upon real estate in the county of Chippewa., 1904, and complainant, Stack, purchased The mortgage was executed by the defend- the interest of John Corcoran in the mortant to John K. Stack and John Corcoran gage and mortgage debt, prior to filing this on the 30th day of November, 1901, for bill, from the administratrix of his estate, $26,976.70, to secure payment of five notes and is now the sole owner of the mortgage for that sum, Stack and Corcoran then be- and notes. The mortgage reserves, by one ing the owners of the Bank of Escanaba, of its covenants, 7 per cent per annum, and, and the defendant being a corporation or in addition, the mortgagor, by a covenant ganized under the laws of the state of in the mortgage, covenanted to pay any Illinois for the purpose of manufacturing and all taxes and assessments levied on acand buying and selling lumber and forest count of the mortgage, or the indebtedness products, and had duly filed its articles of secured thereby, or upon the interest or esincorporation in the office of the secretary tate in the lands created by the mortgage, of state for Michigan and the county clerk or by the indebtedness. Further, it is agreed of Chippewa county prior to the date of the to pay all taxes already assessed or levied mortgage, and complied with the other re- upon another mortgage for $30,000 made by quirements of § 8587 of the Compiled Laws it to Stack & Corcoran upon same fands, and act No. 206, p. 316, Sess. Laws 1901, which last-mentioned mortgage reserved 7 and had its principal office in Michigan at per cent interest per annum; and it was Detour, in Chippewa county, Michigan, dated September 8, 1899. The defendant has where it was carrying on a general lumber paid upon the mortgage being foreclosed, business, and had a sawmill. John Corco- from time to time, $14,181.96, some being ran, one of the mortgagees, died July 3, devoted by complainant to payment of inEnglish contracts, and as such were usu- the corporation was a foreign one. The rious, it is certain, I think, that our act of court said in the course of its opinion: "It 1850 [the act forbidding corporations to is much more probable that the act grew out interpose the defense of usury] has not of considerations connected with the prinrelieved them from the taint. The utmost ciples upon which the usury laws themeffect we can give to the enactment in that selves are based, than from any consideraview is to consider it a simple prohibition tions of local benefit to be realized from upon corporations against interposing the freedom on the part of corporations to borallegation of usury to invalidate contracts row money at any rate of interest." The governed by the laws of a foreign country." court then proceeds to argue that usury The corporation whose receiver in this case laws were originally based upon the aswas seeking to interpose the defense of sumption that the needy borrower was in usury was a New York corporation. The some degree in the hands of the lender, and decision upon the question of usury was remarked that the assumption in case of ultimately put on the ground that the corporations would be that they became bonds were English contracts, and were, by borrowers, not from necessity, but volunthe law of that country, free from usury. tarily, to enable them to carry forward The court therefore was not obliged to pass some enterprise which afforded a reasonable upon the applicability of the New York expectation of profits sufficient to enable statute. This case, by itself, would, per- them to repay the necessary interest with haps, lend but slight support to the sec- out loss or sacrifice. ond view, with the affirmative consequence Before discussing the bearing of the New already pointed out as inherent in that York cases upon the third view, it may be view. It would seem, however, that the noticed that the Wisconsin supreme court, court, in the language above quoted, meant in Newman v. Kershaw, 10 Wis. 333, apto intimate that, while the New York stat-parently understood the two New York ute could not, as a rule of substantive law, cases already cited as supporting the secrelieve the bonds from the taint of usury, ond view above stated, that is, that the supposing that they were English contracts New York statute is remedial, or at least and were usurious by the law of England, has the essential characteristic of a remeyet, that it might, even upon that hypothesis, prevent the corporation from setting up the defense of usury in an action in New York. And this view of the statute is