was suggested to us in argument is startling if not shocking; and I cannot assent to it, for it comes to this, that if a man commits an offense of so grave a character that the utmost punishment allowed by law would be too light, he is to be free to commit any number of similar offenses with impunity, if he is tried before the expiration of his sentence; or if the trial is postponed until after the expiration of the sentence, he has all the chances of escape which the difficulty of proving the case after the lapse of many years would give him. I think this disposes of the main points. Another point is that the sentence is bad, because it did not begin with an additional common-law sentence of fine or imprisonment. The words of the statute (2 Geo. II, ch. 25, § 2) are "judgment shall be given that the person convicted shall be committed or transported accordingly, over and besides such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being;" but I do not think this means that such last-mentioned punishment necessarily must be adjudged. Moreover no injustice has been inflicted on the prisoner and no harm has been done, so that it would be our duty to amend the sentence, if it required amendment, which I think it does not. Then it is said that in truth and in substance there was only one perjury; it is suggested that it was all one fraud, and one imposture on the part of the prisoner in passing himself off as another man, Roger Tichborne, in order to get the estates, and therefore that if there were any number of suits, and any number of oaths, there would only be one perjury. It is only necessary to state that proposition to dispose of it. Besides, there is nothing on the face of the record to show that the perjury was all committed in furtherance of one scheme. It is obvious that there were two distinct suits - the chancery suit and the common-law action of ejectment, and the evidence in the two was given at different times and in different places. It is therefore idle to suggest that this was only one and the same perjury. I am therefore of opinion that the sentence was warranted by law, and that our judgment ought to be for the Crown.

BRAMWELL, L. J. I have had some doubt whether I ought to occupy any further time in delivering judgment in this case. I am certain that the writ of error was not allowed without due care by the late attorneygeneral, and I think it was warranted by the decision in the American court, but now that the whole question has been discussed, this appears to me to be as plain a case as ever came before any court. The first point which has been raised comes to this, that if a man brings several suits, and gives false evidence in all of them, though he may tell an infinity of untruths, still, if his object throughout is to establish a claim to the same property, it is only one perjury, and can only be punished as a single offense. This is, to my mind, an outrageous proposition; it would be monstrous if he could not be punished again when he repeats the false statement. Then it is said, that as the statutes provide that he may be sentenced to seven years' penal servitude for the offense of perjury, he cannot have more than that amount of punishment for many perjuries; it comes to this, that he gets a status as a perjurer, and having been punished once cannot be punished again; the same argument might be used as to every offense for instance, coining. The next point is this: the plaintiff in error was sentenced to seven years' penal servitude on one count of the indictment (putting aside for a moment the question as to the two counts), and it is contended that he ought to have had a sentence of fine or imprisonment in addition; I doubt if he could make that objection. No doubt where the sentence should be hanging, and a man was sentenced to transportation, he could maintain a writ of error, because there the sentence imposed would be

a wrong sentence and one not warranted by law; but here the plaintiff in error cannot say that any wrong has been done to him, for his complaint is that he did not receive enough punishment, and therefore, as far as this objection goes, I doubt if error would lie. In any case, however, it seems to me that, on the true construction of the act (2 Geo. II, ch. 25, § 2), it is not necessary that there should be a sentence of fine or imprisonment; the words are "judgment shall be given that the person convicted shall be committed or transported accordingly, over and besides such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being; " I think that the court may or may not adjudge fine or imprisonment under this section. Then comes the objection on which the writ of error was allowed. It is contended that there cannot be a cumulative sentence on two counts in the same indictment to a term of punishment exceeding the maximum allowed for one offense. The objection is this, that a defendant may have different punishment on two separate counts, the one term of punishment commencing on the expiration of the other, provided the two together do not exceed the maximum term which could be imposed for a single offense. At common law there was no limit to the duration of sentences of imprisonment, the only condition being that imposed by Magna Charta and the Bill of Rights, that they must not be excessive, so that in the case of a common-law sentence the difficulty does not arise. Then it is said that the statute has drawn a hard and fast line, and has the effect of limiting the power of sentencing in the way contended for. As to that proposition, except the American case of People v. Liscomb (ubi sup.), which runs counter to all the English authorities, no case has been cited; there is no other authority favorable to the contention. Suppose a man commits two offenses, each deserving seven years' penal servitude, is the Crown to wait seven years before prosecuting him for the second offense?-the notion is preposterous; or are there to be two separate indictments? if so, what is to happen then? is judgment to be respited on the second charge until the defendant has served the sentence awarded on the first? Is not the more reasonable and convenient course to join the two offenses in different counts, and pass sentence for both? I can see no justification for the contention that this cannot be done. I am of opinion that it is not so in law, it is not so in reason, and the authorities are against it. I agree, therefore, that the sentence must be affirmed.

