induce them rather to avoid him. But nevertheless no case yet has been cited to us, and I can find none. which has gone so far as to say that under circumstances such as I have stated the court will assume, or should assume, that damage will be suffered without any proof of it. Now I distinguish-and I desire entirely to reserve my opinion in cases of this kind-if this had been an imputation of an act done in his office, although it would be an act not sufficient to deprive him of that office, it may be possibly that an imputation of that kind would be a sufficient slander to be actionable without proof of damage. Again, on another point, I will not at present express any opinion to find out is this: Whether he can be removed from the office of town councillor because he is often drunk? I can find nothing in the statute relating to county councils which enables anybody to be removed for that offense. Now, if that be so, we have to face some decisions to which I will refer presently, which appear to me to show that when a person is merely accused of unfitness for an office of honor (not of profit, with which we are not now dealing), that unfitness must be one which would expose him to the risk of removal from the office which he fills or seeks to fill. I think that the law must be treated as having been settled at least as early as Onslow v. Horne, 3 Wils. 188, where De Grey, C. J., reviewed some previous decisions. II desire to reserve my opinion on this point-namely, can find no doubt thrown on that doctrine in any case which has been decided since. It has been recoguized apparently more or less in subsequent cases. But neither in Gallwey v. Marshall, ubi supra, nor in Lumby v. Allday, ubi supra, do we find that that principle has been doubted. I do not know that it was expressly sanctioned in the case of Lumby v. Allday, but I rather think it was in Gallwey v. Marshall. But that is an intelligible rule, although, as I say, it is open to the objection that it is not very logical. It is a rule which ought not to be extended. But I take it that it is settled, and being settled, it disposes of this case. Being settled, the learned judge ought not to have left this case to the jury. He ought to have said that there was no case for the jury, but that the action was not sustainable. If he had done that, I do not suppose he would have given the defendants any costs. The defendants did not win on any merits of their own, if this imputation had been made while he was a can- EMOTIONAL JUSTICE. Association, June 1, 1892.] MY subject is so weighty and important that I could and would not have got the costs of the action. At all [Address by Chief Justice Bleckley, before the Georgia Bar events, I should not have given the costs to them. The appeal is a different matter. They are driven to the Court of Appeal in order to get free from the judgment which exists. Therefore I think the appeal must be allowed, with costs. There must be judgment for the defendants without costs, but they, as appellants, must have the costs of their appeal. KAY, L. J. I concur in this decision, and desire to express my concurrence in a very few words. This is a case of slander. Beyond all question the words used were defamatory words. I have no doubt of their meaning. They imputed to the plaintiff that he was an habitual drunkard, and that by reason of that fatal habit of his he was unfit for the office to which he had just been elected of a town councillor. Now, the reason for my concurrence is this: There is no proof of any special damage, and the question is, whether this is one of those cases in which the court will dispense with proof and will infer or presume that there was damage. The office to which the plaintiff had been elected was not an office of profit. It was an office which has been called in some of the cases an "office of credit "-an office to which it was an honor to be elected, and which it was an honor to hold. But it was not one which brought in any direct pecuniary advantage, if any pecuniary advantage in any sense. habit which was imputed to him by the slander, even if the slander had been proved, would not have enabled any one to deprive him of that office. There at once arises the difficulty. Will the court in a case of that kind presume, in the absence of proof, that such a slander would occasion damage? I agree that it is not in every case necessary to prove pecuniary damage. One has only to remember that the imputation of a criminal offense to a man is actionable without any proof of damage. And there are other instances where it is quite plain that it is not necessary that pecuniary damage should have been shown. I have no doubt it may be said that in a case of this kind such imputations, if believed, would be likely to render him an object of contempt to his fellow town councillors, aud to The rely upon it to engage your attention and command your interest, however crude or superficial my treatment of it might be. But I propose to discuss it carefully, though briefly. I shall say nothing which has not been well considered. I pledge my candor for the deliberate forethought of all my utterances on this occasion. Justice is nothing if not indifferent and impartial. All the passions when aroused are unfriendly to it; they are all respecters of persons; the benevolent passions