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ern R. Co., supra; Zeigler v. Day, 123 Mass. 152; Cris- meut to prevent the bar of the statute of limitations pin v. Babbitt, 81 N. Y. 516; McCosker v. L. I. R. Co., and revive the debt. The note was made in Louisiana; 84 id. 77; Hurvey v. Railroad Co., 88 id. 481; Slattery's suit was brought thereon iu Mississippi. Upon the Admr. v. R. Co., 23 Ind. 81; Moak Eng. Rep. 340, 342; question of the application of the illegal interest paid Flynn v. Salem, 134 Mass. 351. As it would seem then in reduction of the principal, the Circuit Court held tbat there is nothing to take the station agent in this that the contract, as to interest, was governed by the instance out of the category of a prima facie fellow- law of Louisiana; that by the terms of that law (Rev. servant of the plaintiff, we are of opinion that the Stat. 269) “ the amount of conventional iuterest shall court below was right in holding him to be such fel. in no case exceed eight per cent, under pain of forfeitlow-servant and dismissing the action accordingly. ure of the entire interest 60 contracted," and that if

The order refusing a new trial is accordingly af- any person hereafter shall pay on any contract a higher firmed.

rate of interest tban the above, as discount or otherGilfillan, C. J., dissents.

wise, the same may be sued for and recovered within

twelve months from the time of such payment." By UNITED STATES SUPREME COURT AB

the Mississippi Code, section 2279, the legal rate of in

torest is fixed, in the absence of contract, at six per STRACT.

cent per annum; “but contracts may be made in writMARRIAGE-SETTLEMENT ON WIFE-WHEN VALID AS ing for the payment of a rate of interest as great as ten AGAINST CREDITORS. - It is no longer a disputed ques

per cent per annum. And if a greater rate of interest tion that a husband may settle a portion of his prop

than ten per cent shall be stipulated for in any case, erty upon his wife if he does not thereby impair the

such excess shall be forfeited on the plea of the party claims of existing creditors, and the settlement is not

to be charged therewith.” It is not claimed that there intended as a cover to future schemes of fraud. The

is any express provision in the Louisiana statute that settlement may be made either by the purchase of requires such an application of payments made on acproperty and taking a deed thereof in her name, or by

count of unlawful interest. It is rested altogether its transfer to trustees for her benefit. And his direct upon the provision that forfeits the whole interest conveyance to her, when the fact that it is intended as

paid, and authorizes the debtor to recover it back such settlement is declared in the instrument or other

within the time limited. But the same provision is wise clearly established, will be sustained in equity contained in section 5198 of the Revised Statutes of against the claims of creditors. The technical reasons

the United States, in reference to National banks, unof the common law growing out of the unity of hus- der which it has been held that usurious interest actband and wife, which preclude a conveyance between ually paid cannot be applied to the discharge of the them upon a valuable consideration, will not in such a

principal. Driesbach v. National Bank, 104 U. S. 52; case prevail in equity and defeat his purpose. Shepard Barnet v. National Bank, 98 U. 8. 555. In Cook v. v. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N.Y. Lillo, 103 U. S. 792, the Louisiana statute was consid27 ; Story's Eq., $ 1380; Pomeroy's Eq., $ 1101; Dale v.

ered, and upon the decisions of the Supreme Court of Lincoln, 62 Ill. 22; Deming v. Williams, 26 Conn. 226;

the State, it was decided that the usurious interest Marrahon v. Marrahon, 4 Met. (Ky.) 85; Sims v. Rick cannot be reclaimed nor be imputed to the principal, erts, 35 Ind. 181; Story v. Marshall, 24 Tex. 305;

unless a suit for its recovery is begun or plea of usury Thompson v. Mills, 39 Ind. 532. Such is the purport of

set up to the claim within twelve months after the our decision in Jones v. Clifton, 101 U. S. 228; 18 Alb. payment is made. Cox v. McIntyre, 6 La. Ann. 470; L. J. 276, where it is said: “In all cases where a hus.

