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his whole interest as the purchaser under his execution. The consideration he was to receive was for this, and this only. Martin deeded to the United States his interest in the canal acquired by that sale, and was to convey to the canal company his interest in the hy. draulic tract acquired by that sale. It is insisted by the learned counsel of the respondent that there was no bargain or contract to this effect shown by the evidence. But such a contract was clearly implied by the whole transaction from the beginning to the end of it. It had no other purpose, meaning or significance, solution or explanation, than that Martin should execute these deeds for such consideration. Martin held no other interest in this tract or canal that the United States was interested in obtaining from him than this, upon which his judgment was a lien, and this was all that was ever considered in the negotiations of the parties or contemplated by them. To execute and carry out this understanding and agreement, so far as this tract was concerned, the deed in question was drawn and executed. The sole object, purpose or design of all the parties concerned, or of their agents or counsel, was to relieve this tract from the lien or incumbrance of Martin's judgment, which stood in the way of the consummation of the sale by the canal company to the United States. According to the evidence Martin so understood it; Stevens, acting for the canal company, and at the same time for the United States, so understood it; and so it was understood by the legal adviser, Mr. J. C. Gregory, and by Charles Noble Gregory, the attorney who drew the deed; and they all unquestionably supposed that the deed was so drawn and executed. It was drawn to express this intention and such a limitation of the grant.

The mistake was in placing such limitation in the deed after the grant instead of in the grant itself. But this limitation clause, even where it was inserted in the deed, is potent and conclusive as to the real agreement and understanding and intention of the parties. It may not have technically limited the graut to onehalf of the tract; but does it not estop the parties to the deed and their privies from afterward disputing the intention expressed by it, at least in equity, when the correction of the mistake is sought? Speculation as to what kind of a mistake this was, whether of fact or of law, and as to what it should be named or how classified, is idle and fruitless. Things and the substance of things, and the established principles of reasou and equity, should be considered in such a case, rather than mere names which may mislead, and if this mistake was mutual and of all of the parties concerned, which was substantially admitted by them, ought it not in fairness and equity to be corrected, and the deed reformed in this respect? Should the court be restrained from applying an equitable remedy in such a case by a decision here and there that a similar mistake was of law, and therefore could not be corrected; or of fact, and therefore remediless. I shall not cite many authorities or comment at any length upon those cited to extend this opinion needlessly. The decisions are very conflicting, and in much confusion on this question, and abound in nice and critical distinctions. If in cases substantially like this in principle, a reformation of the deed has been allowed, they may be referred to, to support and sanction the very strong first impression we have that this deed ought to be reformed.

This question was very fully argued by counsel, and very fully and ably treated and considered by Chief Justice Dixon in Hurd v. Hall, 12 Wis. 125, in respect to a mistake of fact, and the distinction between such a mistake and one of law. As a matter of course we have no right to violate the maxim, ignorantia juris

non excusat, and courts sometimes have struggled in clear cases of mistake of law to make it, if possible, a mistake of mixed law and fact, in order to administer equitable relief. It may be said in this case that the parties knew the contents of this deed, and just where the limitation clause was placed in it; but they clearly did not know that it was inserted in the wrong place. They may have depended and relied upon their counsel, and especially upon the attorney who drew the deed, to insert the limitation in the proper place, and supposed he had done so. He was mistaken, and so were they. Was this a mistake of fact?

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As we have seen, there was a clear and explicit agreement and understanding that this deed should be given to convey only the interest which Mr. Martin held in the tract by virtue of his sheriff's deed. Mr. C. N. Gregory was employed to draw up such a deed, but in drawing it he made the mistake of so drawing it that it conveyed the whole tract, instead of the onehalf covered by the sheriff's deed. Does not this case meet in every respect the admission of the learned counsel of the respondent in his brief, as follows: "A middle ground is being built up. It is, where there is a complete precedent contract, or agreement not executed not correctly expressed in the written agreement - a court of equity will decree a specific performance of the precedent contract. This, for convenience, is done by directing reformation of the written instrument. The authorities to sustain this exception to the rule are numerous and strong.' And the learned counsel cites Petesch v. Hambach, 48 Wis. 443; S. C., 4 N. W. Rep. 565; Conrad v. Schwamb, 53 Wis. 372; S. C., 10 N. W. Rep. 395; James v. Cutler, 54 Wis. 172; S. C., 10 N. W. Rep. 147; and numerous other authorities, to sustain the admitted proposition. In one of these cases (Iron Co. v. Iron Co., 107 Mass. 290) it is said by Judge Wells: "It will be seen that there is a question thus presented by both branches of the issue, when taken together, which is not merely of a mistake of law as to the construction and effect of the deed, but whether by reason of such mental mistake, the deed, contrary to the real intention of both parties, failed to be a full and complete execution of the previons contract of purchase and sale. Such a mistake, if there are no legal objections to the enforcement of the oral agreement, will furnish sufficient ground for the interference of a court of equity to require a rectification of the deed." In that case the mistake was in the legal effect of a reservation or exception in the deed, and was the mistake of the person who drew the deed, the parties supposing that it expressed properly the reservation or exception according to their previous agreemeut.

