The Court: the plaintiff. John Lucas, on the part of We discover in this case no sufficient the defendants, filed an affidavit of deevidence of fraud in the concoction of fence, setting forth, "That the said John the bond to set it aside in favor of credit- Lucas & Co. were the payees on the notes ors. Nor is there any want of valuable and check upon which suit is founded, and legal consideration to render it irre- and that George J. Richardson was the vocable. The trust for the benefit of the maker. That said notes and check were family of Edward Heazelton was valid. sold to the said plaintiff at a discount of The money belonged to the subscribers, from 18 to 24 per cent. per annum, and and the business founded upon it was that the defendants received from the governed by the trust they stamped upon plaintiff the amount of said notes and the money. When Heazelton bought check, less said rate of discount. In adout this business and its avails, he stood dition to the above, said plaintiff has rein the attitude of any other person pur-ceived from said Richardson on his notes, chasing it. There is no evidence to im- not less than three thousand dollars in pugn the fairness of the transaction, excess of the legal rate of interest, the while ample evidence supports it. The same having been purchased by the plainfamily of Edward Heazelton are inter- tiff at about the rate of twenty-one to ested in this bond as the former cestuis twenty-four per cent. per annum discount que trustent, and therefore creditors, and from the said defendants; and said deprior in time point of fact, and equally fendants claim from the plaintiff double entitled to come in with other creditors the amount of interest under the Act of upon the estate. Congress." On the 7th day of July, 1873, on motion of the plaintiff's counsel, the Court entered judgment against the defendants for the whole amount of the plaintiff's claim, with interest from and after the maturity of the paper; striking out and disallowing, however, eighteen per cent., the amount of discount. Decree affirmed, appeals dismissed, and appellants ordered to pay the costs. Per Curiam. USURY-NATIONAL BANKS. The whole interest taken by a National Any sum susuriously taken by the bank, Error to Common Pleas of Schuykill Held, This judgment is erroneous, in that it includes interest on the paper in suit from the time it fell due. The Act of Congress speaks in this wise: "And knowingly taking, receiving, or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon." Rev. Stat. sec. 5,198. Observe, it is the entire interest which the bill or note carries with it that is forfeited, and not merely that which the This was an action brought by the party borrowing may agree to pay. The Government National Bank of Pottsville illegal act destroys the interest-bearing against John Lucas & Co., on two cer- power of the obligation, and as there can tain notes and one check, all of which be no point in the history of such paper were drawn by George J. Richardson to at which it is freed from the taint of the defendants, and by them endorsed to illegality, so it follows there can be no them; and any such act is clearly ultra vires and void. In the case now on hand, if the affidavit of John Lucus be true, this bank has taken from the defendants some $3,000, which the Act of Congress has not, in express terms, declared it should not take, but imposed a penalty upon it for taking. By no right, then, does the plaintiff hold this money; it has no property therein, and its possession thereof is but that of a trustee or bailee of the defendants. point of time from which it can bear interest. The plaintiff was entitled to recover the face of the note and check, and no more. (Brown v. Second National Bank of Erie, Legal Intel., Feb. 28th, 1873.) Technically, the latter part of the affidavit of defence is bad, for it claims, as a set off, that which the Act of Congress imposes as a penalty on the usurious transaction, to wit, double the amount of the interest paid. In this, defendants had no such interest as would enable them to use it by way of defalcation, for it could be acquired only through Another error into which the Court an action of debt under the statute, and, fell, was in supposing that the case came until the forfeiture was pronounced in within the provisons of our Act of March their favor, by judgment of the Court, 28th, 1858, which provides, that, where they had nothing therein which would the debt and excessive interest have been be the subject of set-off. But, as we hold, paid, no action to recover back such exthat the defendants are entitled to defalk cess can be maintained but within six the amount of the usurious discounts, months after such payment. But this which they paid the plaintiff on previous case does not come under that act, but, transactions, we are disposed to treat the as we have seen, under the Act of Conaffidavit as faulty only in form, rather gress, which operates upon a subject of than in substance. The money paid to its own creation, and over which it has the plaintiff, over and above that which supreme control; hence, our act cannot the Act of Congress authorized it to re- be made to supplement the National ceive, belonged to the defendants, and statute with a limitation not found in it. the bank could hold it only for their use. As the only limitation found in the Act of This very point was raised and decided Congress applies alone to the action for in Thomas v. Shoemaker (6 W. & S. 172). the penalty, it follows that the claim of That case ruled that usurious interest the defendants can only be barred by a paid might be recovered back in an ac- failure