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his whole interest as the purchaser under his execu non excusat, and courts sometimes have struggled in tion. The consideration he was to receive was for this, clear cases of mistake of law to make it, if possible, a and this only. Martin deeded to the United States his mistake of mixed law and fact, in order to administer interest in the canal acquired by that sale, and was to equitable relief. It may be said in this case that the convey to the canal company his interest in the hy. parties knew the contents of this deed, and just where draulio tract acquired by that sale. It is insisted by the limitation clause was placed in it; but they clearly the learned counsel of the respondent that there was did not know that it was inserted in the wrong place. no bargain or contract to this effect shown by the evi They may have depended and relied upon their coundence. But such a contract was clearly implied by sel, and especially upon the attorney who drew the the whole transaction from the beginning to the end deed, to insert the limitation in the proper place, and of it. It had no other purpose, meaning or signifi- supposed he had done so. He was mistaken, and so cance, solution or explanation, than that Martin were they. Was this a mistake of facu? should execute these deeds for such consideration. As we have seen, there was a clear and explicit Martin held no other interest in this tract or canal agreement and understanding that this deed should be that the United States was interested in obtaining given to convey only the interest which Mr. Martin from him than this, upon which his judgment was a held in the tract by virtue of his sheriff's deed. Mr. lien, and this was all that was erer considered in the C. N. Gregory was employed to draw up such a deed, negotiations of the parties or contemplated by them. but in drawing it he made the mistake of so drawing To execute and carry out this understanding and agree it that it conveyed the whole tract, instead of the onement, so far as this tract was concerned, the deed in half covered by the sheriff's deed. Does not this case question was drawn and executed. The sole object, meet in erery respect the admission of the learned purpose or design of all the parties concerned, or of counsel of the respondent in his brief, as follows: “A their agents or counsel, was to relieve this tract from middle ground is being built up. It is, where there is the lieu or incumbrance of Martin's judgment, which a complete precedent contract, or agreement not exestood iu the way of the consummation of the sale by cuted not correctly expressed in the written agreethe canal company to the United States. According ment — a court of equity will decree a specific perto the evidence Martin so understood it; Stevens, act formance of the precedent contract. This, for coning for the canal company, and at the same time for venience, is done by directing reformation of the the United States, so understood it; and so it was un written instrument. The authorities to sustain this derstood by the legal adviser, Mr. J. C. Gregory, and exception to the rule are numerous and strong." And by Charles Noble Gregory, the attorney who drew the the learned counsel cites Petesch v. Hambach, 48 Wis. deed; and they all unquestionably supposed that the 413; S. (., 4 N. W. Rep. 565; Conrad v. Schwamb, 53 deed was so drawn and executed. It was drawn to Wis. 372; S. C., 10 N. W. Rep. 395; James v. Cutler, 54 express this intention and such a limitation of the Wis. 172; S. C., 10 N. W. Rep. 147; and numerous grant.

other authorities, to sustain the admitted proposition. The mistake was in placing such limitation in the In one of these cases (Iron Co. v. Iron Co., 107 Mass deed after the grant instead of in the grant itself. But 290) it is said by Judge Wells: “It will be seen that this limitation clause, even where it was inserted in there is a question thus presented by both branches of the deed, is potent and conclusive as to the real agree the issue, when taken together, which is not merely of ment and understanding and intention of the parties. a mistake of law as to the construction and effect of It may not have technically limited tho grant to one the deed, but whether by reason of such mental mistake, half of the tract; but does it not estop the parties to the deed, contrary to the real intention of both parthe deed and their privies from afterward disputing ties, failed to be a full and complete execution of the the intention expressed by it, at least in equity, when previons contract of purchase and sale. Such a misthe correction of the mistake is sought? Speculation take, if there are no legal objections to the enforceas to what kind of a mistake this was, whether of fact ment of the oral agreement will furnish sufficient or of law, and as to what it should be named or how ground for the interference of a court of equity to reclassified, is idlo and fruitless. Things and the sub quire a rectification of the deed.” In that case the misstance of things, and the established principles of rea take was in the legal effect of a reservation or excepson and equity, should be considered in such a case, tion in the deed, and was the mistake of the person rather than mero names which may mislead, and if who drew the deed, the parties supposing that it exthis mistake was mutual and of all of the parties con pressed properly the reservation or exception accordcerned, which was substantially admitted by them, ing to their previous agreement. ought it not in fairness and equity to be corrected, and

