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SURETIES.
DEFENSE OF USURY. Where, upon a loan of money to a corporation the defenso

of usury is unavailing to the corporation, it is also unavailing to its sureties.

Rosa v. Butterfield, 665.
Where a railroad company in this State gave its promissory note for the pay.

ment of $15,000, with twelve per cont interest, payable semi-annually, held,
that, in an action upon such note, the sureties thereupon could not interposo

tho defense of ugury. Id.
That by the statute of 1850 (ch. 172), the contracts of corporations borrowing

money and agreeing to pay more than seven per cent interest, are legal
and binding upon them; and that the guarantors of such contracts were

liable upon their contracts of guaranty. Id.
THIRD PERSON AS SURETY, a consideration for a promise, &c. See 648.

TAXES AND TAXATION.
STOCKS IN THE NATIONAL BANKS TAXABLE FOR STATE PURPOSES. The interest of

the stockholders in the National Banks, organized under the act of congress
of June 3, 1864, are legally taxable for State, county and municipal pur-
poses pursuant to the laws of this State. City of Utica v. Churchill

, 161.
INSTRUMENTALITIES OF GENERAL GOVERNMENT. The objection that these moneyed

institutions are instrumentalities of the general government for the execu-
tion of its constitutional powers, and are exempt from State taxation upon
the principle by which the late Bank of the United States was adjudged to
be exempt, doos not apply where, as in these cases, the tax, instead of
being assessed against the corporation, is against the individual stockhold.

ers. Id.
The last position was authoritatively adjudged by the Supreme Court of the

United States in the case of Osborn v. The Bank of the United States (9

Wheat., 738). Id.
It is moreover expressly enacted by the 41st section of the aforesaid act of

congress, that these institutions may be taxed under State authority. Id.
SECURITIES OF THE PUBLIC DEBT. The stockholders are not exempt from taxation

though the capital of the banks be invested in the securities of the public

debt of the United States. Id.
TAXES, HOW IMPOSED. Taxes are imposed upon the owners of property in respect

of or on account of such ownership. Hence where a certain kind of
property is declared by the Constitution or by law to be exempt from
taxation, the exemption is conferred upon such owners; but the stockhold-
ers are not in a legal sense the owners of the securities held by the bank.
Their interest is not of a collateral nature and is not the interest of an

owner. Id.
The 41st sectiou of the congressional banking act, declaring the stockholders

subject to State taxation, applies, though the capital be invested in national
securities; for it is a condition to the existence of these banks that they

shall hold a large amount of those securities. Id.
AUTHORITY OF CONGRESS. Notwithstanding the principle that national stocks are

generally exempt from State taxation, it is constitutionally competent for
congress to negotiate a loan under conditions that the holders of the script
shall be subject to taxation by the State of which they are citizens. This
has been done by the said 41st section, so far as stockliolders can be con-

sidered as the owners of the public stock held by such banks. Id.
CONSTRUCTION OF STATUTES. The act of the legislature of this State (Laws 1865,

p. 172), subjecting the stockholders of national banks to taxation at the
place where the bank is located, applies to such banks organized under
the banking act of congress of 1863, equally with those organized under the
act of congress of 1864. Id.
TIFFANY.- VOL. VI. 90

TAXES AND TAXATION - Continueda
By the laws of this state existing prior to the act of the legislature above men.

tioned, stockholders in national banks could not be taxed except in the

town or ward in which they resided. Id.
The limitations prescribed in the above mentioned 41st section, were not

exceeded by the above mentioned act of the legislature of this state. Id.

TENANT.
FROM YEAR TO YEAR. The rule of law regarding a person holding over by con-

sent, after the expiration of his term, as a tenant from year to year, is

applicable only to leases of real estate. Chamberlain v. Pratt, 47.
WHEN IMPLIED. A tenancy from year to year is ordinarily implied in favor of

the owner, against one who enters under a parol demise for a term of years,

void by the statute of frauds. Greton v. Smith, 245.
But when the entry is under an agreement by the owner to execute a valid

lease in writing for the term, and he afterwards, in bad faith, refuses to
execute it, repudiates the relation of landlord and tenant, and within the
year resumes dominion over the property, he is bound by his election, and
has no remedy on an implied agreement for intermediate use and occupa-

tion. Id.
A mortgage on lands which the mortgagor had previously contracted to sell

,
passes only his actual interest; and one who acquires his title at a fore-
closure sale, takes it subject to the equities of the vendee in possession.

