Nightingale v. Chafee.

and consequently we think they are still entitled to share pro rata with the other creditors in the procceds of the first mortgage.

The counsel for Mr. Chafee contends that the notes first taken are entitled to be first paid. The bill does not ask instructions upon any such question. We think, however, the claim cannot be sustained. The mortgage makes no distinction, but purports to be given for the indemnity of all and each of the indorsers, upon all and each of their indorsements alike. The mortgagees might of course have stipulated for indemnity in the order of their indorsements; but they have not done so; and the court cannot, against the plain letter of the contract, introduce such a stipulation by construction.

The bill also sets forth that Sarah Adams had on deposit, in the Rhode Island Hospital Trust Company, at the time of her assignment, the sum of $16,500, and that the company claims to retain it and the interest on it, in set-off or part payment of two notes, amounting in the aggregate to $30,000 given by Adams Brothers and indorsed by Sarah Adams, which the company then held. The notes were neither of them due when the assignment was made, but fell due within three months afterward. It is claimed by some of the creditors that inasmuch as the deposit was not liable to the set-off when assigned, the assignee is still entitled to have or recover it without set-off. Upon the question thus raised the assignee asks for instructions.

We think the question is clearly settled by the statute. Gen. Stat. R. I., ch. 201, § 14. That statute provides that if any defendant has a demand on the plaintiff for any sum liquidated, etc., "which existed at the time of the commencement of the action and then be longed to the defendant in his own right, and for which he might maintain a suit in his own name, he may set off the same in any action founded upon any demand which could itself be set off." The assignee has never sued for the deposit. It is not claimed that he could now sue for it otherwise than in the name of the assignor. If he should now sue for it, there can be no doubt that by the plain language of the statute the company could set off its notes. The right of set-off under our statute is determined by the state of the claims at "the commencement of the action." Our statute differs materially in this respect from the New York statute; for under the New York statute the assignee takes the contract assigned to him, subject to the right of set-off which the debtor had VOL. XXXIII-68

In Re Corliss.

against it at the time of the assignment. Martin v. Kunzmuller, 37 N. Y. 396.

The assignee is a volunteer, and he shows no peculiar equity which entitles him to have the company restrained of its legal right. We must, therefore, follow the law, and instruct him that the company is entitled to the set-off which it claims. There may possibly be considerations growing out of the relation of the firm of Adams Brothers which may affect the right, but of them, if any such there are, we know nothing, and therefore can say nothing. Decree accordingly.

The office of a commissioner of the United States Centennial Commission is an "office of trust," under article 2, section 1 of the Constitution of the United States.

Such a commissioner, when chosen an elector of the President and Vice-President of the United States, cannot, by declining the office of elector, create such a vacancy therein as is provided for by Gen. Stat. R. I., ch. 11, § 7. A person disqualified as elector of the President and Vice-President of the United States, by holding "an office of trust or profit under the United States," cannot remove the disqualification by resigning the office, unless his resignation precedes his appointment as elector, or in Rhode Island, his election to the position of elector.

The election to such position of a person so disqualified does not result in the election of the candidate receiving the next highest number of votes, but in a failure to elect.

The case of such failure is provided for by Gen. Stat. R. I., ch. 11.

G

YEORGE H. CORLISS, chosen in Rhode Island an elector of the President and Vice-President of the United States, in November, A. D. 1876, was, when chosen, the Commissioner from Rhode Island of the United States Centennial Commission. Thereupon. the governor, acting under article 10, section 3, of the Constitution of the State, which provides that "the judges of the Supreme Court shall give their written opinion upon any question of law

In Re Corliss.

whenever requested by the governor," addressed to them the following communication:

"To the Honorable the Judges of the Supreme Court of the State of Rhode Island:

"The undersigned, Henry Lippitt, governor of said State, respectfully asks for a written opinion upon the following questions

of law:

"First. Is the office of Commissioner of the United States Centennial Commission such an office of trust or profit under the United States as to disqualify its holder for the office of elector of President and Vice-Presideut of the United States?

66

Second. If so, does such a candidate for the office of elector who receives a plurality of the legal votes given, and declines said office, create such a vacancy as is provided for in section 7, chapter 11, of the General Statutes?

66

Third. If no, is the disqualification removed by the resignation of said office of trust or profit?'

"Fourth. If not, does the disqualification result in the election of a candidate next in vote, or in a failure to elect?

"Fifth. If, by reason of the disqualification of the candidate who received a plurality of the votes given, there was no election, can the general assembly in grand committee elect an elector? "Please favor me with a reply at the earliest possible moment. "HENRY LIPPITT, Governor.

OPINION OF THE COURT.

To His Excellency, Henry Lippitt, Governor of the State of Rhode Island and Providence Plantations:

We have received from your Excellency a communication requesting our opinion upon the following questions, to wit:

"First. Is the office of Commissioner of the United States Centennial Commission such an office of trust or profit under the United States as to disqualify its holder for the office of elector of President and Vice-President of the United States?

"Second. If so, does such a candidate for the office of elector who receives a plurality of the legal votes given, and declines said office, create thereby such a vacancy as is provided for in section 7, chapter 11, of the General Statutes?

"Third. If no, is the disqualification removed by the resignation of said office of trust or profit?

In Re Corliss.

"Fourth. If not, does the disqualification result in the election of the candidate next in vote, or in a failure to elect?

"Fifth. If, by reason of the disqualification of the candidate who received a plurality of the votes given, there was no election, can the general assembly in grand committee elect an elector?" We will give our opinion upon the foregoing questions in the order in which they are propounded.

1. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States.

The commission was created under a statute of the United States, approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures, "under the auspices of the government of the United States," and for the constitution of a commission, to consist of not more than one delegate from each State and from each Territory of the United States, "whose functions shall continue until the close of the exhibition," and "whose duty it shall be to prepare and superintend the execution of the plan for holding the exhibition." Under the statute the commissioners are appointed by the President of the United States, on the nomination of the governors of the States and Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibition before the President should announce, by proclamation, the time and place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were further increased and defined. That act creates a corporation, called "The Centennial Board of Finance," to cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction of the commission. The seventh section of the act provides that the grounds for the exhibition shall be prepared and the buildings erected by the said corporation, in accordance with plans which shall have been previously adopted by the United States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and established by the United States Centennial Commission;

In Re Corliss.

and no grant conferring rights or privileges of any description connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and examiners and award all premiums." The tenth section of the act provides that "it shall be the duty of the United States Centennial Commission to supervise the closing up of the affairs of said corporation, to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial exhibition."

It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that "no compensation for services shall be paid to the commissioners or other officers, provided by this act, from the treasury of the United States." The only other officers provided for were the "alternates" appointed to serve as commissioners when the commissioners were unable to attend.

We think, too, the office is an office "under the United States." It was created by act of Congress, and all its powers and duties were conferred and imposed by Congress. It was created, not for the service of any particular State or section, but in the interest of all the States united. The commissioners were appointed under the act by the President, and were commissioned like other United States officers.

point.

There seems to be no room for doubt upon this

Is it an "office of trust or profit under the United States?" It is not an office of profit under the United States, for the commissioners are not entitled to any pay from the United States, nor to any perquisite or emolument under any law of the United States.