statutes should allow to their banks of issue a rate | be limited, or allowed, for State banks of issue, of interest greater than the ordinary rate allowed national banks shall be allowed the same. It to natural persons, national banking associations says not a word of allowance to the banks by could not compete with them unless allowed the general law. Charters offered by special law, same. . . . The only mode of guarding against granting special privileges to those who accept such contingencies was that which, we think, the offer, are as clearly laws of the State as are Congress adopted. It was to allow to national the most general enactments. Until recently in associations the rate allowed by the State to natu- Pennsylvania State banks were always organized ral persons generally, and a higher rate, if State under special laws applicable solely to each bank. banks of issue were authorized to charge a higher There was no general banking law, and no rate rate. This construction accords with the purpose of interest limited by general enactment for banks of Congress, and carries it out. It accords with as such, and as a class. Each bank had its own the spirit of all the legislation of Congress. Na- peculiar privileges, though prior to 1869 genertional banks have been national favorites. They ally restricted to charging the rates of interest were established for the purpose, in part, of pro- allowed for natural persons. And in many other viding a currency for the whole country, and in States all State banking institutions are organized part to create a market for the loans of the Gen-under such laws, and they derive all their poweral Government. It could not have been in-ers from such legislation. Whatever authority tended, therefore, to expose them to the hazard they exercise under their charters is limited or of unfriendly legislation by the States, or to fuin- accorded to them by the law of the State. ous competition with State banks. On the con- And if we look to the purpose of Congress extrary much has been done to insure their taking hibited in the National Banking Act (the purpose the place of State banks. The latter have been of which we have spoken), what difference does substantially taxed out of existence." Certainly it make whether State banks are authorized to take their circulation has been. We have quoted thus more than the interest allowed to natural persons, fully from the language of the Supreme Court, by special, or by general laws? In either case because it bears directly upon the present case National Banks would encounter favored rivals, and shows the meaning of the act of Congress. and a destructive competition, against which they It shows, what indeed seems very plain on the could not stand, if they are not permitted to reface of the act itself, that national banks are au- serve and take interest at the rate accorded to thorized to reserve and take interest on loans the State institutions. In either case the unmade by them at such rates as are allowed by friendly State legislation, and the ruinous comState law to State banks of issue in the States petition, against which Congress intended to where the national banks are located. In reserv-guard, would be equally possible. States might ing and taking interest at such rates they act within the authority given them, violate no law, and render themselves liable to no penalties. 66 establish banks alongside of every national bank, and give them powers against which the national banking associations could not compete. A construction of the Act of Congress that opens the door to such results cannot be accepted as the true one. It is inconsistent with the letter of the act, and still more with its purpose and spirit. The learned Judge of the District Court was of opinion that because it was not shown, or offered to be shown, that the State banks of issue incorporated under the State laws, and severally authorized to reserve and take interest at the rate We hold therefore that the evidence offered by of ten per cent., or at any rate agreed upon with the defendants should have been received. If the borrowers, are authorized, by general law, to there are State banks of issue in Pennsylvania, charge more than six per centum, therefore na-authorized either by general or special law to take tional banks are not. His charge to the jury was, as has been stated, Congress deals with general rules, and when it excepts banks of issue under the State laws, it means the general law, applicable to the whole State, and relating to banks of issue all over the State." In this opinion we do not concur. It interpolates in the statute words which are not there, and it disregards the plain purpose for which the excepting clause was inserted. The Act of Congress declares that where by the laws of any State a rate of interest different from the general rate shall' 153.] interest on loans made by them at such rates as may be agreed upon between them and the borrowers, the defendants have transgressed no Act of Congress, by taking nine per cent. from the plaintiffs (that having been the rate agreed upon), and they are not liable in this action. The judgment of the District Court is reversed, and a new trial is ordered. Opinion by STRONG, J. MCKENNAN, J., concurred. [See Appeal of Second Nat. Bank of Titusville ante, Where a railroad company is authorized to construct its road between two points, and no express provision is made as to the property it must avoid in its course, the discretion of the directors in selecting the route