incline us to favoritism; the malevolent to a blind antagonism. To be indifferent means to be free, not only from prejudice, but from the influence of active emotions; for active emotions sway the mind in this or that direction, and justice is so essentially rational that nothing but the dictates of reason can be heeded in rightly dealing with it. It is purely intellectual, and in no degree emotional. Abnormal emotion is always a disturber. Even righteous indignation and holy horror are impertinent intruders in an affair of justice. Emotional justice has no standing in the forum of right reason, and ought to have none anywhere. It should be so effectually overruled and discredited as to leave it without favor in public opinion or in private judgment. Unfortunately it has now two scenes of baleful activity, it works out of court and in court. In Georgia, as in most of the States, we have two tribunals for the trial of high crimes and misdemeanors, the one de facto, the other de jure; the one holding its frequent sessions outside, the other its stated sittings inside of the law. The mob exercises concurrent jurisdiction with the jury; or rather, the mob makes its own selection of the most flagrant cases, draws to itself exclusive jurisdiction of these, and tolerates the jury in dealing with the rest. Sometimes indeed the mob forbears to interfere in the first instance, even where the case is of choice flavor, only reserving the supreme power of review over the verdict. A distasteful ver dict is a powerful stimulant to mob emotion. Mobs of the kind I refer to act always under the provocation of real crimes, and generally under the provocation of crimes the most atrocious and detestable. Their victims, when they secure the right ones, suffer unjustly only because they are punished in violation of law, and by self-coustituted agents who have no better right to inflict punishment on the guilty than on the innocent. It is conviction of guilt, not guilt itself, that warrants punishment. All men are equally exempt from puuishment until guilt has been duly ascertained and declared. Nothing but authentic justice can be called public justice, or is public justice, either in law or in fact. It is true beyond question that mobs for the infliction of summary justice on offenders, or supposed offenders, are composed chiefly of good citizens. Without this element no such mob would or could exist. Mobs of bad men only would not violate law in the interest of law and order. None but the good do evil that good may abound. In so far as the public weal is a motive in the exercise of mob violence, the case is always one of goodness acting underja mistake of duty. If that mistake could be prevented, there would be no mob. One of the most urgent needs of our time is an earnest, temperate, judicious and persistent remonstrance from the bench, the pulpit, the press and the rostrum against emotional justice. That essential part of mob material which is composed of good citizens should be made to see and realize that, while a mob may punish guilt, its members incur guilt, and that for every guilty person purged out of society by such means two or more equally guilty are brought in. Nothing is more certain than that mob executions increase the criminal population of the State. The larger the mob and the more secure of immunity, the more crimina's are lodged in the bosom of society, and each man is no less guilty than if the crime of the whole mob had been committed by himself alone. This is true both legally and morally. Murder is none the less wicked because perpetrated by a crowd. Nothing would be needed to convert a State into a colony of criminals but that its mobs should be large enough and numerous enough. Whoever is unwilling for the whole State to become a mob ought to be unwilling to encourage or share in mob violence. Not only do good citizens, by couverting themselves into a mob, multiply criminals, but they diminish the influence of the jury. The mob seizes on the capital prizes, those cases which count for most in impressing public opinion, and thus the awe which ought to be inspired by the jury is inspired chiefly by the mob. The influence of the mob waxes, while that of the jury wanes. The body which decides between guilt and innocence ought to be the most influential, the most feared and respected of any in society. No organization in or out of the court-house should be so terrible to evil-doers as a jury of twelve men. No mob, even if composed of first-class citizens, ought to compete with the jury for repute in inflicting punishment on offenders. The jury alone should be conspicuous in the exercise of this high function in behalf of the public. Any thing which assumes to be better, and tends to make itself bigger than the jury, is out of place where trial by jury is an institution of the country, and forms the chief bulwark for the security of person and property. Society works by and through established institutions, and can work wisely and safely iu no other way. To weaken or discredit these institutions is to enfeeble government and bring authority into contempt. If those whose zeal in behalf of the public hurries them into outbreak and bloody violence would expend their energy in aiding the officers of the law to discover evidence aud prosecute malefactors, they would