assigned to him, and of this he put him they have complied with all the reself upon the country. By consent of quirements of section 120 of the parties a jury was waived, and the case Military Code of 1870. was tried by the court, and resulted in a The Military Code of 1862, is repealed finding that, though the note was as

by the Military Code of 1870, ex

cept as to certain legal proceedings. signed before maturity, it being received as collateral to secure a pre-existing debt,

This action was brought to recover rent the defendant should have been notified

claimed to be due upon a lease between of the assignment, and the plaintiff can- the plaintiff and the Board of Supervisnot recover on the note, because defend-ors of the County of New York, executant was not so notified (before paying the ed September 19th, 1872, for the term of note to Pollard & Co). The court there- ten years and seven months, by the clerk upon gave judgment for the defendant, of the Board of Supervisors, pursuant to a from which the plaintiff has appealed in resolution of that body, authorizing the error to this court.

lease to be taken for the purposes of armoHeld, That the principle laid down by ries and drill rooms, which resolution was the court below in effect places negotiable based upon a report of a committee of the paper upon the same footing as open ac- board, stating they had considered the counts, and attaches a condition to the subject of providing suitable armories for legal and complete transfer thereof, which such portion of the militia as were in cannot be supported either upon principle immediate want of the same, and that the or authority.

Sixth Regiment must have an armory When the title has passed by endorse- forthwith as the lease of the building it ment and delivery, even as collateral se had occupied had been cancelled, and said curity, the actual or legal holder alone regiment would be compelled to vacate, has the right to receive the money due and that other portions of the militia had thereon, and if the maker pays to the pressir g need of new, or additional acoriginal payee after such transfer, in the commodation, and they recommended absence of the paper, either before or after the leasing of plaintiff's premises, and on its maturity, such payment is not made the same day the lease was executed. The in the due course of business, and the

Twelfth Regiment then occupied the preparty paying must be held to do so at his mises under a lease for five years from own risk.

May 1, 1870. In December, 1871, this The case of Vatterlien v. Howell, 5

lease was cancelled, and plaintiff's preSneed., 441, was incorrectly decided, and mises were assigned by the supervisors to should not be adhered to as an authcrity. the use of that regiment, which has occu

Judgment reversed, and judgment for pied them ever since. The defendants plaintiff, with costs.

claimed that the lease was void, because Opinion by Jackson, J.

it was executed without authority.

W. H. Townley, for applt.

Wm. C. Whitney, for respt.

Held, That the plaintiff could not re-

cover that the Board of Supervisors exFord, applt., v. The Mayor, &c., of N. ercising simply a delegated authority, pos

sess only such powers as have been conDecided December 21, 1875.

ferred upon them by statute, or such as A board of Supervisors have no power are necessary to the exercise of powers

to enter into a lease of a building for expressly given (6 Hill 244); that armory and drill purposes, until they had no power to make such a lease

Y., respt.

until they had complied with all the re W.F. Coggswell for respt. quirements of § 120 of the Military Code

Adams & Strong for applt. of 1870, (Laws of 1870, Chap. 80); that

Held, Usury is now only a partial dethe power conferred by said section is to

fence to an action brought upon a prombe exercised in view of and in reference to a special exigency brought to the no- issory note, which had been discounted by tice of the supervisors by a demand sup- feited. The recent judgment of the Su

a state bank. The interest only is forported and accompanied by the certifi

preme Court of the United States, in the cates of proofs specified in said section.

It appeared that a demand had been Farmers' and Mechanics' Bank of Buffalo made in 1862, by the companies of the v. Deering, 1 N. Y. WEEKLY DIGEST, Twelfth Regiment, upon the supervisors P. 289, has effectually exploded the docto be furnished with an armory, made

trine of our Court of Appeals on this pursuant to the Military Code of 1862, subject

, and has established the prin(Laws 1862, Chap. 177); and plaintiff ciple that the usury laws of the States, claimed that this demand was sufficient. so far as they apply to national banks, This demand had been complied with. have been superseded by the Act of The supervisors in making the lease, dia Congress which authorizes the creation not act upon the demand of 1862, and it of them. (U. S. Rev. Stat., Sec. 5197.) did not appear the lease was made with There is, therefore, no longer any reason any reference to the Twelfth Regiment.

for withholding the full operation of the Held, That this deman I was not good; act of our own Legislature

, which prothat the act of 1862, was repealed by the vides, as a penalty for usury by State act of 1870, except only as to certain le bauks, the same consequence as that pre

scribed by the Act of Congress cited, gal proceedings.

Also held, That the second section of namely, a forfeiture of the interest. (Laws chapter 758, Laws of 1873, authorizing 1870, Chap. 163.) This act, also, has payment of arrears of rent on certain put at rest a question often mooted, by

declaring that the discount of a note, or leases, could not be construed as con

other evidence of debt, payable at another firming the leases in question.

