general culture.

From his learning, patience, candor, and experience, we shall look for good judicial results. Again we have reason to praise Governor Cornell's judicial appointments.

In spite of the Buffalo newspaper that thinks lawyers are having too many honors, here is a lawyer nominated for speaker of the Assembly. Mr. Charles E. Patterson, of Troy, who is serving his first term in the Legislature, and who last winter advanced to a leading post, is of middle age, a lawyer of exceptionally fine abilities and acquirements, of unimpeachable character, and of honest and independent judgment and action. From old and somewhat intimate acquaintance we can commend his advancement as eminently fit in every point of view. His rapid rise in the profession, and in statesmanship, has verified the opinion which many years ago we formed of his deserts and prospects.

The Times in its favorite role of reformer is frequently ill-informed and reckless. It seems to have made a grave mistake in respect to Mr. Justice Hunt; it has made another in respect to Justice Westbrook. Two libels on judges in one week are too many even for the Times. Nobody will find much fault with the Times for any thing it has a mind to say of Gould, Sage and Field, or other railroad wreckers and stock gamblers. Whether it is right or wrong in the present instance does not much concern us so far as these men are concerned. But when it is asserted that the recent elevated railroad transfer in the city of New York was the result of a corrupt scheme and combination, to which Justice Westbrook and Attorney-General Ward were active parties, it behooves the Times to be sure it is right before it goes ahead. Of course, it strikes the professional mind with surprise that if the proceedings complained of were corrupt and oppressive, nobody should have appealed. Judge Grover said the alternative was to appeal or go down to the tavern and swear at the court. The Times chooses the latter. But why, asks the Times, did Attorney-General Ward, after instituting proceedings in the city of New York, remove the base of operations to Ulster county, before Justice Westbrook? Well, we suppose, for the reasons that have often actuated similar action in public cases the natural reluctance of the city judges to be mixed up in city affairs, the natural preference of city suitors to have a judge from an outside district, the convenient proximity of Justice Westbrook, and the habit of resorting to him in such exigencies. Nothing queer about that. Now what wrong has Justice Westbrook done? None that the Times can lay its finger on. To be sure it alleges that he held court in Jay Gould's office, but this was a silly and totally unfounded statement. Nobody ever took Justice Westbrook for a fool or a reckless defier of public decency, and nobody who knows him believed for a moment such a statement as that. So much for the outside appearances. As to the merits, nobody but the Times has found any fault with the pro

In

ceedings. All parties were represented at every stage by the best legal talent in the city of New York. Nobody appeals, but the Times goes down to the tavern and swears at the court. In addition, the same questions have come before Judge Blatchford and the First Department General Term, and have been decided in just the same way. Are these judges all corrupt? We have not space or time to present a formal review of the proceedings. deed, this has been fully done by the daily press. We have hastily given our impressions from a somewhat careful reading of the proceedings. We believe the Times has made a serious mistake, and that it owes Attorney-General Ward and Justice Westbrook an explicit apology. Will it make it? Of course not. That is no part of the business of newspaper "reformers." On the contrary, the Times continues blowing its own horn to the same false note down to date. We have read in the Times who owns the Tribune, and who owns the World; now the question is, who owns the Times?

NOTES OF CASES.