indeed be serviceable to the State. As helps and support in upholding law and enforcing it, they might iu a high degree be patriotic and useful. Instead of usurping the functions of the jury, they ought to endeavor to supply evidence and render the jury more efficient. If guilt has been proved to them, they know how to prove it to the jury; if it has not been proved, then they incur the awful responsibility of confounding guilt and innocence--they take the dreadful risk of inflicting punishment on some who do not deserve it. Lately, in one of the lower counties of this State, the mob executed the wrong man and the jury afterward convicted the right one. Whatever serves to magnify and exalt the jury is in favor of the public interest. Not only do mobs defy the jury, they dwarf it aud render it insignificant. But the law itself, as well as its institutions, is weak. ened and wounded by mob aggressions. No people can be happy without that repose which is realized through a sentiment of respect for the law of the laud. The law is that to which all alike must look for security and protection, and a silent, continuous and widely. diffused respect in the public mind for law, as something to be obeyed and observed by all, is more influential in preserving peace, good order and a feeling of restful confidence throughout society than any thing else. Where mobs rage and violate the law by committing murder at will and with impunity, the public mind must and will be anxious and disturbed, and the greatest apprehension must be entertained by all intelligent and thoughtful people. This is to live in the shadow of a threatened storm and miss the blessings of peace in a time of peace. Mobs have no mission and can render no reason for their existence. Nor would they exist if we could silence their well-meaning but deluded advocates aud apologists. Especially would it be serviceable to alter the tone and teaching of those public journals which confound the mob with the people, and treat some if not all instances of mob violence as cases in which the people act in their own behalf and take justice into their own hands. Nothing can be more manifest than that a mob, as such, is not the people as a political society, nor even any part of the same. To become a mob, and do its work, those who compose it must, for the time being, secede from organized society, outrage its most fundamental principles and trample on its institutions. If society has any law or ordinance that has been proclaimed throughout the civilized world, and that every where prevails as binding authority, it is that no man shall be condemned without a trial, and that no trial can be had save through governmental agency and in some pre-established method. Such rules are imposed by society for its own observance as well as for observance by all its members. Neither society as an aggregate, nor any number of its individ uals, can take justice in band or have any hand in justice except by the means and in the manner prescribed by law. Were it known by actual count that all the people of both sexes and all ages had assembled and combined by unanimous consent to perpetrate an act of violence upon the worst of criminals, the case would not be one in which the people had taken justice in their own hands, but one in which, in violation of their own law, they had assumed to inflict injustice in the name of justice. The people have no hands for unlaw ful work. Justice is in the hands of the people only when it is in the hands of their organized tribunals. In such matters the people cannot act otherwise than through their legitimate agents. By appointing these agents and committing all punitive power into their hands, to be exercised in the name of the people and for the good of the people, the people renounced com pletely and forever all right and all power to transact such business in person, or by means of their own di rect intervention. But the truth is that mobs are never composed of more than a small fragment or fraction of the population. Their arrogant assumption of being the people, or representing them, is entirely fanciful and fictitious. The people neither want such representatives nor could have them if they desired. Between the people and the mob there is no privity, and none can arise or be established. Suppose a mob to assemble in the capitol, and, as the people or as representatives of the people, to assume and exercise the power of legislation. It would be no more absurd or impossible for a mob to usurp legislative functions and make their exercise legitimate than to usurp judicial functions and exercise them legitimately. Should a mob pass and promulgate a statute, or a body of statutes, would it be said that the people had taken the making of their laws into their own hands? What journal or newspaper would venture to speak thus of such a lawless method of making laws? It ought to be deemed equally inaccurate and equally mischievous to speak in analogous terms touching the administration of law by mob agency. I exhort and adjure all good citizens to co-operate with the executive and the judiciary in staying quickly that violent justice which is administered by mobsthat wild and lawless justice which is rife in our unhappy country. Children already born may live to see mobs mobbed; large mobs may execute smaller