to sue for the same within the tion for money had and received, and period of six years after it accrued. that it was not questionable but that The judgment is reversed and a procesuch interest secured on previous tran- dento awarded. sactions might be defalked against the plaintiff's claim in the suit then pending. This decision was made under the Act of 1823, then in force, by which, where more than legal interest was received, the money or other thing lent was wholly forfeited. This reason applies a fortiori to the case in hand, for these National Banks are the mere creatures of the Act of Congress. From it they derive all the powers; when, therefore, they act contrary to its express provisions and mandates, they usurp powers that do not belong to Opinion by Gordon, J. WAGES-LIEN. SUPREME COURT OF PENNSYLVANIA. Schnapp's Appeal. Decided October 11, 1875. The secret lien for laborer's wages is subordinate to any lien entered before the labor is performed. Appeal from the Common Pleas No. 2, work was done by John Schnapp on the of Alleghany County. This was an appeal from a decree distributing the proceeds of a sheriff's sale of real estate belonging to the Pennsylvania Enamelling Company. The facts were these: On October 14, 1874, the sheriff, under a fi. fa., sold the company's personal property for $112,75. This being insufficient to satisfy all the writs in his hands, he made a levy on the company's real estate on the same day and under the same fi. fa. 4th day of October, 1874. The real estate, from the sale of which the fund for distribution arises, was sold January 25, 1875. The auditor finds that the latter date is the time from which the six months prescribed in the Act is to date back; and he holds that in conformity with the rule in mechanics' liens, it is sufficient that any part of the work for which the laborer's lien for wages is claimed, should have been done within six months of the date of sale; and that the laborer's claim is then good for six months wages prior to the date of the last work, We cannot agree to this view of the Act of Assembly, It requires an express provision of the statute to give such a right in case of a mechanic's lien; but there is no such provision in the Act under consideration. The Act plainly limits the claim to money due for labor or service for a period not exceeding six months immediately preceding the sale and transfer, etc. If, then, the auditor January, 1875, as the point of time from which to reckon the six months, he should have limited the claim for wages to labor performed after July 25, 1874. Before the sale and levy, John Schnapp, the appellant, under the Acts of 9 April, 1872, (Purd. Dig, 1464), and 8 May; 1874 (P. L. 120), gave the sheriff notice in writing that he claimed his wages, as night watchman, at the rate of $12 per week, for six months ending October 4, 1874, when his last work was done. The sheriff paid him $54.80, out of the proceeds, and having on January 25, 1875, sold the real estate for $700, appropriated $145.20 to Schnapp's claim, which, with the sum before paid to him, amounted is right in fixing the date of sale, 25th to $200, the limit fixed by the Act. The balance of the proceeds of the real estate remaining after the payment of costs, taxes, and this claim, was applied in part satisfaction of a judgment against the company, held by Ecker, to use, etc. This judgment creditor excepted to the sheriff's return, and an auditor was appointed to make distribution, before whom it appeared that this judgment was originally entered on June 8, 1874, "Ecker, to use, etc :,v. The Pennsylvania Enamelled Brick Company," and on August 8. 1874, was amended so as to appear "Ecker, to use, etc., v. The Pennsylvania Enamelling Co. which was the proper corporate title of the defen dant. The auditor reported that Schnapp's claim took priority of Ecker's judgment, and therefore awarded the balance ($145, 20) to him. Exceptions having been filed, the Court below said; "In this case the last "In regard to the contingency of 'death or insolvency,' mentioned in the section above quoted, it has been argued on behalf of the claimant that the insolvency intended is an actual insolvency, the condition in which the debtor has not sufficient property to pay his debts in full; and that this condition of the defendant existed when the sheriff levied on the property of the defendant, October 4, 1874. On behalf of the mechanics' lien creditor (Ecker) it is argued that the term insolvency refers in this Act only to some legal proceedings in insolvency, or an assignment for the benefit of creditors. The Act is obscure. "The auditor does not find the fact, and we have no evidence before us to enable us to find that the defendant company was insolvent then; for aught that appears, it may have other property. thereby. This accords with the spirit We, therefore, express no opinion on this and words of the Act. The question of limitation whether the six months precedes the sale or the insolvency of the party is not before us. point. "The 4th section of the Act of 9th . of April, 1872, contains this provision: 'Provided that no lien of mortgage or judgment entered before such labor is performed shall be affected or impaired thereby.' "This language is not ambiguous. The laborer has a secret lien on both the real and personal property of his employer, good against any purchaser or any Decree affirmed and appeal dismissed, and the appellant ordered to pay the costs of the appeal. Per Curiam. WILL. creditor who has not by mortgage, judg- N. Y. SUPREME COURT-GENL. TERM, ment, or execution acquired a prior lien; but after the lien of the ordinary creditor