cannot be inquired into by the Court. If the charter does not expressly provide therefor, the company will not be liable in damages for the annoyance to a property-owner fronting on a public street so taken, caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages. Error to the Common Pleas of Warren Co. Case, by Thomas Struthers against The Dunkirk, Warren, and Pittsburgh Railway Company. The material facts are thus stated in the opinion of the Supreme Court: gitudinally, and working much less injury to both public and private interests," which offer the Court refused, and instructed the jury to find for defendants. Verdict and judgment accordingly for defendants. Plaintiff took this writ, assigning for error, in substance, the above action of the Court. W. D. Brown and S. P. Johnson (G. W. Scofield with them), for plaintiff in error. No acts of Assembly, unless containing express words, can be construed to authorize the laying of the road along High Street without affirmative evidence of a reasonable necessity therefor. I Redfield, Law of Railways, 297. Cleveland & Pittsburgh R. R. v. Speer (6 Sm. 325), cited on the other side, is not in point. The main line had been constructed, and the question arose subsequently as to the right to build and maintain switches. The legislature could not have intended to give railroad officers despotic power. Hence it was proper to inquire whether a reasonable necessity existed to occupy High Street. The plaintiff has a right of property in the ground and soil of High Street for the purpose of ingress and egress to his premises unobstructed by defendants' railroad. Tate v. O. & M. R. R., 7 Ind. 479. This proposition is not claimed to be in harmony with former decisions of this Court, but the great wrong, otherwise to be endured without remedy, calls for a reconsideration of former decisions and an adoption of the law as laid down in "The defendant corporation was authorized Eaton v. Boston R. R. Co., 51 New Hampshire, 504. by its charter to construct a railroad from the If the Act of incorporation does authorize the northern boundary of the county of Warren to occupation of High Street, and the plaintiff has any point in the borough of Warren. With the the right of property in the street as above set consent of the borough authorities the defend-forth, the Act itself is invalid, inasmuch as no ants, in August, 1871, laid and constructed their provision is made for the assessment and payrailroad along the centre of High Street, in the ment of damages, except in case of a cut or emborough of Warren, directly in front of plaintiff's bankment. premises. At the time the defendants' road was being constructed, the plaintiff had erected and nearly completed at considerable expense a handsome dwelling-house on his said premises, and brought this action of trespass on the case to recover damages for the inconvenience and annoyance occasioned by the building and operating of the railroad immediately in front of his resi dence." On the trial, the plaintiff offered to prove "that no necessity or good reason existed for building defendants' road along High Street, in the borough of Warren; that a route shorter in distance and of easier curvature was attainable at but a small increase in expense, and by which the defendants' road would have reached its terminus and made its connection without occupying any portion of High Street, or any other street lonVOL. VI.-11 O'Conner v. Pittsburgh, 6 Harris, 187. charter, does not admit of a doubt. Cleveland & Pittsburgh R. R. Co. v. Speer, supra Danville, etc., R. R. Co. v. Com., 23 Sm. 38. A common law action does not lie against a corporation for a consequential injury, occasioned by the construction and maintenance of its work.. Henry v. Bridge Co., 8 W. & S. 85. Black v. Phila. & Reading R. R. Co., 8 Sm. 252. The right to locate the road lies in the directors alone, and not in the Court. Parke's Appeal, 14 Sm. 137. N. Y. & Erie R. R. Co. v. Young, 9 Casey, 175. 334. The case of Eaton v. Boston R. R. Co., supra, was entirely different in its facts from the present.. There the plaintiff's actual possession was dis- | view the previous decisions of this Court, and turbed by the flow of water carrying sand, gravel, and stones upon the land. recast them in harmony with the state of public opinion at the present day. We see no reason why the law should change to suit the barometer June 17, 1878. THE COURT (after stating the of public opinion. On the contrary, we see many facts, ut supra). The pleadings are not given, reasons why it should not. And especially are but we gather from the charge of the Court that we not disposed for such reason to overturn a the annoyance caused by the passage of trains, long line of cases, solemnly decided, which have the cinders and smoke, and the hindrance to the to some extent become rules of property, and passage of carriages were the chief matters of upon the faith of which investments have been complaint. However considerable these annoy-made and rights have grown up. It is our duty ances may be, they do not constitute a cause of to apply the maxim stare decisis. action. There is no principle of law better set- Judgment affirmed. Opinion by PAXSON, J. SHARSWOOD, J., ab May, '78, 103. tled in Pennsylvania than that a common law ac- It is equally clear that a railroad company may use a public street or highway for its road when authorized by its charter to do so. (Philadelphia and Trenton Railroad Company, 6 Wharton, 25; Mifflin v. The Railroad Company, 4 Harris, 182; Mercer