ones; mobs of one race may rise up against mobs of another race; mobs of bad men may become as numerous and more terrible than mobs of good men; brute force, through a long and bloody period of disorder, may reign supreme! * * * I have reached now the immediate and main purpose of this address. It may be asked, why should one speak to a body of lawyers on mob law? Are not lawyers everywhere conservative and law-abiding? Save in a few rare instances, one of them a late deplorable instance which shocked and humiliated the whole country, has any Americau lawyer of high or low repute been known to lead or take part in mob violence? To the honor of the profession be it said there is virtually no mob material in its ranks. Not only so, but of all orders of men, excepting not even the reverend clergy, lawyers are the most unanimous and persistent in condemning and opposing lawless violence as a subatitute for public justice. For this there are several eauses, the chief one being that the whole spirit and training, as well as the interest of the profession, inoline them in favor of regular and orderly administration of justice through the institutions of society and according to the forms of law. To aid in such work is their vocation. For the method of carrying on this vocation they alone are responsible. In so far as that method tends to infuse undue emotion into the administration of justice, it is pernicious and reprehensible. The advocate while engaged in addressing the jury for this object and with this effect is a sort of a mob orator, and a direct promoter of emotional justice. The great danger to justice in court as well as out of court is passion. A jury swayed by passion is a moral mob. Emotional verdicts of acquittal rendered by excited juries are perhaps more numerous than mob executions, and between these two forms of emotional justice the first often bears the relation of cause to the second. Some culprits are dispatched without a trial because several others have been tried in vain. This reason is a lame and impotent one, but its existence as a fact cannot be ignored. The work of lawyers at the bar thus causes, consequentially and undesignedly, lawless violence out of court. Let lawyers cease to arouse and play upon the sympathies and antipathies of juries, and the mob will soon be deprived of its most plausible excuse for insolent intervention and bloody activity in affairs of justice. There is no sounder justice administered in any country than by justices of the peace in Georgia. These magistrates generally act cooly and dispassionately, although they try questions of fact as well as of law. They seldom fail to reach substantial justice. Juries would be equally successful were they not lashed into undue excitement by the appeals of over-zealous counsel. Emotional justice takes even a wider range in court than out of court. Mobs confine themselves to criminal practice, but the emotional lawyer has cases on the civil as well as on the criminal side of the court. When he has a woman for a client and a corporation for a defendant he is irresistible. The jury, through their inflamed passions, will respond to his appeal by awarding the highest amount of damages which their overheated consciences will sanction. This happens not seldom when, according to law and right, the verdict ought to be for the defendant. To lynch corporations or any other class of suitors, by exorbitant or unfounded verdicts, is to give mob spirit sway in the jury box. That the emotional stalwart has not long ago ceased to be extant on the forensic scene, is one of the marvels of practical jurisprudence. The atmosphere of a court-room should always be serene, so that the mental processes of court and jury may go on deliberately and tranquilly. But too often an emotional cyclone sweeps through and carries the jury away. Counsel, by the prevailing practice, are permitted to excite the jury at will. If the spectators also become excited and manifest it by applause, the applause will be a contempt of court, and the enthusiastic individuals who applaud, if they can be identified, will be reprimanded and perhaps fined, but the eloquent counsel who produced the excitement will not even be admonished to forbear from launching out in another burst of emotional eloquence the next moment. This is something like punishing people who take poison, without so much as reproving those who administer it. The eloquence to which I allude is not that which emits light, but that which emits heat only, or much heat with little light. Intellectual eloquence is no less legitimate in court than anywhere else. It is emotional eloquence which is pernicious; its unfailing tendency being to pervert or prevent justice. It is said that this order of eloquence at the bar has much declined and is still declining. That it ought to go out and disappear entirely, as something wholly incompatible with the functions and purposes of courts of justice, is absolutely certain. Counsel should be called to order no less promptly for attempting to excite the jury than for misstating the evidence or for asserting facts as to which the evidence is silent. The work of all courts is mere business. The great mass of forensic business is concerned with two questions: first, whether the alleged wrong, public or private, has been committed, and