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In the last edition of Kerr on Frauds, 468, 469, in view of established authority on this question, and quoting from authority, it it said: "Private right of ownership is a matter of fact; it may also be the result of a matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded on a common mistake." Ignorance of a matter of law," said Lord Chelmsford in Lord Beauchamp v. Winn, L. R., 6 E. & I. App. Cas. 234, "arising upon the doubtful construction of a grant, is very different from ignorance of a rule of law. Therefore although when a certain construction has been put by a court of law upon a deed, it must be taken that the legal construction was clear; yet the ignorance before the decision of what was the true construction cannot be pressed to the extent of depriving a person of relief on the ground that he was bound himself to have known beforehand how the grant must be construed. When therefore a man, through misapprehension or mistake

of the law, parts with or gives up a private right of property, or assumes obligations upon grounds upon which he would not have acted but for such misappreheusion, a court of equity may grant relief, if under the general circumstances of the case it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantages so acquired." I have quoted largely from that authority because this case is exactly described. The cases in this court above cited are in accordance with this principle, although the mistake in those cases was in the description of the premises conveyed.

In Savings Bank v. Insurance Co., 31 Conn. 517, the mistake was by the agent in drawing the application for the policy to cover the property itself, instead of the mortgagee's interest in it. The court said: "There was a mistake as to the proper mode of filling out the papers on both sides. The application was made out in the wrong name, and the policy was made to the wrong person; but there was no fraud or misrepresentation. The papers would have been made out right if they had known how to do it; and it is immaterial whether the mistake was one of fact or of law." Citing Stedwell v. Anderson, 21 Conn. 139.

* * * We

In Hunt v. Rousmanier, 8 Wheat. 174, the legal counsel of the parties advised that a power of attorney should be drawn aud executed, instead of a mortgage, for certain security, which the power failed to give. Chief Justice Marshall said: "In this case the fact of mistake is placed beyond controversy. find no case which we think precisely in point, and are unwilling, when the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say that a court of equity is incapable of affording relief." A bond was drawn joint by the mistake of the person who drew it, when it should have been joint and several; and it was corrected in equity. Simpson v. Vaughan, 2 Atk. 33; Underhill v. Horwood, 10 Ves. 209. The cases are numerous of the correction of the mistake of the parties in reducing their agreement to writing. In some it is called a mistake of fact, and in others of law; and it made no difference which it was called, the relief was granted in all such cases. Pitcher v. Hennessey, 48 N. Y. 416; and Maher v. Insurance Co., 67 id. 283, are in point.

It is a little singular that there should have been any conflict of decisions on this question, when as early as 1730 it was decided by the old English Court of Chancery that when of four brothers the second died, and the eldest entered into possession of his land as heir, and the youngest brother claimed it, and they went to a school-master who sometimes acted as an attorney, and consulted him as to their rights, and he having advised them that lands descend to heirs, and not as. cend, and therefore the youngest was entitled to the estate of his deceased brother; and on that advice papers were drawn and executed by the oldest brother, giving the youngest brother an interest in the land to save litigation-the lord chancellor decreed that all such papers should be delivered up to the plaintiff as having been obtained by mistake, etc. Landsdown v. Landsdown, Mos. 364.