strengthened by the case of Southern Life Ins. & T. Co. v. Packer, 17 N. Y. 51, which held that the New York statute was applicable to a foreign corporation litigating in the courts of New York. The contracts in this case seem to have been made in New York, and were, perhaps, subject to the substantive law of New York; but the court paid no attention to this feature, and the reasoning is apparently broad enough to cover a case where the contract as well as dial statute in that it would apply to a. suit in a New York court, although both the contract and the corporation were foreign. The Wisconsin court expressed its disapproval of this view, but the question was not involved, and what was said on that point is, of course, mere dictum. While, as already pointed out, the New York court of appeals, in Curtis v. Leavitt, 15 N. Y. 9, at least when that case is considered in connection with Southern Life Ins. & T. Co. v. Packer, supra, ascribes a remedial character to the New York statute, so as to render it applicable to any suit in New York irrespective of the situs fense of usury in any action?" Complainant contends that the disability imposed upon defendant by this provision of the statute regulating rates of interest in Illinois constitutes a restriction upon its general capacity and powers which follows it and attaches to its charter in this state, citing 19 Cyc. Law & Proc. pp. 1214, 1215; American Waterworks Co. v. Farmers' Loan & T. Co. 20 Colo. 205, 25 L.R.A. 338, 46 Am. St. Rep. 285, 37 Pac. 269; Fidelity Mut. Life Asso. v. Ficklin, 74 Md. 172, 21 Atl. 680, 23 Atl. 197; Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243; Diamond Match Co. v. Powers, 51 Mich. 145, 16 N. W. 314; Supreme Lodge, K. H. v. Nairn, 60 Mich. 44, 26 N. W. 826; Starkweather v. American Bible Soc. 72 Ill. 50, 22 Am. Rep. 133; Edgeworth v. Wood, 58 N. J. L. 463, 33 Atl. 940; Rue v. Missouri P. R. Co. 74 Tex. 474, 15 Am. St. Rep. 852, 8 S. W. 533; Dubuque F. & M. Ins. Co. v. coming within the scope of this note. See, for example, Rosa v. Butterfield, 33 N. Y. 665; Belmont Branch of State Bank v. Hoge, 35 N. Y. 65; Union Nat. Bank v. Wheeler, 60 N. Y. 612; Atlantic Trust Co. v. The Vigilancia, 68 Fed. 781. terest, some to pay taxes upon the mortgage The question presented for review is: Is itself assessed against the mortgagees, and an Illinois corporation admitted to do busisome upon the principal debt; and the com- ness in Michigan deprived of the right to plainant claimed that the sum due, by rea- plead usury on foreclosure of a mortgage son of the covenants in the mortgage, on the executed in Michigan payable here and covhearing was $23,490.99; and the defendant ering lands here, because the interest statute claimed that only the sum of $12,794.74 of Illinois contains a provision that "no corwas due; that the mortgage, by rea-poration shall hereafter interpose the deson of its covenant to pay the taxes on the mortgage and taxes on the mortgage of September 8, 1899, is usurious, and all payments made should be applied in reduction of the principal sum of the mortgage, agreeably to the defense of usury, which is fully set up in the answer of defendant. The complainant claims that the defendant, being an Illinois corporation, is precluded from interposing the defense of usury, because the statutes of Illinois prevent all Illinois corporations from interposing the defense of usury. The court applied the said $14,181.96 in payment of the taxes paid by complainant on the mortgage debt, and on accrued 7 per cent interest reserved in the mortgage, and the balance on the principal debt, and rendered its decree for $23,490.99, denying the defense of usury; and defendant appeals, claiming, among other things, the mortgage to be in contravention of §§ 4857, 4858, Comp. Laws 1897, pertaining to usury. of the contract and without regard to the question whether the corporation was foreign or domestic, yet the court in the former case, somewhat inconsistently, perhaps, ascribes to it also the character of a substantive law operating to relieve New York contracts by corporations altogether of the taint of usury which would attach to them under the general provisions of the usury laws of that state; and while, as already remarked, the corporation in that case was a New York corporation, in this view of the statute, the question whether it was a foreign or domestic corporation would be immaterial. The opinion in that case says, at page 85: "If these bonds are to be regarded as New York contracts, I am inclined to think that