N Landers v. Watertown Fire Insurance Co., New

Co. Oct. 18, 1991, is

It was

that a condition avoiding a fire policy in case of subsequent insurance not notified to and indorsed by the first insurer, is broken by a subsequent insurance, voidable for breach of a condition subsequent, not so disclosed and indorsed. The court said: "The prior policy was valid when issued, but was avoidable by the company issuing it for breach of condition subsequent. But the company had not elected to avoid it for that reason. not certain that it would have so elected if the facts had been known to it. In some cases it might be very inequitable for a company to take advantage of the breach of a condition as to vacancy or increase of risk to avoid a policy originally valid, although the legal right so to do might be unquestionable. It certainly would be competent for a company to waive such an objection. The first policy was voidable only at the election of the company. The condition was inserted for its benefit, but its violation did not ipso facto extinguish the policy. The condition in the defendant's policy was inserted to protect it from the hazard of over insurance, and it properly required that its consent should be obtained to the existence of other insurance on the same property. No question arises in this case as to the rule in case the prior policy had been void in its inception by non-performance by the insured of a condition precedent." This ruling is sustained by Carpenter v. Providence Insurance Co.. 16 Pet. 495; Bigler v. N. Y. Cent. Ins. Co., 22 N. Y. 402; Jacobs v. Eq. Ins. Co., 19 Up. Can. 250, Allen v. Merchants' Mutual Ins. Co., 30 La. Ann. 1386; S. C., 31 Am. Rep. 243. But it is opposed to the great weight of authority. See Firemen's Fire Ins. Co. v. Holt, 35 Ohio St. 189; S. C., 35 Am. Rep. 601; Stacey v. Franklin Ins. Co., 2 W. & S. 506; Jackson v. Mass. Mut. Ins. Co., 23 Pick. 418; Thomas

tion is, that, by a fiction of the law, the plaintiff in the latter represents the public, and that to this extent the two suits are considered as between the same parties, and that the fine in the one should decrease the amount of the judgment in the other -a fiction which, as above shown, may work a great hardship on the plaintiff. This testimony is admitted solely for the benefit of the defendant, not the public, and it is not perceived on principle, if such evidence can be admitted in mitigation, why it should not also be admitted in bar; or why it would not logically follow, that if the defendant had been acquitted instead of having been convicted, he could not plead this former acquittal in bar; or as the rights of the parties should be mutual, why, if the civil suit had been first tried and judgment rendered against the defendant, this should not be a mitigation or bar to the criminal prosecution. That such should be the rule in mitigation, if not in bar, in those tribunals where. the injured party, as private prosecutor, receives part of the fine, would seem proper; but to permit it in this State, where the fine is paid to the government and not to the prosecutor, would in may cases virtually supersede the criminal law. Thus considered, the testimony of the former conviction and fine would not have been admissible. Hoadley v. Watson, 45 Vt. 289 (1873); S. C., 12 Am. Rep. 197; Reed v. Kelly, 4 Bibb, 400; Wheatly v. Thorn, 23 Miss. 62; Phillip v. Kelly, 29 Ala. 628; Cook v. Ellis, 6 Hill, 466; Field on Dam., §§ 73-8; § 91, and authorites cited in notes; Fuy v. Parker, 53 N. H. 342; S. C., 16 Am. Rep. 270. Whatever may be my individual opinion, however, I feel constrained, from a long and uniform course of decisions on this subject in this State, and for this reason only, to concur with the other members of the court in the opinion that the court below did not err in overruling the demurrer and admitting the evidence." Moore, C. J., dissented. In Houston and Tex. Cent. R. Co. v. Shirley, 54 Tex. 125, the same court held that exemplary damages are not proper in an action for breach of any contract except of marriage. The reporter says in his syllabus: "Opinions of an elementary writer (Field on Dam. 57), on this subject referred to in the opinion on motion for rehearing, and disapproved." This seems an error. The language of the court is: "With due respect for the elementary authors cited, we are unwilling to follow them in this matter. One of them has declared the allowance of exemplary damages to be a 'departure from the true principles of the law of damages, and of public policy.' Field on Damages, p. 28, note. As we agree with him in this opinion, we are not prepared to go beyond the authorities, and to lead the way in allowing such damages for breaches of contract."