Weaver v. Maillot, 15 id. 395. It is said however that band makes a voluntary settlement of any portion of

the law of Louisiana applies and governs, so far as it his property for the benefit of others who stand in such allows the forfeited interest to be applied in reduction a relation to him as to create an obligation, legally or of the principal, in an action on the note, but that the morally, to provide for them, as in the case of a wife limitation of time within which by that law the right or children or parents, the only question that can

must be exercised, being part of the remedy merely, properly be asked is, does such a disposition of the

is governed by the law of Mississippi, being the law of property deprive others of any existing claims to it. If it the forum, which contains no such limitation. But the does not no one can complain, if the transfer is made right claimed under the law of Louisiana must be tamatter of public record and not be designed as a scheme ken as it is given, and is not divisible. The provisions to defraud future creditors. And it cannot make any requiring it to be asserted in a particular mode and difference through what channel the property passes to

within a fixed time are conditions and qualifications the party to be benefited, or to his or her trustee,

attached to the right itself, and do not form part of whether it be by direct conveyance from the husband

the law of the remedy, If it is not asserted within the or through the intervention of others." Whilst prop- permitted period it ceases to exist, and connot be erty thus conveyed as a settlement upon the wife may

claimed or enforced in any form. It was accordingly be held as her separate estate, beyond the control of her

held in P. C. & St. L. Ry. Co. v. Hine's Adm's, 25 Ohio husband, it is of the utmost importance to prevent be made for causing death by wrongful act, neglect or

St. 629, under an act which required compensation to others from being misled into giving credit to him upon the property, that it should not be mingled up default, and gave a right of action, provided such acand confounded with that which he retains, or be left

tion should be commenced within two years after the under his control and management without evidence

death of such deceased person, that this proviso was a or notice by record that it belongs to her. Where it is

condition qualifying the right of action, and not a so mingled, or such notice is not given, his conveyance

mere limitation on the remedy. Bonte v. Taylor, 24 will be open to suspicion that it was iu fact designed Ohio St. 628; Pritchard v. Norton, 106 U.S. 124-131. as a cover to schemes of fraud. Moore v. Page. Opin

We are therefore of opinion that the Circuit Court ion by Field, J.

erred in not ordering a decree in favor of the com[Decided March 24, 1884.]

plainants below for the amount of the note, with law.

ful interest from the date up to which interest had been LIMITATIONS-LETTER AS ACKNOWLEDGMENT-ILLE- paid. Walsh v. Mayer. Opinion by Matthews, J. GAL INTEREST-APPLICATION ON PRINCIPAL--LEX FORI. [Decided March 17, 1884.] -A letter signed by a firm name acknowledging a debt (note) to be due which was made originally by in

DAMAGES-INFRINGING PATENT-RULE.- It does not dividual members of the firm, is sufficient acknowledg. always follow that because a party may have made an

improvement in a machine and obtained a patent for in the officers by law as to each necessary fact, whether it, another using the improvement and infringing upon enumerated or non-enumerated, to ascertain and dethe patentee's rights will be mulcted in more than termine its existence, and to guarantee to those dealnominal damages for the infringement. If other ing with them the truth and conclusiveness of their methods in common use produce the same results, with admissions. This principle is the essence of the rule equal facility and cost, the use of the patented inven. | declared upon this point by this court in Town of Cotion cannot add to the gains of the infringer or impair loma v. Eaves, 92 U. S. 484. See Marcy v. Township of the just rewards of the inventor. The inventor may Oswego, 92 U, S. 637; Commissioners v. Bolles, 94 id. indeed prohibit the use, or exact a license fee for it, 104; Commissioners v. Clark, id. 278; County of Warand if such license fee has been generally paid, its ren v. Marcy, 97 id. 96; Pana v. Bowler, 107 id. 529. amount may be taken as the criterion of damage to This case is within the principle of the decision in Buhim when bis rigbts are infringed. In the absence of chanan v. Litchfield, 102 U. S. 278, where it was said, such criterion the damages must necessarily be nomi- p. 289, that “the purchaser of the bonds was certainly val. Black v. Thorne. Opiniou by Field, J.

bound to take notice, not only of the constitutional [Decided March 24, 1884. ]

limitation upon municipal indebtedness, but of such MUNICIPAL BONDS-BONA FIDE PURCHASER-ESTOP

facts as the authorized official assessments disclosed PEL.-(1) Bonds having been issued by Dixon county,

concerning the valuation of taxable property within Nebraska, in aid of a railroad company, agreeably to

the city for the year 1873." And it is directly within a legislative act which gave the county authority so to

the decision in National Bank v. Porter Township, 110 do, provided two-thirds of the voters of the county