BRETT, L. J. I have listened attentively to Mr. Benjamin's argument, because I knew that every point which could be raised would be put before us, but it has produced no real effect upon my mind. Two main objections have been taken, one of which, if correct, would be fatal to the sentence (unless amended), even if only one term of penal servitude had been awarded, while the other only goes to this, that the second term is not warranted by law. These two objections are now brought forward six years after the passing of the sentence. As to the first point, it is said that the sentence is wrong, because it was not preceded by a nominal sentence of fine or imprisonment. This is really of no consequence, because the sentence could be amended if it were necessary, but it is important to give an opinion on the question, for it turns on the construction of 2 Geo. II, ch. 25, § 2; I am of opinion that that is an enabling section, and empowers the court to add to the common-law punishment a sentence of transportation (now penal servitude), or to give such sentence in substitution for the common-law punishment. I think the words of the statute give a strong indication of the view that the court may adjudge the common-law punishment in addition to penal servitude, or may not do so, as seems right. It

is said that on other trials which have been referred to I took another view, and gave a short sentence of im. prisonment in addition to a term of penal servitude, but that was only by way of precaution, and is no authority to the contrary of what we are now deciding. It is obvious that the judge has power to add a previous sentence of imprisonment to a sentence of penal servitude, but this does not show that he has not power to omit such previous sentence. According to our unanimous construction it is an enabling section. Then there is the main objection. It is argued that there were not two offenses. It is not necessary to consider what the law is with regard to two perjuries taking place on one trial. Here there were two absolutely distinct and separate offenses. It is said that because they are charged in the same indictment they are only one offense; but I think that during the last three hundred years the contrary has been the law, and it has often been so ruled, and it seems to me that separate counts are equivalent to separate indictments. Then it is said that the counts do not end "against the form of the statute," etc., if the offense is the result of a statute, that must be put in; otherwise it need not. Then, can the punishment for the second offense be postponed until after the first punishment is over? This has been decided by the House of Lords in Wilkes' case. A specific question was there put to the judges by the House of Lords in these words: "Whether a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law?" There was no reference there to one of several indictments, and the question was answered in terms by the judges: "That a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law." 4 Burr. at p. 2579; 19 Howell's State Trials, 1127-1136. That question and answer are entirely irrespective of whether the offenses were included in one indictment or two, and the law has been so interpreted ever since. The question of the House of Lords in that case was whether the court could postpone the commencement of the second sentence until the expiration of the first. The judges gave one limitation, "that the punishment shall take place before a total dismission of the party; a punishment shall not hang over a man's head when he has once been discharged." 19 Howell's State Trials, 1133. They seemed to consider it not right to postpone the commencement of the second term of punishment to a period later than the prisoner's dismission from the first. But then they continue, "But whilst he remains under a state of punishment, whilst he is suffering one part of his punishment, he is very properly the object of a different kind of punishment to take place during the continuance of the former, or immediately after the end of it." Id.; Rex v. Williams, Gregory v. The Queen, and Rex v. Robinson (ubi sup.) are all to the same effect. Mr. Benjamin cited 7 and 8 Geo. IV, ch. 28, § 10, and said that because that provision was required for cases of felony, something of the kind is also required for cases of misdemeanor. That section was passed after the answer of the judges in Wilkes' case had been given, as Blackburn, J., says in Rex v. Cutbush, L. R., 2 Q. B. at p. 381, "to give the courts the same power in cases of felony as they had at common law in misdemeanors." Therefore this argument is turned against Mr. Benjamin by this opinion of Blackburn, J. Mr. Benjamin says that this rule applies only where the defendant is in prison; but he is really in prison when the sentence is passed; the sentence always begins from a date prior to the time at which it is passed. What Blackburn, J., says shows that the law is the same as to felony and misdemeanor, and that is a strong authority against the view adopted by the