In Union Mutual Life Insurance Company, 36 Ohio St. 596, it is said: "An occasional excess in the use of intoxicating liquor does not, it is true, constitute a habit, or make a man intemperate, within the meaning of this policy; but if the habit has been formed and is indulged in, of drinking to excess and becoming intoxicated, whether daily and continuously, or periodically, with sober intervals of greater or less length, the person addicted to such a habit cannot be said to be of intemperate habits, within the meaning of this policy." "The habit of using intoxicating liquors to excess is the result of indulging a natural or acquired appetite, by continual use, until it becomes a customary practice. This habit may manifest itself in practice by daily or periodical intoxication or drunkenness." "Where the general habits of a man are either abstemious or temperate, an occasional indulgence to excess does not make him a man of intemperate habits. But if the habit is formed of drinking to excess, and the appetite for liquor is indulged to intoxication, either constantly or periodically, no one will claim that his habits are temperate, though he may be duly sober for longer or shorter periods in the intervals between the times of his debauches."

In Hutton v. Waterloo Life Insurance Co., 1 F. & F. 735, there was a warranty of sober and temperate habits, but it was shown that the insured had had delirium tremens the same year the policy was issued, and the year before. Held to justify a finding of breach.

In Mowry v. Home Life Insurance Co., 9 R. I. 346, it was held "that an occasional use was to be deemed intemperance, but that he must indulge in them to such an extent as would be considered an excess."

In Mutual Benefit Life Insurance Co. v. Holterhoff, 2 Cin. 379, it was said: "Those who used intoxicating liquors at all within the purview of such insurance policies, may be divided into three classes. The first drink sometimes, and upon occasions, as it were more by accident than otherwise, even to intoxication, but in so exceptional a manner that no one can say that they have any habit in regard to such use. They can stop at any time, even take the glass from their lips in the midst of the banquet, and whether such drinking injures the health of those who do it or not, no one can tell with certainty -some think it does, others not. It is obvious that this class would not be embraced in the terms of such a policy as that in this case.

A second class acquire a constant appetite for the use of intoxicating liquors, and a regular habit of using them, so that the whole system is kept under the immediate influence of alcoholic stimulants. They are known as constant, habitual drunkards. This class would be within the prohibition of this policy.

"A third class acquire a constitutionally nervous appetite for alcoholic liquors. It really amounts to a disease. A case is easily recognized by all who are well acquainted with the person. Such persons may remain sober for a month, three or six months, or even a year at a time, and refuse to taste any in

toxicating drinks (they must refuse if they would | not get drunk), and then go upon what is called a 'spree' of great intensity and lasting for a longer or shorter period, usually until prostration and sickness, and often delirium, compel a cessation and terminate the 'spree.' When beginning or in the midst of such periodical debauch, no earthly considerations or persuasions can arrest the course of the subject or induce him to stop drinking. In this he is strikingly different from the first class above named who use intoxicating liquors. And there are two varieties of 'spreers.' The one is boisterous, is зeen everywhere, and seeks out and talks to everybody. The other is conscious of his self-degradation and disgrace, and hides himself from observation from his home or room so as not to be seen and not to have his habit and condition known. And few except his family, intimates or neighbors, may know or suspect him. I have not mentioned a class of persons who use intoxicating liquors prescribed as medicines, or who use them at meals as part of their food, without any observable mental or physical effects. They do not come within the purview of legal consideration in connection with life insurance. The classes within such policies are not those whose wills completely regulate and control their use of intoxicating liquors, but those in whom the use and habit daily or periodically control and master the will-where desire and appetite contend with and master the wish and judgment to refrain."

In Van Valkenburgh v. American Popular Life Insurance Co., 70 N. Y. 605, it was held that the question, did the insured "use any intoxicating liquors or substances?" does "not direct the mind to a single or incidental use, but to a customary or habitual use."

In Rockaway v. Mutual Benefit Life Insurance Co., United States Circuit Court, Western District of Pennsylvania, the court thus instructed the jury as to the meaning of "sober and temperate": "The words 'sober and temperate' are to be taken in their ordinary sense. The language does not imply total abstinence from intoxicating liquors. The moderate, temperate use of intoxicating liquors is consistent with sobriety. But if a man use spirituous liquors to such an extent as to produce frequent intoxication, he is not sober and temperate within the meaning of this contract of insurance."

