* evidenced by writing, which might which is as follows: "There shall be be either a gift or a payment de- collected from each and every boat, pending upon intention, where the of whatever kind or description, declaration of a party accompanying the act would be admissible to explain and characterize it. Judgment of General Term, affirming judgment for plaintiff on the report of referee, affirmed. Opinion by Andrews, J. All con cur. CONSTITUTIONAL LAW. U. S. SUPREME COURT. A municipal corporation, owning improved wharves and other artificial means, which it has provided and maintains at its own cost, for the benefit of those engaged in commerce upon the public navigable waters of the United States, is not prohibited by the national constitution from charging and col * * * for each and every time the same shall come within the harbor of said city, and land at any wharf or landing, or be made fast thereto, or to any boat thereto fastened, or shall receive or discharge any freight or passengers in this city, or shall tow coal or any other article in the harbor, seven and onehalf cents for each ton of said boat's burden, by custom-house measurement, as wharfage dues. If the boat have no custom house measurement, or if the harbor-master be not satisfied as to the correctness of said boat's custom-house measurement, he is hereby empowered and directed to ascertain the tonnage of said boat by measurement, according to the rules and regulations of the United States in the measurement of boats, and wharfage shall be col lecting from those using the wharves and lected according to such measurefacilities such reasonable fees as will fairly remunerate it for the use of its property. Error to the Circuit Court of the United States for the Eastern District of Missouri. Action to compel the repayment of wharfage fees paid under pro test. ment; provided, that any boat making regular daily, semi-weekly, tri-weekly, or weekly trips, or is engaged in the business of towing, and ferry boats, may pay wharfage dues at a different or special rate, as may be provided by this ordin ance.' These sums were exacted as It was found that the city acwharfage dues, in virtue of certain quired, at its own expense, and owns ordinances of the city, one of which the property within its limits along was entitled "An ordinance estab- the west bank of the Mississippi lishing and regulating the harbor river, and for the purposes of a department," and the other "An wharf has improved, paved, and ordinance to reduce the rate of maintains in repair, at its own cost, wharfage in the City of St. Louis." one and a half miles of the same at The authority of the city to col- an enormous expense. That wharf lect these fees is referred to section was used by the plaintiff in error in 30 of the ordinance first named, conducting its business, at all stages of water, for the purpose of receiving veniences which could be called a and discharging freight, and for the wharf. The amount paid is conconvenience of passengers in getting ceded to have been just and reasonon and off its boats. Its boats able compensation for vessels and landed at and used only the im- barges such as those owned by the proved wharf. And it is found as a plaintiff in error. It was not out of fact in the case that the fees de- proportion to the advantages and manded from and paid by the com- benefits enjoyed in the use of the pany, under the city ordinances, improved wharf. The one was a "were reasonable in amount, and a fair equivalent for the other. Nor reasonable compensation for the use is there any ground whatever to of defendant's wharf, if defendant suppose that these wharfage fees (the city) was entitled to collect any sums whatever under said ordinance." were exacted for the purpose of increasing the general revenue of the city beyond what was necessary to The court below, the circuit and meet its outlay, from time to time, district judges concurring, was of in maintaining its wharves in such opinion that the plaintiff in error condition as the immense business was legally bound to pay the sums and trade of that locality required. so exacted and paid as wharfage fees, under the ordinances to which we have referred. Judgment was, accordingly, given for the city. Held, That a municipal corporation, owning improved wharves and other artificial means which it has provided and maintains at its own cost, for the benefit of those engaged in commerce upon the public navigable waters of the United States, is not prohibited by the National Constitution from charging and collecting from those using its wharves and facilities such reasonable fees as will fairly remunerate it for the use of its property. 20 Wall., 577; 95 U. S., 83. The sums paid by the plaintiff in error were exacted and paid as compensation for the use of an improved wharf, and not for the mere privilege of entering or stopping at the port of St. Louis, or for landing at the shore, in its natural condition, where there were no con We are not at liberty, from anything Judgment affirmed. PRACTICE. APPEAL FROM JUDGMENT OF COUNTY COURT ON REPORT OF REFEREE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Andrew S. Cook, applt., v. Horace B. Darrow, respt. Decided September, 1880. The only method under the New Code of reviewing the decision of a referee in an action in the county court is by appeal to the General Term of the Supreme Court. There is no distinction in this respect between actions brought in the county court and those begun in a justice's court and brought by appeal into the county court The judgment entered upon the report of a re- otherwise expressly prescribed by feree in the action in the county court is a law, which exception does not include judgment of the county court, the same as this case, the referee's report stands though the action had been tried by the county judge without a jury. as a decision of the court, and judgIt is not necessary that the motion for a new ment maybe entered thereon upon filtrial be made in the county court before ing report. Sec. 1228, Code C. P. This judgment entered on the decision of the section is also applicable to county county court in case trial without a jury can be reviewed by appeal to the General Term. courts. Sec. 8, Temp. Act. Judgment entered on report of referee is judgment of county court, the same as though the action had been tried by the county judge, without a jury. Appeal from judgment on report of referee in an action in the county court in favor of plff. Alexander Cumming, for applt. Held further, That it cannot be seriously contended that the judgment entered on a decision of the county court, tried without a jury, cannot be reviewed by appeal to general term until after motion for new trial has been made in the county court. Such practice is not provided for or contemplated by the Code. Held, That, under the Code of Civil Procedure, a trial by a referee cannot be reviewed by a motion for a new trial founded upon error in fact or law, except the decision directs an interlocutory judgment to be entered, in which case a motion for a new trial may be made at Held further, That judgment must General Term. Secs. 1001, 1002, be reversed, for error in exclusion Code C. P. These sections apply to and regulate practice in county courts. Secs. 4 and 7, Temp. Act. The only methods under the New Code of reviewing the decision of a P. J., and Bockes, J., concurring. referee in an action in the county of evidence. Judgment reversed, new trial ordered and referee discharged. Opinion by Follett, J.; Learned, court is by appeal to the General COSTS. SUIT IN NAME OF Term of the Supreme Court. 