American judges. It is said that by statute three felonies are expressly allowed to be joined in cases of embezzlement. But that enactment relates to procedure, not to punishment, and it only took away the power to quash the indictment for misjoinder, or put the prosecutor to his election in cases to which it applies. Then there is the American decision, People v. Liscomb (ubi sup.). I am always anxious to hear what has been decided by the courts and judges in America, and what views they have taken on any points coming before us; but here the proposition seems to be that if one sentence follows another the two together shall not exceed the extreme amount which could have been awarded for one of the offenses. With deference, and with candor, I confess that I can see no reason in form or in substance for the conclusion arrived at in that case; it seems to me to be only a judicial declaration that it is so. The question is dealt with by Patteson, J., in O'Connell v. The Queen, 11 Cl. & F. at p. 261, and what he says there shows that it was his opinion that where the commencement of the second sentence is posponed till the conclusion of the first, it is no objection that the aggregate exceeds the maximum which could be awarded for one offense. This seems to me to be an irresistible inference from the language used. In Rex v. Robinson (ubi sup.), while deciding that a sentence of two years' imprisonment was incorrect, the judges said "that there should have been consecutive judgments of one year's imprisonment each." It is true that it is not a decision, but it shows very clearly what the opinion of the judges on this point was, and what Blackburn, J., said in Rex v. Cutbush (ubi sup.) is also a strong authority to the same effect. I am therefore of opinion that this is a perfectly clear case, and that the sentence imposed was warranted by law. Judgment affirmed

TAXATION OF SHARES-REMEDY FOR ILLEGAL CONSTITUTIONAL LAW.

CIRCUIT COURT, N. D. OF NEW YORK, NOV., 1880.

NATIONAL EXCHANGE BANK V. HILLS.

A State statute, independent of and designed as a substitute for all other provisions for taxation, which permits any debtor, assessed upon personal property, to deduct the amount of his debts from the valuation of all his personal property, including money capital, except bank shares, is wholly unconstitutional and invalid as to National bank shares, and affords no authority for making any assessment upon such shares; and an injunction to restrain the enforcement of such tax will issue at the suit of a bank the shares of whose capital are thus illegally assessed against the shareholders.

SUIT

NUIT to restrain the collection of a tax against shareholders. The opinion states the case. Matthew Hale, for complainant.

R. W. Peckham, for defendant.

WALLACE, J. The complainant has filed its bill in equity to enjoin the collection of a tax assessed in 1879 against its shareholders by the board of assessors of the city of Albany, the defendants being the officers of the city charged with the collection of taxes.

The bill proceeds upon the theory, first, that the assessment against the shareholders is void, because there was no legal authority for making any assessment; second, if not void, for want of original authority, it was based upon a rule of unequal valuation of different classes of property, intentionally adopted by the assessors in order to discriminate unjustly against shareholders of National banks, and was excessive, and as to the excess the collection of the tax should be restrained.

Both of these theories are grounded on that section

of the act of Congress relating to National Banking Associations, which restricts taxation of shares in such associations imposed by the authority of the State within which the association is located, by providing "that the taxation shall not be at a greater rate than is assessed upon other money capital in the hands of individual citizens of such States."

The assessment complained of was made under color of an act of the legislature of this State, passed April 23, 1866, entitled "An act authorizing the taxation of banks and surplus funds of savings banks." This act, as construed by the highest court of the State, in view of previous legislation and upon consideration of the various provisions and directions of the act itself, established a system of taxation for bauk shares "pecu·liar to itself and independent of the general system of taxation in existence in the State," and upon this ground it was decided by the Court of Appeals (Dolan v. People, 36 N. Y. 59; Thomp. N. B. Cas. 684), that a bank shareholder, who had been assessed upon the value of his shares, was not entitled to any deduction on account of his debts, although the general laws of the State and the local law relating to assessments in the city of Albany contained provisions whereby in the assessment of personal property a deduction should be made for the debts owing by the person assessed.