In the last edition of Kerr on Frauds, 168, 469, in the deed reformed in this respect? Should the court view of established authority on this question, and be restrained from applying an equitable remedy in quoting from authority, it it said: “ Private right of such a case by a decision here and there that a similar ownership is a matter of fact; it may also be the remistake was of law, and therefore could not bo cor sult of a matter of law; but if parties contract under a rected; or of fact, and therefore remediless. I mutual mistake and misapprehension as to their relashall not cite many authorities or comment at any tive and respective rights, the result is that the agreelength upon those cited to extend this opinion need ment is liable to be set asido as having proceeded on a lessly. The decisions are very conflicting, and in common mistake." “ Ignorance of a matter of law,” much confusion on this question, and abound in nice said Lord Chelmsford in Lord Beauchamp v. l'inn, and critical distinctions. If in cases substantially like L. R., 6 E. & I. App. Cas. 231, “arising upon the this in principle, a reformation of the deod has been doubtful construction of a grant, is very different from allowed, they may be referred to, to support and sauc ignorance of a rule of law. Therefore although when tion the very strong first impression we have that this a certain construction has been put by a court of law deed ought to be reformed.

upon a deed, it must be taken that the legal construcThis question was very fully argued by counsel, and tion was clear; yet the ignorance before the decisior very fully and ably treated and cousidered by Chief of what was the true construction cannot be pressed Justice Dixon in lluri v. Ilall, 12 Wis. 125, in respect to the extent of depriving a person of relief on the to a mistake of fact, and the distinction between such ground that he was bound himself to have known bea mistake and one of law. As a matter of course we

forehand how the grant must be construed. When have no right to violate the maxim, ignoruntiu juris therefore a man, through misapprehension or mistake

of the law, parts with or gives up a private right of extent on the question may justify this consideration property, or assumes obligations upon grounds upon of it. It follows from the above that there was a conwhich he would not have acted but for such misappre tract between the parties for a conveyance of only heusion, a court of equity may grant relief, if under one-half of the tract, and by mistake the deed was a the general circumstances of the case it is satisfied that conveyance of the whole, aud that such mistake may the party benefited by the mistake cannot in con and ought to be corrected by reformation of the deed science retain the benefit or advantages so acquired.” | accordingly. I have quoted largely from that authority because this The remaining question will be disposed of briefly. case is exactly described. The cases in this court Had the canal company any equitable title or interest above cited are in accordance with this principle, al in the half of said tract not intended to be conveyed though the mistake in those cases was in the descrip by the deed so as to prevent its correction? One tion of the premises conveyed.

George W. Lawe owned and conveyed this undivided In Savings Bunk v. Insurance Co., 31 Conn. 517, the half to Mr. Martin in 1851 in consideration of $1. Marmistake was by the agent in drawing the appli tin gave Lawe a boud conditioned that he should in cation for the policy to cover the property itself, in effect fulfill his contract with the State in the constead of the mortgagee's interest in it. The court said: struction of the improvement, and save Lawe harm“There was a mistake as to the proper mode of filling less from the State. The State was bound to discharge out the papers on both sides. The application was the trust it bad assumed by accepting the grant for made out in tho wrong name, and the policy was made that purpose to construct and complete the contemto the wrong person ; but there was no fraud or mis plated works for the improvement of the Fox and representation. The papers would have been made Wisconsin rivers. This was all the interest the State out right if they had known how to do it; and it is had in it, and all it could have under her Constitution. immaterial whether the mistake was one of fact or of She had no right to construct hydraulic works for any law.” Citing Steuell v. Anderson, 21 ('om. 139. other purpose, or purchase or condemn the lands of