Laverty v. Moore, 658.
A vendee, who has fulfilled his contract of purchase, may obtain a decree for

specific performance against parties, who, with notice of his equities, suc-

ceeded to the interest of the vendor. Id.
A defendant cannot defeat a recovery, by setting up an outstanding right in a

third party, who acquiesces in the title of the plaintiff. Id.
A conveyance, under a decree of foreclosure, of premises not embraced in

the sale, does not pass the title, though the premises were embraced in the

decree. Id.
A manifest mistake in a decree, by words of misdescription, when the premises

are otherwise sufficiently identified and described on the face of a decree,
does not prejudice the rights of the parties, the words of misdescription
being mere surplusage. Id.

TITLE.
OF CONSIGNOR. The title of the consignor to paper shipped to his factors to be

sold on commission does not rest in the factors, unless they have made
special advances upon the credit of such shipment; or unless, by an
arrangement, they are to have a lion upon all shipments for any general
balance of advances previously made. Beebe v. Mead, 587.

TRUST.
ESTATE BY IMPLICATION. If the purposes of a trust are separable, and some of

them must arise within two lives, and there are others which can only
become operative after the expiration of the two lives, the former may be

sustained, but the latter cannot be. Post v. Hover, 693.
To devise an estate by implication, there must be so strong a probability of

such an intention, that the contrary cannot be supposed. Id.
Where, by the terms of the will, the supposed devisee by implication is consti-

tuted a guardian, &c., and, as such guardian, is to have charge of the estate,
the idea of a devise by implication is strongly repelled. Id.

TRUST - Continued.
If the language of a deed or will is susceptible of two constructions, and, by

adopting one construction, it would be unlawful, while, if the other were
followed, it would be valid, the latter interpretation should be given. Id.

USURY.

DEFENSE OF, WHEN UNAVAILING TO THE PRINCIPAL, IS ALSO TO THE SURETIES.

Where, upon a loan of money to a corporation, the defense of usury is
unavailing to the corporation, it is also unavailing to its sureties. Rosa v.

Butterfield, 665.
Where a railroad company in this State gave its promissory pote for the pay.

ment of $15,000, with twelve per cent interest payable semi-annually, held,
that, in an action upon such note, the sureties thereupon could not inter-

pose the defense of usury. Id.
That by the statute of 1850 (ch. 172), the contracts of corporations borrowing

money and agreeing to pay more than seven per cent interest, are legal
and binding upon them; and that the guarantors of such contracts were

liable upon their contracts of guaranty. Id.
DEFENSE OF, BY WHOM TO BE SET UP. The defense of usury can be set up only by

the party bound by the original agreement to pay the sum borrowed, or

by the sureties, heirs, devisees or personal representatives of such party.
The usurer limself cannot avoid the force of his contract on the plea that it is

usurious and void. Billington v. Wagoner, 31.
ESSENTIAL TO USURY. Where the contract is not for the loan of money or of

goods, or is not for the forbearance of an existing debt, it cannot be usurious.

Stockwell v. Holmes, 63.
EVIDENCE OF, BY EXAOTING EXCHANGE, ETC. In an action upon a promissory note,

when the defense is usury, it is competent for the defendants to prove that
both the maker and indorser of tho note resided in Buffalo, and had no
expectations of having funds in New York at the maturity of the paper,
and that the note was made payable in New York with the design that the
plaintiff should realize from the transaction one-half of one per cent in

addition to the legal rate of interest.
NOTE USURIOUS. Upon a renewal of an existing loan by giving new notes paya-

ble at the same place as the former, no question of exchange can arise. Any

exaction beyond interest in such a case is usury.
COLLATERALS. And such notes being void, all the securities which follow or grow

out of the transaction, are likewise void, as usury contaminates all subse-

quent securities. Price v. Lyons Bank, 55.
WHEN NOT SUFFICIENT, A contract of loan is not rendered usurious by a separate

- and distinct undertaking between the parties, that the lender is to receive
the deposits of the borrower, and to keep them safely and pay them over
on demand, on condition that the notes discounted shall be paid in the city
of New York, by means of which an exchange of one-half of one per cent
is realized to the lender, on the amounts of the paper discounted. Beals v.

Benjamin, 61.
Where the relation of the party as a borrower is distinct from his relation as a

depositor, the two relations will not be confounded with each other to

establish the existence of usury. Id.
Where the facts of the case show a sufficient reason for the payment of the dis-

counted notes in a distant city, at the cost of exchange, other than for the
purposes of a profit to the lender, and an inducement to him to make
the loan, they may be taken into consideration in determining the character
of the transaction, Id.

USURY -Continued.
USURIOUS TRANSACTION. Where a note was given without any consideration by

the defendants and proper indorsers procured, with a view of having the
same discounted at the bank, and before the note had a legal inception, an
arrangement was made between the plaintiff and the defendants, by which
plaintiff was to discount such note at seventeen per cent, and such note was
left with one of the indorsers thereof, who was to receive the money thereon
and deliver the note to the plaintiff, which he did, held, that the transaction

was usurious and the note void.
The fact that the plaintiff, at the time of discounting such note, withheld seven-

teen per cent, and at the same time, without the knowledge or consent of
defendants, gave his own note for ten per cent of the note discounted
which note never came to the possession of the defendants, and which ho
never paid, does not change the character of the transaction. Newell v.

Doty, 83.
Usury cannot be predicated of the advantage obtained by the lender by means

of the difference of exchange between the place of the loan and the place of
the payment, where both places are within the State. Eagle Bank v. Rigney,
613.

VESSELS.

OWNERS OF, TENANTS IN COMMON. Where a vessel is owned by several in shares,

they are tenants in common as to the ownership of the vessel, though they

are partners in respect to its earnings.
PARTNERS. As partners in the earnings, all should be joined in an action to

recover for freight earned by such vessel. Donnell v. Walsh, 43.
AGENTS OF LINES OF, maintaining structures on public wharves, &c. See LESSER,

251.

WHARF.

LESSEE OF A PUBLIC WHARF HAS ONLY THE USE AND WHARFAGE. See LESSER,

251.

WIFE.

SEPARATE ESTATE OF. What necessary to charge it, &c. See SEPARATE ESTATE,

371.

WILL.

DEVISE, CONSTRUCTION OF. It seems that a devise of real estate, universal in its

terms, would carry after-acquired lands without any language pointing to

the period of the testator's death. Lynes v. Townsend, 558.
But in the absence of unlimited terms in the will, there must be language which

will enable the court to see that the testator intended to operate upon real

estate which he should afterwards purchase. Id.
A declaration in the will that he appoints his executors for the full and final

settlement of his estate, whether real or personal" – where he possessed
real estate at the time of making the will — is not to be deemed a sufficient
indication of his intention that the will should operate upon real estate sub-

sequently acquired. Id.
DEVISE OF AN ESTATE BY IMPLICATION. If the purposes of a trust are separable,

and some of them must arise within two lives, and there are others which
can only become operative after the expiration of the two lives, the former
may be sustained, but the latter cannot be. Post v. Hover, 593.

WILL - Continued.
To devise an estate by implication, there must be so strong a probability of such

an intention, that the contrary cannot be supposed. Id.
Where, by the terms of the will, the supposed devisee by implication is consti.

tuted a guardian, &c., and, as such guardian, is to have charge of the estate,

the idea of a devise by implication is strongly repelled. Id.
If the language of a deed or will is susceptible of two constructions, and, by

adopting one construction, it would be unlawful, while, if the other were

followed, it would be valid, the latter interpretation should be given. Id.
TESTAMENTARY CAPACITY. It seems that, on questions of testamentary capacity,

courts should be careful not to confound perverse opinions and unreason-
able prejudices with mental alienation. Seaman's Friend Society v. Hopper,

619.
The truo test of insanity affecting testamentary capacity, &c., aside from cases

of dementia, or loss of mind and intellect is mental delusion. Id.
A person, persistently believing supposed facts, which have no real existence,

against all evidence and probability, and conducting himself upon the
assumption of their existence, is, so far as such facts are concerned, under

an insane delusion. Id.
If a testator at the time of making his will is laboring under any such delusion

in respect to those who would naturally have been the objects of his testa-
mentary bounty, and the court can see that the dispository provisions were
or might have been caused or affected by such delusion, such instrument is

not to be deemed to be his will. Id.
The costs of the appeal may be charged upon the proponent of an alleged

testamentary paper, where the court are of opinion that he has conducted
improperly in the premises. Id.

WITNESS.
The provisions of the Code of Procedure, making a party a witness in his own

behalf, do not apply to parties to criminal prosecutions.
Those provisions apply only to civil actions. Williams v. The People, 688.

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