So far as this act contravenes the law of Congress by imposing a tax upon shares of National Banking Associations, at a greater rate than is assessed upon other moneyed capital in the hands of individuals, concededly it cannot stand, but the point in controversy is whether an assessment made under the act is void for want of power in the assessors to make any assessment, or is only erroneous when made without granting the deductions allowed by tho general laws of the State. If the assessors have no power to make a valid assessment of the shares eo nomine, or against the owners for the value of their shares, the wholo foundation of the taxation fails. On the other hand, if the assessors have authority to assess under the statute in question or under the other statutes of the State, then the inquiry arises, whether the assessment is erroneous, because the proper deductions were denied, or because a rule of valuation which discriminated unfairly against the stockholders was adopted; and this being so, whether there is any remedy except in a direct proceeding to review the assessment. Obviously if the first theory of the complainant is sound, it is of no importance whether the shareholders of the complainant were, in fact, owing debts which should have been deducted from tho assessment or not, because there was no jurisdiction for any action on the part of the

assessors.

In the view of the case which I am constrained to adopt, it will not be necessary to examine the second theory which has been alluded to, a theory which, upon the facts, involves several difficult and doubtful questions of law; but I am of the opinion that the only authority for the assessment is to be found in the statute of 1866, and that act, as respects the taxation of shares in National banking associations, is radically vicious and can have no operation. This conclusion is predicated upon the decision in Dolan v. People, and upon People v. Weaver, 100 U. S. 539.

The construction given to the act in Dolan v. The People is explicitly to the effect that the act is intended to establish a system of taxation for bank capital peculiar to itself, and independent of the general system of taxation in existence in the State. It is there declared that "the act was intended as a substitute for the then existing mode of assessing and taxing that portion of the property of the State invested in the capital of these moneyed corporations." If this is the correct exposition of the statutory intent, it cannot be questioned that the act must stand or fall upon its own provisions, and cannot be sustained by

treating it as a part of the general system of taxation, and reading it as though it contained these provisions found in other parts of the system which would secure to the holder of bank shares the same exemptions and privileges allowed to the holders of other money capital. Accepting this as the true construction of the law, it was held by the Supreme Court of the United States, in People v. Weaver, that the operation of the laws to impose upon a citizen of the State, whose money was invested in bank shares, a greater rate of taxation than was imposed upon those whose capital was otherwise invested, in violation of the prohibition of the law of Congress. It was only necessary to decide in the particular case that the person assessed was entitled to the deduction from his assessment on account of his debts, which he claimed, and the question was not before the court whether or not the whole assessment was void; but the opinion proceeds upon the ground, and expressly declares that the statute of the State is in conflict with the act of Congress, because it does not permit such deduction on account of debts.

It would seem that these discussions are conclusive to the effect that the act of 1876 is to be regarded as though it in terms declared not only that the shares in National banking associations should be taxed at a rate, and upon an assessment prohibited by the act of Congress, but also as though it declared that no other tax should be imposed on account of such shares, because being a substitute for the existing provisions of the general laws as respects the taxation of capital represented by bank shares, it is by implication a repeal of those provisions.

The decisions of the courts of a State in the construction of a State statute, where no Federal question is involved, aro conclusivo upon the courts of the United States, and the construction which was given by tho Court of Appeals to this statute has been recognized as controlling and final by the Supreme Court of the United States.

But it is urged on behalf of the defendants that the Court of Appeals may reconsider its views in the light of the decision of the Supreme Court, and the consequences which ensue from that decision. Undoubtedly these consequences may be serious, as shareholders of National banks may in some instances escape the payment of taxes upon their personal property to the extent such property is invested in bank shares. This consideration, as well as those graver ones which lead courts to seek for some construction of a law, which will uphold it if possible, would appeal with great force to any tribunal before which the question originally presented might come. But this court must take the law as it finds it, and must accept tho decision of the Court of Appeals as authoritativo. This court cannot substitute in the place of that decision its own judgment as to what the Court of Appeals might possibly decide upon a reconsideration of the questions involved.