A promissory note was assigned unqualifiedly, when according to contract it ought to have been without recourse. It was reformed in equity according to the intention of the parties. Stafford v. Fetters, 55 Iowa, 484; S. C., 8 N. W. Rep. 322. But this opinion on this question has been already extended too long. The learned and candid counsel of the respondent virtually admitted the law to be as above stated, and the question might have rested on such admission; but it being involved in the case by the finding of the court, and in respect to such a case a new question in this court,and there being a conflict of decisions elsewhere to some

extent on the question may justify this consideration of it. It follows from the above that there was a contract between the parties for a conveyance of only one-half of the tract, and by mistake the deed was a conveyance of the whole, and that such mistake may and ought to be corrected by reformation of the deed accordingly.

The remaining question will be disposed of briefly. Had the canal company any equitable title or interest in the half of said tract not intended to be conveyed by the deed so as to prevent its correction? One George W. Lawe owned and conveyed this undivided half to Mr. Martin in 1851 in consideration of $1. Martin gave Lawe a bond conditioned that he should in effect fulfill his contract with the State in the construction of the improvement, and save Lawe harmless from the State. The State was bound to discharge the trust it had assumed by accepting the grant for that purpose to construct and complete the contemplated works for the improvement of the Fox aud Wisconsin rivers. This was all the interest the State had in it, and all it could have under her Constitution. She had no right to construct hydraulic works for any other purpose, or purchase or condemn the lands of private owners for hydraulic purposes. Martin had no such relations to the State or the improvement, nor could have lawfully had, by which his purchase of onehalf of this tract would inure to the State. All deeds which have since been made by Martin have expressly reserved and accepted this interest or been made subject to this deed. The State and its successors in this improvement have always recognized and have never claimed this interest of Martin, and of those holding it under him, in this half of the tract he purchased from Lawe. There is no evidence whatever of any equitable title in the canal company to this half of the tract which can prevent the reformation of the deed in question as prayed in the counter-claim.

The judgment of the Circuit Court is reversed, and the cause remauded, with direction to reuder judgment in the case according to this opinion.

CARRIER-CONNECTING-FIRE IN WAREHOUSE

—LIABILITY.;

MICHIGAN SUPREME COURT, NOVEMBER 19, 1884.

CONDON V. MARQUETTE, H. & O. R. Co.* Where a carrier receives goods to be transported over a connecting line to their final destination, its liability as a common carrier continues until the goods are delivered to the other carrier, and if they are destroyed by fire while in the warehouse of the first carrier, it will be liable for their loss, notwithstanding a custom that the connecting carrier shall inspect the books in which goods are entered as received, and take possession of and transport over its line goods intended to be so transported. RROR to Houghton.

ERROR

Chandler, Grant & Gray, for plaintiff.

W. P. Healey, for defendant and appellant.

COOLEY, C. J. The plaintiff shipped goods from New York by the New York Central & Hudson River Railroad Company, directed to himself at Haucook, Michigan, and they were carried in succession by connecting carriers until they were delivered by the Chicago & Northwestern Railway Company to defendant at Negaunee on March 12, 1883. The goods were carried by defendant over its road to L'Anse, where they arrived March.13, 1883, and were placed in defendant's *S. C., 21 N. W. Rep. 821.

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warehouse. There they remained until March 20, 1883, when they were destroyed by an accidental fire. L'Anse was the terminus of railroad transportation. From thence to Hancock goods were carried in boat during the season of navigation, and by teams for the remainder of the year, by a carrier known as the L'Anse & Houghton Overland Trausportation Company, which occupied for its purposes at L'Anse the warehouse of the defendant. It seems to have been the customary mode of business for the receipts of goods to be entered at the warehouse upon books of the defendant, which were open to inspection by the L'Anse & Houghton Overland Transportation Company, and which were regularly inspected by the agent of that company to ascertain what goods were to be taken by it. That company was then accustomed to take the goods for Hancock and other places on its line, load them in sleighs or other vehicles at the warehouse, and then receipt them to the defendant. When the goods of the plaintiff were received by defendant no notice was given to him, nor was the attention of the agent of the transportation company called to them, or any request made that they should be removed. They simply remained in the warehouse, without action by any one in respect to them, until the fire took place. The goods having beeu destroyed, plaintiff claimed from the defendant payment of the value, and that being declined, the present suit was instituted.