this statute would de decisive against the right of the receiver to allege usury in any stage of these causes, either as a defense to the original bill, or as a foundation for his cross bill. My impression is that the act must be construed as a repeal of the statutes of usury as to all contracts of corporations stipulating to pay interest, thus leaving the contracts in full force according to their terms, and that such an act is liable to no constitutional objection." This view of the statute, which regards it, not merely as a remedial statute preventing a corporation from taking advantage of the usury statute, but as a substantive statute operating to relieve the contract of the taint of usury altogether, is sustained by other New York cases involving the right of individual guarantors or sureties of corporate obligations to avail themselves of usury, or other questions not Upon the strength of Curtis v. Leavitt, the Wisconsin supreme court, in Ballston Spa Bank v. Marine Bank, 16 Wis. 120, held that the New York statute would apply to an action in Wisconsin so as to prevent a Wisconsin corporation from interposing the defense of usury in a suit in Wisconsin upon a New York contract. It is obvious that this result would follow only from the adoption of the third view, which ascribes a substantive character to the New York statute, and would not follow from either the first or the second view of the statute. The remark of the Wisconsin court in the above case, that it was immaterial to consider whether the notes in question were New York contracts or Wisconsin contracts, seems to be explainable upon the theory that, if they were Wisconsin contracts, they would be free from the taint of usury under the general law of that state, and, if New York contracts, they would be free from such taint under the special law now under consideration. The The same view was taken in Lyon v. Ewings, 17 Wis. 61, as to the effect and operation of the New York statute. court in that case was of the opinion that the contract in suit was a Wisconsin contract and subject to the law of that state, by which it would not be usurious; but Oster, 74 Ill. App. 139; North Point Consol., or corporation shall forfeit the whole of Irrig. Co. v. Utah & S. L. Canal Co. 16 said interest so contracted to be received, Utah, 246, 40 L.R.A. 851, 67 Am. St. Rep. and shall be entitled only to recover the 607, 52 Pac. 168; Ford v. Chicago Milk principal sum due to such person or corpoShippers' Asso. 155 Ill. 166, 27 L.R.A. 298, ration," etc. Section 7 provides that the de39 N. E. 651. The defendant corporation fense of usury must be pleaded. Section was organized under the provisions of "An 11 provides that "no corporation shall hereAct Concerning Corporations," approved after interpose the defense of usury in any April 18, 1872, providing "that corporations action." We think it has been settled by may be formed in the manner provided by the supreme court of Illinois that § 11 this act for any lawful purpose, except bank- was not intended to enlarge the power of ing, insurance, real-estate brokerage, the the corporation to "borrow money at legal operation of railroads, and the business of rates of interest," nor in any wise to affect loaning money." Ill. Laws 1871-72, p. 296; the capacity of the corporation to contract Hurd's Rev. Stat. (Ill.) 1903, chap. 32, p. under its charter and the general laws of the 471, § 1. Section 5 provides, among oth-state relating to corporations. A corporaer things, that corporations formed under the act "may borrow money at legal rates of interest and pledge their property, both real and personal, to secure the payment thereof." Chapter 74, p. 1128, relates to interest. Section 1 provides that the legal rate of interest shall be 5 per cent. Section 4 provides that 7 per cent may be contracted for. Section 5 provides that "no person or corporation" shall, "directly or indirectly, accept or receive" any greater sum "than as above prescribed." Section 6 provides as a penalty for contracting for more than 7 per cent that "such person said that, even if it were mistaken in this, and that the contract must be construed with reference to the law of New York, the law of that state, referring to the statute in question, prohibited a corporation from interposing the defense of usury in any action, and that the act applied to a foreign corporation litigating in the courts of that state. The Wisconsin court added that, if the courts of New York would enforce the contract, for a much stronger reason should the