Besides the decision of tho Court of Appeals, reference should be made to the act of tho Legislature of June 26, 1880, as a legislativo exposition of the act of 1866. The later act is clearly intended as a substitute for the act of 1866, and does not vary essentially in its provisions from the earlier act except that it expressly declares that in the assessment of bank shares each stookholder shall be allowed all the deductions and exemptions allowed by law, in assessing the value of other taxable personal property owned by individual citizens of the State, and the assessment and taxation shall not bo at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this State. This act was wholly unnecessary, if, as is contended for the defendants, the original act should be construed as though the provisions of the general laws relating to reductions were incorporated in it.

It is much to be regretted that the conclusions thus reached may lead to the loss of a large sum in taxes justly due from tax payers to the municipality represented by the defendants. But the result must be attributed to ill-considered legislation, which by attempting to impose an exceptional and unjust rule of taxation upon shareholders of National banks has so far overshot its mark as to exonerate them from any taxation.

It is insisted for the defendants that the complainant is not the proper party to resist the payment of the tax, and that the stockholders are the only persons who can complain; and it is also insisted that an action to enjoin the collection of the tax is not the appropriate remedy.

These objections may properly be considered together. The general rule that a bill in equity will not lie to restrain the collection of a tax is familiar, but the right to the relief sought here rests upon the ground that it is necessary to prevent a multiplicity of suits likely to arise, owing to the peculiar position which the complainant occupies toward its shareholders on the one side, and the defendants on the other.

The act of 1866 makes it the duty of every banking association to retain so much of any dividend or dividends belonging to its stockholders as may be necessary to pay any taxes assessed in pursuance of that act, and the case shows that most of the shareholders of the complainant paid to the complainant the amount severally assessed upon their shares for the tax in controversy, or allowed the amount of the assessments to be retained from their dividends, but that prior to the commencement of this action a considerable number of the shareholders filed their protest and forbade the complainant to pay over the amounts or to retain them for the purpose of paying the tax. The statute imposes a duty on the complainant in the nature of a trust, but which it can only discharge at the peril of being subjected to numerous suits at the hands of those whose money it retains. As is said in the similar case of Cummings v. National Bank, 101 U. S. 157, "it holds a trust relation which authorizes a court of equity to see that it is protected in the exercise of the duties pertaining to it. To prevent multiplicity of suits, equity may interfere."

It is true the statute in terms does not require the bank to pay the taxes assessed against its shareholders, but by necessary implication it authorizes the bank to do so, and thus brings the case precisely within the facts of Cummings v. National Bank. That case must be regarded as a decisive authority against the objections urged here, to the right of the complaiuant to the relief demanded.

A decree is ordered for the complainant.

been duly elected as his successor, took the requisite oath of office at five minutes after 11 A. M., and we may as well assume, what we understand to be the fact (though it does not appear as it ought to), that he immediately filed such oath in the office of the city clerk, as by law required, so that he was duly qualified. Norgood, between the hours of 11 and 12 of the same day, and after Smith had qualified, signed findings of law and fact in the case at bar, closing the same with a direction for judgment accordingly.

It appears, though we do not perceive that this is important, that he (Norgood) had arrived at a determination of the case before Smith qualified; but such, his determination, had not then been reduced to writing. At the time of signing the findings and direc. tion he had not been made aware that Smith had qualified. The clerk of the municipal court, upon the filing of the findings and direction, on the next day entered judgment accordingly. There is nothing to show that Smith, in fact, took possession of the office for which he had qualified, by exercising any of its functions or duties, until after the findings and direction had been signed and handed to the attorney for the successful party to be filed with the clerk. Upon this state of facts, we are of opinion that the judgment was valid.

Norgood came into office under an election or appointment (it does not appear which), the regularity and validity of which are not questioned. Under color of this election or appointment he was exercising the duties of the office at the time of signing the findings and direction spoken of. Inasmuch as Smith had qualified, he was de jure the judge, and Norgood's term de jure was, under the statute, at an end. Gen. Stat. 1878, ch. 64, § 133. But as it in no way appears that Smith had taken possession of the office by exercising any of its duties or functions, Norgood, who was exercising its duties under the color spoken of, continued and was in possession of it. His caso is thereforo that of an officer de facto - a person having and claiming color of title to an office by election or appointment, and in the exercise of its functions and duties; that is to say, in possession of it. The acts of such an officer are valid as respects the public and persons interested therein, and as to them cannot be questioned.

