On the trial these letters, among others, were offered in evidence by Bimm, and Herchelrode. Herchelrode then testified that he had no knowledge of the condition of the ice at the time he wrote the letter of Dec. 4, 1872, but obtained the information on which the letter was based from his son, John W. Herchelrode, who testified that he knew nothing about the writing of the letter of December 4th, except that his father said to him that he had written such a letter. No objection was made to the introduction of this evidence, written or verbal. Probably it was not subject to any objection. Watson v. Moore, Car. & K. 626; Roe v. Day, 7 Car. & P. 705; Bryant v. Lord, 19 Minn. 396. Bimm and Herchelrode then asked John W. Herchelrode this question: "What was the information you gave your father, upon which this letter was written?" To that question Cullen & Co. objected, but the court overruled the objection, and they excepted. He answered: "I stated that about fifteen or twenty feet from shore their was dock sced collected; that I supposed the ice was not in good condition. I told him it was six or six and a half inches thick at that time * ** Didn't suggest to my father to write to Cincinnati." It is doubtful whether the reception of this evidence would afford ground for reversal, even if it was not strictly admissible, for it is difficult to see how Cullen & Co. were injured by it. The testimony, related, not to the quality of ice, but to the information which the son had communicated to his father. Herchelrode did write to Cullen & Co., on December 4, 1872, that the ice was not merchantable. How he got his information was unknown to them. They would have been warranted in regarding the statement as true. But twelve days thereafter, Herchelrode informed them that he was mistaken; that the ice was merchantable. In both letters he requested them to come and see for themselves. The material matter for them was, not the information on which the letters were written, but the truth of the statements contained in the letters. But the letters were properly offered in evidence for the purpose of showing that Cullen & Co. had been requested to make an examination of the ice before and during the time that it was taken from the lake; and as the earlier letter contained a statement which Bimm and Herchelrode claimed was inserted by mistake, the testimony of the plaintiff. Herchelrode, was offered to show that in writing the letter he acted solely on information received from his son, and the son was called to show the information really given to his father. This tended to show the mistake, as well as the good faith of Bimm and Herchelrode; and while the testimony was of no great importance, in view of the questions before the jury, we are not satisfied that its reception affords any ground for reversing the judgment. Judgment affirmed. [This case will appear in 37 O. S.] SUPREME COURT OF OHIO. OHIO COAL COMPANY V. GEORGE DAVENPORT. 1. A creditor of an alleged fraudulent vendor cannot prove the acts or declarations of such vendor made after the sale and delivery of the property against the purchaser for the purpose of impeaching his title. 2. It is incompetent for a witness to state his opinion upon a question of law; but, where the intent with which an act done by him is drawn in question, he may testify as to such intent. Error to the District Court of Washington County. Replevin of 190 tons of railroad iron by plaintiff in error against defendant in error. The property had been seized by the defendant as sheriff of Washington county under an execution for $3,389.91 in favor of Hoffman, Thompson & Co. against the Marietta Coal and Iron Co. on the 2d day of March 1876, as the property of the defendant in execution and, at the same time, taken from the possession of the plaintiff in replevin. The plaintiff claimed title by purchase and delivery of the property from the Marietta Coal and Iron Company, on the 28th of February preceding, in consideration of $8,500, to wit: An existing indebtedness of $2,833.34 from the vendor to the plaintiff, and two notes for $2,833.33 each, on that day executed by the plaintiff to the Marietta Coal and Iron Co., payable in 6 and 9 months. The defendant claimed that the plaintiff's purchase was made with intent to defraud the creditors of the vendor. The good faith of this purchase was the only matter in dispute between the parties. In the court of common pleas a verdict and judgment were rendered for the defendant. This judgment was affirmed by the district court. It is now sought to reverse these judgments for errors, which are sufficiently stated in the opinion. Ewart, Sibley & Ewart for plaintiff in error. 1. The question of fraud depends upon the motive. The purchase must be bona fide. 2 Kent, 512–513. Benj. on Sales, ¿ 488. 2. "A party may testify directly to the intent with which he did an act, when the intent is a fact material to the issue." Cortland v. Herkimer, 44 N. Y. 22. 2 Wharton on Evidence, 955. 3. As to the wrongful admission of testimony see Broom's Legal Maxims 857; Starkie on Evidence * 8385 (9th Am. Ed.); Jacobs v. Putuam 4 Pick. 108. W. P. Richardson and Loomis & Alban for defendant in error. MCILVAINE, J. On the tial in the court of common pleas, the plaintiff having offered evidence tending to prove the contract of purchase as above stated, the defendant offered an entry Your notes Feb. 28th, 6 months,.. .