In Iluni v. Rousmunir, 8 Wheat. 174, the legal coun private owners for hydraulic purposes. Martin bad no sel of the parties advised that a power of attorney

such relations to the State or the improvement, nor should be drawn and executed, instead of a mortgage, could have lawfully had, by which his purchase of onefor certain security, which the power failed to give. half of this tract would inure to the State. All deeds Chief Justice Marshall said: “In this case the fact of which have since been made by Martin have expressly mistake is placed beyond controversy.

We reserved and accepted this interest or been made subfind no case which we think precisely in point, and are ject to this deed. The State and its successors in this unwilling, when the effect of the instrument is ac improvement have always recognized and have never knowledged to have been entirely misunderstood by claimed this interest of Martin, and of those holding both parties, to say that a court of equity is incapable it under him, in this half of the tract he purchased of affording relief.” A bond was drawn joint by the from Lawe. There is no evidence whatever of any mistake of the person who drew it, when it should equitable title in the canal company to this half of the have been joint and several; and it was corrected in tract which can prevent the reformation of the deed equity. Simpson v. l'(lughan, 2 Atk. 33; Uuderhill v. in question as prayed in the counter-claim. llorwood, 10 Ves. 209. The cases are numerous of the The judgment of the Circuit Court is reversed, and correction of the mistake of the parties in reducing the cause remanded, with direction to render judgtheir agreement to writing. In some it is called a ment in the case according to this opinion. mistake of fact, and in others of law; and it made no differenco which it was called, the relief was granted in all such cases. Pitcher v. Hemessey, 48 N. Y. 116;

CARRIER-CONNE(TZVG-FIRE IN WAREHOUSE and Maher v. Insurance Co., 67 id, 283, are in point.

- LIABILITY., It is a little singular that there should have been any conflict of decisions on this question, when as early as

MICHIGAN SUPREME COURT, NOVEMBER 19, 1884. 17:30 it was decided by the old English ('ourt of Chancery that when of four brothers the second died, and

CONDON V. MARQUETTE, H. & O. R. Co.* tho eldest entered into possession of his land as heir, Where a carrier receives goods to be transported over a conand the youngest brother claimed it, and they went to necting line to their final destination, its liability as a coma school-master who sometimes acted as an attorney,

mon carrier continues until the goods are delivered to the and consulted him as to their rights, and he having ad

other carrier, and if they are destroyed by fire while in the vised them that lands descend to heirs, and not as.

warehouse of the first carrier, it will be liable for their cend, and therefore the youngest was entitled to the

loss, notwithstanding a custom that tho connecting carestate of his deceasej brother; and on that advice pa

rier shall inspect the books in which goods are entered as pers were drawn and executed by the oldest brother,

received, and take possession of and transport over its giving the youngest brother an interest in the land to line goods intended to be so transported. save litigation—the lord chancellor decreed that all

to Houghton. such papers should be delivered up to the plaintiff as having been obtained by mistake, etc. Landsdown v. Landsdown, Mos. 361.

Chandler, Grant & Gray, for plaintiff. A promissory noto was assigned unqualifiedly, when

W. P. Ilcaley, for defendant and appellant. according to contract it ought to have been without recourse. It was reformed in equity according to the

COOLEY, C. J. The plaintiff shipped goods from intention of the parties. Stafford, v. Fetters, 55 Iowa,

New York by the New York ('entral & lIudson River 184; S. C., 8 N. W. Rep. 322. But this opinion on this

Railroad Company, directed to himself at Hancock, question has been already extended too long. The

Michigan, and they were carried in succession by conlearned and candid counsel of the respondent virtually

necting carriers until they were delivered by the Chiadmitted the law to be as above stated, and the ques

cago & Northwestern Railway Company to defendant tion might have rested on such admission; but it boing

at Negaunce on March 12, 1883. The goods were carinvolved in the case by the finding of the court, and in

ried by defendant over its road to L'Anse, where they respect to such a case a new question in this court, and

arrived March.133, 1883, and were placed in defendant's there being a conflict of decisions elsewhere to somo

*S. C., 21 N. W. Rep. 821.