courts of Wisconsin do so in view of the provisions of the charter which permit the company (apparently a Wisconsin corporation, or at least not a New York corporation) to agree for the payment of any rate of interest on loans contracted for the purpose of constructing its road. It was also held, or rather assumed, in Freese v. Brownell, 35 N. J. L. 285, 10 Am. Rep. 239, that, if a contract evidenced by the acceptance of a draft by an Illinois corporation were to be regarded as a New York contract and subject to the laws of that state, the statute in question would have prevented the acceptor, and therefore the drawer, from setting up the defense of usury in an action in New Jersey. So it was conceded in Lane v. Watson, 51 N. J. L. 186, 17 Atl. 117 (Affirmed in 52 N. J. L. 550, 10 L.R.A. 784, 20 Atl. 894), that the New York statute would debar a New Jersey corporation from setting up the defense of usury to a note made by it, which was concededly a New York transaction. In Craven v. Atlantic & N. C. R. Co. 77 N. C. 289, however, the court, referring to the New York statute in question, said that tion is not authorized to borrow money at a higher rate than the statute prescribes. On the contrary, the power granted to it by its charter is to "borrow money at legal rates of interest." A contract by a corporation to pay interest in excess of 7 per cent is as much within the ban of the statute as a similar contract on the part of an individual. "The theory seems to be that, because a corporation cannot set up usury as a defense, any person or corporation dealing with a corporation may lawfully exact such rate of interest as may be agreed upon, whether in excess of the statutory it cannot, and does not, profess to control corporations other than those created by the law of New York, or, if it be regarded as an act regulating the practice of the courts of New York, it might, perhaps, apply to corporations created by a foreign state when sued in the courts of that state; that it cannot govern a corporation of North Carolina sued in North Carolina. This was said in answer to the contention that the bonds in suit were delivered in New York and were payable there, and consequently were governed by the law of New York in respect to the rate of interest which they might be made legally to bear, in connection with a reference to the New York statute in question. It would seem, therefore, that what was said as to the New York statute must have been upon the hypothesis that the question of usury would, in general, be governed by the law of New York. In a subsequent part of the opinion, however, the court said that the bonds were clearly a North Carolina contract, the precedent debt constituting the consideration having been incurred and being payable in North Carolina, and both parties residing in that state. Treating the contract as a North Carolina contract, the New York statute would not, of course, in any view, apply to an action in the former state against a corporation of that state. The general subject of conflict of laws as to interest and usury is covered in a note to United States Sav. & L. Co. v. Beckley, 62 L.R.A. 33. limit or not, so that, where a corporation is, the supreme court of Illinois. Warren v. the debtor, no rate of interest is fixed by the First Nat. Bank, 149 Ill. 9, 25 L.R.A. laws of this state. To this view we are 746, 38 N. E. 122. "It is the charter alone totally unable to yield our assent. The de- which, by the law of comity, is recognized fense of usury is made by setting up and and enforced in other jurisdictions, and not seeking to enforce the forfeiture or penalty the general legislation of the state in which imposed by § 6 of the statute. That, doubt the company is formed. The general laws less, a corporation cannot do. But the force and regulations of a state are intended to and efficacy of the statute, or the binding govern only within the limits of the state nature of its prohibitions, does not depend enacting them, and the state can have no upon the penalty which it imposes for dis-power to give them extraterritorial force. obedience to those provisions. Whatever Such provisions do not, as a rule, enter a statute forbids becomes unlawful, whether into contracts made within the state, if a penalty is annexed as a consequence of they are to be performed in another jurisdisobedience, or not. While corporations diction. It follows, therefore, that, where cannot enforce the forfeitures imposed by a state statute is enacted for the enforceour usury laws, it does not