$2,833 33 66 9 66 66 66 2,833 33-$5,666 66 And defendant also offered to prove by the clerk of the Marietta Coal & Iron Co. that these entries were made by him, under the order of the president of the company about one week after the date thereof and after the date of the contract for the sale of said iron to the plaintiff; but did not offer to prove that the plaintiff had knowledge of the fact, time, or circumstances of the entries, This testimony was admitted against the objections of plaintiff. This testimony should have been rejected. It related to facts which were not part of the res gestae. They were acts and declarations of the vendor after the sale and delivery of the property. Nothing more. They were not competent to affect the plaintiff's title previously acquired. The introduction of such proof cannot be justified on the ground that it was necessary to show fraud on the part of the vendor, as well as on the part of the purchaser. Fraud on the part of the vendor, if not participated in by the purchaser, was immaterial. And yet, its admission, as substantive proof, may have been prejudicial to the plaintiff. This testimony was, no doubt, offered for the sake of an inference that the plaintiff's purchase was not in fact made until after the levy, and although it did not tend legitimately to prove such fact, it is nevertheless plain that the jury may have been misled by it. And further upon the trial, it having been shown that one Selden Grouger, (who was also a witness in the case), had acted as sole agent for the plaintiff in making the purchase of the iron from the Marietta Coal & Iron company. The plaintiff, for the purpose of proving the good faith of said agent and the plaintiff in the transaction, asked said witness the following questions: "State whether or not the purchase of said iron was made with the intention in good faith to make the Ohio Coal Co. (plaintiff), the owner of it?" Also, "State whether or not you intended in any way, in said transaction, the purchase of said iron, to defraud the creditors of the Marietta Coal & Iron Company, by the purchase of said iron?" To each of which questions an objection by defendant was sustained. The grounds of objection do not appear in the record; and if the objection was to the form of the question, the ruling of the court should be sustained, as each question involved a conclusion of law, upon which it was not competent to take the opinion of the witness. But if the ground of objection was that the witness was not competent to testify as to the intent or motive which influenced the purchase, the ruling of the court was clearly wrong. Whenever the intent with which an act is done becomes the subject of inquiry, the person performing the act, if competent to testify to the act itself, is competent also to testify as to the intent. Whatever may be thought of the truthfulness of such witness, it is clear that his means of knowledge are ample; and certainly it is no objection to the competency of a witness, that his means of knowledge as to the fact, to wit: the intent, surpass the means of any other witness as to the same fact. Judgment reversed. [This case will appear in 37 O. S.] CUYAHOGA COUNTY COMMON PLEAS. OCTOBER TERM, A. D. 1881. JOHN HUNTINGTON v. MARIN KREJCI, SECOND NATIONAL BANK OF CLEVELAND, OHIO, ET AL. National banks are not controlled by State usury lawsRemedy for taking illegal interest-Extent of forfeitureSet-off. 1. The statutes of Ohio upon the subject of usury do not affect National banks. 2. The remedies given by the act of Congress known as the National Currency Act for the taking of illegal interest are exclusive. 3. Where illegal interest has been received by a National bank upon the discount of negotiable paper, the bank can recover only the face of the note without interest. So far as interest has been paid, it cannot be set off or deducted, but must be sued for as a penalty; but what has not been paid cannot be recovered. This case was heard by the court upon the issues made between defendant, Krejci, and the Second National Bank of Cleveland, Ohio. The opinion states the case. McMath, Weed & Dellenbaugh, for the Second National Bank. Willson & Sykora, for Krejci. The issues made in this case between the defendant, Krejci, and the Second National Bank of Cleveland, require a construction of the act of Congress, known as the National Currency Act. It appears that some years ago Krejci borrowed of the Second National Bank the sum of $3,975. The original loan has been renewed from time to time, and new notes given, upon which interest was paid at the rate of nine per cent. per annum, a rate in excess of that allowed by law. The interest thus paid amounts to $851.02. The question presented is whether or not this amount is to be applied as a payment upon the principal of the note. "In relation to usury, and the rights and liabilities of the parties participating in the offense, Congress has assumed to make provision, and the provision so made must be regarded as exclusive. In this respect, the Act of Congress prescribes the only rule, and over it the legislative power of the State has no control." Higley v. First National Bank, 26 O. S. 75. The Act of Congress, after limiting the rate of interest to be taken, declares: "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 inter est 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." In Higley v. First National Bank, it was held that the knowingly taking or