cretion so to do. They do not show that it is always discreet and proper and conducive to justice to exercise the power. In Atkinson v. Bayntun the facts. were thought to be peculiar. In Patten v. Harris, 10 Wend. 623, at the time when a demurrer was adjudged frivolous, permission was given to make a special application for leave to plead. Even then the Special Term with great reluctance consented to give leave. Matters of practice, while in the first instance, in the absence of statute, they are in the discretion of the court, come after a while to be governed absolutely by the custom of the courts, and what is found in any case to have been held by authoritative decisions to be the custom of the courts becomes thus the way in which discretion must go. It is a general principle in the exercise of discretion for or against the withdrawal of a demurrer with leave to plead to the merits, that it is not to be done when there has been judgment upon the demurrer overruling it without leave to answer or with leave to answer not availed of by the demurrant. See Saxby v. Kirker, Sayer, 11; Seaman v. Haskins, 2 Johns. Cas. 284; Hildreth v. Harvey, 3 id. 301; Furman v. Haskin, 2 Cai. 369; Currie v. Henry, 3 Johns. 140. As to exception see Miller v. Heath, 7 Cow. 101. Order affirmed. Fisher v. Gould, appellant. Opinion by Folger, C. J.

[Decided June 1, 1880.]

OF

USURY -ACCOMMODATION PAPER FINDING REFEREE ON CONFLICTING EVIDENCE CERTIFICATE BY MAKER OF NO DEFENSE EVIDENCE OF INTENT -CONSIDERATION-EXCHANGE OF OBLIGATIONS. In an action upon a promissory note the defense of usury was set up. Defendaut claimed that the note was made by him for the accommodation of F., and was by F. transferred to plaintiff for the usurious cousideration, and F. gave testimony tending to establish these facts. Plaintiff introduced a written statement made by defendant, setting forth that the note was business paper, and that there was no defense to the same in law or in equity. Held, a sufficient conflict in evidence to forbid this court interfering with the finding of the referee that the note was a business note, especially where he was not asked to find otherwise. Prima facie the note was given for value by defendant and the burden was on him to prove the congenital defect alleged. (2) The note in question was with other notes presented to plaintiffs to discount and he discounted the lot at a discount of more than the legal rate of interest. Held, that prima facie the price paid was in part for each one of the notes in such ratio to the whole price paid as the apparent value of each note bore to the apparent value of the whole, and if such proportionate price should bring the transaction within the provisions of the usury law the note would prima facie be void. But this presumption is capable of being rebutted by evidence that the paper presented was that of different persons of varying credit. (3) In this case the note, when offered for discount, was accompanied by a certificate of defendant that it was business paper and free from defenses. Held, that permitting plaintiff to testify to his belief in the truth of the certificate, and that he had no purpose or intent to use it to evade the statute of usury, was not error. While the reception of this kind of evidence is not to be encouraged, parties have been permitted to speak as to their mental operations in the doing of an act that is called in question where the intent with which it is done serves to characterize it. McKown v. Hunter, 30 N. Y. 625; Thurston v. Cornell, 38 id. 281; Bedell v. Chase, 34 id. 386. See, also, Dillon v. Anderson, 43 N. Y. 231; Fiedler v. Darrin, 50 id. 437. (4) A chattel mortgage from F. to defendant, if shown to be given to secure defendant against loss by reason of the making of the note, held, admissible, the mortgage constituting a consideration for the note and giving it

inception at the time defendant transferred it to F See Dowe v. Schutt, 2 Den. 621; Cameron v. Chappell, 24 Wend. 94. Judgment affirmed. Bayliss v. Cockroft et al., appellants. Opinion by Folger, C. J. [Decided June 8, 1880.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