ERROR

warehouse. There they remained until March 20, 1883, when they were destroyed by an accidental fire. L'Anse was the terminus of railroad transportation. From thence to Hancock goods were carried in boat during the season of navigation, and by teams for the remainder of the year, by a carrier known as the L'Anse & Houghton ()verland Transportation Company, which occupied for its purposes at L'Anse the warehouse of the defendant. It seems to have been the customary mode of business for the receipts of goods to be entered at the warehouse upon books of the defendant, which were open to inspection by the L'Ause & Bloughton Overland Transportation Company, and which were regularly inspected by theagent of that conipany to ascertain what goods were to be taken by it. That company was then accustomed to take the goods for Hancock and other places on its line, load them in sleighs or other vehicles at the warehouse, and then receipt them to the defendant. When the goods of the plaintiff were received by defendant no notice was given to him, nor was the attention of the agent of the transportation company called to them, or any request made that they should be removed. They simply remained in tho warehouse, without action by any one in respect to them, until the fire took place. The goods having been destroyed, plaintiff claimed from the defendant payment of the value, and that being declined, the present suit was instituted.

The first count of the declaration charged the defondant as cominon carrier with the duty to carry the goods over its line to L'Anse, and there deliver them to tho L'Anse & lIoughton (verland Transportation Company, and the breach of the duty alleged was the failure to deliver to that company,

The trial judge instructed the jury that if the goods wero shipped from New York, consigned to or marked for the plaintiff at Hancock, Michigan, and came into the hands of the defendant from the Chicago & Northwestern Railway Company to be carried by defendant in the usual course of its business to L'Anse, there to be delivered to

the

I L'Anse Houghton Overland Transportation Company for transportation to llaucock, then the defendant received such goods as a common carrier, and remained such common carrier during the transportation of the goods to L'Anse, and after their arrival there for such reasonable time as according to the usual course of business with the L'Anse & Houghton Transportation Company would enable defendant to deliver the goods to that company; and no delay in taking goods on the part of the transportation company, incident to the usual course of business between the two companies, would exonerate the defendant from its liability as a common carrier. It would be the duty of the defendant to deliver or offer to deliver the goods to the L'Anse & IIoughton Transportation ('ompany to be transported to llancock; and if the goods were not so delivered or offered to be delivered, plaintiff was entitled to recorer. Under this instruction the plaintiff had judgment, and the defendant brings error.

The question which the instruction presents is one upon which the authorities are somewhat divided. It received careful attention at the hands of the New York ('ourt of Appeals in McDonalıl v. Western Rui? road Corporation, 31 N. Y. 497, where several opinions were delivered. The facts upon which the decision was to be made were in all respects similar to those now before us, and tho judges were manimous in holding that the railroad company was liable. Wright, J., said: “The goods had been received by the defendants at Chatham, to be transferred to Binghanton by way of the Erie & (Chenango canal. Their obligation thereforo was to carry the goods safely to the oud of their road and deliver them to the next carrier

on the route beyond. A carrier in such case does not release himself from liability by simply unloading the goods at the end of his route and placing them in his own storehouse, without delivery or notice to, or any attempt to deliver to the next carrier.”