Brown

v. Lunt, 37 Me. 423; State v. Brown, 12 Minn. 538; Wilcox v. Smith, 5 Wend. 231; People v. Peabody, 6 Abb. Pr. 228; id. 296; People v. Cook, 8 N. Y. 67; Plymouth v. Painter, 17 Conn. 585; In re Boyle, 9 Wis. 265.

That one person in possession of an office may be the officer de facto, while some other person is the officer de jure, is of course, though it is said that there cannot be an officer de jure and an officer de facto both in possession of the same office at the same time. Boardman v. Halliday, 10 Paige, 223. The act of Norgood in signing the findings and direction for judgment being valid, it was the duty of the clerk to enter the judgment accordingly, as he did. The judgment was therefore valid, and the court below erred in vacating and setting it and the findings and direction aside. The order appealed from is therefore reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

BANKING-MEANING OF WORD "DISCOUNT "— INCLUDES PURCHASE OF NOTES NEGOTIABLE INSTRUMENT-INDORSEMENT BY PARTNER OF FIRM NAME WITHOUT AUTHORITY - BONA FIDE HOLDER -DEFENSE - CORPORATION — NOTICE.— 1) L., who was a member of the firm of C. P. & Co., and also a member of the firm of J. S. Sons, defendants herein, indorsed in his own name a promissory note made by C. P. & Co., and also added the firm signature of defendants as second indorsers. This note he transferred to the

firm of L. S. & Co., note brokers, with whom he had private dealings and to whom he was individually indebted in an amount exceeding the amount of the note, with directions to sell it and apply the amount realized upon his indebtedness, which was done by plaintiff, a bank purchasing the same before due for its face value, less a rebate at the rate of nine per cent per annum. The indorsement of the note by L. was made without the knowledge of the other members of the defendants' firm. The plaintiffs had no knowledge of the nature of the paper or the transactions between L. and the firm of note brokers. Held, that although the note brokers could not claim to have taken the paper in good faith so as to hold defendants liable as indorsers (Comstock v. Hier, 73 N. Y. 269), the indorsement was not void but only voidable, for it was made by L. within the general scope of his authority as a member of defendants' firm, and plaintiff having no notice of the circumstances and coming by the paper fairly could hold the defendants as indorsers. Peacock v. Rhodes, 2 Doug. 633. (2) Plaintiffs' president applied to the firm of note brokers for negotiable paper, and this note being shown to him, he purchased it for the bank at the price agreed upon and the note brokers executed a bill of sale thereof to the bank, and received from the president authority to draw for the purchase price upon the bank, which they exercised. The bank, by the act under which it was incorporated (Laws 1838, ch. 260, § 1), was empowered "to carry on the business of banking by discounting bills, notes and other evidences of debt," "by buying and selling gold and other bullion, foreign coins and bills of exchange," etc. Held, that this statute authorized the transaction whereby plaintiff obtained title to the note mentioned. It was directly within the power to carry on business" by discounting" "notes and other evidences of debt." "Discount" is "reduction." Roget's Thesaurus. In McLeod on Banking, a work of authority, at page 43, it is said: "In the language of the money market it is usual to estimate the value of money by the discount or profit it yields, and to buy or purchase a debt is always in commerce termed to discount it." See also, id., p. 291. There is nothing in the statute to indicate that the word "discount" is used in any other than the general sense referred to. In Tracy v. Tallmage, 18 Barb. 456, it is said "to discount includes to buy, for discounting at most is but another term for buying at a discount." Although the judgment in that case was modified in 14 N. Y. 462, it was not in disaffirmance of the views cited. See Johnson v. Nat. Bank of Gloversville, 74 N. Y. 329; Laws 1870, ch. 193. In authorities holding a different doctrine, Niagara Co. Bank v. Baker, 15 Ohio St. 68; Farmers', etc., Bank v. Baldwin, 23 Minn. 198, the decisions were upon violations of positive law, and are distinguishable from this case. If the note had been discounted for the firm of note brokers at the same rate, the titlo of plaintiff would have been just the same. (3) If the transfer of the note was in violation of any statuto it would not avail as a defense. Defendants wero not a party to the transaction and payment of the note to plaintiffs would relieve them from a claim by any other person upon it. The transaction out of which the cause of action arose became the property of the plaintiff; was not forbidden; it was not improper in itself, and if it was not within the exact letter of the law from which the plaintiff derived its existence, the fault is one which should give no advantage to the defendants. Whitney Arms Co. v. Barlow, 63 N. Y. 63; Kent v. Quicksilver Mining Co., 78 id. 159, 185; Gold Mining Co. v. Nat. Bank, 96 U. S. 640. (4) One of the members of the firm of note brokers was a director of plaintiff. Held, that that did not affect plaintiff with knowledge of the character of the note or its transfer to the firm. Judgment affirmed. Atlantic State Bank