EXECUTOR-ADMISSION OF ASSETS

IN PLEA CON

CLUDES ESTOPPEL- PRACTICE. — Appellees filed a bill for themselves and other creditors against an executor and devisees, praying for an account of testator's personal estate, setting forth that he held testator's note for $12,000, which was due and unpaid; that testator's personal estate was insufficient to pay his debts in full; that the executor had paid some debts in full and left others unpaid; that testator left real estate, etc. The defendants, in their plea, set forth that the executor had in his hands assets sufficient to satisfy complainants' and all other claims known against testator's estate, when proved in a tribunal of competent jurisdiction, according to law, but that the executor disputes the said claim and denies the justice thereof; that the claimant has not sought to enforce the claim against executor and the assets by proper proceedings at law. Wherefore defendants plead the premises in bar and pray that complainants be required to enforce their claim by proper proceedings at law, etc. To this plea complainants filed a replication and proved their claim, and that by the accounts filed by the executor he claimed credit for moneys paid, etc., $27,014.75, and charged himself with assets, $31,794.62, showing a balance in his hands of $4,729.87. Held, that the complainants were entitled to a decree for the amount of their debt. Having put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer; although, if the complainant desires a discovery which the plea sought to avoid, he may undoubtedly insist upon it. But that is the complainants' right, not the defendants'. Lord Hardwicke said: "All pleas must suggest a fact; it must

go to a hearing; and if the party does not prove that fact which is necessary to support the plea, the plaintiff is not to lose the benefit of his discovery, but the court may direct an examination on interrogatories in order to supply that." Brownsword v. Edwards, 2 Ves. 247. This statement is adopted by Lord Redesdale and by Mr. Beames and all subsequent writers on equity pleading. Mitford's Pleadings (4th ed.), 302; Beames on Pleas in Equity, 318; Story's Eq. Plead., §697. If the plea is found to be false it would seem to be just and equitable that the case should stand as if the defendant had admitted the allegations of the plaintiff. Sir Thomas Plumer states the matter thus: "Supposing a plea to be correct in form, but proved false, it seems to be conceived that the course of the hearing is to take it up just as if there was no answer. That is not correct. Upon a plea, found false, the plaintiff is entitled to a decree; and if a discovery is wanted, the defendant is ordered to be examined upon interrogatories." Wood v. Strickland, 2 Ves. & Beam. 158. Chancellor Walworth, in a case before him, where the defendant produced no evidence to establish the truth of his plea, said: "Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true the bill must be dismissed. But if the plea is untrue the complainant will be entitled to a decree against the defendant in the same manner as if the several matters charged in

the bill had been confessed or admitted. If a discovery is necessary to enable the complainant to obtain the relief sought for by his bill, the defendant cannot evade answering by putting in a plea which turns out to be false. In such a case, after the plea is overruled as false, the complainant may have an order that the defendant be examined on interrogatories before a master as to the several matters in relation to which a discovery was sought by the bill." Dows v. McMichael, 2 Paige, 345. In the present case, the complainants did not see fit to insist on a further discovery. Being entitled to a decree pro confesso as to the principal charges of their bill, and the executor having admitted sufficient assets to pay the debts of the estate they were content to take a decree against him for the amount of the debt. The executor's admission, as we have before said, was a good ground for charging him with the liability, though he could not urge it as evidence in support of his plea. And as an admission of assets renders the executor personally liable, a decree against him was proper. The usual decree on a creditor's bill is for an account, but as said by ViceChancellor Wigram in a similar case, "the reason for and the principle of the usual form of decree have no application where assets are admitted, for the executor thereby makes himself liable to the payment of the debt. In such a case, the other creditors cannot be prejudiced by a decree for the payment of the plaintiff's debt; and the object of the special form of the decree in a creditor's suit fails. *k * I am satisfied that in this case there ought to be a decree for immediate payment." Wingate v. Field, 2 Hare, 211, 212; Story's Eq. Jur., § 548a. Decree of Dist. Columbia Sup. Ct. affirmed. Kennedy, appellant, v. Crasswell et al. Opinion by Bradley, J.