The expression "intemperate habits" has also received construction in criminal cases. Thus, in Tatum v. State, 63 Ala. 147, under a statute forbidding the sale of ardent spirits to persons of such habits, it is said: "Habit is defined to be 'fixed or established custom, ordinary course of conduct.' Webst. Dict. It need not be the uniform or unvarying rule, but to be a habit it must be the ordinary course of conduct the general rule or custom. It may have exceptions. Exceptions do not destroy a rule. But unless when occasion offers there is a disposition or probable inclination to drink to excess, intemperate habits cannot be predicated. If sobriety is the rule, and occasional intoxication the exception, then the case is not

brought within the statute. On the other hand, if the rule is to drink to intoxication when occasion offers, and sobriety or abstinence is the exception, then the charge of intemperate habits is established. Now to make out this charge it is not necessary that this custom shall be an every-day rule." There are persons whose custom it is to remain sober while at home, and who, when in company, or visiting the town or village, generally drink to excess, although occasionally they abstain and remain sober. In such case, drunkenness is shown to be the rule or ordinary course of conduct." The court held that getting drunk two or three times a year was not an "intemperate habit."

Similar terms have been construed in divorce cases. Thus, in Mahone v. Mahone, 19 Cal. 627, the jury were instructed that to constitute an “habitual drunkard," the intoxication must be such as to "completely disqualify the party from attending to his business avocations." This instruction was disapproved on review, and the court said: "If there is a fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance." This definition was criticised in Wheeler v. Wheeler, 53 Iowa, 511, the court observing: "This definition was sufficient for the case in hand, but we do not understand it to have been held that nothing short of the standard fixed in that case would be. It is not regarded as necessary affirmatively to define what constitutes habitual drunkenness.' We are not prepared to say however if a person has a fixed habit of drinking intoxicating liquors to excess, is frequently drunk, and that such is his normal condition during the night and in hours not devoted to business, that his wife would not be entitled to a divorce."

USURY TAKEN BY NATIONAL BANKS.

UNITED STATES SUPREME COURT, DECEMBER 12, 1881.

NATIONAL BANK OF GLOVERSVILLE V. JOHNSON.

A person who procures the discount by a National bank of promissory notes of others, held by him, he indorsing the same, at an unlawful rate of interest, may maintain an action to recover back from the bank twice the amount of such interest, under the provisions of the United States Revised Statutes, section 5198, giving the right to such an action, and this notwithstanding the transaction would not, under the law of the State where the bank is located, be usurious if between private persons.

N error to the Supreme Court of the State of New York. The action was brought by James H. Johnson to recover penalties for the taking of excessive interest. The opinion states the case.

MATTHEWS, J. The original action was brought in the Supreme Court of the State of New York by the defendant in error to recover of the plaintiff in error, a National bank, penalties alleged to have been incurred by it under sections 5197 and 5198 of the Revised Statutes of the United States. These sections are as follows:

"SEC. 5197. Any association may take, receive, reserve and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of

debt, interest at the rate allowed by the laws of the State, Territory or district where the bank is located, and no more, except that where by the laws of any State a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this title. When no rate is fixed by the laws of the State or Territory or district, the bank may take, receive, reserve or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill or other evidence of debt has to run. And the purchase, discount or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight-drafts, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest.

"SEC. 5198. The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed 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. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred. That suits, actions and proceedings against any association under this title may be had in any Circuit, District or Territorial court of the United States, held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases."

The facts as stated in the record are undisputed. The defendant below, a National banking association, doing business at Gloversville, in the State of New York, from November 10, 1874, to February 7, 1876, discounted for the plaintiff commercial paper and promissory notes amounting to $158,003. All such discounts were made at a uniform rate of interest, being twelve per cent per annum. The whole amount of interest paid thereon by the plaintiff below was $6,564.88, being an excess beyond the rate allowed by the general laws of the State of $2,735.36. This interest was knowingly charged and received by the bank. The most of the paper discounted was business paper, that is, negotiable promissory notes, held and owned by the plaintiff below, and on which he could have maintained actions against the prior parties. A small portion was accommodation paper, but not known by the bank to be such, and there was nothing upon its face to indicate that to be its character. All the paper discounted was paid to the bank at maturity or before the present action was brought. At the times when the notes were discounted they were indorsed by the plaintiff below, and the proceeds of the notes discounted were entered to his credit in his bank account.