Judgment of General Term, reversing place at not more than the rate of exverdict at Circuit for plaintiff, affirmed.

change, or a reasonable charge for col

lecting the same in addition to the interOpinion by Andrews, J.

est, shall not constitute usury. There

can be no doubt that this statute operates USURY.

retractively, and takes away the previous N. Y. SUPREME COURT—GEN’L TERM. penalty, for it repealed all acts and parts

of acts inconsistent with it. No penalty FOURTH DEPT.

can be enforced after the repeal of the law Bank of Monroe respt., v. Finley, applt imposing it, unless saved by express Decided January, 1876.

words in the repealing act. (Curtiss v. State Banks, when usury is taken, only Leavitt, 15 N. Y., 229; Cooley Const. forfeit the excess of interest.

Lien, 373-4) Such being the effect of The defense of usury is only a partial the act of 1870, there is no occasion to

examine the evidence to see whether a This was an action on a note, and de- case of usury under pre-existing laws was

made out. fendant set up a defence of usury. The

The judgment must be affirmed. plaintiff is a state bank. judgment for plaintiff at the Circuit. Opinion by Gilbert, J.


There was

Vol. 2.)


(No. 9.

NEW YORK WEEKLY DIGEST. or twenty per cent. of the par value of the

same, to the company upon receipt of the

certificates. Later in the same year the BANKRUPTCY. ASSESSMENT.

company met with severe losses by reason EVIDENCE.

of the Chicago fire, whereby the whole U.S. CIRCUIT COURT, EASTERN DISTRICT

of the twenty per cent. cash fund, and

all funds possessed by them, were exhaustOF PENNSYLVANIA.

ed, and in 1872 the company was adjudiMichener v. Payson, Assignee, &c. cated bankrupt, and Payson was duly apDecided October 4, 1875.

pointed assignee. In 1873, the BankruptThe assignee of a corporation, by virtue cy Court in Chicago decreed that a call of bankruptcy, has complete domin- and assessment should be made upon the ion over the assets transferred to stockholders of sixty per cent. upon each him, and could sue for the recovery share of unpaid stock, and if default in of an unpaid assignment upon stock.

payment should be made after March 1st, An exemplification of a portion of the 1873, after proper notice and publication, bankruptcy record is admissible to the assignee should be empowered to bring prove the assignment in bankruptcy suit for its recovery. The defendant had and the assessment by the authority suit for its recovery. The defendant had of the Court.

refused to pay the sixty per cent. assessIt is incompetent for the defendant ment, and the amount claimed was $1,200

to testify that he had purchased the with interest.
stock upon representations of the Plea, non assumpsit.
company's agent, which had not been
carried out.

Upon the trial, after proof of the condi

tions above mentioned, and of the defendError to the District Court of the ant's ownership of the stock, the plaintiff United States for the Eastern District of offered in evidence as exemplification of Pennsylvania.

the record of the Bankruptcy Court of Assumpsit by Payson, assignee in bank- Chicago to prove (1) the assignment to ruptcy of the Republic Insurance Co., of the assignees in bankruptcy, and (2) that Chicago, against Michener, a resident of an assessment had been decreed by the Philadelphia.

Court, and authority given to the assignee The following cause of action was set to collect it. Admitted under objection forth in the declaration : The Republic by the defendant, (1) that the papers were Insurance Co. issued shares of stock, at not properly bound together; (2) because the

par value of $100, upon certain terms, it was not a copy of the whole record; viz.: The real and personal property of and, (3) it did not appear that the defendeach stockholder was to be held liable for ant had notice of the proceedings referred losses of the company in the amount of to therein. stock held by him, and not actually paid The defendant offered to prove by his in; twenty per cent. of the par value was to own testimony that he was induced to be paid in upon delivery of the cer- purchase the stock by the representations tificates, and the remaining eighty per of the agent of the company in Philadelcent. was to be assessed only in the event phia, to the effect that all Philalelphia of the twenty per cent. Cash fund of the subscriptions were to be the capital stock company becoming exhausted by losses. of a Philadelphia branch of the company, In 1871, the defendant became the owner to be securely held and invested in Philof twenty shares of stock, having agreed adelphia under the management of a local to the above terms, and having paid $100, board of directors, elected by the Phila

delphia stockholders; that this arrange- cation and his appointment, the assignee ment was, in fact, carried out for about acquired complete dominion over the astwenty months, wben the company abol- sets of the company; that it was an unished the local branch at Philadelphia questionable faculty of the board of diand the local board of management rectors to assess ratably; that the assignee without the consent of the Philadelphia succeeded to this right, subject to the stockholders. Objected to; objection sus- order of the Bankrupt Court; that the tained.