receiving by a National Bank, of a rate of interest greater than that allowed by law upon a loan of money, does not entitle the person paying the same, to have it applied as a payment of so much of the principal in an action brought to recover the principal debt more than two years after such payment was made. In that case the court of common pleas deducted from the amount sued for by the bank, twice the amount of the usurious interest paid within two years before filing the answer; but the bank did not assign this as error, and the supreme court therefore said that whether the rebatement was properly allowed was not a question before them. The reasoning of the court, however, indicates that it was not regarded as a proper allowance. Counsel for Krejci, however, contend that such an allowance was approved, in Bank of Cadiz v. Slemmons, 34 O. S. 142. But a careful examination of that case shows that the effect of a payment of usu. rious interest was not considered. The defendants had not paid interest, but it was computed and carried into the note, and the court decided that payments made on a note embracing illegal interest would be applied in payment of the principal, and if a note was renewed, the illegal interest on both notes would be disallowed. But if this decision were as contended, I think it would be inconsistent with Barnett v. Muncie National Bank, 98 U. S. 555, which I should be obliged to follow. In a suit on a bill In a suit on a bill of exchange, it was claimed as a first defense that more than the amount of the bill had been paid as usurious interest on a large number of notes, which were arranged in series for the purpose of evasion, but in reality represented a continuous loan varying in amount and all paid but the bill in suit. The second defense was that a certain amount had been paid as usurious interest upon the series of which the bill in suit was the last renewal, and this should be applied as a payment. The third defense was substantially a repetition of the first, but ended with a prayer for the recovery of double the amount of interest paid as a penalty. The supreme court held that demurrers to the first and third defenses were properly sustained. The second defense was evidently like the claim made here by Krejci, and the demurrer to it was overruled in the curcuit court, but whether properly so or not was not decided by the supreme court. In passing upon the other demurrer, however, the court say: "Two categories are thus defined, and the consequences denounced: 1. Where illegal interest has been knowingly stipulated for but not paid, then only the sum lent, without interest, can be recovered. "2. Where such illegal interest has been paid, then twice the amount so paid can be recovered in a penal action of debt, or suit in the nature of such action against the offending bank, brought by the persons paying the same or their legal representatives. * * * * * * In the first defense, the payment of the usurious interest is distinctly averred, and it is sought to apply it by way of offset or payment to the bill of exchange in suit. In our analysis of the statute we have seen that this could not be done. Nothing more need be said upon the subject." The third defense was held fatally defective for the same reason. Under the rules thus announced, it is clear that the illegal interest paid by Krejci cannot be applied in reduction of the principal of his notes. But it is clear, also, I think, that the bank can recover only the, face of the notes, without interest. If unaffected by an illegal contract, the notes would "carry with" them interest from the date of maturity; but as illegal interest was knowingly taken, all interest after maturity, as well as before, is forfeited. In other words, the interest-bearing power of the note is destroyed. So far as interest has been paid, it cannot be set off or deducted, but must be sued for as a penalty; but what has not been paid cannot be recovered. This is in accordance with the decision in the Circuit Court of the Western District of Pennsylvania in First National Bank v. Slauffe, 1 Federal Reporter 187. After quoting from Barnett v. National Bank, McKennon, J., says: It will "It is thus declared that the effect of a mere stipulation for illegal stipulation for illegal interest by a National bank is to deprive it of the right to recover more than 'the sum lent, without interest;' but surely, the receiving' of illegal interest in furtherance of a stipulation to that effect cannot place the bank upon any better footing. undoubtedly preclude the recovery by the debtor of the penalty for an usurious payment by way of set-off against his debt, but it cannot invest the creditor with a right to recover what the law declared he shall forfeit by reason of his unlawful agreement." In this case, therefore, the bank is entitled to recover the exact sum lent, $3,975. NEW YORK COURT OF APPEALS. BRUMMER V. COнN. Oct. 4, 1881. An assignmedt of a policy in favor of a married woman upon the life of her husband as security for a loan to the husband, is void under chap. 80, Laws of 1840. An endowment policy is within the terms of that act. To bring such an insurance within the operation of the Act of 1840, it need not appear from the terms of the policy or be showd by extrinsic evidence that it was the intention of the assured to avail herself of the provisions of that Act. The fact that the premium paid may have exceeded the sum