HUNT, J., in a concurring opinion, referring to Ladue v. Griffith, 25 N. Y. 361, as a somewhat similar case, said: “The defendants in the present case did no act indicating that they had renounced the liability of a carrier. They simply unloaded and deposited the goods in their warehouse. Had this deposit been made in the warehouse of a company engaged in canal triinsportation westwardly, it would have been an act of great significance. But hero the fact is expressly found that it was the custom of the further carrier to take the goods from the defendants' depot. The liability of the further carrier did not commence until he removed the goods from the defendants' warehouse. The deposit therefore by the defendants in their own warehouso did not afford any evidence of a renunciation of the carrier's liability.” And he added that the deposit of the goods in the warehouso was to be considered a mere accessory to the carriage by defendant, and that their liability as carrier was therefore unbroken.

This decision was approved as sound and followed as authority in Mlills v. Michigan ('ent. R. Co., 45 N. Y. 62:2, and it is undoubtedly the settled law of New New York at this time. The same doctrine was laid down in Conkey v. Ililwaukee, etc., R. Co., 31 Wis. 619, in a forcible opinion by Chief Justice Dixon, and also in Irish v. Jilwaukee, etc., R. ('o., 19 Vinn. 376 (Gil. 3:23); S. (., 18 Am. Rep. 310, which cites with approval the case in 34 N. Y. The like doctrine also appears to be recognized in Eric R. Co. v. Lockwood, 28 Ohio St. 358; Brintnall v. Saratoga, ctc., R. Co., 32 Vt. 665; Packard v. Taylor, 35 Ark. 402; and Louisville, etc., R. Co. v. Campbell, ñ lleisk. 253. It was also affirmed in Michigan ('ent. R. Co. v. Manufacturing Co., 16 Wall. 31$. This last case expresses views not in harmony with the opinion of the court respecting a certain clause in the charter of the Michigan ('entral Railroad Company as expressed in llichigan Cont. R. ('0. v. Ilule, 6 lich. 313, and Same (ompany F. Lantz, 32 Mich. 502 ; yet as the question now under consideration wis considered and decided by the court upon common-law principles, the conflict of views on the question of construction is of no importance in this case.

We think theso cases lay down a rule which is just to the shippers of goods, and not unreasonably burdensome to carriers. The shipper delirers his goods to a carrier, who becomes insurer for their safe transportation; and if the operations of one carrier cover a part only of the line of transit, and another is to receive the goods from him, the shipper has a right to understand ihat the liability of an insurer is upon some one during the whole period. The duty of the one is not discharged until it has been imposed upon the succeeding carrier, and this is not done until there is delivery of the goods, or at least such a notification to the succeeding carrier as according to the course of the business is equivalent to a tender of delivery. There is nothing in this which is burdensomo to the carrier, for this is the customary method in which the business is done; and the rule only requires that the customary method shall be pursued without unreasonable delay or negligence.

The connecting carriers in this case appear to hare established a custom of their own, under which actual delivery of the goods or notice to take them was dispensed with, and the one was to ascertain from the books of the other what goods were really for reception and further carriage. This as between themselves, was well enough whilo it worked well; but it was an

arrangement to which the plaintiff was not a party, and the defendant could not, by meaus of it, relieve itself of any liability which duty to the plaintiff imposed. And it was clearly its duty to the plaintiff, as we think, to relieve itself of the responsibility of the goods remaining for an unreasonable time in its warehouse, and to do this it was necessary that the responsibility be transferred to the carrier next in line. But the mere permission to inspect its books and take whatever was ready for carriage would not do this; there should have been distinct notice which would apprise the other carrier that defendant expected the removal of the goods.

In this case there were no facts indicating a renunciation, as to these goods, of the liability of common carrier by the defendant, or that it was supposed by the agents of the defendant that that character had been exchanged for any other. If it ever was, it inust have been at the moment the goods were received, for nothing took place afterward to change the relation of the defendant to the goods until the fire took place. But we are not ready to assent to the doctrine that a railroad company, as to goods transported by it, ceases to be carrier the moment the goods are received at its warehouse. We do not think that is the law, or that it ought to be. The judgment should be affirmed. Champlin and Sherwood, JJ., concurred.

