County Commissioners Columbia Co. vs. King-Opinion of Court.

yet this is the mode pointed out by the law, and the people have, through the Legislature and at the polls, imposed it upon themselves, and the consequences cannot be averted by the courts. In the progress of events, and with brighter times, better fortunes await them.”

In the third ground assigned for error, the appellants make the point that the claim of interest upon the coupons is in violation of the usury laws. We could not arrive at that conclusion, as there was no usurious agreement at the time of issuing the bonds, the rate contracted for being within the law. Mr. Justice Swayne, in delivering the opinion of the court in Gelpcke vs. The city of Dubuque, cited supra, has this single suggestion in relation to interest upon coupons: "Bonds and coupons like these, by universal commercial usage and consent, have all the qualities of commercial paper. If the plaintiffs recover in this case, they will be entitled to the amount specified in the coupons, with interest and exchange as claimed." And he refers to White vs. the V. &. M. R. R. Co., 21 How., 575, and Com'ns of Knox vs. Aspinwall, ib. 539, as authorities. The case of Gelpcke vs. city of Dubuque was an action against the city to recover the amount due on coupons with interest thereon.

In examining carefully the ample briefs printed with the case, we do not discover that the question of interest was mooted. The only question was as to the constitutionality of the act of the Legislature of Iowa authorizing the issue of the bonds. The cases cited were also suits instituted to recover judgment upon coupons, nothing being said in either of them about interest thereon, the only questions presented being the constitutional power to issue the bonds, and whether the bonds were negotiable so that any holder might maintain suit; both of which questions were answered in the affirmative. In examining all the cases cited by the relator in this case, and all we have been able to find, (and they are somewhat numerous,) the question of allowing interest upon coupons or interest warrants, is not determined by the SuS. C. R. Vol. XIII.-32.

County Commissioners Columbia Co. vs. King—Opinion of Court.

preme Court of the United States, except by the dicta referred to in the opinion of Mr. Justice Swayne, and a case in 7th Wallace, which again refers to that opinion as authority, and we are inclined to think the remark was thrown in as inferential, in connection with the suggestion that this species of paper "has all the qualities of commercial paper." Because these bonds and coupons payable to bearer are negotiable, and may pass from hand to hand like commercial paper, it does not follow, as we are inclined to think, that they have all such qualities.

The allowing of interest upon interest, when it comes due at certain stated times, is allowed in Massachusetts, as upon instalments of money payable annually. And Judge McLean, in Hollingsworth vs. the city of Detroit, 3 McLean, 472, held that interest was recoverable upon coupons of the bonds of the city, but it is put mainly upon a statute of Michigan. The current of authority in England and in this country, however, is against the allowance of interest upon interest, or compound interest, unless there be a contract to pay it made after it accrues.

The coupons annexed to the bonds in question are by no means independent contracts for the payment of money, although they may be treated in commercial circles as negotiable and payable to the holder. The contract to pay interest is in the bond and nowhere else. The coupon is a memorandum showing the amount of interest due by the bond, and is an invention of convenience. It purports on its face to be a simple ticket showing how much interest is due on a given day upon the principal sum, and where it must be paid.

Besides, the act authorizing the issuing of these bonds does not expressly authorize the issuing of coupons having the qualities of new contracts, but we do not see that there is anything in the acts to prevent the making of these instruments for the purpose intended, to-wit: a convenient mode of adjusting the interest from time to time; yet the act does

County Commissioners Columbia Co. vs. King-Opinion of Court.

not authorize the County Commissioners to agree to pay compound interest, and they are certainly limited in this respect by the authority conferred.

The Commissioners are required to levy and collect taxes to meet the interest on the bonds, and this does not authorize them to levy and collect taxes to pay interest upon interest. The contract by an agent is controlled by his authority, as derived from his principal or from the statute, and the agent in this case could make no contract not contemplated by the law, or within the scope of his authority. The law being an essential part of the contract, all parties have notice of its provisions.

We therefore hold that it was error to direct the County Commissioners to collect more than the interest due upon the bonds. That is all that the law requires of them, and therefore that is all that the court can require of them in this proceeding, even though we were to conclude, if a suit at law were to be brought upon the coupons, that interest upon them might be recovered.