U. S.; Marcy v. Township of Oswego, 92 id. 637, disshould consent thereto, and provided further that the

tinguished. County of Dixon v. Field. Opinion by total amount of said bonds should not exceed ten per

Matthews, J. cent of the assessed value of the property in the

[Decided March 24, 1884.] county, an additional issue of bonds by the county for the same purpose, without recourse to fresh legisla

UNITED STATES CIRCUIT COURT ABtion therefor, is not authorized by a provision in the State Constitution allowing creditors to issue such

STRACT.* bonds to the extent of fifteen per cent of the assessed valne of the property in the county. We cannot think SHIPPING-STIPULATIONS IN BILL OF LADING-RIGHT it was any part of the purpose of the Constitution of TO INSIST ON.-A charter-party contained the followNebraska to enable a county either to add to its existing stipulations: “ The captain shall sign bills of lading or its authorized indebtedness any increase with ing at any rate of freight as presented, without prejuout the express sanction of the Legislature; and are dice to this charter-party; any difference between the persuaded, on the contrary, that the true object of the amount of freight by the bills of lading and this charproviso is to limit the power of the Legislature itself ter-party to be settled at port of loading, in cash, before by definitely fixing the terms and conditions on which sailing. * * * The owners or master of the steamer alone it was at liberty to permit the increase as well as shall have an absolute charge and lien upon the cargo the creation of muuicipal indebtedness. The language and goods ladev on board for the recovery and pay. of the proviso that seems to countenance a contrary con- ment of all freight, dead freight, demurrage and all struction by words apparently conferring immediate other charges whatsoever.” The master refused to power upon counties to increase their indebtedness, sigu bills of lading unless there was stipulated or must be taken in connection with the express and expressed therein “other conditions as per charterpositive prohibition of the body of the section. This party." Held, that the master had the right to insist denies to municipal bodies all power to make any do- upon such stipulation. The Ibis, 3 Woods, 28, distinnations to railroads or other works of internal im- | guished. Cir. Ct., E. D. La. The Peer of the Realm. provement, except by virtue of legislative authority, Opinion by Pardee, J. and an election held to vote on the particular proposi

CONTRACT-RESTRAINT OF TRADE-EXCLUSIVE PRIVtion in pursuance thereof. The proviso makes a spec

ILEGE OF ADMISSION TO PRIVATE PARK-INJUNCTION ial rule for a special case, and authorizes an additional

-TAXATION DOES NOT MAKE USE PUBLIC.--The owner amount of indebtedness, but only to be contracted in the contingency mentioned, and subject to the condi

of what is known as the Point of Lookout Mountain, a

favorite resort on account of the extended view theretion already prescribed for all donations—that is, by

from, who was also the owner of a chartered turnpike, means of an election to decide the question submitted held in pursuance of statutory authority. (2) All par

which was a regular toll road leading up the mountain ties are equally bound to know the law; and a certifi

nearly to the Point, inclosed her, ground as a park and

charged an entrance fee from visitors. Subsequently cate reciting the actual facts, and that thereby the bonds were conformable to the law, when judicially

she entered into a contract with a certain party by the

terms of which he was to carry all passengers over her speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the pro

turnpike instead of over another route leading to the

Point, and was to have the exclusive privilege of bringtection of the law. Otherwise it would always be in the power of a municipal body, to which power was

ing or conveying persons into the park. Complainant, denied, to usurp the forbidden authority by declaringing visitors to and from the park, sought to enjoin the

who was engaged principally in the business of carrythat its assumption was within the law. This would

owner from refusing admission thereto to such parties be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law

carried there by him as might tender the usual admisitself. And the estoppel does not arise except upon

sion fee. Held, that the fact that the park had long matters of fact which the corporate officers had an

been a popular resort for sight-seers, that an admission thority by law to determine and to certify. It is not

fee was charged, and that a tax was imposed by the

State on the owner for the privilege of keeping a park, necessary, it is true, that the recital should enumerate each particular fact essential to the existence of the

did not render the use to which the property was deobligation. A geueral statement that the bonds bave

voted a public use, or change the character of the been issued in conformity with the law will suffice, so

property, and that the court could not invade the as to embrace every fact which the officers making the

rights of the owner and enjoin her from carrying out statement are authorized to determine and certify.

the terms of her coutract. Held, further, that if she But it still remains that there must be authority vested

*Appearing in 19 Federal Reporter.

