Motive is sometimes controlling. Coons v. Chrystie, 24 Misc. 296, 53 N. Y. Supp. 668; Thomas v. Cincinnati, N. O. & T. P. R. Co. 4 Inters. Com. Rep. 788, 62 Fed. 803; 22 Cyc. 846, 858 and cases cited.

The tendency is away from the doctrine of the cases originating with Allen v. Flood [1918] A. C. 1, 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 46 Week. Rep. 258, 17 Eng. Rul. Cas. 285; Raycroft v. Tayntor, 68 Vt. 219, 33 L.R.A. 225, 54 Am. St. Rep. 882, 35 Atl. 53; Jenkins v. Fowler, 24 Pa. 308.

One of the first departures from this doctrine was announced by Mr. Justice Holmes in Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011.

To say that an act lawful under one set of circumstances is lawful under every conceivable set of circumstances is too broad a generalization.

Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369; Post v. Munn, 4 N. J. L. 61, 7 Am. Dec. 570; Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74; Tuttle v. Buck, 107 Minn. 145, 22 L.R.A. (N.S.) 599, 131 Am. St. Rep. 446, 119 N. W. 946, 16 Ann. Cas. 807; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 62 L. ed. 260, L.R.A.1918C, 497, 38 Sup. Ct. Rep. 65, Ann. Cas. 1918B, 461; Duplex Printing Press Co. v. Deering, 254 U. S. 443, ante, 354, 16 A.L.R. 196, 41 Sup. Ct. Rep. 172.

Private interests may invoke protection from ultra vires acts.

Madison v. Madison Gas & E. Co. 129 Wis. 249, 8 L.R.A. (N.S.) 529, 116 Am. St. Rep. 944, 108 N. W. 65, 9 Ann. Cas. 819; Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 429; Hogan v. Nashville Interurban R. Co. 131 Tenn. 244, L.R.A. 1915E, 788, 174 S. W. 1118, Ann. Cas. 1916C, 1162; Alpena v. Kelley, 97 Mich. 550, 56 N. W. 941.

The right to conduct one's business without wrongful interference is a valuable property right.

461; Duplex Printing Press Co. v. Deering, supra.

A valid law may be so wrongfully administered as to place illegal burdens and exactions on the individual.

Reagan v. Farmers Loan & T. Co. 154 U. S. 362, 390, 38 L. ed. 1014, 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Raymond v. Chicago Union Traction Co. 207 U. S. 20, 52 L. ed. 78, 28 Sup. Ct. Rep. 7, 12 Ann. Cas. 757.

Clearing houses have been judicially defined.

National Exch. Bank V. National Bank, 132 Mass. 149; Philler v. Patterson, 168 Pa. 468, 47 Am. St. Rep. 896, 32 Atl. 26; Crane v. Fourth Street Nat. Bank, 173 Pa. 566, 34 Atl. 296.

The purpose and design of the legislature must be considered.

United States v. Freeman, 3 How. 556, 11 L. ed. 724.

What is within the intention is within the letter.

United States v. Babbit, 1 Black, 61, 17 L. ed. 96; Atkins v. Fibre Distintegrating Co. 18 Wall. 272, 21 L. ed. 841; Cocciola v. Wood-Dickerson Supply Co. 136 Ala. 537, 33 So. 856; United States use of Hill v. American Surety Co. 200 U. S. 197, 198, 50 L. ed. 437, 439, 26 Sup. Ct. Rep. 168.

Legislators must know and contemplate the existing state of the law.

Benton v. Willis, 76 Ark. 443, 88 S. W. 1000.

Messrs. Hollins N. Randolph and Rob

ert S. Parker argued the cause and filed a brief for appellees:

Plaintiffs' case arose under the laws

of the United States because it was Bank of Atlanta, a corporation under brought against the Federal Reserve

the laws of the United States.