secondly, if it has, what redress is due. When both of these questions are correctly decided justice is realized; if either is decided incorrectly, there is a failure of justice in the given instance. In no conceivable case can a right solution be aided by exciting the jury. On the contrary, coolness and calmness at all stages of the trial will always be favorable to truth and justice. In court as well as every where else we want intellectual methods that are clean and conscientious. We have learned to respect the rights of person and of property; what we ought to learn is that the right of mind ought to be equally respected. These rights should never be encroached upon by the practice of fraud. Sophistry is a fraud on reason through the reason; pathetic declamation is a fraud on reason through the passions. It surely is not the duty of counsel to influence a jury by such means, and if not their duty it ought not to be their privilege. When we want to realize vividly in our own minds the sentiment of justice, or the idea of justice, or the condi tions of justice, we do not endeavor to excite our passions, but to think cooly and deliberately. Why should we not deal with other minds in the same way? Emotion in its normal state is harmless; it offers no hindrance to justice. But when excited and inflamed it is mental intoxication; it unbalances the reason and uufits the mind for safe and trustworthy deliberation. With less emotional justice inside of the court-house there would be less, perhaps none at all, on the out possession more than thirty years before the trial, under a deed purporting to convey the land in controversy, and that he had actually occupied part of the premises, shows plaintiff's constructive possession of the entire tract described in his deed. April 19, 1892. Donohue v. Whitney. Opinion by Maynard, J. 15 N. Y. Supp. 622, reversed. CIVIL SERVICE-PUBLIC CLERKS-EMPLOYMENT of DISCHARGED SOLDIERS.—(1) The commissioner of the side. No greater good could be done than by with-city works of Brooklyn at the same time appointed as drawing emotion as a force from the administration of justice. NEW YORK COURT OF APPEALS AB- temporary clerks four persons, only one of whom was au honorably-discharged Union soldier. He was assigned a particular position, aud on the return of the regular clerk to the performance of his usual duties the temporary clerk was notified that his services were no longer required. The other three temporary clerks, who had been assigned to other duties, were retained. Held, that this was no violation of the Laws of 1887, chapter 464, providing that in every public de partment honorably-discharged Union soldiers shall be preferred for appointment and employment. (2) The Laws of 1887, chapter 708, providing than an hon orably-discharged Union soldier, holding a position in the city of Brooklyn, shall not be removed except for good cause, after a hearing, but shall hold his position during good behavior, does not compel the retention of one appointed as temporary clerk. April 19, 1892. People, ex rel. O'Connor, v. Adams. Opinion by Earl, C. J. 6 N. Y.Supp. 128, reversed. ASSIGNMENT FOR CREDITORS-DIRECTORY STATUTE. -Chapter 294, Laws of 1888, provides that every assignment for the benefit of creditors shall state "the residence and the kind of business carried on by such debtor at the time of making the assignment, and the place at which such business shall then be conducted, and if such place be in a city, the street and number thereof; and if in a village or town, such apt desiguation as shall reasonably identify such debtor. * * * "" Held, that the act is directory only, and an assignment which fails to state the kind or place of business, but gives the residence of the assignor, who is readily identified, is valid. Bloomingdale v. Seligman, 3 N. Y. Supp. 243, disapproved. Taggart v. Sisson, 9 id. 758; Strickland v. Laraway, id. 761; Mullin v. Sisson, 10 id. 301; Boak v. Blair, id. 898, approved. The principle upon which this conclusion rests has been repeatedly recognized by the courts. It has accordingly been held that the title vests in the assignee upon the delivery of the assignment, even before recording, although the assignment is, by the provisions of the statute, required to be recorded; that the provisions of the statute requiring the assent of the assignee to be subscribed and acknowledged by him, etc., are complied with by a signing and acknowledgment of the instrument without express words of consent; that the statute providing that the wages due employees shall be preferred does not invalidate the assignment, even though it contains no provision for such employees. Warner v. Jaffray, 96 N. Y. 248; Nicoll v. Spowers, 105 id. 1; Scott v. Mills, 115 id. 376; Richardson v. Thurber, 104 id. 606; Franey v. Smith, 125 id. 44. Second Division, April 19, 1892. Dutchess County Mut. Ins. Co. v. Van Wagonen. Opin-porations have the same officers and stockholders, and ion by Haight, J. BOUNDARIES-EVIDENCE-MAPS-CERTIFIED COPIES OF RECORDS.