had attempted to interfere with any of the rights of any ground they see fit. We have decided heretofore complainant in the use of the chartered turupike that certiorari is not a proper remedy in this class of such interference would not have been tolerated. (2) cases; and all the objections to allowing tax proceedThat the State imposes a tax on the privilege of deriv- ings to be reviewed on certiorari are applicable here, ing profit from the use of property in a certain man- and we therefore decline to consider the regularity of ner does not render such use public, but rather recog. the tax proceedings on their motion. See Whitbeck v. nizes the fact that the property is private, and subject Hudson, 50 Mich. 86; 14 N. W. Rep. 708; Tucker v. to the control of its owner. Cir. Ct., E. D. Tenn. Sharp | Parker, 50 Mich. 5; 14 N. W. Rep. 676. Hudson, etc., v. Whiteside. Opinion by Key, J.


[Decided March 6, 1884.) DENT OF SISTER STATE--FEDERAL JURISDICTION.—The INFANCY MINOR CONVEYS-ATTAINING FULL AGE insolvent laws of Louisiana do not, by their declaratory GIVES DEED TO ANOTHER — SECOND GRANTEE MAY force solely, without any other investiture of title, MAINTAIN EJECTMENT-RE-ENTRY UNNECESSARY.-Dethe possession remaining in the debtor, remove the fendant claimed title under deed given by an infant property of the debtor beyond the reach of a creditor who, arriving at majority, conveyed to plaintiff. Held, who is a resident of another State, and who proceeds that the deed of an infant is voidable, and must be in the Circuit Court. In the case presented here the avoided before the action will lie; but when properly plaintiff is in possession, and both as respects title and avoided no other thing is necessary to be done before possession his right is absolute but for a right, which bringing suit. The necessity for the infant to make enif it exists at all, comes from the inherent force of a try before giving the deed of avoidance, or before State insolvent law, which, unaccompanied by posses- bringing suit, does not exist in this State. Title by sion, is, as to this plaintiff, like an extra-territorial descent, and our mode of transferring title by deed, bankrupt or insolvent law, and according to the sum- are regulated by statute. The old common-law docmary of authorities in Booth v.Clark, 17 How. 322 (de- trine of feoffment with livery of seisiu does not concided at the same term with the case of Horn v. Bank, stitute any part of our law of conveyancing. Our reg17 How. 159), gives to the foreign assignee 20 title as istry laws supply their place, and furnish the notoagainst local creditors who attach. The Constitu- riety of transfer intended to be given by that ancient tion of the United States operates within as well mode of passing title; and the making and recording as without the State which enacts insolvent laws. of the second deed in this case was entirely suffiNo State laws in conflict with it can be rules of prop- cient. 2 How. Stat., ch. 216, $$ 5652, 5657; 1 Pars. Cont. erty. The doctrine of comity between the Federal and (3d ed.), pp. 373, 374; Eagle Fire Co. v. Lent, 6 Paige, State courts has been constantly extending in recogni- 635; Cressenger v. Welch, 15 Ohio, 192; Jackson v. tion and clear and rigid enforcement; but the rules of Carpenter, 11 Johns. 539; Jackson 5. Burchin, 14 id. law,as expounded in Ogden v. Saunders, 12 Wheat. 213, 124; Hoyle v. Stowe, 2 Dev. & B. Law, 320; Lessee of are, as it seems to me, unchanged. In accordance with Tucker v. Moreland, 10 Pet. 58; Bing. Inf. 60; Dixon that case, in this forum at least, the possession of a for- v. Merritt, 21 Minn. 196; McGan v. Marshall, 7 Humph, eign citizen under an attachment must prevail against 121; Peterson v. Laik, 24 Mo. 541; Lessee of Drake v. the syndic who claims merely by the declaratory force Ramsay, 5 Ohio, 252; Hastings v. Dollarhide, 24 Cal. of a State insolvent law. A mere declaration in a statute, 195; Pitcher v. Laycock, 7 Ind. 398; Laws of 1881, p. which is by the settled adjudications inoperative | 385; Crane v. Rieder, 21 Mich. 82; Prout v. Wiley, 28 against a party domiciled as is the plaintiff, cannot id. 164. This record fails to show any equities existing oust this court of administration of the property, which required action on the part of the minor after which is, consistently with all the rules of judicial com- she arrived at age, or her grantee, to make notice necity, in its possession. Cir. Ct., E. D. La Mississippi essary before bringing suit. We find nothing in the Mills Co. v. Ranlett. Opinion by Billings, J.

case showing the plaintiff in any way estopped from bringing his suit. Haynes v. Bennett. Opinion by

Sherwood, J. (See 30 Eng. R. 618.-ED.) MICHIGAN SUPREME COURT ABSTRACT. [Decided March 6, 1884.)