follow that the ment of a local policy only, it will not be statutory prohibition against exacting or presumed that such statutory provision was paying more than the lawful rates of inter- intended by the state, or by the shareholders est has no application to them. The pro- forming the corporation, to enter into the hibition is general, and applies by its terms charter contract, and to regulate the comto every person or corporation; and no con- pany in its transactions outside of the state, tract, whoever may be the parties to it, and it will not affect the validity of the can be so framed as to provide for the reser- dealings of the company in foreign states. vation of more than the rates of interest 2 Morawetz, Corp. § 967." See also Mutual allowed by the statute without being in con- L. Ins. Co. v. Cohen, 179 U. S. 265, 45 L. ed. travention of the statute and therefore un- 184, 21 Sup. Ct. Rep. 106. Usury laws have lawful. Nor does it follow that, because the been uniformly held to be local and having debtor who has agreed to pay more than the no extraterritorial effect. It necessarily legal rate of interest is a corporation, and follows that statutes designed to enforce therefore incapable of interposing the de- compliance with such laws must be restrictfense of usury, the law will treat the con-ed to a local operation. 29 Am. & Eng. Enc. tract as valid, and enforce it according to Law, 2d ed. p. 527; Western Transp. & Coal its terms. No agreement between parties to do a thing prohibited by law or subversive of any public interest which the law cherishes will be judicially enforced. . . . Our statute in relation to interest contains both a prohibition and a penalty. Where the party agreeing to pay illegal interest is a corporation, the penalty cannot be invoked in its favor, but the prohibition remains wholly unaffected by the provisions of § 11, which takes from corporations the right to interpose the defense of usury." Union Nat. Bank v. Louisville N. A. & C. R. Co. 145 I. 208, 34 N. E. 135. Co. v. Kilderhouse, 87 N. Y. 430. Again, the denial to corporations of the right to invoke the usury laws in their defense, as construed by the supreme court of Illinois, presents a question of pleading not different in principle from the question presented by a denial of the right to invoke statutes of limitations in their defense; and it is the settled law that "matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought." Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. ed. A different view has been taken of such a 245. See also Townsend v. Jemison, 9 How. statute in New York, where it has been held 407, 13 L. ed. 194; Home L. Ins. Co. v. Elthat its effect is to repeal the usury laws well, 111 Mich. 689, 70 N. W. 334; Bank of of the state as to corporations, and to render United States v. Donnally, 8 Pet. 361, 8 L. valid any contracts they may choose to make ed. 974. If § 11 should be given the extraas to interest. Rosa v. Butterfield, 33 N. territorial effect claimed for it, it would conY. 665; The Vigilancia (D. C. 68 Fed. flict with our local interest laws. Our stat781. In this case, however, we are only con- ute, like the Illinois statute, makes a concerned with the interpretation of the su- tract for more than 7 per cent interest unpreme court of Illinois. The enforcement lawful, and undertakes to promote complior nonenforcement of penalties of forfei-ance with its provisions by penalizing nontures for the violations of the statutes of compliance on the part of the lender by a a state are peculiarly matters of local concern, which have no force outside of the boundaries of the state. This § 11 seems to be designed for the enforcement of a local policy only, and not intended to operate outside of the state, under the decisions of forfeiture of the entire interest contracted for; and the right to interpose the defense belongs to corporations as well as to individuals. If one of our citizens can escape the penalties of our laws, intended to operate upon all, by virtue of this Illinois statute, The decree of the Circuit Court is reversed, with costs, and a decree directed in accordance with this opinion. NEW YORK COURT OF APPEALS. SAMUEL MELKER, by Guardian ad V. CITY OF NEW YORK, Respt. (190 N. Y. 481, 83 N. E. 565.) Municipal corporation - fireworks in street nuisance. The display of fireworks consisting in part of bombs, fired from mortars, in a city street with reasonable space for safe and efficient management, under the control of experts, for the celebration of a political