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Bridgeport Fire and Marine Ins. Co. agt. Wilson.

idea of costs being allowed to one or more of several defendants defending separately.

Section 306 does provide for such a case, when some of the defendants, who make separate defences, succeed, and others fail. The court in such cases is allowed to give costs to such of the defendants as have judgment in their favor.

It is an argument of no little weight, that when the Code has expressly authorized a separate award of costs to successful defendants, not united in interest, it would seem to exclude a similar power when they are so united.

Yet we cannot conceive that the legislature meant to deprive a defendant, though united in interest, of the privilege of defending at the expense of the plaintiff, by an attorney of his own selection. By the rules of pleading formerly, they could all have united in the plea, but if they severed, they did not commit the fault of duplicity in pleading. (Chitty on Pleading, 1, 566.)

In Corbett agt. Ward, (3 Bos. Rep., 632,) there was an action against two defendants for the recovery of money for services alleged to have been rendered to them, and on their promise to pay therefor. A referee decided that the plaintiff could have judgment against one, but not against the other; and a judgment was entered against one, and the action dismissed as to the other. It was held that the costs of the successful defendant could be allowed. Decker agt. Gardiner (4 Selden's R., 29) was referred to, in which the defendants had put in a single answer, in which each defendant stated separately and not jointly, the matters of defence on which he relied. The jury found a verdict against one which carried costs, and a verdict for the other. The court of appeals decided that the defendant was entitled to costs as of course, under $305. That, it was true, was an action in tort, and this is an action on contract. But in our view of the meaning of $ 305 this difference is unimportant.

Bowers agt. Tallmadge.

The true construction of $ 305 is then to give to each of several defendants who succeeds, his costs, and, at least presumptively, he is entitled to them, whether he has united in a common or separate defence by a different attorney. The general power of the court may, however, be sufficient to control the subject, when it appears that there has been a separation for the mere purpose of increasing the costs and oppressing the plaintiff.

In the court of chancery such power was exercised by the 30th rule of 1830. (See also Wendell agt. Lewis, 8 Paige Rep., 618; and Gaunt agt. Taylor, 2 Beavan Rep., 346.)

No case like that being made out by the plaintiff, the order appealed from must be affirmed, with costs.

COURT OF APPEALS.

Bowers, respondent agt. TALLMADGE, appellant.

Where the return to an appeal served on the respondent is imperfect, his remedy

must be sought by a special motion to the court. Rule 7, which allows the entry of a common order dismissing the appeal, applies only to cases where there is an entire omission to serve a copy of the return within proper time.

December Term, 1860.
Motion to set aside an ex parte order dismissing an appeal.

The appeal was taken April 12, 1860. Printed copies of the case were served upon the respondent's attorney May 18, 1860. On the 28th May, 1860, the respondent's attor. ney served the notice under rule 7, requiring service of a copy of the return. The defect in the return before served was the omission of copies of the opinions delivered in the court below at the special and general terms. The appellant's attorney having an allowance of additional time to serve the case, thereupon procured and served copies of the opinions, but the respondent's attorney conceiving that

United States agt. Propeller Echo.

the case could not be served in fragments, after the expiration of the time limited by the rule, entered an ex parte order, dismissing the appeal. The respondent now moves to set aside the order.

RICHARD GOODMAN, for the motion.
AMASA J. PARKER, opposed.

The court granted the motion, stating that the practice was well settled, that where an imperfect case has been served, and the respondent desires that it should be amended, he must apply to the court by motion upon notice; and that he was at liberty to dismiss the appeal by ex parte order, under rule 7, only where there was a total failure to serve any case within the time required.

UNITED STATES CIRCUIT COURT.

THE UNITED STATES OF AMERICA agt. THE PROPELLER ECHO

and others; C. E. Gager, claimant.

A propeller, wbich is usually employed as a tug-boat in and about a harbor, violates

the act of Congress of July 7, 1830, by exclusively carrying passengers for hire to any given place for a single trip, without a license obtained under and in pursuance of said act. By an exception contained in the act of Congress of August 30, 1852, such a boat is authorized to carry passengers without such license, whilo it is employed in its legitimale business of towing, &c.; but not where it leaves that business for the purpose of transporting passengers.

Northern District of New York, September, 1860.

Nelson, C. J. This is an appeal from a decree of the district court, adjudging against the propeller a penalty of $500 for a violation of the act of Congress of July 7, 1830, and of the act 30th August, 1852.

It appears from the proofs that the propeller was usually employed as a tug-boat in and about the harbor of Buffalo,

United States agt. Propeller Echo.

but that on the 11th of June, 1857, she transported some one hundred passengers from Buffalo to Point Albino, Canada, on lake Erie, and back again, a distance of twelve or fifteen miles each way, and took pay for the same.

By $ 2 of the act of 1830 it is provided that it shall not be lawful, &c., for the owner, master, or captain of any vessel, &c., to transport any goods or passengers upon bays, lakes, &c., of the United States, without first having obtained from the proper officers a license under existing laws, and without having complied with the conditions of the act. Section forty-two of the act of 1852 exempts steamers used as ferry boats, tug boats, or towing boats.

It is insisted on the part of the defence, that the propeller, in the present case, comes within the exception in the above section, inasmuch as she is usually employed in the business of towing. But the plain answer to the objection is, that the exception does not apply to steamers usually engaged in ferrying or towing, but steamers while thus engaged, or engaged in that business. If they leave that business and engage in transporting passengers, even for a single trip, while thus engaged, they are out of the exception, not only in words, but in the spirit, intent and mischief of the act, and are within the conditions and penalties therein described.

The question is not whether the steamer has been usually employed in the towing business, but what was her employment and service at the time complained of. If transportation of passengers, then she is responsible for a full compliance, with all the conditions required of vessels in that service, whatever may have been, or whatever may subsequently be, her employment. Any construction of the acts short of this would but open the way to any evasion of their requirements.

Decree affirmed.

North agt. Sargent.

SUPREME COURT.

EDWARD North agt. ROBERT SARGENT and others.

Where a broker loans money on a promissory note, as the agent of another, and

charges and receives a commission for the loan, without the knowledge or parti

cipation of the lender, the transaction is not usurious. Where Sayre testified that he loaded the money to Hardenburgh, took the note and

gave it to Hayward, from whom he (Sayre) got the money, and that Hayward. rcccived a share of the money paid to him, held, that this evidence did not warrant the jury in finding the note usurious. New trial ordered. (Seems to be a pretty close case.)

New York General Term, April, 1861.
CLERKE, SUTHERLAND and INGRAHAM, Justices.
Motion for a new trial.

By the court, INGRAHAM, Justice. The defence set up by the defendants in this case to the note on which the action was brought was usury.

That usury was alleged to be the payment of more than seven per cent to one Hardenburgh for originally obtaining the loan, and at subsequent times for the renewal of it.

Whether such payments were usurious or not, depended on the character in which Hardenburgh was acting. If the original loan was for himself, then the taking of more than seven per cent interest would affect the security with usury, and make it void in the hands of any subsequent holders. But if he was acting as a broker, and the commission was charged by himself without the knowledge or participation of the lender, then it would not be a usurious transaction. This has been lately held by the court of appeals in Condit agt. Baldwin, at a late term.

The testimony of Hardenburgh is positive on this point, and if it is credited, then it is very clear that he was only an agent, and what he received in no way passed to the lender Hayward, nor was it to be considered as constituting usurious intent.

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