WISCONSIN SUPREME COURT ABSTRACT. The plaintiff herein sowed wheat in certain lands under an agreement with the guardian of the estate of which the lands were a part. This agreement the guar

EQUITY-ADEQUATE REMEDY AT LAW-IRREGULAR dian had a legal right to make. Campau v. Shaw, 15

JUDGMENT.-This is a complaint to enjoin the sale of

the lands of the plaintiff by the defendant, as sheriff, Mich. 226; Kinney v. Harrett, 46 id. 89; 8 N. W. Rep. 708. (2) A party who purchased the land after the

upon two executions, issued upon two pretended judg.

ments against her, which she alleges are no judgments, wheat was planted, and with kuowledge of the agree

on the grounds, as to one, that it had not been propment, carried the wheat off as soon as it was harvested and locked it up in his barn. Held, that the agreement parties to it. This appeal is taken from an order dis

erly docketed, and as to the other, that there were no was a valid one, and that the taking of the wheat

Bolving a preliminary injunction which had been issued amounted to a conversion thereof. Wheldon v. Lytle.

upon the complaiut. All possible and adequate remeOpinion by Champlin, J.

dies which may be obtained in one suit must be sought [Decided March 6, 1884.]

in that suit rather than by another suit, either at law MANDAMUS-ACT MINISTERIAL-CERTIORARI-TAX or in equity. This is an elementary principle. Where PROCEEDINGS.- Mandamus will lie to compel the re- there is an adequate remedy at law courts of equity will corder of a village to sell property for delinquent taxes not take jurisdiction is another elementary principle. where the order of the common council is regular upon Both of these principles are violated in this action. In its face. The duty is ministerial, and his business is Thomas v. West, 17 N. W. Rep. 684, Mr. Justice Tayto proceed as ordered, and to let the individual tax- lor said: “Where a court of equity proceeds to set payers raise their own objections and question the le- aside a judgment at law it proceeds upon equitable gality of the assessments. There may be none to object considerations only. If the judgment rendered is not however irregular the proceedings, and this mandamus inequitable as between the parties, no matter how irdoes not affect the right of the taxpayers to object on regular or void the same may be, a court of equity will

not interfere, but will leave the defendant to such money paid for stock of a corporation at half its value, remedies as a court of law can give him to avoid the being in violation of section 1753 of the Revised Stateffect thereof," citing Stokes v. Knorr, 11 Wis. 389; utes, held, that plaintiff was not entitled to recover. Ableman v. Roth, 12 id. 81-90; Merritt v. Baldwin, 6 Being void by statute, neither party could maintain id. 439; Wright v. Eaton, 7 id. 595; McIndoe v. Hazel- an action founded upon such contract to enforce the ton, 19 id. 396; Barber v. Rukeyser, 39 id. 590; Jilsen same, nor could one party recover damages for the v. Stebbins, 41 id. 235; Hiles v. Mosher, 44 id. 601, and other for a refusal to perform it on his part. This has other cases. Wilkinson v. Rewey. Opinion by Orton, been so often determined in this and in other courts J. (See 4 U. S. Sup. Ct. 232.-ED.)

that it needs no further discussion. Smith v. Finch, (Decided Feb. 19, 1884.]

8 Wis. 245; Blanchard v. McDougal, 6 id. 167; SwartINSANITY-RETURN TO, AFTER LUCID INTERVAL

zer v. Gillett, 2 Pin. 238, 239; Moore v. Kendall, id. 99; BURDEN OF PROOF.-Lunacy being once established,

Brandeis v. Neustadt), 13 Wis. 153; Knoll v. Harvey,19 the burden is on the party claiming through some act

id. 99; Tiernan v.Gibney, 24 id.190; Plank R.Co.v. Plank of the lubatio to show that it was done in a lucid in

R. Co., 7 id. 59; Melchoir v. McCarty, 31 id. 252; Troeterval. A return to sanity being proved, the burden

wert v. Decker, 51 id. 46; S. C., 8 N. W. Rep. 26; Ins. is on the party who shows that he has again become in

Co. v. Harvey, 11 Wis. 394; De Forbes v. Railroad Co., sane. Wright v. Jackson. Opinion by Lyon, J.