TRUST-NAKED POWER TO SELL OR MAKE EXCHANGE IMPLIES POWER TO MAKE PARTITION. - By the provisions of certain instruments relating to specified real estate, a trustee named therein was in one case given power to sell and exchange, superintend, possess, manage and control for the benefit of all concerned; in the other, full power to dispose of all or any portion and invest the proceeds in any manner he might think proper for the benefit of those holding the beneficiary interest. Held, that under either power the trustee had authority to make partition. The question whether a naked power to sell or exchange implies a power to make partition is discussed by Sir Edward Sugden in his work on Powers. He says: "It is clear that a power to make partition of an estate will not authorize a sale or exchange of it; but it has frequently been a question amongst conveyancers whether the usual power of sale and exchange does not authorize a partition, and several partitions have been made by force of such powers, under the direction of men of eminence. This point underwent considerable discussion on the title which afterward led to the case of Abel v. Heathcote, 4 Bro. C. C. 278; 2 Ves. Jr. 98. Mr. Fearne thought the power did authorize a partition, on the ground that a partition was in effect an exchange." Sugden adds, that the lords commissioners, Eyre, Ashurst and Wilson, before whom the case was first heard, all thought that the power was to receive a liberal construction, as its object was to meliorate the estate. Eyre thought, that upon the word "sell," the trustees should have a power of making partition, because it was in effect to take quite a new estate. Ashurst and Wilson thought, that whatever power might be derived from the word "sell," the other words of the power, "convey for an equivalent" (which were also used), were sufficient. But they made no decision. Upon the cause coming before Lord Rosslyn, he determined that the power was well executed, and founded his opinion upon its being in effect an exchange, as the consequences and effects of

a partition and exchange, as to the interests of the parties, are precisely the same. Sir Edward then notices the decision of Lord Eldon in the case of McQueen v. Farquhar, 11 Ves. 457, that a power to sell simply does not authorize a partition. He then adds: "Until the question shall receive further decision, it can scarcely be considered clear that a power to exchange will authorize a partition; " but he proceeds to show that the decision in Abel v. Heathcote must have been based on the power to exchange, and not on any additional words. After referring to the case of Atty.Gen. v. Hamilton, 1 Madd. 214, which was not decisive of the point, Sugden closes his discussion by saying: "But as Lord Rosslyn has observed, this objection may be obviated where there is a power of sale. The undivided part of the estate may be sold, the trustees may receive the money and then lay it out in the purchase of the divided part, and although the sale is merely fictitious in order to effect the partition, it should seem that the transaction cannot be impeached." 2 Sugden on Powers, 479-482 (7th ed.), 1845. See, also, Doe v. Spencer, 2 Exch. 752; Bradshaw v. Fane, 2 Jurist (N. S.), 247. In a recent case, however, In re Frith and Osborne, L. R., 3 Ch. Div. 618, decided in 1876, by Sir George Jessell, master of the rolls, it was distinctly adjudged, after a masterly review of all the previous authorities, that a power to sell and exchange does include the power to make partition. In delivering his judgment, the master of the rolls concludes as follows: "This is the state of the authorities. Lord St. Leonards says that it wants another decision to make it quite clear. I am willing to give the decision (supposing the doubt is not taken away by the decision of the Court of Exchequer followed by the vice-chancellor Kindersly) that the passage in the Touchstone [declaring that joint tenants, tenants in common and coparceners, cannot exchange the lands they do so hold, one with another, before they make partition] is not good law, and that you can have such an exchange, and if you can have such an exchange, why could not the power authorize the exchange of an undivided moiety in Whiteacre for another undivided moiety in Blackacre? I decide that it does. We have conflicting opinions between what the judges said in Doe v. Spencer, and what the vice-chancellor intimated his opinion to be. It is not necessary for me to decide that question. I must say, if I had to decide it, I should be inclined to follow the opinion of the vicechancellor instead of the Court of Exchequer, for if it can be done as between two, I do not see why it could not be done as between more than two, but I have not to decide that question now." Decree of U. S. Cir. Ct., S. D. Mississippi, affirmed. Phelps et al., plaintiffs in error, v. Shrader. Opinion by Bradley, J.