18 Ann. Cas. 346; People v. Willis, 24 Misc. 537, 54 N. Y. Supp. 133; People v. Olson, 39 N. Y. S. R. 295, 15 N. Y. Supp. 779; Payne v. Western & A. R. Co. 13 Lea, 521, 49 Am. Rep. 666; 2 Words & Phrases, p. 1460.

The acts of appellee bank, complained of, were entirely within its powers; but even had the same been ultra vires, the appellants could not, at law or in equity, take exceptions thereto under the facts as alleged.

Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188.

The construction placed on the law by the officer in charge of its administration should receive due consideration.

United States v. Johnston, 124 U. S. 236, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; Edwards v. Darby, 12 Wheat. 206, 6 L. ed. 603; United States v. Moore, 95 U. S. 760, 24 L. ed. 588; Hahn v. United States, 107 U. S. 402, 27 L. ed. 527, 2 Sup. Ct. Rep. 494; United States v. Philbrick, 120 U. S. 52, 59, 30 L. ed. 559, 561, 7 Sup. Ct. Rep. 413; 36 Cyc. 1140. Solicitor General Frierson and Mr. Walter S. Logan filed a brief for the Federal Reserve Board, as amici curiæ: The Federal Reserve Act authorizes

Federal reserve banks to collect checks drawn on nonmember as well as on member banks. Federal reserve banks have the power to perform the functions of a clearing house for member banks, and the collection of checks drawn on nonmember banks is one of such functions, according to to the usage of clearing houses. Furthermore, Federal reserve banks have express authority to receive deposits of all checks, including nonmember bank checks, which includes the incidental power to collect such checks. Thrall, Clearing House, pp. 3, 4, 1521; Cannon, Clearing-House Practices, chaps. 8, 17; Fiske, Modern Bank, p. 212. One of the purposes which the Federal Reserve Act aims to accomplish is the establishment of a Federal reserve check collection system, affording facilities to member banks for the collection of checks at par without deduction of exchange charges.

55 Congressional Record, 65th Cong. 1st. Sess. pt. 2, pp. 1984, 1988, 1989, 1993, pt. 4, pp. 3528, 3541, 3543, 3606, 3609, 3611-3614, 3618.

Federal reserve banks are expressly prohibited from paying exchange or collection charges to member or nonmember banks, but may incur any expense necessary or incidental to the collection of checks which does not involve the payment of such charges.

Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; Blair v. Chicago, 201 U. S. 400, 450, 50 L. ed. 801, 822, 26 Sup. Ct. Rep. 427.

There is no illegal purpose or malicious intent upon which to base a cause of action for duress, illegal conspiracy, or unfair competition. The methods of collection are legal in and of themselves, and are within the corporate powers of the defendant Federal Reserve Bank, and are in their nature designed to further the lawful purpose of rendering service to member banks and of developing the par collection system. These facts negative the bare allegations that defendants are actuated by an illegal purpose and a malicious intent.

Brennan v. United Hatters, 73 N. J. L. 729, 9 L.R.A.(N.S.) 254, 118 Am. St. Rep. 727, 65 Atl. 165, 9 Ann. Cas. 698; Pickett v. Walsh, 192 Mass. 572, 6 L.R.A. (N.S.) _1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. 638; Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; West Virginia Transp. Co. v. Standard Oil Co. 50 W. Va. 624, 56 L.R.A. 804, 88 Am. St. Rep. 895, 40 S. E. 597; Doremus v. Hennessy, 176 Ill. 608, 43 L.R.A. 797, 68 Am. St. Rep. 203, 52 N. E. 924, 54 N. E. 524; McKee v. Hughes, 133 Tenn. 455, L.R.A.1916D, 391, 181 S. W. 930, Ann. Cas. 1918A, 459; Walker v. Cronin,