CAMPBELL, J. In this case it is admitted by the undisputed facts that the property in question had been in defendant's warehouse for a longer time than was generally necessary for the removal of goods by the ultimate carrier, and that the failure was due to a lack of means of removal in the latter. It also appears that the property was in a warehouse from which the last carrier always took it without any further ceremony, and that this carrier was always informed by inspection of the way-bills and knew of the goods boing ready for removal. I think that under such circumstances defendant no longer remained responsible as carrier, but became subject to no more than a warehouseman's responsibility as soon as the last carrier had actual notice and could have removed them, and that respondent is not to be prejudiced by the lack of facilities in that carrier, who had the same means of access to and control over the goods. Such seems to me the purpose of our statute, which does not declare or provide that the liability of warehousemen for goods awaiting delivery shall not arise when the real duties of carrier have been fulfilled, but merely requires that the responsibilities attaching to a carrier shall not be lessened while that relation exists.

[Sec 68 lll. 471; 44 N. Y. 507-8; 2 Am. Rep. 130, 242, 391; 21 Eng. Rep. 68; 63 Ala. 219.

waived. Code, $ 499. The gist of the action was the procuring of an order of arrest by defendants under the Stillwell Act. The facts stated in the affidavit, upon which the warrant was granted, were sufficient to give the judge who issued it jurisdiction. It was subsequently set aside by said judge, upon affidavits showing that plaintiff had previously beeu arrested in an action brought against him by defendants, upon an order of arrest issued for the same cause, and substantially upon the same grounds. Iu an action for false imprisonment, held, that the warrant was not void or irregular, but at most simply erroneous, and so that the action was not maintainable. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution, in case the prosecution against him bas been from unworthy motives and without probable causo. Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggravate his damage, but have nothing whatever to do with the cause of action. Hence if in this case the defendants had intentionally withheld from the judge who granted the warrant the fact of the plaintiff's prior arrest, that fact would have been quite pertinent to maintain an action for malicious prosecution, but would not have laid the foundation for a recovery in an action for false imprisonment. We hare carefully examined many authorities, and have not found oue which decides that in a case like this an actiou for false imprisonment can be maintained. They all sustain the views above expressed. Williams v. Smith, 14 (!, B. (N. S.) 596; Ilayden v. Shed, 11 Mass. 500; Reynolds v. Corp, 3 ('aines, 268; McGuinty v. Herrick, 5 Wend. 210; Chapman v. Dyett, 11 id. 31; Deyo v. Van Valkenburgh, 5 Hill, 242; Landt v. Hilts, 19 Barb. 283; Simpson v. Hornbeck, 3 Lans. 53; Miller v. Adams ñ id. 131; affirmed, 52 N. Y. 409; Palmer v. Foley, 71 id. 106; Dusenbury v. Keiley, 85 id. 383; Day v. Bach, 87 id. 56. In Williams v. Smith, Williams, J., said: The party causing process to be issued is not responsible for any thing that is done under it when the process is afterward set aside, not for irregularity, but for error.” And Byles, J., said: “There is a manifest distinction between setting aside process for irregularity and reversing a proceeding for error on appeal. In the one case a man acts irregularly and independently, without the sanction of any court. llo therefore takes the consequences of his own unauthorized act. But when he relies upon the judgment of a competent court, however orroneous that judgment may be, the party acting upon the faith of it ought 'to be protected.” (22) Plaintiff was properly nonsuited, as to the cause of action for malicious prosecution. The burden of showing want of probable cause for his arrest was upon him, and he gave no evidence whatever upon that subject. Not only this, upon his objection, evidenco on the part of the defendants to show probable cause was excluded. Marks v. Townsend. Opinion by Earl, J. [As to (1) see 88 N. Y. 270; 18 W. Dig. 108; 16 id. 240; 2 Civ. P. R. 217, contra, 61 Ilow. 353.] [Decided Jan. 20, 1885.]