victory, is not a nuisance per se, making the municipality liable for injuries to a bystander due to the explosion of a mortar, where such articles are regarded as safe by experts, none having been known to explode before by the one giving the exhibition, a man of more than thirty years' experience, and the cause of the explosion is not capable of explanation; but the circumstances under which it was given may be such as to justify the jury in finding it to be a nuisance in fact. then, as to a part of our citizens, our own, recovery must "be limited to the principal laws may be annulled by a foreign statute; sum, less payments actually made, however and, if all our sister states should adopt | designated at the time of payment." Estey similar provisions, our usury laws would, to v. Capitol Invest. Bldg. & L. Asso. 131 Mich. a considerable extent, become ineffective. 502, 91 N. W. 753. Section 8587 of the Compiled Laws provides that foreign corporations authorized to do business in this state "shall enjoy all the rights and privileges, and shall be subject to all the restrictions, requirements, and liabilities, of corporations of like character incorporated under Michigan statutes." Section 10466, Comp. Laws, provides that foreign corporations "may prosecute in the courts of this state in the same manner as corporations created under the laws of this state," etc. "The power of determining whether and how far, or with what modification, or upon what conditions, the laws of one state, or any rights dependent upon them, shall be recognized in another, is a legislative one. The comity involved is the comity of the states, and not of the courts; and the judiciary must be guided in deciding the question by the principle and policy adopted by the legislature." Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243. The principle and policy of the legislature is embodied in § 8587, Comp. Laws, being act No. 270, p. 584, Sess. Laws 1895. The effect of this statute is to put foreign corporations complying with its provisions, and thereby acquiring authority to transact business in this state, upon the same footing as domestic corporations, with the same right to prosecute and defend actions in the courts of this state and to enforce their contracts and use the remedies authorized by law as are possessed by such domestic corporations. Isle Royale Land Corp. v. Osmun, 76 Mich. 162, 43 N. W. 14; Floyd v. National Loan & In Cameron v. Heister, 10 Ohio Dec. ReInvest. Co. 49 W. Va. 327, 54 L.R.A. 536, 87 print, 651, it was held that the display of Am. St. Rep. 805, 38 S. E. 653. "The mani- fireworks on the public streets of a municfest and only purpose was to produce uni- ipal corporation is a nuisance per se, and. formity in the powers, liabilities, duties, and though the city council has passed an ordirestrictions of foreign and domestic corpora-nance making the discharge of rockets tions of like character, and bring them all under the influence of the same law." Ste vens v. Pratt, 101 Ill. 206. The contract in question in this suit was made and to be performed, and its performance secured, upon lands in this state. It was a Michigan, and not an Illinois, contract, subject to interpretation by and enforcement under our laws. National Mut. Bldg. & L. Asso. v. Burch, 124 Mich. 57, 83 Am. St. Rep. 311, 82 N. W. 837; Hoskins v. Rochester Sav. & (January 21, 1908.) Case Note. · Display of fireworks in city street as nuisance. weighing more than 1 pound an offense punishable by fine or imprisonment, one who fires a rocket of less weight is still liable for committing a nuisance. In Jenne v. Sutton, 43 N. J. L. 257, 39 Am. Rep. 578, it was held that the firing of bombs on the public streets of a city per se constituted a public nuisance. In Scanlon v. Wedger, 156 Mass. 462, 16 L.R.A. 395, 31 N. E. 642, the court cited the preceding case with approval, and then said: "But a voluntary spectator, who is L. Asso. 133 Mich. 505, 95 N. W. 566; Paling the display, must be held to consent to present merely for the purpose of witnessmer v. Hill, 140 Mich. 468, 103 N. W. 838; it; and he suffers no legal wrong if accidentCobe v. Summers, 143 Mich. 117, 106 N. W. |ally injured without negligence on the part 707. The contract was usurious and unlaw of anyone, although the show was unauful. Green v. Grant, 134 Mich. 462, 96 N.thorized. W. 583. In consequence of the usurious character of the contract, complainant for feited the entire amount of interest, and his He takes the risk. 641, 36 Am. St. Rep. 664, 34 N. E. 727, and |