52 id. 320; S. C., 9 N. W. Rep. 17; In re Comstock, 3 (Decided Feb. 19, 1884.]

Sawy. 218; Bank v. Merrick, 14 Mass. 324; Russell v.

De Grand, 15 id. 37; Wheeler v. Russell, 17 id. 280; SURETY BOND FOR FAITHFUL PERFORMANCE

White v. Bank, 22 Pick. 181; Belding v. Pitkin, 2 DAMAGES - INTEREST ON PENALTY.-(1) Where an

Caines, 149; Shiffner v. Gordon, 12 East, 304; Noel v. additional bond is given as further security for

Drake, 28 Kans. 265; Bank of U. S. v. Owens, 2 Pet. a guardian's performance of his trust, the surety 538; Harris v. Runnells, 12 How. 83; William v. Chethereon is liable for the failure of such guar

ney, 3 Gray, 222; Roche v. Ladd, 1 Allen, 441; Insurdian to account for money received by him

ance Co. v. Pursel, 10 id 232; Insurance Co. v. both before and after the execution of the bond, Slaughter, 20 Ind. 520; Insurance Co. v. Rosenthal, 55 unless it affirmatively appear that a conversion of it

III. 90. Admitting this to be the law, the learned countook place before the surety became bound; for such

sel for the respondent contends that it does not bar his conversion he would not be liable. United States v.

right to recover in this action. He claims he is not Giles, 9 Cranch, 215-237 ; United States v. Linn, 1 How. seeking to enforce the illegal and void contract, but 104-113; Farrar v. United States, 5 Pet. 373-389; Uni-repudiates it, and claims the right to recover what he ted States v.Boyd, 15 id. 187; Vivian v.Otis, 24 Wis. 250;

has paid to the corporation upon such void contract. State v. Hood, 7 Blatchf. 127 ; Rochester v. Randall,105 This presents the real question in the case.

The reMass. 295; distinguished by Myers v. United States, 1

spondent and the company are in pari delicto, both McL. 493. (2) The evidence clearly established the fact

violators of the law, and no action in favor of either that the amouut duo from the principal in the bond to

which grows directly out of the illegal contract can be the respondents at the time of filing their claims in the

maintained. It does not follow that because a concounty court exceeded the penalty of the bond. The

tract is void money paid under it can be recovered only question is, can the obligee in a penal bond re

back by the payor in all cases. The cases cited by the cover in an action against the surety any amount be

learned counsel for the respondent, in which the court youd the penalty? We think the authorities in this

has held that money paid upon a void contract may country establish the doctrine that when the damages

be recovered back by the payor, are cases either where resulting from the breach or breaches of the bond ex

the contract itself is not prohibited by law, but is deceed the penalty, interest on the amount of the pen-clared to be void because not made or evidenced in the alty may be recovered from the time of the breach in

manner prescribed by law, or where the contract is deexcess of the penalty. This rule must be limited to

clared void by law as to one party in order to protect cases where interest is recoverable against the princi

the other against injustice and oppression. Brandeis pal upon the damages resulting from the breach of the

v. Neustadt1, 13 Wis. 158; Follenson v. Gunderson, 1 condition of the bond. United States v. Arnold, 1

id. 113; and Thomas v. Sowards, 25 id. 631, are cases of Gall. (U. S. C. C.) 348-360; Warner v. Thurlo, 15 Mass.

the first class; Wood v. Lake, 13 id. 84; Gill v. Rice, 154; Harris v. Clapp, 1 id. 308; Carter v. Thorn, 18

id. 549; Dole v. Northrop, 19 id. 249; Lee v.Peckham, B. Mon. 613; Brainard v. Jones, 18 N. Y. 35; Long's

17 id. 394; Bank v. Plankington, 27 id. 177, and many Adm'r v. Long, 16 N. J. Eq. 59; 2 Suth. Dam. 15, note

others that might be cited are cases of the second class 1, cases cited; 2 Sedg. Dam. (7th ed.) 262, note a, and

arising under the usury laws of this state. In the last cases cited; State v. Hoarey, 44 Wis. 615-621. The

case cited ths late Chief Justice Dixon says: “It is a cases are not entirely harmonious as to the date from

familiar doctrine or rule of construction with respect which interest should be computed upon the penalty.

