnight of December 31st, 1884, and noon

of January 1st, 1885, on the ground that a vacancy existed in the office of mayor during that period, and assuming to exercise the sole power of appointment to office given to the mayor by Chap. 43, of the Laws of 1884, which took effect January 1st, 1885, appointed the relator counsel to the corporation of the city of New York. The defendant, who had been appointed to that office for a term which expired on December 10th, 1884, was, at the time of the alleged appointment of the relator, holding over and discharging the du ties of the office, pursuant to a statute of the State, until his successor should be lawfully appointed or qualified, and he refused to acknowledge the validity of the appointment of the relator and to surrender possession of the corporation counsel's office to him. Subsequently, Grace, after coming into the office of mayor, appointed the defendant corporation counsel. The controversy over the title to the office was thereupon submitted to the General Term.

David Dudley Field, George Bliss, Robert Sewell, George H. Foster, and Hugh L. Cole, for relator.

Charles F. Southmayd, James Carter, and Thomas Allison, for defendant.

Held, That no sound reason can be given to sustain the assertion that the term of office of Mayor Edson necessarily terminated at midnight of Dec. 31, 1884. That the language of the statute demands no such construction, and neither analogy, nor public policy,