VIRGINIA SUPREME COURT OF APPEALS

REPORTS.*

CONSTITUTIONAL LAW-STATUTE ABOLISHING PENALTY FOR USURY AFFECTS EXISTING DEFENSES AND IS VALID.-Though the statute of usury, at the time a contract was made, declares the contract to be null and void, if at the time of the decree in the case the statute has been amended and only avoids the contract for the interest, the decree should be for the principal loaned, with interest from the date of the decree. See Town of Danville v. Pace, 25 Gratt. 1, and cases cited; and also the leading case of Curtis v. Leavitt, 15 N. Y. 229. Paige, J., there says: "The defense of usury is in the nature of a penalty or forfeiture, and may at any time be taken away by the Legislature in respect to previous as well as subsequent contracts,

*To appear in 31 Grattan's Reports.

without trenching upon any vested right. A proposition that a party can have a vested right in enforcing a penalty or forfeiture, against which it is the office of a court of equity to relieve, is a legal solecism. Statutes of usury are highly penal in their character, and the defense of usury has always been regarded as an unconscientious defense, and has never received the favor either of courts of law or equity. No penalty can be enforced after the repeal of the law imposing it, unless saved by express words in the repealing act. The repealing statute obliterates the statute repealed as completely as if it had not been passed, and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law." Selden, J., said: "Usury being a mere statutory defense, not founded upon any common-law right, either legal or equitable, it was clearly within the power of the Legislature to take it away." Mosby v. St. Louis Mutual Insurance Co. Opinion by Christian, J.

HIGHWAY-DEDICATION TO USE FOR SPECIFIED PERSONS NOT DEDICATION TO PUBLIC. C. and G. owning lots in Richmond, each bounded east by Seventeenth street, and separated by what was at one time the bed of Shockoe creek, but from which the water of the creek had been diverted, enter into a deed by which they fix the boundaries of their lots respectively, and they covenant and agree that there shall be between their lots a street thirty feet wide extending from Seventeenth street westwardly to the eastern boundary of their lots, and that said street shall be forever kept open as a highway and common for the use of the persons who may be the owners of

the lots or land bounded on either side of said street. The street thus provided for did not extend west to any street or alley. Held, looking to the whole deed and the surrounding circumstances, there was not a dedication of the street to the public generally, but only to the owners of the lots or parts of the lots spoken of in the deed; and it is not, therefore, a street over which the city authorities have control, and can authorize a railroad company to lay its track along it. Intent is the vital principle of dedication. In a case where acts and declarations are relied upon to show such intent, to be effectual, they must be unmistakable in their purpose and decisive in their character; and in every case it must be unequivocally and satisfactorily proved. Harris' case, 20 Gratt. 833; Holdane v. Trustees of Cold Spring, 21 N. Y. 474; Washburn on Easm., 133, 134; 2 Dill. on Mun. Corp., § 499. To ascertain the intent of the parties is said to be the fundamental rule in the construction of agreements (Canal Co. v. Hill, 15 Wall. 94); and in such construction courts look to the language employed, the subjectmatter and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Nash v. Towne, 5 Wall. 689, 699. See, also, Maryland v. Railroad Co., 22 id. 105; Moran v. Prather, 23 id. 492. The term "highway" is a generic name for all kinds of public ways ways common

to all the people of the State having occasion to pass over them. Holt, C. J., Queen v. Saintiff, 6 Mod. 255, 258: To constitute a highway, it must be one over which all the people of the State have a common and equal right to travel, and which they have a common, or at least a general interest to keep unobstructed. People v. Jackson, 7 Mich. 433. Here the attempted dedication was to a limited portion of the public, and

such a partial dedication is simply void and will not operate in law as a dedication to the whole public. There may be a dedication of a way to the public for a limited use, but there cannot be a dedication to a limited part of the public. Poole v. Huskinson, 11 M. & W. 827. There does not appear any dedication, partial or otherwise, intended. The language of the deed, fairly construed, manifests a purpose merely to adjust and fix with certainty the boundary between the two lots, and establish a common right of way to be annexed as a permanent easement to the lots, and not for the accommodation of the public. Talbott v. Richmond & Danville Railroad Co. Opinion by Burks, J. SALE