13 Hun, OVERSEER OF POOR. TERM. THIRD DEPT. Andrew Jobbitt, as overseer, &c., applt., v. Chester Giles, respt. 224. The Code makes no distinction N. Y. SUPREME COURT. GENERAL between actions brought in the county court and those begun in a justice's court and brought by appeal into the county court. The method of reviewing errors of the county court is the same in both classes of cases, except that the Supreme Court cannot review an order of county court made in an action brought in a justice's court. 9 N. Y. W. Dig., 573; 21 Hun, 15. Held further, That when the whole issue is tried by a referee, except as Decided September, 1880. Overseer of Poor, without having complied Action brought in the name of Overseer of the Poor of town of fully brings an action, but is de Montour, by one Brown, who had complained to overseer that defendant had incurred penalties for viola feated, is not in this case. Order affirmed, with costs. USURY. AGREEMENT ΤΟ John Mabee and wife, respts., v. Decided September, 1880. tions of excise law. Overseer neg- P. J., and Bockes, J., concurring. lecting, for ten days, to prosecute, Brown brought the action, pursuant to secs. 22 and 30 of ch. 828, L. 1857, as amended by ch. 820, L. 1873. Overseer moved at Special Term for dismissal of action, on the ground that the complaint to him was not accompanied by reasonable proof that defendant had violated the act. Brown resisted the motion, but it was granted, with costs of motion. against him. But costs of the action. not being asked for against him in the notice of motion, the question of his liability for such costs was reserved. Order dismissing action was affirmed by General Term. On motion, at special term, it was ordered that defendant recover costs of the action against Brown personally, on the ground that he brought the action without authority or legal right. From this order Brown appeals. L. M. Conklin, for applt. If a contract is usurious it is absolutely void, and no agreement between the parties can give it vitality; the taint of usury permeates all-transactions based upon it, and all are void alike. Appeal from a judgment ordered at the circuit in favor of the plaintiffs, adjudging a mortgage void for usury, and enjoining the defendant from instituting any proceedings to enforce it. The mortgage was given by the plaintiff John Maybee to the defendant, for $1,250, to secure the payment of a loan of $1,175, being the proceeds of sale of a government bond for $1,000. The mortgagor having made default in Held, That when a person prose- the payment of interest, the defendcutes in the name of the Overseer of ant commenced proceedings to forePoor, without having complied with close the mortgage by advertisethe statute, the action is unauthor- ment under the statute. Whereized and unlawful, and the person upon the plaintiff commenced an instituting the action is chargeable action to have the mortgage declared with the costs thereof. It has long void for usury, and procured an been the law that persons carrying injunction restraining the foreon actions in the name of another, closure proceedings. The cause without authority, are chargeable with costs. 2 Johns. Cas., 291. The question of the absolute liability of a person for costs, who, after complying with the statute, right being at issue, and moved for trial, the parties entered into an agreement in writing, by which said action was settled and discontinued, and by which the plaintiff promised N. Y. SUPREME COURT. GENERAL Dwight et al., exrs., respts. v. The Germania Life Ins. Co., applt. Decided September, 1880. and agreed that the defense of BILL OF PARTICULARS. LIFE usury which had been set up should INSURANCE. be forever waived and abandoned, and that under no circumstances would he ever take advantage, or avail himself of said defense. Subsequently, the plaintiff having again made default in payment, the defendant again commenced proceedings to foreclose said mortgage under the statute. Whereupon the plaintiff commenced the present action and procured an injunction to restrain said proceedings. The court held that the agreement to waive and abandon the defense of usury was void, and directed judgment for the plaintiff. Merritt King, for applt. J. L. & C. H. Baker, for respts. Held, That the bond and mortgage, if usurious, were not rendered valid by the new agreement to waive the defense of usury, but still remained usurious and void. In an action on a policy of life insurance, the answer alleged that the insured had had certain diseases, had obtained other insurances, and had been rejected by other companies, and that with regard to all these matters his answers in his application to defendant were false. The court ordered defendant to deliver a bill of particulars (Code, sec. 531), stating the times, places and details of all these defenses which it expected to prove. But it appearing that defendant expected to prove its defense as to ailments by oral and written statements of the insured not limited to time and place, the order was modified so as to provide that the bill of particulars should not preclude defendant from giving evidence of confessions or admissions by the insured which were general as to time and place. The action was on a policy of inIf a contract is usurious it is ab-surance upon the life of plaintiffs' solutely void, and no agreement be- testator. The answer set up the tween the parties can give it vital- falsity of several representations in ity, nor can any valid binding the application for the policy, viz.: contract be engrafted upon it. The that the insured had never had taint of usury permeates all trans-bronchitis and spitting of blood; that actions based upon it, and all are there was no insurances on his life void alike. That the agreement did not stated in his application, and not operate to defeat the defense of that he had not applied to other usury by way of estoppel, there be- companies and been refused. The ing no representation or assurance Special Term ordered a bill of parthat usury did not in fact exist, and ticulars and required defendant to the fact as to the alleged usury deliver to plaintiffs a statement in being known to both parties. writing of the particular times and Judgment affirmed, with costs. places at which defendant expected Opinion by Bockes, J.; Learned, P. to prove that the insured had had J., and Follett, J., concurring. the diseases mentioned, also what the other insurances not specified were, also the particulars regarding |