STATUTE OF FRAUDS-PAROL AGREEMENT PARTLY PERFORMEI).-Plaintiff was lesseo of a store for the term of five years, at an annual rent, payable quarterly; he owned or controlled a one-half interest in the stock of goods in the store; the defendant at the same time was the owner of a paper mill in that city; and it was agreed that the defendant should sell to tho plaintiff the mill and its machinery, and receivo in payment therefore certain notes and mortgages, the half interest in the stock of goods, aud as the

NEW YORK COURT OF APPEALS ABSTRACT.

PLEADING-MALICIOUS PROSECUTION ANI) FALSE IMPRISONMENT MAY BE JOINED-ORDER OF ARRESTFALSE LMPRISONMENT DOES NOT LIE-MALICIOUS PROSECUTION-PROBABLE CAUSE.—(1) The complaint alleges two causes of action, to wit, one for malicious prosecution and another for false imprisonment. As they are both for personal injuries they could be contained in the same complaint. (ode, $ 481. They are consistent with each other, and the one is not destructive of the other, and it has been common practice to unite them. Doyle v. Russell, 30 Barb. 300; Barr v. Shaw, 10 Hun, 580; Dusenburg v. Keily, 85 N. Y. 383, 389; ('arl v. Ayers, 53 id. 14; Bradner v. Falkner, 93 id. 515. But as the objection to the joinder was not taken in the answer or by demurrer, it was in any event

If as

plaintiff's testimony tends to show, the possession of date, with interest at the rate of eight per cent per anthe store for the unexpired term (then about fourteen num,the defendant, besides pleading the general issue, months), and the defendant on his part agreed to pay pleaded that the plaintiff ought not to recover $992 of the rent to the lessors for that term. This term of the the amount of the note sued on, with the interest on agronment is denied by the defendant. It is however said sum, because N. C., the testator, after becoming uncontroverted that the defendant, on the saine day, the owner of the note, made, on February 4, 1876, a was placed in possession of the store and goods by the verbal agreement with 1)., the maker, by which he plaintiff; that he carried on business there until the contracted to receive from D. interest at the rate of 25th of May following, and paid the lessors rent up to ten per cent per annum, payable quarterly, upon the that time when be sold out, and making no further full amount of principal and interest due on the note payment, this action is brought to recover the sums at its maturity, to wit, $1,960, and in pursuance of such unpaid. Held, that the agreement was not within the agreement did, between February 4, 1876, and January statute of frauds and that plaintiff was entitled to re 1, 1878, receive as illegal interest eight payments of cover. The appellant puts his appeal upon the statute $124 each, amounting to $992, the court instructed the of fraúds. We think it has no application, and that jury that the only remedy for the recovery of money the case was properly submitted to the jury.

paid for interest in excess of the interest allowed by they have found, the plaintiff's version of the trans law, is suit brought under section 716 of the Révised action was the true one, the defendant's promiso to