OF PERSONAL PROPERTY-TITLE OF INNOCENT VENDEE FROM FRAUDULENT PURCHASER GOOD

DELIVERY. Where a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to affect the contract and obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction. And the legal consequence is, that if before the disaffirmance the fraudulent vendee has transferred either the whole or a partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor. See Benjamin on Sales, § 433; Williams v. Given, 6 Gratt. 268; Wickham v. Martin, 13 id. 427; Rowley v. Bigelow, 12 Pick. 307; Hall v. Hiuks, 21 Md. 406. Upon the sale of a chattel, to be

paid for on delivery, if possession is delivered without the payment, and before the vendor claims the chattel it is sold by the vendee to an innocent purchaser and paid for, the vendor cannot recover the chattel from the innocent purchaser. But if there has not been a contract of sale, but only a transfer of possession, to become a contract of sale when payment is made, the person in possession has no title to the chattel, and can therefore convey none to an innocent purchaser, and the owner may recover the chattel. See as to subject of sales on condition: Wait v. Green, 36 N. Y. 556; Hoffman v. Noble, 6 Metc. 68; Western Transp. Co. v. Marshall, 37 Barb. 509. Old Dominion Steamship Co. v. Burckhardt. Opinion by Christian, J.

CALIFORNIA SUPREME COURT ABSTRACT.

JOINDER OF PARTIES —JUDGMENT IN JOINT ACTION FOR TORT NOT DIVISIBLE. -McCool sued Mahoney and Small jointly for malicious arrest and prosecution. The defendants answered separately. The cause was tried with a jury, and this verdict was returned: "We, the jury in the above entitled action, find for plaintiff against Mahoney $3,000, and against Small $500." Judgment was thereupon rendered that plaintiff recover from Mahoney $3,000, of Small $500, and of Mahoney and Small $282.75 costs of suit. Held, that the judgment was erroneous. The action being for a wrong in which both defendants joined, the damages could not be severed. Beal v. Finch, 11 N. Y. 128; Halsey v. Woodruf, 9 Pick. 555; O'Shea v. Kirker, 8 Abb. Pr. 69; Bohun v. Taylor, 6 Cow. 313; Minor v. Mechanics' Bank, 1 Peters, 74; Layman v. Hendrix, 1 Ala. 212; Hardy v. Thomas, 23 Miss. 544; Riley v. McGee, 1 A. K. Marsh, 432; Salmons v. Smith, 1 Saund. 207, note 23. McCool v. Mahoney. Opinion by Ross, J. [Decided April 6, 1880.]

company do not make and maintain such fence, if their engine or cars shall kill, maim or destroy any cattle or other domestic auimals, when they stray upon their line of road where it passes through or alongside of the property of the owners thereof, they shall pay to the owner or owners of such cattle or other domestic animals a fair market price for the same, unless the owner or owners of the animals so killed, maimed or destroyed shall be negligent or at fault." Held, that a company owning a railroad is not exempted from liability for the destruction of cattle by the fact that its road is leased. A strictly literal interpretation of the statute might exempt both the lessor and the lessee from liability, as the statute does not in terms provide for a case in which one company owns and another operates a railroad. The duty, however, of fencing devolves upon the company owning the road; and if it leases the road in an unfenced condition to be operated by another company, it is liable within the spirit, if not within the letter, of the law to the same extent as it would be if its instead of its lessee's engine and cars had run over the plaintiff's cattle. As was said in Tracy v. Troy & Boston R. Co., 38 N. Y. 437, in reference to a similar statute: "The passage of this act being induced by public considerations, and its purpose being to protect the travelling public and the owners of domestic animals along tho line of their road, it should receive a liberal construction to effectuate the benign purpose of its framers. A rigid and literal reading would in many cases defeat the very object of the statute, and would exemplify the maxim that the letter killeth, while the spirit keepeth alive.' Every statute ought to be expounded, not according to the letter, but according to the meaning. Qui hæret in litera hæret in cortice. Dwar. on Stat. 695. And the intention is to govern, although such construction may not in all respects agree with the letter of the statute. Plowd. 205. The reason and object of a statute are a clue to its meaning (Dwar. on Stat. 695), and the spirit of the law and the intention of its makers are diligently to be sought after, and the letter must bend to these. 6 Bac. Abr. 384 (6th ed.), London, 1807; Kent's Com. 465; Smith's Com. on Stat., §§ 709, 710. In Illinois Cent. R. Co. v. Kanouse, 39 Ill. 272, which was an action against the lessees of the road, the court says: "In the case before us, admitting it was the duty of the first party to the agreement (the company owning the road) to fence this road, that they would be liable for this injury had they been sued, there can be no question." And in Toledo, etc., R. Co. v. Rumbold, 40 Ill. 143, the same court said, in an action against the lessors of the same road: "It was the duty of appellants to have fenced the road, and public safety demands that they should be held liable for all damages resulting from the neglect to fence it. And the same policy would require that the Illinois Central (the lessee) should be held responsible for presuming to use the road of another company fenceless and unprotected. Either company would be liable for the injury. Redfield, in a note to Parker v. Rensselaer & Sar. R. Co., 16 Barb. 315, in which it was held that the defendant, being the lessee of the road upon which the injury was committed, was not liable under the statute, says the only question in regard to the soundness of the decision is, whether both companies were not chargeable with negligence-the one for suffering the road to be used, and the other for using it in that condition. 1 Redf. on Railw. 618 (5th ed.). Fontain v. Southern Pacific Railroad Co. Opinion by Sharpstein, J. [Decided May 7, 1880.]