The first count of the declaration charged the defendant as common carrier with the duty to carry the goods over its line to L'Anse, and there deliver them to the L'Anse & Houghton Overland Trausportation Company, and the breach of the duty alleged was the failure to deliver to that company. The trial judge instructed the jury that if the goods were shipped from New York, consigned to or marked for the plaintiff at Hancock, Michigan, and came into the hauds of the defendant from the Chicago & Northwestern Railway Company to be carried by defendant in the usual course of its business to L'Anse, there to be delivered to the L'Anse & Houghton Overland Transportation Company for transportation to Hancock, then the defendant received such goods as a common carrier, and remained such common carrier during the transportation of the goods to L'Anse, and after their arrival there for such reasonable time as according to the usual course of business with the L'Anse & Houghton Transportation Company would enable defendant to deliver the goods to that company; and no delay in taking goods on the part of the transportation company, incident to the usual course of business between the two companies, would exonerate the defendant from its liability as a common carrier. It would be the duty of the defendant to deliver or offer to deliver the goods to the L'Anse & Houghton Transportation Company to be transported to Hancock; and if the goods were not so delivered or offered to be delivered, plaintiff was entitled to recover. Under this instruction the plaintiff had judgment, and the defendant brings error.

The question which the instruction presents is one upon which the authorities are somewhat divided. It received careful attention at the hands of the New York Court of Appeals in McDonald v. Western Railroad Corporation, 34 N. Y. 497, where several opinions were delivered. The facts upon which the decision was to be made were in all respects similar to those now before us, and the judges were unanimous in holding that the railroad company was liable. Wright, J., said: "The goods had been received by the defendants at Chatham, to be transferred to Binghamton by way of the Erie & Chenango canal. Their obligation therefore was to carry the goods safely to the end of their road and deliver them to the next carrier

on the route beyond. A carrier in such case does not release himself from liability by simply unloading the goods at the end of his route and placing them in his own storehouse, without delivery or notice to, or any attempt to deliver to the next carrier."

HUNT, J., in a concurring opinion, referring to Ladue v. Griffith, 25 N. Y. 364, as a somewhat similar case, said: "The defendants in the present case did no act indicating that they had renounced the liability of a carrier. They simply unloaded and deposited the goods in their warehouse. Had this deposit been made in the warehouse of a company engaged in canal transportation westwardly, it would have been an act of great significance. But here the fact is expressly found that it was the custom of the further carrier to take the goods from the defendants' depot. The liability of the further carrier did not commence until he removed the goods from the defendants' warehouse. The deposit therefore by the defendants in their own warehouse did not afford any evidence of a renunciation of the carrier's liability." And he added that the deposit of the goods in the warehouse was to be considered a mere accessory to the carriage by defendant, and that their liability as carrier was therefore unbroken.

This decision was approved as sound and followed as authority in Mills v. Michigan Cent. R. Co., 45 N. Y. 622, and it is undoubtedly the settled law of New New York at this time. The same doctrine was laid down in Conkey v. Milwaukee, etc., R. Co., 31 Wis. 619, in a forcible opinion by Chief Justice Dixon, and also in Irish v. Milwaukee, etc., R. Co., 19 Minn. 376 (Gil. 323); S. C., 18 Am. Rep. 340, which cites with approval the case in 34 N. Y. The like doctrine also appears to be recognized in Erie R. Co. v. Lockwood, 28 Ohio St. 358; Brintnall v. Saratoga, etc., R. Co., 32 Vt. 665; Packard v. Taylor, 35 Ark. 402; and Louisville, etc., R. Co. v. Campbell, 7 Heisk. 253. It was also affirmed in Michigan Cent. R. Co. v. Manufacturing Co., 16 Wall. 318. This last case expresses views not in harmony with the opinion of the court respecting a certain clause in the charter of the Michigan Central Railroad Company as expressed in Michigan Cent. R. Co. v. Hale, 6 Mich. 343, and Same Company v. Lantz, 32 Mich. 502; yet as the question now under consideration was considered and decided by the court upon common-law principles, the conflict of views on the question of construction is of no importance in this case.

We think these cases lay down a rule which is just to the shippers of goods, and not unreasonably burdensome to carriers. The shipper delivers his goods to a carrier, who becomes insurer for their safe transportation; and if the operations of one carrier cover a part only of the line of transit, and another is to receive the goods from him, the shipper has a right to understand that the liability of an insurer is upon some one during the whole period. The duty of the one is not discharged until it has been imposed upon the succeeding carrier, and this is not done until there is delivery of the goods, or at least such a notification to the succeeding carrier as according to the course of the business is equivalent to a tender of delivery. There is nothing in this which is burdensome to the carrier, for this is the customary method in which the business is done; and the rule only requires that the customary method shall be pursued without unreasonable delay or negligence.