has attached, as on the real estate after entry of judgment, the lien of the laborer for wages of labor performed after the judgment has been entered, is postponed to the prior lien of the judgment creditor. "There is nothing in the Act to distinguish the case of a laborer employed before the entry of the judgment from that of one employed subsequent thereto. "In this case the judgment on the mechanic's lien was entered June 8th, 1874; an amendment of the record was made August 8th, 1874, from which last date the record was full notice to the world that such a lien existed against the identical property, As we have already seen, the earliest work for which John Schnapp could claim a lien on this property was July 25th, 1874." The Court entered a decree, awarding two weeks' wages between July 25 and August 8, to Schnapp, and the rest of the fund to Ecker's judgment, from which Schnapp appealed, assigning the decree for error. FIRST DEPT. Winthrop individually and as extr., respt. v. McKim, infant impld. et al. applt. Decided December 6, 1875. Conditions subsequent. Failure of condiditions. Trust. Remainder in life tenant's issue. Appeal from judgment of Special Term. Mrs. Margaret Louisa Winthrop heretofore made her will, which, after providing for husband and son, proceeds as follows: "To my daughter Harriet R. Winthrop I give the other share** to have and to hold to her and her heirs, etc., forever. But, on the condition, that in anticipation of her marriage, whenever it shall take place, a settlement of all her real and personal estate shall be made by some effectual deed to trustees, securing to her the net income during her life, and securing the remainder to her issue and next of kin after her decease, or in such manner as she may approve by will to and among her kindred ***. "And from the marriage until such The Court, The Court allowed the settlement-unless it be made beforewages of John Schnapp prior to the amendment of the judgment, and disallowed all after the entry of the judgment was amended, in conformity to the fourth section of the Act of 9 April, 1872, providing that no lien of a mortgage or judgment entered before such labor is performed shall be affected or impaired I give the income of said last mentioned share to the executor of this will in trust, to apply the net income to her use: and I give the remainder to her issue in fee simple per stirpes, or failing, at her death, to her heirs-at-law and next of kin." Harriet married before the death of testatrix and became Mrs. McKim. Of this marriage the infant defendant was born. No settlement was made before her marriage and none has been made since. This action was brought for the purpose of determining what are the rights, if any, of the infant defendant in the will of the testatrix, and for the partition of the property held by the parties herein as tenants in common. of the conditions have not failed, since it is not impossible for the daughter to make the post nuptial settlement. But even if both the conditions failed, Mrs. McKim does not take the fee, but instead, there is a gift of her share to the executor in trust, to apply the net income to her use, etc. We therefore think that Mrs. McKim's share is vested in the executor as a trustee for her benefit during life, and at The Court at Special Term decided, her death the infant appellant, as her in substance, that the conditions recited issue, will be entitled to the remainder. in the will were conditions subsequent, Judgment so far as it effects this that having become impossible of perfor-question, should be reversed, and judgmance, were therefore void; that Harriet, ment entered in accordance with the (Mrs. McKim), took an estate absolute opinion. in fee, and that the infant defendant had no interest in remainder, in the property. On appeal. Held, That it was the manifest intention of the testatrix to give her daughter, if she remained unmarried, an estate in fee, but in the event of marriage to put her property out of the control of her husband, in such form as that her daughter should enjoy a life estate, the remainder going to her issue, etc. To accomplish this testatrix provided for an ante-nuptial settlement to trustees, but she also anticipated the possibility which has occurred, a marriage without any ante-nuptial settlement, and therefore further provides that, if such settlement. was not made before marriage, she gives the income of her daughter's share, from the time of the marriage until such settlement be made, to the executor of her will, in trust, to apply the net income to her use, etc. Opinion by Davis, PJ.; Brady and Daniels, JJ., concurring. WILL. N. Y. COURT OF APPEALS. Chipman, et al. applts. v. Montgomery, admtr., et al. respts. Decided November 23, 1875. Heirs at law and next of kin, claiming in A court of equity has jurisdiction in respect to wills, only to insure a correct administration of the power conferred by the will. Void devise. Harriet having married without making any such ante-nuptial settlement, as provided for in the will, the condition. This was an action in form for the which required it failed to operate, and construction of the will of C., brought by therefore the provision which disposed plaintiffs, his heirs at law and next of of the estate until such settlement should kin, who, in fact, sought to overthrow be made came into complete operation. the will, and establish their rights to The argument that the conditions sub- share in his estate as in case of intessequent failed as impossible of perform- tacy; they also asked for an accounting, ance, is fairly met by the reply that both claiming that the attempted testamen |