Statutes of the District of Columbia within one year, pay the rent was upon a new consideration, which and that the prohibition contained in section 715 of moved directly to him, and it was made for his own the Revised Statutes of the District of Columbia apbenefit, and not for the benefit of the plaintiff. The plies exclusively to cases in which illegal interest has general object and purpose of the transaction, or the been contracted for, but not paid. Held, that the in"res gestce” as it is termed in Williams v. Leper, 3 struction was correct. In Farmers' eto., Nat. Bank v. Burr. 1886, shows that the intention of the parties was Dearing, 91 U. S. 29, the court declared that the pennot that the defendant should become responsible for alty imposed on a national bank for taking a greater the payment of the plaintiff's debt to the lessors, but rate of interest than that allowed by the National that he could assume, as a new and independent duty, Banking Act, was the loss of the entire interest, and that of paying to the landlord the rent specified in the that no loss of the entire debt was incurred by the lease. This obligation was part of an undivided trans bank as a penalty by reason of the provisions of the action and stands upon the whole as a consideration. usury law of a State. So in Barnet v. National Bank, It comes therefore within tho principle under which 98 U.S. 555, it was held that in a suit by a national it has been often decided, that the purchaser is bound bank against the parties to a bill of exchange disby his promise to pay the price to a creditor of the counted by it, the assignees of the acceptor could not, vendor, although it is not in writing and the vendor having intervened as parties, set up by way of counterremains bound. Leonard v. Vredenburg, 8 Johns. 29; claim or set-off that the bank knowingly took and was Barker v. Bucklin, 2 Den, 45; Mallory v. Gillett, 21 N. paid a greater rate of interest thereon than that alY. 412. It is also apparent that there was a completo lowed by law, but that the National Banking Act havperformance by the plaintiff, and an acceptance of that ing prescribed as a penalty for the taking of such unperformance by the defendant. The plaintiff received lawful interest that the person paying the same might, from the defendant the mill property, and turned out in an action of debt against the bank, recover back to him the mortgages, notes and money, stock of goods twice the amount so paid, he could have redress in no and possession of the store, and these things the de other form or mode of procedure. So in Driesbach v. fendant received and retained according to his pleas National Bank, 104 U. S. 52, it was held that usurious ure. Every thing has been performed except bis interest paid to a National bank on renewing a series promise to pay the rent in question. The judgment of notes, of which those in suit were the last, could in this caso calls for nothing more, and justice re not be applied in satisfaction of the principal of the quires that it should be paid. Kohler v. Matlage, 72 debt. See also Cook v. Lillo, 103 C. S. 192, and Walsh N. Y. 259. It would be a perversion of tho true pur v. Mayer, 111 id. 31. In tbe case last cited it was held pose of the statute to give it such construction as generally that a statuto which prescribes a legal rate would protect the defendant in the enjoyment of ad of interest, and forbids the taking of a higher rate, vantages obtained from the plaintiff in reliance upon under penalty of a forfeiture of the entire interest, an oral agreement on which the latter acted. If the and declares that the party paying such higher rate of plaintiff had refused to put the defendant in posses interest may recover it back by suit brought within sion, he could have rescinded the contract; if he in twelve months, confers no authority to apply the usuterfered with his possession, he could sue for damages

rious interest actually paid to the discharge of the (Gray v. Hill, Ryan & Moody, 420); if for his security principal debt, and that a suit for its recovery brought an assignment in writing of the lease was necessary,

within twelve months was the exclusivo remedy. or a written contract for the possession, a court of

There was therefore no error in the refusal of the court equity would have compelled its execution; but to charge as requested or in the charge given. Carter neither of these things is asserted. The case is within v. Curusi. *Opinion by Woods, J. the established rule that a parol agreement in part [Decided Dec. 15, 1881.] performed is not within the provisions of the statute.

STATUTE - (HINESE IMMIGRATION.- The fourth Stuart v. Stuart. Opinion by Danforth, J.

section of the act of Congress approred May [Decided Jan., 1885.]

6, 1882, ch. 126, amended by the act of July 5, 1884, ch. 120, prescribing the certificate which

shall be produced by a Chinese laborer as the “only UNITED STATES SUPREME COURT B

eridence permissible to establish his rights of reSTRACT.

entry into the United States, is not applicable to

Chinese laborers, who residing in this country at the NATIONAL BANK-PESALTIES FOR TAKING USTRY. date of the treaty of Norember 17, 1880, departed by Where in an action brought in the District of Colum sea before May 6, 1852, and remained out of the United bia by the executors of N. ('., deceased, against ('., as States until after July 5. 1881. The rule is well settled indorser upon a note dated May 29, 1873, made by J. that repeals by implication are not favored, and are D. for the payment to ('. of $4,000, three years after

nerer admitted where the former cau stand with the

as

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