—(1) In an action for trespass to realty, the only question in dispute is as to the location of plaintiff's boundary line, a deed from plaintiff's grantor, conveying the land adjoining his, and a map made by a deceased surveyor, and verified by a witness who has surveyed the land, are admissible to show the extent of plaintiff's possession. (2) But a map recently made for the use of the assessors of the town, and not verified by any proof in regard to the data from which it is drawn, is not admissible in evidence. (3) Neither is a county map filed in the State comptroller's office, where it is not shown when or by whom or for what purpose it was made, or how long it had been on the public files, there being no statute requiring the comptroller to cause such maps to be made and filed in his office. (4) The Code of Civil Procedure, section 933, which makes certified copies of public records admissible in evidence, does not make a certified copy of a document filed in a public office evidence in an action where the original of such copy would not be admissible. (5) Evidence that plaintiff entered into CORPORATIONS-FRAUDULENT CONVEYANCE.—(1) A transfer by a corporation of all its property to another corporation, pending an action against it which afterward results in a judgment against it, is void as against such plaintiff. As against the creditor the transfer to the Millerton Company was illegal, aud in fraud of his rights. The assets of a corporation are a trust fund for the payment of its debts, upon which the creditors have an equitable lien, both as against the stockholders and all transferees except those purchasing in good faith and for value. Bartlett v. Drew, 57 N. Y. 587; Brum v. Insurance Co., 16 Fed. Rep. 143; Mor. Corp., § 791. The Millerton [Company was not such a purchaser. It parted with nothing. It knew and participated in the illegal purpose to destroy the National Company, to make it utterly insolvent and to deprive its creditors of the trust fund upon which they had a right to rely, and so they were at liberty to set aside the transfer so far as it barred their remedy, and to enforce their equitable lien upon the property in the hands of the transferee. (2) The facts that both cor that there is no disproportion between the assets of the two corporations, do not validate the transfer. April 19, 1892. Cole v. Mercantile Trust Co. Opinion by Finch, J. 13 N. Y. Supp. 851, affirmed. EXECUTORS AND ADMINISTRATORS-SALE OF LAND TO PAY DEBTS-REVIEW ON APPEAL.-(1) Under the Code of Civil Procedure, section 2759, which provides that a decree for the sale of the land of a decedent to pay his debts can only be made where it is established that all the personal estate applicable to the payment of debts has been so applied, or that the personal representatives have proceeded with reasonable diligence in converting the personal estate into money, and applying it to the payment of the debts, and that it is insufficient for that purpose, no decree for the sale of land can be made where the personal estate was sufficient to pay the debts, even though such personal estate has been wasted and lost by the executors. While there are no decisions precisely in point, the following give some countenance to our construction: Skidmore v. Romaine, 2 Bradf. 122; Corwin v. Merritt, 3 Barb. 341: Moore v. Moore, 14 id. 27; Tucker v. Tucker, 4 Abb. Dec. 428; Moser v. Cochrane, 107 N. Y. 35; Reed v. Lozier, 48 Hun, 50. (2) On an appeal from an order made in a special proceeding in the Surrogate's Court, the decision of the General Term on questions of fact under conflicting evidence is final. April 19, 1892. In re Topping's Estate. Opinion by Earl, C. J. 14 N. Y. Supp. 495, affirmed. - -ACTION FOR paid over, would be complete upon a reversal of the order. As they acted with knowledge of all the facts, it would be inequitable for them to retain money received under such circumstances, and we see no reason why the law should not infer a promise of restitution, the same as if the money had been collected under an execution. In either case the inference rests upon the fact that money was received by those who knew at the time that it might ultimately be decided that they were not entitled to it. But to whom did the implied promise run? Obviously to those who would have been entitled to the money upon the reversal of the order, provided it had not been paid to the defendants. It was so held in Caperton v. McCorkle, 5 Gratt. 177, which is precisely in point. The law implies the promise for the benefit of the injured party, and if the situation were the same as it was when the money was paid, repayment to the sheriff would be required, because he would be entitled to possession of the fund under the restored attachment. Pach v. Gilbert, 124 N. Y. 612. But the situation is changed, as the plaintiffs have become entitled to the money by virtue of their judgment and execution. They, and they alone, therefore can avail themselves of the implied promise, which is plastic in character, and for the benefit of whom it may concern. The law implies a promise, because in equity and good conscience the defendants ought to have promised, and it will not permit them to say that they did not. It would be an anomaly to hold that the law will imply a promise in favor of one having title, but not in favor of one holding the first lien, when through the action of agencies known by the parties to be in operation, and in the ordinary course of legal procedure, the lien would have ripened into a title but for the erroneous order. Second Division, April 19, 1892. Haebler v. Myers. Opinion by Vann, J. 11 N. Y. Supp. 312, reversed. MANDAMUS-TO REINSTATE CLERK OF COURT-VETERANS OF THE REBELLION.