in the City of Brooklyn v. Savely et al., appellants. Opinion by Danforth, J. [Decided October 12, 1880.]

PRACTICE-ENTRY OF JUDGMENT-FILING MEMORANDUM BY JUDGE NOT SUFFICIENT. Plaintiff, in whose favor a decision of affirmance had been rendered by the General Term, filed with the clerk the decision, signed by one of the judges, and nothing else. Held, not an entry of judgment. The Code (§ 1236) requires that each judgment shall be entered in the judgment book and attested by the clerk, and also (§ 1354) that on an affirmance upon appeal, the judgment-roll shall consist of a copy of the judgment annexed to the papers on which the appeal was heard. The memorandum handed down by the General Term, of the decision of the appeal, is not the judgment, but simply the authority for an entry of the judgment. Eno v. Crooke, 6 How. 462. On filing such decision a formal judgment of affirmance should be prepared and entered in the judgment book and attested by the clerk. Order affirmed. Knapp, receiver, appellant, v. Roche. Opinion by Finch, J. [Decided October 15, 1880.]

PRESCRIPTION -- EASEMENT OF RIGHT OF WAY-- WHAT NOTICE REQUIRED — EVIDENCE OF ACTUAL NOTICENOTICE TO AGENT.-(1) While it is said in some of the text-books and cases that to constitute an easement by prescription the user must have been for the requisite time "with the knowledge and acquiescence of the owner of the servient tenement (Washb. on E., 3d ed., 160; 2 Washb. R. P. 300; Blake v. Everett, 1 Allen, 248; Colvin v. Burnett, 17 Wend. 568; Parker v. Foote, 19 id. 309) all that is meant is that the user must have been not clandestine or by stealth, but open, notorious, visible and undisputed, and when such a user is under claim of right adverse, the owner of the servient tenement is charged with notice thereof and his acquiescence is implied. The case Hannefin v. Blake, 102 Mass. 297, which has reference to an underground drain, is alono in upholding any different doctrine. See Parker v. Foote, 19 Wend. 309; Curtis v. Keesler, 14 Barb. 511; Coolidgo v. Learned, 8 Pick. 504; Tracy v. Atherton, 36 Vt. 503; Townsend v. Downer, 32 id. 183; Wallaco v. Fletcher, 10 Fost. 446; Patridge v. Scott, 3 M. & W. 220. (2) In the case at bar plaintiff and his predecessors owned for more than forty years a house in the city of Troy adjoining a house and lot owned by defendants, which defendants had let during that time upon short leases to tenants. During all the time there was a passage-way across defendants' lot used by plaintiff only, and not by defendants or their tenants, and which had a gate that was kept up by plaintiff opening into the street. Defendants lived in the city of Troy and personally attended to renting their premises and to repairing the same, and to collecting the rents monthly and quarterly. Held, that even admitting that actual notico of user was necessary, there was sufficient evidence that defendants had notice thereof. (3) One of defendants was blind, but he consulted with the others about the property, and another defendant, his brother, had, during nearly thirty years, been agent of all the defendants in the management of this property. Held, that there was notice of adverse user to the blind defendant. Whero one tenant in common acts for all the tenants, there is no reason why his knowledge should not be attributed to his co-tenants. (4) The fact that during the time of this user the premises of defendants had been leased for short terms did not affect the running of the time of prescription. Daniel v. North, 11 East, 372; Cross v. Lewis, 2 B. & C. 686; Galo & W. on Easements, 117. Judgment affirmed. Ward v. Warren et al., appellants. Opinion by Earl, J.

[Decided Oct. 5, 1880.]