v. The Pittsburgh, F. W. & C. R. R. Co., 12 Casey, 99; Commonwealth v. Erie and Northeast Railroad Company, 3 Casey, 339.) There is only one question remaining in the case, and that is whether the Court below should have received evidence to show that the company might have located its road upon another route and thus have avoided laying the track upon High Street? We are clearly of opinion that the learned Judge was right in excluding evidence of this character, and also in his answers to the points in which the same question was presented. The discretion of the company in locating its road cannot be reviewed in this manner. The location was made in the exercise of an undoubted power. It was said in Parke's Appeal (14 P. F. Smith, 137): "Neither the Court below nor this Court has any right to interfere with the location made by the company on the score of preference if any be felt. The only question is, whether it has or has not exceeded a discretion on the subject apparent on the face of the Act of incorporation?" (See, also, New York and Erie Railroad Company v. Young, 9 Casey, 175, and Cleveland and Pittsburgh Railroad Company v. Speer, supra.) June 17, 1878. Houston, Smith & Co.'s Appeal. Equity - Injunction to restrain sheriff's sale which would create cloud on title-Mechanics' liens-Parties-"Owner or reputed owner"— Building contract-When title of lessor will not pass under a claim filed against lessee as owner or reputed owner and contractor. A. leased a parcel of land to B., the latter covenanting to build thereon. A mechanic's claim was filed against B. as "owner or reputed owner and contractor," under which a judgment was obtained, and the property adver tised for sheriff's sale: Held, that such sale would not pass the title of the lessor, and therefore an injunction was properly granted at his instance to restrain the sale. Appeal from the Common Pleas of Centre County. Bill in equity filed by Hale & Duncan against Houston, Smith & Co., and L. W. Munson, sheriff, to restrain a sheriff's sale under a lev. fa. sur mechanic's lien. The material facts were as follows: Houston, Smith & Co. filed a mechanic's claim against a building erected by one Thomas J. Strait, for certain machinery furnished by them to him. The claim named Strait as "owner, or reputed owner, and contractor," and described the building as "belonging to, leased by, or in the occupancy of the above-named Thomas J. Strait." A sci. fa. was issued January 13, 1876, and judgment for want of an affidavit of defence having been entered February 24, 1876, a lev. fa. was issued April 1, 1876, under which the property was advertised to be sold at sheriff's sale. Thereupon Hale & Duncan filed this bill, It was admitted by the learned counsel for the averring that they were, and for some years past plaintiff that the current of authority was against had been, the owners in fee simple of the prehis view of the case, and we were urged to re-mises in question; that, on August 11, 1874, they leased the same to the said Strait for a term of years, and Strait entered into possession as lessee; that the complainants were not named in said claim, although the fact of their ownership was well known; and that the threatened sheriff's sale of the property under the mechanic's claim, while it would not pass their title, would operate as a cloud thereon; and prayed an injunction to restrain the sale. Knabb's Appeal, 10 Barr, 189, per BELL, J. And, being such, a sale under the lien filed in this case against the lessee would pass the title of the lessor. Reid v. Kenney, 4 WEEKLY NOTES, 450. A. O. Furst and Samuel Linn, contra. In the lease to Strait, of which a copy was annexed to the bill, the latter covenanted, inter alia, to erect a building of a certain size within two years, and to pay rent for the subsequent years during the term. This lease was acknowl-without some process against him; he is entitled edged on the day of its date (August 11, 1874), but was not recorded until February 28, 1876, four days after the entry of judgment on the mechanic's claim above mentioned. to be heard. Under the Act of April 28, 1840, The law intended notice to the party whose Barclay v. Wainwright, 5 WEEKLY NOTES, 162. The Court decreed an injunction as prayed, MAYER, P. J., saying in an opinion filed: "Without determining the question whether this agreement is an improvement lease or a building contract, we think there is a defect in the mechanic's lien, as filed, which is fatal to its enforcement against the premises of the plaintiffs. The claim of defendants, as filed, omits the name of the owner of the land, and even assuming that the agreement of August 11, 1874, was such a contract for building as would subject the land to the lien of mechanics and material men, it is es-to the lien. sential that the name of the owner of the land should be mentioned. . . . . The name of the owner is made a statutory requisite of the claim filed, and one of the conditions upon which the lien is given, and can no more be dispensed with than any other of the conditions imposed. The right of the defendants to file and enforce their lien can only be asserted in the mode prescribed by the statute, and the omission to mention the name of the owner of the building and the ground covered thereby is such a fatal defect as will prevent them from levying and selling the land of the plaintiffs upon which the building was erected. We are, therefore, of the opinion that the plaintiffs are entitled to their injunction." June 24, 1878. THE COURT. We think