to these laws, supposed to be enacted to protect the The case cited from New York holds that interest may

weak and necessitous from being overreached and opbe recovered from the date of the breach of the bond, pressed by the powerful and rich, that both parties are if the damages then equal or exceed the penalty; and

not particeps criminis, but only the lender can be rein Massachusetts it is held that interest is recoverable

garded as the oppressor, and he alone is within the from the date of the commencement of the action. We pale of the law. All the penalties of the law are enneed not determine which of these rules should be fol

acted against him, and he alone can be guilty of a violowed, or whether the rule in equity should be followed

lation of it.

Hence the borrower, whatwhich gives damages by way of interest on the penalty

ever his kuowledge or intention may be, is always when the plaintiff is unjustly delayed in his recovery regarded as innocent." The following cases in this by vexatious proceedings as was held in Grant v.

court would seem to be conclusive against the plaintGrant, 3 Sim. 340; see cases cited on page 355, as the al

iff's right to recover: Moore v. Kendall, 2 Pin. 99. In lowance of interest in these cases comes within all the

this early case it was held that a sale of property on rules above stated. Clark v. Wilkinson. Opinion by Sunday was a violation of law, and yet, when the sale Taylor, J.

and delivery were made on that day neither party could (Decided Jan. 19, 1884.]

rescind the contract and recover back the property or CONTRACT, VOID BY STATUTE-MONEY PAID UNDER, I purchase money. Swartzer v. Gillett, 2 Pin. 238. In CANNOT BE RECOVERED-PARTIES IN PARI DELICTO- this case the court refused to interfere to set aside a DISTINCTION IN THE CASES. -Iu an action to recover conveyance of real estate, which was made by the

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plaintiff to the defendant to compound a felony. Mel- the legal title is in the plaintiff, and he has not atchoir v. McCarty, 31 Wis. 252. In this case the plaint- tempted to divert it from the use of the church. iff brought his action to recover for liquor sold without We are not called upon to more accurately define the a license; and it was held that the contract was illegal rights of the parties in respect to the property. When and no recovery could be had. Morse v. Ryan, 26 Wis. therefore the defendants interfered with it they were 262; Hill v. Sherwood, 3 id. 343; Walsh v. Blatchley, 6 guilty of a trespass. Heiss v. Vosburg. Opinion by id. 422; Froewert v. Decker, 51 id. 46; S. C., 8 N. W. Cole, C. J. Rep.26; Insurance Co.v. Harvey, 11 Wis. 394; Miller v. [Decided Feb, 19, 1884.] Larson, 19 id. 463; John v. Larson, 28 id. 604; Plank R. Co. v. Plank R. Co., 7 id. 59. In Melchoir v. Mo- EMINENT DOMAIN-PUBLIC USE DETERMINED Carty, Justice Lyon, in the opinion of the court, says: LEGISLATURE,MAY BE DELEGATED-IF USE PUBLIC, “The general rule of law is that all contracts which are DETERMINATION AS TO NECESSITY CONCLUSIVE-NONrepugnant to justice or founded upon any immoral NAVIGABLE STREAM-STATUTORY REMEDY MUST BE cousideration, or which are against the general policy PURSUED.-The statute authorizing the construction of the common law, or contrary to the provisions of of such drains or ditches as may be necessary for the any statute, are void; and that if a party claiming a improvement or preservation of highways, even right to recover a debt is obliged to trace his title or though it may become necessary in doing so to go right to the death through any such illegal contract, upon land in the vicinity, and not adjacent to such he cannot recover, because he cannot be allowed to highway, is the taking of such lands for a public use prove the illegal contract as the foundation for his within the meaning of the Constitution, but such acis right of recovery. It is quite immaterial whether such are not unconstitutional, merely because they do not illegal contract be malum in se or only malum prohibi. provide for actual payment in advance of the taking, tum. Iu either case the maxim ex turpi causa non since the taxable property of the town or muuicipality oritur actio is applicable; and a contract in violation constitutes a pledge or fund to which such owner may of a statute is void, although the statute fails to pro- resort for payment in the manner prescribed by statvide expressly that contracts made in violation of its ute. Smeaton v. Martin, 57 Wis. 364 ; 15 N. W. Rep. provisions shall not be valid. It is sufficient that it is 403, and cases there cited. See also Mercer v. Moprohibited, and its invalidity follows as a legal conse- Williams, 1 Wright (Ohio), 132; Bates v. Cooper, 5 quence.” Packet Co. v. Shard, 37 Wis. 655, distin- Ohio, 118; McCormick v. President, 1 Cart. (Ind.) 52; guished. Clarke v. Lincoln Lumber Co. Opinion by Loweree v. Newark, 8 N. J. L. 51; Smith v. Helmer, 7 Taylor, J.