The connecting carriers in this case appear to have established a custom of their own, under which actual delivery of the goods or notice to take them was dispensed with, and the one was to ascertain from the books of the other what goods were ready for reception and further carriage. This as between themselves, was well enough while it worked well; but it was an

arrangement to which the plaintiff was not a party, and the defendant could not, by means of it, relieve itself of any liability which duty to the plaintiff imposed. And it was clearly its duty to the plaintiff, as we think, to relieve itself of the responsibility of the goods remaining for an unreasonable time in its warehouse, and to do this it was necessary that the responsibility be transferred to the carrier next in line. But the mere permission to inspect its books and take whatever was ready for carriage would not do this; there should have been distinct notice which would apprise the other carrier that defendant expected the removal of the goods.

In this case there were no facts indicating a renunciation, as to these goods, of the liability of common carrier by the defendant, or that it was supposed by the agents of the defendant that that character had been exchanged for any other. If it ever was, it must have been at the moment the goods were received, for nothing took place afterward to change the relation of the defendant to the goods until the fire took place. But we are not ready to assent to the doctrine that a railroad company, as to goods transported by it, ceases to be carrier the moment the goods are received at its warehouse. We do not think that is the law, or that it ought to be.

The judgment should be affirmed.

Champlin and Sherwood, JJ., concurred.

CAMPBELL, J. In this case it is admitted by the undisputed facts that the property in question had been in defendant's warehouse for a longer time than was generally necessary for the removal of goods by the ultimate carrier, aud that the failure was due to a lack of means of removal in the latter. It also appears that the property was in a warehouse from which the last carrier always took it without any further ceremony, and that this carrier was always informed by inspection of the way-bills and knew of the goods be. ing ready for removal. I think that under such circumstances defendant no longer remained responsible as carrier, but became subject to no more than a warehouseman's responsibility as soon as the last carrier had actual notice and could have removed them, and that respondent is not to be prejudiced by the lack of facilities in that carrier, who had the same means of access to and control over the goods. Such seems to me the purpose of our statute, which does not declare or provide that the liability of warehousemen for goods awaiting delivery shall not arise when the real duties of carrier have been fulfilled, but merely requires that the responsibilities attaching to a carrier shall not be lessened while that relation exists.

[See 68 Ill. 471; 44 N. Y. 507-8; 2 Am. Rep. 130, 242, 391; 21 Eng. Rep. 68; 63 Ala. 219.

NEW YORK COURT OF APPEALS ABSTRACT.

FALSE

PLEADING-MALICIOUS PROSECUTION AND IMPRISONMENT MAY BE JOINED-ORDER OF ARRESTFALSE IMPRISONMENT DOES NOT LIE-MALICIOUS PROS

ECUTION-PROBABLE CAUSE.-(1) The complaint alleges two causes of action, to wit, one for malicious prosecution and another for false imprisonment. As they are both for personal injuries they could be contained in the same complaint. Code, § 484. They are consistent with each other, and the one is not destructive of the other, and it has been common practice to unite them. Doyle v. Russell, 30 Barb. 300; Barr v. Shaw, 10 Hun, 580; Dusenbury v. Keily, 85 N. Y. 383, 389; Carl v. Ayers, 53 id. 14; Bradner v. Falkner, 93 id. 515. But as the objection to the joinder was not taken in the answer or by demurrer, it was in any event