-Mandamus will not lie to JUDGMENT REVERSAL EFFECT MONEY HAD AND RECEIVED-ATTACHMENT.-(1) The remedies provided by sections 445, 1005, 1216, 1292, 1323, 2142, 2263 and 3058 of the Code of Civil Procedure, for the recovery of property or rights lost through an erroneous judgment, which is afterward reversed, are not exclusive of the common-law right to bring an independent action to recover such property. (2) Where money held-by a sheriff under an attachment is paid over by him to a subsequent lienor by order of court, and such order is afterward reversed, the attaching creditor may, in an action for money had and received, recover from the lienor the amount so paid. The subject was carefully examined in Clark v. Pinney, 6 Cow. 299, where it was held that the court would not compel the party to resort to the antiquated remedy of scire facias, but would permit a recovery by a direct action as for money had and received. In delivering the opinion, Chief Justice Savage said: "The general proposition is that this action lies in all cases where the defendant has in his hands money which, ex æquo et bono belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment of the money, is reversed, the legal conclusion is irresistible that the money belongs to the persou from whom it was collected." This principle was recognized by the Supreme Court of the United States in Bank of the United States v. Bank of Washington, 6 Pet. 8, where it was declared that "on the reversal of a judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost," and that he might proceed by action, scire facias, or order. The authorities uniformly compel a police justice to reinstate a person whom the support this position, and out of many that might be justice has removed from the office of clerk of the pocited the following are sufficient to illustrate the sub-lice court, where such office has since been filled, and ject: Sturges v. Allis, 10 Wend. 355; Maghee v. Kellogg, 24 id. 32; Norton v. Coous, 3 Denio, 130; Langley v. Warner, 1 Sandf. 209; Lott v. Swezey, 29 Barb. 87, 88; Kidd v. Curry, 29 Hun, 215; Wright v. Nostrand, 100 N. Y. 616; Insurance Co. v. Heath, 95 Penn. St. 333. The right of the plaintiffs to recover could hardly be questioned if the money had absolutely belonged to them when it was paid by the sheriff to the defendants, but inasmuch as they only had a lien upon it, and had not then completed their title, it is claimed that no action will lie for their relief. In taking this position, the defendants lose sight of the fact that a lien is property, in the broad sense of that word, and although it has no physical existence, it exists by operation of law so effectively as to have pecuniary value, and to be capable of being bought and sold. They also ignore the proceedings that were in progress to convert a lien into a title to the fund. This makes the successful prosecution of the appeal a barren victory, and enables the party in fault to retain the fruits of his own wrong. While the erroneous order was a protection to the sheriff, who acted upon it while it was in force, it is no protection to the defendants, because it was subsequently reversed on appeal, and became as to them the same as if it had never been made. When they accepted the money that was paid over in consequence of the order that they had procured, they knew that if the order should be reversed, and their motion denied, they would no longer be entitled to it, and could not in fairness retain it. They also knew, that if, in the meantime, the plaintiffs perfected judgment, and issued execution, their right to the money, if not a decision on the right of the office involves the construction and effect of certain legislative enactments, but the appropriate remedy in such case is by information in the nature of quo warranto. The rule must be regarded as well established by frequent decisions in the courts of this State that the writ of mandamus should be refused to aid the admission of a claimant into an office, already filled under color of law, and when the title to it presents a disputable question. People v. Stevens, 5 Hill, 616; People v. Lane, 55 N. Y. 217; In re Gardner, 68 id. 467; Nichols v. MacLean, 101 id. 527. High, in his work on Extraordinary Remedies (section 49), considers such a rule to be "established by an overwhelming current of authority." People v. Stevens, 5 Hill, 616; People v. Vail, 20 Wend. 12; People v. Ferris, 76 N. Y. 326; People v. Lane, 55 id. 217. April 19, 1892. People, ex rel. Wren, v. Goetting. Opinion by Gray, J. 8 N. Y. Supp. 742, affirmed. MUNICIPAL BONDS-VALIDITY-JUDGMENT.--(1) Under the Laws of 1871, chapter 925, section 2, which provides that a judgment of a county judge authorizing a town to create a bonded debt "shall have the same force and effect as other judgments," the burden of proving that such a judgment is void for want of jurisdiction is upon those who assert such want of jurisdiction. (2) A decree refusing to reform a municipal bond is not conclusive against the plaintiff in an action brought to recover the amount due on the bond. (3) The purchase from a municipal corporation of its own bonds amounts to a loan to the municipality of the purchase-price of the bonds. Coddington v. Gilbert, |