harbor commissioners of that State, "no contract or obligation entered into by the commissioners, which creates a liability or authorizes the payment of money, is valid and of binding force, unless the same is signed by all the commissioners and countersigned by the secretary of the board." Plaintiffs entered into a contract with the board, the entire board concurring, and performed it on their part. The board refused the payment agreed upon, on the ground that plaintiffs' claim was an equitable one only. Tho Legislature of the State passed a special act authorizing the board to audit and pay such amount as plaintiffs should be equitably entitled to for their work and materials furnished under the contract. Held, that the board could, by a majority vote, audit and pay plaintiffs' claim, and the concurrence of all three of the commissioners was not necessary for that purpose. The authority exercised by the board in this case was given to them by a special act, and it is nowhere provided in said act that the concurrence of all three of the members of the board shall be necessary for the proper exercise of such authority. In People v. Nichols, 52 N. Y. 478, the common-law principle on this subject is stated. In that case the court had under consideration an act of the Legislature appropriating $20,000, or so much thereof as might be necessary, for the purchase of certain relics of George Washington, to be paid only upon the certificate of three persons named therein. Held, that a certificate signed by two of the persons named, stating that the third met with them but refused to join in the certificate, was sufficient. The court say that Grindley v. Barker, 1 Bos. & Pul. 229, is in point as to the general rule. Eyre, C. J., there said: "I think it is now pretty well established that where a number of persons are intrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." The cases hold that arbitrators, to determine controversies between individuals, are engaged in matters of private concern. Green v. Miller, 6 Johns. 39. The same principle was recognized by the Court of King's Bench in the case of The King v. Beeston, 3 T. R. 592, which arose under the statute of George I, that enables the churchwardens and overseers to contract for the providing for the poor. It was held that it was not necessary that all the churchwardens and overseers should concur, as the contract of the majority would bind the rest. When appraisers act between individuals and the State, it is a matter of "public concern," and a majority act as the whole when all have met. Ex parte Rogers, 7 Cow. 526. Tallcott v. Blanding. Opinion by Morrison, C. J.

[Decided March 10, 1880.]

MARYLAND COURT OF APPEALS RE

PORTS.*

CORPORATION -WHEN LIABLE TO OFFICER OF, FOR SERVICES.-To entitle a president or director of a corporation to recover for services rendered his corporation, he must prove an express contract of employment, if the services for which he claims compensation are director. But if a president or director of a corporawithin the line and scope of his duties as president or tion renders service to his corporation which are not within the scope of, and are not required of him by his duties as president or director, but are such as are properly to be performed by an agent, broker or attorney, he may recover compensation for such services upon an implied promise. See Angell & A. on Corp., § 317; Chandler v. Monmouth Bank, 1 Green (N. J.),

* Appearing in 49 Maryland Reports.