waived. Code, § 499. The gist of the action was the procuring of an order of arrest by defendants under the Stillwell Act. The facts stated in the affidavit, upon which the warrant was granted, were sufficient to give the judge who issued it jurisdiction. It was subsequently set aside by said judge, upon affidavits showing that plaintiff had previously been arrested in an action brought against him by defendants, upon an order of arrest issued for the same cause, and substantially upon the same grounds. In an action for false imprisonment, held, that the warrant was not void or irregular, but at most simply erroneous, and so that the action was not maintainable. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution, in case the prosecution against him has been from unworthy motives and without probable cause. Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggravate his damage, but have nothing whatever to do with the cause of action. Hence if in this case the defendants had intentionally withheld from the judge who granted the warrant the fact of the plaintiff's prior arrest, that fact would have been quite pertinent to maintain an action for malicious prosecution, but would not have laid the foundation for a recovery in an action for false imprisonment. We have carefully examined many authorities, and have not found one which decides that in a case like this an action for false imprisonment can be maintained. They all sustain the views above expressed. Williams v. Smith, 14 C. B. (N. S.) 596; Hayden v. Shed, 11 Mass. 500; Reynolds v. Corp, 3 Caines, 268; McGuinty v. Herrick, 5 Wend. 240; Chapman v. Dyett, 11 id. 31; Deyo v. Vau Valkenburgh, 5 Hill, 242; Landt v. Hilts, 19 Barb. 283; Simpson v. Hornbeck, 3 Lans. 53; Miller v. Adams 7 id. 131; affirmed, 52 N. Y. 409; Palmer v. Foley, 71 id. 106; Dusenbury v. Keiley, 85 id. 383; Day v. Bach, 87 id. 56. In Williams v. Smith, Williams, J., said: The party causing process to be issued is not responsible for any thing that is done under it when the process is afterward set aside, not for irregularity, but for error. Aud Byles, J., said: "There is a manifest distinction between setting aside process for irregularity and reversing a proceeding for error on appeal. In the one case a man acts irregularly and independently, without the sauction of any court. He therefore takes the consequences of his own unauthorized act. But when he relies upon the judgment of a competent court, however erroneous that judgment may be, the party acting upon the faith of it ought 'to be protected." (2) Plaintiff was properly nonsuited, as to the cause of action for malicious prosecution. The burden of showing want of probable cause for his arrest was upon him, and he gave no evidence whatever upon that subject. Not only this, upon his objection, evidence on the part of the defendants to show probable cause was excluded. Marks v. Townsend. Opinion by Earl, J. [As to (1) see 88 N. Y. 270; 18 W. Dig. 108; 16 id. 240; 2 Civ. P. R. 217, contra, 61 How.353.] [Decided Jan. 20, 1885.]

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STATUTE OF FRAUDS-PAROL AGREEMENT PARTLY PERFORMED.-Plaintiff was lessee of a store for the term of five years, at an annual rent, payable quar terly; he owned or controlled a one-half interest in the stock of goods in the store; the defendant at the same time was the owner of a paper mill in that city; and it was agreed that the defendant should sell to the plaintiff the mill and its machinery, and receive in payment therefore certain notes and mortgages, the half interest in the stock of goods, aud as the

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plaintiff's testimony tends to show, the possession of the store for the unexpired term (then about fourteen months), and the defendant on his part agreed to pay the rent to the lessors for that term. This term of the agreement is denied by the defendant. It is however uncontroverted that the defendant, on the same day, was placed in possession of the store and goods by the plaintiff; that he carried on business there until the 25th of May following, and paid the lessors rent up to that time when he sold out, and making no further payment, this action is brought to recover the sums unpaid. Held, that the agreement was not within the statute of frauds and that plaintiff was entitled to recover. The appellant puts his appeal upon the statute of frauds. We think it has no application, and that the case was properly submitted to the jury. If as they have found, the plaintiff's version of the transaction was the true one, the defendant's promise to pay the rent was upon a new consideration, which moved directly to him, and it was made for his own benefit, and not for the benefit of the plaintiff. The general object and purpose of the transaction, or the "res gestce" as it is termed in Williams v. Leper, 3 Burr. 1886, shows that the intention of the parties was not that the defendant should become responsible for the payment of the plaintiff's debt to the lessors, but that he could assume, as a new and independent duty, that of paying to the landlord the rent specified in the lease. This obligation was part of an undivided transaction and stands upon the whole as a consideration. It comes therefore within the principle under which it has been often decided, that the purchaser is bound by his promise to pay the price to a creditor of the vendor, although it is not in writing and the vendor remains bound. Leonard v. Vredenburg, 8 Johns. 29; Barker v. Bucklin, 2 Den. 45; Mallory v. Gillett, 21 N. Y. 412. It is also apparent that there was a complete performance by the plaintiff, and an acceptance of that performance by the defendant. The plaintiff received from the defendant the mill property, and turned out to him the mortgages, notes and money, stock of goods and possession of the store, and these things the defendant received and retained according to his pleasure. Every thing has been performed except his promise to pay the rent in question. The judgment in this case calls for nothing more, and justice requires that it should be paid. Kohler v. Matlage, 72 N. Y. 259. It would be a perversion of the true purpose of the statute to give it such construction as would protect the defendant in the enjoyment of advantages obtained from the plaintiff in reliance upon au oral agreement on which the latter acted. If the plaintiff had refused to put the defendant in possession, he could have rescinded the contract; if he interfered with his possession, he could sue for damages (Gray v. Hill, Ryau & Moody, 420); if for his security an assignment in writing of the lease was necessary, or a written contract for the possession, a court of equity would have compelled its execution; but neither of these things is asserted. The case is within the established rule that a parol agreement in part performed is not within the provisions of the statute. Stuart v. Stuart. Opinion by Danforth, J. [Decided Jan., 1885.]