Upon these facts judgment was rendered against the defendant below for $5,470.72, twice the amount of the interest in excess of seven per cent per annum, to reverse which this writ of error is prosecuted.

It is contended on behalf of the plaintiff in error that the sections of the Revised Statutes in question were intended only to prevent National banks from violating the usury laws of the State in which they were severally organized and established; and that while by the law of New York it is usurious to loan or advance money to a party upon his own paper, or upon paper made for his accommodation, at a greater rate of interest or discount than seven per cent per annum, yet it is not usurious or illegal in that State for

natural persons to acquire business paper, that is, paper valid in the hands of the holder, so that he might maintain an action thereon against the prior parties, at any rate of discount agreed upon between the parties to the negotiation, without limit in excess of seven per cent per annum.

It is assigned for error that the Court of Appeals negatived this proposition.

The rate of interest upon the loan or forbearance of money, established and in force by the laws of New York, is seven per cent per annum. Part II, ch. 4, tit. III, 3 R. S. N. Y. 72, § 1.

By section 5 of the same act it is provided that all bonds, bills, notes, assurances, conveyances, all other contracts or securities whatever (except bottomry and respondentia bonds and contracts), etc., whereupon or whereby there shall be reserved or taken or secured, or agreed to be reserved or taken, any greater sum or greater value for the loan or forbearance of money, etc., than is above prescribed, shall be void.

It is and long has been the law in New York, as decided in Cram v. Hendricks, 7 Wend. 569, that "the transfer by the payee of a valid available note, upon which when due he might have maintained an action against the maker, and which he parts with at a discount beyond the legal rate of interest, is not a usurious transaction, although the payee on such transfer indorses the note; and on non-payment by the maker, the indorsee may maintain an action against the indorser; but the sum which the indorsee in such case is entitled to recover of the indorser is the amount of the advance made by him, together with the interest thereon at the legal rate; while in an action against the maker, the indorsee is entitled to the whole amount of the note."

This proceeds upon the idea that the original note is founded upon a valid consideration, free from usury in its inception; and that the indorsement and delivery contain two contracts; one executed, which transferred the title, as upon a sale, as if indorsed without recourse; the other executory, upon which the indorser is liable to the indorsee, to pay upon the default of the maker, after demand and due notice thereof; although in the latter case it will be observed the recovery is limited by the New York decisions to the actual consideration paid, with lawful interest thereon.

The transaction is treated as a sale of the note, and no limits are fixed by law upon the price of the article sold; but so far as the liability of the vendor is coucerned, in order to avoid the consequences of treating the advance money, which constituted the consideration, as a loan, it is limited to a return thereof, with lawful interest.

The question we have now to determine is whether, in transactions of this description, in which a National banking association is the transferee, the same view can be taken of the relations and rights of the parties, in the present case the Court of Appeals having decided that the same rule does not apply. 74 N. Y. 329. The very point had been previously raised and decided by that court in Nash v. White's Bank of Buffalo, 68 N. Y. 396, which was an action to recover penalties under the State law of 1870, in reference to banking institutions, for discounting paper at a greater rate of interest than seven per cent per annum. The provisions of that act, being chapter 163, Laws of New York of 1870, correspond almost exactly with those of sections 5197, 5198 of Revised Statutes of the United States, now under consideration, it being the declared intent of the statute to place the banking associations of the State on an equality, in the particulars specified, with National banks under the sections referred to. It was held that the fact that the paper discounted was business paper, purchased by the defendant, did not constitute a defense, for the question was not whether it was an illegal transaction under the general statutes