Barb. 426. (2) The necessity for taking lands for pub[Decided Feb. 19, 1884.]

lic use is to be determined by the Legislature, which

may, in its discretion, delegate the exercise of such ATTORNEY AND CLIENT-ACTION FOR SERVICES-EM- power to town supervisors. Their determination as PLOYING PARTNER AFTER DISSOLUTION OF FIRM- to whether the use is a publio one is not conclusive, PARTIES PLAINTIFF.--The defendant employed a law yet when it is a public one, the determination as to firm to render legal service, supposing that a former the necessity of the taking is conclusive upon the member of the firm was still connected with it, and courts. (3) A stream not navigable, stands on a comthe name of such former member was signed to the mon footing with other private property so far as the summons aud complaint. Before the services sued for right of eminent domain is concerned. If the public were rendered the defendant was notified that the old good requires it, all kinds of property are alike subject firm had been dissolved, and that the retiring mem- to it, as well that which is held under it as that which ber's name had been used without authority; he was is not." New York, etc., R. Co. v. Boston, etc., R. thereupon specially retained by the defendant. Two Co., 36 Conn. 198, and cases there cited. In the case bills were rendered the defendant; one in the favor of of a navigable stream the bed of the river is a public the remaining members of the old tirm, and one in bighway of the State, and within its absolute control, favor of the member who had retired; the defendant subject only to the rights of commerce. Green v. paid the first, but the latter he declined to pay. Held, Swift, supra; Black River, etc., Co. v. La Crosse, eto, that he was liable for the second bill also. Although R. Co., 54 Wis. 659; S. C., 11 N. W. Rep. 443. But the the contract made with the retired partner was for his stream in question is not navigable. This being so, it services alone, still he was at the time in the partner- stands on a common footing with other private propship, and the action was properly brought in the part-erty, so far as the right of eminent domain is connership name. Jackson V. Bohoman. Opinion by cerned. Thus in Glover v. Powell, 10 N. J. Eq. 211, it Cassoday, J.

was “held that the Legislature had the right to au[Decided Jan. 29, 1884.]

thorize the obstruction of the creek, there being noth

ing in the case to show that its navigation was deTRESPASS-TEARING DOWN CHURCH - BISHOP AS manded by the public interest." Certainly, all propOWNER.—Where a Catholic bishop holds church prop- erty is held upon the implied condition that it may be erty by a deed iu fee-simple, though he may not, reclaimed by the government, in the manner and under the church regulations, dispose of the same, and upon the terms prescribed by law, whenever the pubappropriate the proceeds, still he has such a solelio necessities so demand. See also Hazen v. Essex, ownership in the property that the possession is his as 12 Cush. 476, 477; Trustees v. Dennett, 5 T. & C. 207; a matter of law, and the congregatiou who volunta- | Central v. Lowell, 4 Gray, 474. (4) Where lands are rily contributed to build the church have no right to taken for public use the owner should pursue the tear it down without his consent, and if they do they statutory remedy, and an actiou for tort will not lie are simply wrong-doers. That the old church edifice against those who inake the improvement under a was out of repair and entirely unfit for use; that a ma- power conferred by statute. Sprague v. Worcester, 13 jority of the congregation desired to erect a new build-Gray, 139 ; Bartlett v. Crozier, 17 Johns. 447. In that ing on the old site, and they were executing their case Chancellor Keut said: “Such a limited and prewishes in what they did, affords no legal justification carious duty in the reparation of bridges cannot, as I for tearing down the building against the protests of apprehend, afford ground for a private action against the plaintiff. For neither they nor the congregation the overseer from any and every person who may haphad any such interest in or right to the property as pen to be injured by a bad bridge within his district." would warrant the exercise of any such acts of owner-Smith v. Gould. Opinion by Cassoday, J. ship over it. It is sufficient for this case to say that ] [Decided Feb. 19, 1884.]

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