the Court below was right in holding that the estate of the owner of the premises could not be sold under this mechanic's claim. The fact that it was filed against a person who was the contractor, and was also termed the reputed owner, does not change the fact that the true owner had no notice of the claim. It was not filed against him, and certainly his estate cannot be sold away from him without a day in court to defend against it. Decree affirmed at the costs of the appellants, and the appeal dismissed. PER CURIAM. Moyer & Bro.'s Appeal. May 9, 1878. Bills and notes-Endorser-Waiver of notice of dishonor—Admission of liability and offer to The defendants, Houston, Smith & Co., took this appeal, assigning for error the above ruling, and the decree entered in accordance therewith. May, '78, 28. Beaver and Gephart, for the appellants. The statute requires mechanics' claims to be filed against the "owner, or reputed owner, and contractor," and the claim in this case was so filed. But the Court reasoned thus: "The name of the owner is a statutory requisite to mechanics' claim; this claim does not contain the name of the real owner; ergo, it is bad." The error is apparent. The proceeding is in rem, and the object in stating the name of the party connected with the structure is to designate the thing. If it be necessary to name the real owner, why describe him as reputed owner? 66 arrange the matter"-When equivalent to express promise to pay. An admission of liability by an endorser of a negotiable note, at the time the note falls due, accompanied by an offer to "arrange the matter" with the holders, operates as a waiver of notice of dishonor. Yours respectfully, Mr. E. P. MOYER. JEREMIAH BAUman. Lancaster, January 10, 1872. A. gave to B. & Co. a negotiable note without endorsers, | signee. Before that is done the amount remaining due and at the same time gave them as collateral security an- you by him cannot be determined. other negotiable note of like amount and date, and having the same time to run, with C. as endorser. Both notes fell due on Good Friday, and the principal note was presented for payment on the day before the holiday, dishonored and protested. Whereupon C. on the same day wrote to B. & Co. informing them of the protest of the principal note, "for which you hold mine as collateral," and asking, "How can I arrange the matter with you, as I am not prepared to pay right away?" and afterwards in several letters admitted impliedly, if not in express terms, his liability: Dear Sir: Yours of 6th inst. was duly received. On inquiry to-day, I am informed that J. K. Bauman's assignee contemplates making a dividend about the first of April, when you may expect to receive some money on account of your claim. I will not give any notes, but will endorse as heretofore, if it will be of any service to you. Yours, Mr. E. P. MOYER. JEREMIAH BAUMAN. Mapleton, June 22, 1872. Dear Sir: I received your letter a few days ago, since which I called on J. K. Bauman's assignee's attorney to ascertain when his affairs would be settled. He informed me that about the 1st of September a distribution would be made, when his indebtedness to you will be known. I will then endeavor to arrrange the matter with you. At this time it keeps me busy to manage my own affairs, as we are not turning any leather to market yet. Bark is coming in so fast that it keeps me busy to raise funds to pay for it. Yours respectfully, JEREMIAH BAUMAN. Lancaster, April 7, 1873. Messrs. E. P. MOYER & BRO. As collateral security for which he gave them perty that I offered for sale, with a view of raising funds, at the same time the following note: I am not prepared to pay anything on J. K. Bauman's account. It is as much as I can do to meet my own lia1871.bilities at present. I have fifteen shares Lancaster City Fire Insurance stock, par value $50 per share, which I will exchange with you for the note if you wish it. Yours respectfully, Lancaster, Pa., January 4, $1700. Ninety days after date I promise to pay to the order of Jeremiah Bauman (at) seventeen hundred dollars, without defalcation, for value received. JOSEPH K. BAuman. Credit the drawer, JEREMIAH BAUMAN. [Endorsed] JEREMIAH BAUMAN. JEREMIAH BAUMAN. Jeremiah Bauman died October 3d, 1875, intestate. His executors filed an account, and an auditor having been appointed to make distribuThe former note, falling due on the 7th of tion of the balance in their hands, a claim was April, a legal holiday (Good Friday), was pre-made before him by E. P. Moyer & Bro. upon sented for payment on the day before, dishonored the second note above set forth. and duly protested. The latter note was not The auditor rejected the claim, and exceptions protested; whether it was presented for payment does not appear, but upon the same day, April 6, the endorser Jeremiah Bauman wrote to the holders as follows :- having been filed to his report they were dismissed by the Court (LIVINGSTON, P. J.), and the report confirmed. Whereupon Moyer & Bro. took this appeal, assigning for error the decree of the Court, dismissing the exceptions and confirming the auditor's report. H. R. Fulton and Wm. Aug. Atlee (with them Sharp and Alleman), for appellants. Either an acknowledgment of liability or a promise to pay operates as a waiver of demand and notice, and is sufficient to hold an endorser. Levy v. Peters, 9 S. & R. 125. Sherer v. The Easton Bank, 9 Cas. 134. In Levy v. Peters, and Sherer v. The Bank (supra), there was no promise or acknowledgment, other than such as might be implied from |