UNITED STATES SUPREME COURT ABSTRACT.

NATIONAL BANK-PENALTIES FOR TAKING USURY.Where in an action brought in the District of Columbia by the executors of N. C., deceased, against C., as indorser upon a note dated May 29, 1873, made by J. D. for the payment to C. of $4,000, three years after

date, with interest at the rate of eight per cent per annum, the defendant, besides pleading the general issue, pleaded that the plaintiff ought not to recover $992 of the amount of the note sued on, with the interest on said sum, because N. C., the testator, after becoming the owner of the note, made, on February 4, 1876, a verbal agreement with D., the maker, by which he contracted to receive from D. interest at the rate of ten per cent per annum, payable quarterly, upon the full amount of principal and interest due on the note at its maturity, to wit, $4,960, and in pursuance of such agreement did, between February 4, 1876, and January 1, 1878, receive as illegal interest eight payments of $124 each, amounting to $992, the court instructed the jury that the only remedy for the recovery of money paid for interest in excess of the interest allowed by law, is suit brought under section 716 of the Revised Statutes of the District of Columbia within one year, and that the prohibition contained in section 715 of the Revised Statutes of the District of Columbia applies exclusively to cases in which illegal interest has been contracted for, but not paid. Held, that the instruction was correct. In Farmers' etc., Nat. Bank v. Dearing, 91 U. S. 29, the court declared that the penalty imposed on a national bank for taking a greater rate of interest than that allowed by the National Banking Act, was the loss of the entire interest, and that no loss of the entire debt was incurred by the bank as a penalty by reason of the provisions of the usury law of a State. So in Barnet v. National Bank, 98 U. S. 555, it was held that in a suit by a national bank against the parties to a bill of exchange discounted by it, the assignees of the acceptor could not, having intervened as parties, set up by way of counterclaim or set-off that the bank knowingly took and was paid a greater rate of interest thereon than that allowed by law, but that the National Banking Act having prescribed as a penalty for the taking of such unlawful interest that the person paying the same might, in an action of debt against the bank, recover back twice the amount so paid, he could have redress in no other form or mode of procedure. So in Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid to a National bank on renewing a series of notes, of which those in suit were the last, could not be applied in satisfaction of the principal of the debt. See also Cook v. Lillo, 103 U. S. 792, and Walsh v. Mayer, 111 id. 31. In the case last cited it was held generally that a statute which prescribes a legal rate of interest, and forbids the taking of a higher rate, under penalty of a forfeiture of the entire interest, and declares that the party paying such higher rate of interest may recover it back by suit brought within twelve months, confers no authority to apply the usurious interest actually paid to the discharge of the principal debt, and that a suit for its recovery brought within twelve months was the exclusive remedy. There was therefore no error in the refusal of the court to charge as requested or in the charge given. Carter v. Carusi. 'Opinion by Woods, J. [Decided Dec. 15, 1884.]

STATUTE CHINESE IMMIGRATION.- The fourth section of the act of Congress approved May 6, 1882, ch. 126, as amended by the act of July 5, 1884, ch. 120, prescribing the certificate which shall be produced by a Chinese laborer as the "only evidence permissible to establish his rights of reentry into the United States, is not applicable to Chinese laborers, who residing in this country at the date of the treaty of November 17, 1880, departed by sea before May 6, 1882, and remained out of the United States until after July 5, 1884. The rule is well settled that repeals by implication are not favored, and are never admitted where the former can stand with the

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