At the conclusion of the argument, it was suggested that the interest claimed was computed at a rate greater than should be allowed, and a motion was thereupon made by the relator that the peremptory writ might be amended and the error corrected, if there be one in that respect.

But the alternative writ stands as the pleading on the part of the relator, and if he asks too much, the respondents may show this as a sufficient cause for not complying with the mandate of the alternative writ of mandamus. According to the conclusions at which we have arrived, interest upon the coupons not being allowed, the peremptory writ was erroneous in that respect.

The order for the peremptory writ must be reversed and set aside, and the relator may amend the alternative writ by remitting the claim of interest upon the coupons, and he will be entitled to a peremptory mandamus.

Robinson vs. L'Engle-Syllabus.

THE COUNTY COMMISSIONERS OF COLUMBIA COUNTY, ApPELLANTS, VS. ALEXANDER DAVIDSON, APPELLEE.

Appeal from the Circuit Court of Columbia county.

R. W. Broome and S. L. Niblack for Appellants.
J. J. Finley and Wm. Bryson for Appellee.

RANDALL, C. J., delivered the opinion of the court.

This case differs only in the amount claimed from the case of the same Appellants against Charles R. King.

For the reasons given in the opinion of the court in that case, the order awarding a peremptory writ of mandamus. must be reversed and set aside, and the relator may amend the alternative writ by remitting the claim of interest upon the coupons, and he will be entitled to a peremptory writ of mandamus.

CALVIN L. ROBINSON, APPELLANT, VS. F. F.L'ENGLE, ADMINISTRATOR OF W. J. L'ENGLE, DECEASED, APPELLEE.

1. It is not necessary under the laws of this State, that a bill of exceptions in civil causes should be sealed by the Judge, the signing by him is

2.

3.

sufficient.

A memorandum made by the Clerk of the Court, in taking down the testimony of witnesses, as that certain questions were asked and not allowed by the court, and exceptions taken, is not a part of the record and does not dispense with the preparation and signing of a bill of exceptions, in order to bring the matter before the appellate court.

In an action upon an express covenant in a lease for the payment of rent, and without conditions, a plea that the lessee was "deprived of the beneficial use of the premises by the casualties and violence of war,"

4.

5.

Robinson vs. L'Engle-Statement of Case.

does not show a defence to the action.

The loss of the use of premises

by fire, inundation, ог external violence, will not exempt the tenant from his express contract to pay rent.

Where a plea is overruled on demurrer with leave to defendant to amend, and taking no exception to the ruling of the court, he files an amended plea, he thereby abandons his first plea and waives his right to take advantage of the ruling of the court upon the demurrer, and cannot assign it for error.

An offer to perform in part the covenant to pay rent, on condition that the lessor will abate the residue of the rent, to-wit: the rent accrued during the time the tenant was deprived of the use of the premises by the violence of war, is not a legal defence, nor a "defence upon equitable grounds" under the statute.

6. A plea of set-off of damages sustained by defendant growing out of a conspiracy against him, entered into by plaintiff and others, will not be sus tained on demurrer. A set-off can be allowed in an action on contract, of matters only growing out of contract, express or implied.

This was an action of covenant commenced by the appellee (plaintiff) against the appellant, in the Circuit Court of Duval county in 1866. The declaration sets out the terms and conditions of a lease executed on the first day of October, 1859, by Wm. J. L'Engle of one part, and C. L. Robinson of the other, under their hands and seals, whereby said W. J. L'Engle demised to appellant the east-half of water lot number 26, in Jacksonville, for the term of ninety-nine years, at the annual rent of $160, payable semi-annually in advance, the appellant to pay all taxes, &c.; and Wm. J. L'Engle having died,F. F. L'Engle, his administrator, brings suit to recover the arrears of rent alleged to be due thereon.

On the 5th of August, 1867, appellant, by his attorney, filed six pleas, and on the 14th of September, an additional plea. On the 8th of October plaintiff demurred specially to each and every of the pleas. On the 11th of October the demurrer was sustained as to each of the pleas except the 4th, and leave was given by the Judge to appellant to amend his plea, and to the plaintiff to reply to the 4th plea.

On the same day, October 11th, 1867, the appellant filed his amended pleas, to-wit: