a reasonable and probable cause for the ficient to satisfy a reasonable mind complaint made, and that it was instituted that his accuser had no ground for for malice. Plaintiff was asked whether he had made an offer in the police justice's court to convey the property to defendant if she would reimburse his expenses. Held, improper, as the evidence could have no bearing on the question of malice or probable cause for the prosecution. Defendant was asked if plaintiff had deeded the property to other persons about the time the deeds in question were stolen. Held, proper, as it bore directly on the question of probable cause. the proceeding but a desire to injure him, and whether he had done this was for the court to determine as matter of law, after assuming that the evidence was true. 98 U. S., 189; 7 H. & N., 56; 2 Wend., 424; 10 N. Y., 236: 1 T. R., 269; 10 A. & E., 252. The subject of the larceny was two unrecorded deeds, one from plaintiff to one S., and a deed from S. to defendant. This action was brought to recover damages for an alleged maPlaintiff, as a witness in his own licious prosecution of the plaintiff behalf, before any evidence had been by defendant, arising out of a given by defendant, and after statcharge of larceny preferred by de- ing the manner in which he obtained fendant before a police justice in the deeds from defendant, and the the City of New York. The affidavit fact that she afterwards sued him to of the defendant, upon which plain- set aside certain conveyances subtiff was arrested, made in technical sequently made by him, was asked terms the charge of larceny, and if he made an offer in court in the stated the facts and circumstances presence of the defendant then to on which the charge was based. convey the property to defendant if The facts were proved to be true. she would pay the expenses he had Peter Mitchell, for applt. been put to. A like question was D. M. Porter, for respt. asked as to a similar offer in the police justice's court. These questions were admitted after objection Held, That this action could not be maintained; that the affiant was responsible for her statements, by defendant, and the witness anbut not for the legal conclusion swered "yes.” drawn from them by the police magistrate, or the district attorney or the grand jury. 65 N. Y., 385. Held, error; that this evidence upon the question of malice, or probable cause for the prosecution, could have no bearing, and could have no legal tendency to support a verdict. Also held, That defendant could not be legally called upon to go into a defense until plaintiff had established the want of a reasonable and probable cause for the complaint made, 6 Bing., 183, and that it was instituted for malice. Plaintiff held the affirmative upon both of these propositions, and as to the first, was Held, That in view of the fact bound to give in evidence facts suf- that the deed under which defend The defendant's counsel asked defendant if plaintiff had deeded this property to any one else about this time. This question was excluded. ant claimed had been executed by where such bank is located, U. S. the plaintiff, but was still unre- R. S., sec, 5198; that if it had juriscorded, it was proper to show the diction it had no power to grant the manner in which he subsequently attachment. dealt with the property. It bore directly both upon his motive in getting possession of the deeds and the grounds which defendant had for the suspicions stated in her affidavit, and upon the existence of probable cause of action. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered. Opinion by Danforth, J. All concur, Folger, Ch. J. on ground of error in ruling on trial. NATIONAL BANKS. JURIS- N. Y. COURT OF APPEALS. Decided June 8, 1880. Section 5198 of the U. S. Rev. Statutes, which granting of attachments against national solvent or are about to become so. Affirming S, C., 9 W. Dig., 265. A. R. Dyett, for applt. T. C. Cronin, for respt. Held, untenable; that in the absence of exclusive jurisdiction over actions against national banks conferred by congress upon federal courts, and a prohibition to state courts from entertaining them, a state court would have the same power and jurisdiction in suits to which a national bank was a party as if it was an individual. 34 How. Pr., 409; 52 N. Y., 96. Also held, That the federal statute referred to extends to actions by as well as against national banks, 8 Wall., 498, and it would follow that these banks must confine their operations to the limits of their own states or be deprived of legal and judicial aid to enforce their rights. The statute (sec. 5136, sub. 4), declares that a national bank may sue and be sued in any court of law and equity as fully as a natural person." The provision of sec. 5198 to bring suits in certain specified courts is permissive merely, and not mandatory, and therefore does not limit the general rule which permits civil cases arising under the This was an action brought in the laws of the United States to be proSupreme Court in this state, against secuted and determined in the state a national bank in North Carolina. courts, unless exclusive jurisdiction An attachment was issued, and prop- of them has been vested in the federty in this state was levied on. De- eral courts, or unless Congress has fendant objected that the Supreme prohibited the state courts from enCourt of this state had no jurisdic- tertaining jurisdiction of such cases. tion, the United States statute re- 93 U. S., 130; 1 Kent's Com., 395, quiring actions against a national 396; 5 Cranch, 85; 9 Wheat., 738; bank to be brought in the state 1 Comst., 537; 5 Wheat., 27. The cannot be said from the orders that they were not made on the merits. The Court of Appeals cannot look into the opinion of the General Term to find matter differing from that in the order, unless the language of the order is ambiguous and needs to have explained the ground on which it was made. Affirming S. C., 9 W. Dig., 287. This was an appeal or proceeding general power and liability to sue and be sued given by the statute subjects national banks to an action in any court in which an individual in like circumstances might be sued, and the subsequent enumeration of particular courts without words of exclusion cannot have the effect to deprive other courts of jurisdiction. L. R., 3 Q. B., 469. If it was other- by appellants to review an order of wise, a citizen of this state, having General Term, affirming an order of a claim upon land in which a bank- Special Term discharging the reing association located in another spondents from arrest. It appeared state had an adverse interést, would from the order discharging the rebe compelled to go there to assert spondents that it was made upon his rights as against it. The condue consideration of the proofs in trary has been held by the Supreme the matter and the affidavits on Court of the United States. Casey, which the warrant was granted. Rec'r v. Adams, 21 Albany Law The order of affirmance made at Journal, 376. General Term stated no ground Section 5242 of U. S. R. S., which upon which it was made. It could it is claimed prohibits an attach- not be said from the orders that ment in this case, applies only to they were not made upon the merits, insolvent corporations or one about and that the proofs in the case had to become so, and its object is to failed to satisfy the courts below that prevent one creditor of a corporaa case was made out for the comtion, whose assets are insufficient mitment nisi, &c., of the respondto meet its liabilities, from obtaining a preference. Order of General Term, affirming an order denying motion to set aside an attachment, affirmed. Opinion by Danforth, J. All con cur. APPEAL. N. Y. COURT OF APPEALS. ents. Thomas M. North, for applts. Held, That this court has no jurisdiction to review the order of the General Term, and the appeal must be dismissed. This court cannot look into the opinions of the General Term to find matter there differing from that contained in the order, unless the language of the order is In re Townsend et al., applts., v. ambiguous and needs to have ex Nebenzahl et al., respts. Decided June 15, 1880. An order of General Term, affirming an order discharging a defendant from arrest, is not reviewable by the Court of Appeals, where it plained the ground upon which it was made. Fischer v. Gould, 10 W. Dig., 259. Appeal dismissed. Per curiam opinion. All concur. NATIONAL BANKS. USURY. U. S. CIRCUIT COURT-W. D. PENN SYLVANIA. The First National Bank of Union- it cannot "carry' town v. John T. Stauffer. Where a national bank discounts a note at an illegal rate of interest, the usury works a forfeiture of the entire interest, and only the face of the note can be recovered by the bank. it is difficult to understand how any part of it is recoverable. By the operation of the act a usurious contract is inherently vicious, so that any interest "with it;" hence it would inadequately effectuate the intent of the act to hold that such a contract is purged of its taint and is invested with a capacity denied to it before, by the failure of the debtor to pay the debt evidenced by it at matu Assumpsit by the First National Bank of Uniontown, Pa., against rity. John T. Stauffer, indorser for the accommodation of Samuel Detwiler, the maker, of a promissory note, dated February 28, 1876, at four months, for $4,000, which was dis counted by the plaintiff, for the latter, at a rate of interest exceeding six per cent. per annum. The case was tried before the late Judge Ketcham, and, under his instructions, a verdict was rendered in favor of the plaintiff for the amount of the note in suit, with interest from its maturity to the date of the verdict. A motion for a new trial was made by the defendant, for the reason that, under the circumstances, no interest was recoverable upon the note, and that it was error in the judge to instruct the jury otherwise. It was admitted that more than the legal rate of interest was charged and received by the plaintiff for the period which elapsed between the date and maturity of the note. It is declared in Barnet v. The National Bank, 8 Otto, 555, that the effect of a mere stipulation for illegal interest by a national bank is to deprive it of the right to recover more than "the sum lent without interest," but surely the "receiving" of illegal interest in furtherance of a stipulation to that effect cannot place the bank upon any better footing. It will undoubtly preclude the recovery, by the debtor, of the penalty for a usurious payment, by way of set-off against his debt, but it cannot invest the creditor with a right to recover what the law declares he shall forfeit by reason of his unlawful agreement. In this case it was agreed that usurious interest should be paid, and was paid to the plaintiff, and the jury should have been instructed that this worked a forfeiture of all the interest upon the note, and that the plaintiff was entitled to recover only its face amount. A new trial Held, That under section 30 of the will, therefore, be ordered, unless National Currency Act, the "entire" the plaintiff, within ten days, shall interest which the note "carries remit the excess of the amount found with it" is forfeited, and, if this due by the jury on the principal of means all the interest which accrues the debt. Upon the entry of such upon it, as I think it clearly does, remittitur, judgment will be entered on the verdict for the amount so and in reliance upon the acts and rendered. Opinion by McKenna, J. PARTNERSHIP. EVIDENCE. N. Y. SUPREME COURT. GENERAL conduct of the defendant, Sias, tending to carry the idea that he was a copartner. There was evidence before the referee whereby he was authorized to find that Sias was held out by his authority and consented to be a partner of Ensworth; and this fact Richard B. Greenwood, survivor, etc., respt., v. William H. Sias, im- being found, the presumption arises pleaded, applt. Decided June, 1880. that he was so held out to every customer and creditor. 61 N. Y., 462. Judgment affirmed. Opinion by Hardin, J.; Talcott, WILLS. In an action against A & B as partners, to re- itor. Action to recover for goods sold and delivered. The question litigated was as to whether defendant, Sias, had held himself out as a partner of defendant, Ensworth, so as to become liable for a purchase made by Ensworth of the plaintiffs. The referee below reported and found that they were not partners, but that Sias was a partner in the creation of the debt sued upon. Porter & Watts, for applts. N. Y. SUPREME COURT. GENERAL The First Presbyterian Society of the town of Chili v. Benjamin F. Bowen, ex'r, et al. Decided June, 1880. Testator, by his will, bequeathed a sum of money to "the Presbyterian cemetery." There was a cemetery known by that name, but no corporation in the town known to the law by that name. Held, That the bequest must fail for want of a beneficiary capable of taking, and that it was not such a charitable bequest as the court could exe cute. The plaintiff, a religious corporation, owns a house of worship and are possessed of some lands used by them for a cemetery; this cemetery has been known for years as "the Held, The declarations of Ens- Presbyterian cemetery," but there worth were not admissible to estab- is no corporation in the town of lish that Sias was a partner, but for Chili known to the law by that the purpose of establishing that the name. plaintiff's firm sold the goods in the faith that he was such a copartner, The defendant's testator left a will whereby he "gave to the Presbyte |