court having exercised its jurisdiction, the The defendant then offered to prove, right to make assessment could not be by the testimony of the assignee, Payson, questioned collaterally, and the plaintiff (1) that the company before bankruptcy was entitled to recover. had abolished a similar branch office in 2. The exemplification of the record New York, and had bought back from was admissible; proceedings in bankruptthe local stockholders there, the stock they cy do not constitute an integral record ; had subscribed for, and had released them the bankrupt act contemplates that any from all liability for any further assess- portion may be used as evidence where ment on the stock; (2) that after the properly authenticated. Chicago fire the insured received a pay 3. That the evidence offered by defendment of twenty-five per cent. of their ant was incompetent; the equities of the losses, and in consideration of immediate creditors were superior to defendant's, payment released the company from fur- and must prevail. ther liability, which releases the company

Judgment affirmed. afterwards surrendered without consider

Opinion by McKennan, J. ation, and allowed them to prove their claims in full, on account of which the

MUNICIPAL CORPORATIONS. assessment became necessary; and (3) DIVISION OF BY THE LEGISLAthat losses to a large amount were adjust

TURE ed by the company, and policy holders and

U. S. SUPREME COURT. stockholders were permitted by the company to pay their assessment by certificates The Board of the County Commissionof indebtedness, issued for adjusted losses ers of the County of Laramie, applts. v. after insolvency.

The Board of the County Commissioners Objections to these offers were sustained. of the County of Albany, and the Board

The defendant then testified that he of the County Commissioners of the paid $500 when he received his certificate County of Carbon. of stock, $400 on the stock, and $100 Decided February 1875. premium.

The legislature of a State has authority The Court charged the jury that the

to make a division of a municipal plaintiff was entitled to recover


corporation, and upon such terms

and under' such regulations as it amount claimed by him, unless the defendant was entitled to a credit of $100.

Accordingly where a legislature dividVerdict for plaintiff for $1,232.

ed one county into three without proDefendant assigned as error: The ad viding for the payment of the debts mission in evidence of the exemplification

of the old county, the presumption is

that the old corporation is responsiof the bankruptcy record, the rejection of

ble for all the debts contracted before his offers, and the charge of the Court as

the separation, and a bill in eguity, given above.

on its behalf against the new to com Held, 1, That by virtue of the adjudi-l pel contributions for their propor.

deems proper.

tion towards such indebtedness, can Payment of the outstanding debt havnot be maintained.

ing been made by the complainant counAppeal from the Supreme Court of the ty, the present suit was instituted in her Territory of Wyoming.

behalf to compel the new counties to con

tribute their just proportion towards such The complainant county was first or

indebtedness. Attempt is made to show ganized under the act of the third of January, 1868, passed by the legislature of the the case, by referring to the several im

that an equitable cause of action exists in Territory of Dakota, which repealed the

provements made in that part of the terprior act to create and establish that coun ty. When organized the county was still ritory included in the new counties, bea part of the territory, and embraced with fore they were incorporated, and by refer. in its territorial limits all the territory withdrawn from taxation in the cld counnow comprising the counties of Laramie, Albany, and Carbon, in the Territory of ty, and included within the limits of the Wyoming, an area of three and one-half newly created counties. degrees from east to west, and four de

Process was served and the respondents grees from north to south. Very heavy appeared and filed separate demurrers to

the bill of complaint. Hearing was had, expenses, it seems, were incurred by the county during that year and prior thereto,

in the district court of the territory, where greatly in excess of their current means, entered a decree sustaining the demurrers

the suit was commenced, and the court Es more fully explained in the bill of complaint, which increased the indebtedness and dismissing the bill of complaint. Imto the sum of twenty-eight thousand dol. mediate appeal was taken by the complainlars. Other liabilities, it is alleged, were ant to the supreme court of the territory, , also incurred by thy authorities of the

where the parties having been again heard, county, during that period, which aug.

the supreme court entered a decree affirm. mented their indebtedness to the sum of ing the decree of the district court, and forty thousand dollars in the aggregate.

the present appeal is prosecuted by the

complainant. Pending these embarrassments the

Two errors are assigned, as follows: charge is that the legislature of the territory passed two acts on the same day, to

1. That the supreme court erred in af. wit, December 16, 1868, creating the coun- firming the decree of the district court ties, of Albany and Carbon, out of the sustaining the demurrers of the respondwestern portion of the territory of the ents to the bill of complaint. complainant county, reducing the area of

2. That the supreme court erred in that county more than two-thirds; that rende ring judgment for the respondents. by the said acts, creating said new coun Held, 1. Counties, cities and towns are ties fully two-thirds of the wealth and taxa- municipal corporations created by the auble property previously existing in the old thority of the legislature, and they derive county were withdrawn from its jurisdic- all their powers from the source of their tion, and its limits were reduced to less creation, except where the State Constituthan one-third of its former size, without tion otherwise provides, and that the leg. any provision being made in either of said islature possesses the power to divide them acts that the new counties, or either of at their pleasure, and to apportion the them, should assume any proportion of the common property and the common burdebts and liabilities which had been incur- dens in such manner as to them may seem red for the welfare of the whole, before reasonable and equitable; they are the these acts were passeà.

mere creatures of the legislative will, and

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