107 Mass. 555.

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, brought by country banks incorporated by the state of Georgia, against the Federal Reserve Bank of Atlanta, incorporated under the laws of the United States, and its officers. It was brought in a state court, but removed to the district court of the United States on the petition of the defendants. A motion to remand was made by the plaintiffs, but was overruled. The allegations of the bill may be summed up in comparatively few words. The plaintiffs are not members of the Federal reserve system, and many of them have too small a capital to permit their joining it,-a capital that could not be increased to the required amount in the thinly populated sections of the country where they operate. An important part of the income of these small institutions is a charge for the services rendered by them in paying checks drawn upon them at a distance, and forwarded, generally by other banks, through the mail. The charge covers the expense incurred by the paying bank and

may hold, he has the same right as to all of them, and may present them all at once, whatever his motive or intent. They ask whether a mortgagee would be prevented from foreclosing because he acted from disinterested malevolence, and not from a desire to get his money. But the word "right" is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified. A man has at least as absolute a right to give his own money as he has to demand money from a party that has made no promise to him; yet if he gives it to induce another to steal or murder, the purpose of the act makes it a crime.

A bank that receives deposits to be drawn upon by check of course authorizes its depositors to draw checks against their accounts, and holders of such checks to present them for payment. When we think of the ordinary case, the right of the holder is so unimpeded that it seems to us absolute. But, looked at from either side, it cannot be so. The interests of business also are recognized as rights, protected against injury to a greater or less extent, and in case of conflict between the claims of business, on the one side, and of third persons, on the other, lines have to be drawn that limit both. A man has a right to give advice, but advice given for the sole purpose of injuring another's business, and effective on a large scale, might create a cause of action. Banks, as we know them, could not exist if they could not rely upon averages, and lend a large part of the money that they receive from their depositors on the assumption that not more than a certain fraction of it will be demanded on any one day. If without a word of falsehood, but acting from what we have called disinterested malevolence, a man by persuasion should organize and carry into effect a run upon a bank, and ruin it, we cannot doubt that an action would lie. A similar result, even if less complete in its effect, is to be [359] expected from the course that the defendants are alleged to intend; and to determine whether they are authorized to follow that course it is not enough to refer to the general right of a holder of checks to present them, but it is necessary to consider whether the collection of checks, and presenting them in a body, for the purpose of breaking down the petitioner's business as now conducted, is justified by the ulterior purpose in view.

If this were a case of competition in private business, it would be hard to admit the justification of self-interest, considering the now current opinion as to public policy, expressed in statutes and decisions. But this is not private business. The policy of the Federal reserve banks is governed by the policy of the United States with regard to them and to these relatively feeble competitors. We do not need aid from the debates upon the statute under which the reserve banks exist to assume that the United States did not intend by that statute to sanction this sort of warfare upon legitimate creations of the states. Decree reversed.

1. After the allowance of a writ of error from the Federal Supreme Court to the court of appeals of the District of Columbia, the cause passed beyond the jurisdiction of the latter court.

[For other cases, see Appeal and Error, IV. g. 3, in Digest Sup. Ct. 1908.] Appeal

moot case.

review 2. The Federal Supreme Court will not pass upon the merits of a writ of error sued out to review a judgment in an action to recover the possession of real estate, where, pending review, the defendant in error (plaintiff below) has parted with the title to the premises, so that no controversy remains, except as to costs. [For other cases, see Appeal and Error, VII. 1, 2, in Digest Sup. Ct. 1908.] Appeal 3. The Federal Supreme Court, though unable to consider the merits of a case, owing to the moot character of the issues involved, is at liberty to make such order as is consonant to justice, in view of the [For other cases, see Appeal and Error, IX. e, conditions and circumstances of the case.

judgment - moot case.

in Digest Sup. Ct. 1908.] Appeal

costs moot case.

4. Costs incurred upon a writ of error sued out of the Federal Supreme Court to review a judgment in an action to recover by the defendant in error (plaintiff below), possession of real property should be paid where he, without fault of the plaintiff in error, practically ended the controversy after the proceedings below, by parting with the title to the premises, thus causing

[For other cases, see Appeal and Error, IX. 1,

the case to become moot.

in Digest Sup. Ct. 1908.1