limited in the statute, does not affect the rights of the wife against the assignee. Digest of Decisions. PENNSYLVANIA. (Supreme Court.) GETZ'S APPEAL. The grant of a right to construct a railroad carries with it, by necessary implication, the right to construct all works and appendages usual in the convenient operation of a railroad. Sidings are among such works. The Phila. and Reading Railroad Co., by virtue of the general railroad law of Feb. 19, 1849 (P. L. 81), of sect. 17 of the Act of April 13, 1846 (P. L. 322), extended to said company by the Act of April 12, 1864 (P. L. 396), and of the Act of March 20, 1860 [P. L. 471], is authorized to construct sidings leading to manufacturing or mining establishments held by private owners, and for this purpose may take, by virtue of the delegated power of eminent domain in it reposed, the interjacent lands belonging to other parties. The right of running sidings to such private establishments, and of taking the necessary land for the purpose, is clearly within the constitutional power of the Legislature to confer, because the public interest is thereby subserved by reason of the increased facilities afforded for developing the resources of the State and promoting the general wealth and prosperity of the communit y. GRAY'S APPEAL. Judgment-When not conclusive-Estoppel-Power of Auditor-Interest.-A. contracted to sell a piece of land to B. for a sum certain, payable in installments without interest. The contract contained a confession of judgment by B. to A. for the whole purchase-money, and a provision that "payments might be anticipated in sums of not less than $500, when a corresponding interest would be allowed." Several installments being due and unpaid, A. entered up judgment, issued execution, and sold the property. Held, That, in the distribution of the proceeds of this sale, the proper method for an auditor to compute the amount due to A. was what A. had shortly before admitted it to be, viz., to take the amount of unpaid installments, add to this the interest on the installments overdue, and then deduct the interest on the installments not yet matured. It also appeared that A. had some time before the sale, represented to C., who had been B.'s counsel, that his [A.'s] claim was only to a limited amount, on the faith of which C. had purchased judgments against B. subsequent in lien to A.'s judgment. Held, That, as against C., A. was estopped from claiming from the proceeds of the sale any greater amount than he had represented to C. was due him. MCGETTRICK'S APPEAL. Auditor-Power of, to pass on validity of deed conveying interest of distributee of fund-Orphans' Court. -Where an auditor is appointed to distribute the proceeds of the sale of real estate, of a decedent, and the share of a distributee is claimed by virtue of a deed conveying all said distributee's interest, the validity of which deed is contested by the distributee upon the ground that it has been fraudulently obtained, it is competent for the auditor to pass upon the validity of such deed and to make distribution accordingly. DELAWARE, LACKAWANNA, AND WESTERN R. R. Co. v. HILL. Foreign attachment-When plaintiff is entitled to judgment upon answer of garnishee. Where the answers of a garnishee in foreign attachment to interrogatories admit the possession of assets, but suggest they are claimed by other parties, and an interpleader is awarded and framed between the plaintiff in the foreign attachment and the other parties, claimants; upon the issue raised by such interpleader being tried and a verdict rendered for plaintiff, judgment may at once be rendered on the answers of garnishee to the interrogatories. In such case the interposition of the plea of nulla bona will not entitle the garnishee to a trial of the question of his liability, or of the right of plaintiff to the fund, that question being already decided by the interpleader. GROSSER v. HORNUNG. Married women-Contracts-Bond and warrant to secure loan for purchase-money of real estate voidFeme sole trader-When married women not liable as such-Sole and separate use-Powers under instrument creating Contruction of When not exercised-Mortgage. The bond and warrant of a married woman given to secure a loan of money employed in purchasing real estate are void. A married woman living apart from her husband but not engaged in any trade or business is not liable as a feme sole trader. Real estate was conveyed to A. in trust for the sole and separate use of B., a married woman. The deed conferred upon A. a power to mortgage with B.'s consent to pay off any part of the purchase-money. The purchase-money was borrowed from C. and paid to the vendor, A. and B. entering into a joint bond and warrant to C. for amount thereof: Held, That the instrument creating the trust conferred upon B. no power to execute such bond and warrant and that therefore as to her, she being a married woman, the same was void. ALABAMA. (Supreme Court.) SAMUEL J. BOLLING ET AL. v. WALTER TATE. Sureties on an injunction bond, conditioned to pay the defendant all damages and costs he may sustain by the wrongful suing out of the injunction, are liable for. reasonable attorney's fees and costs in the court in which such suit is brought, and also for all necessary fees and costs in the Supreme Court in the event an appeal is taken, notwithstanding the condition of the bond. was to pay the defendant all damages sustained. in the event the Chancellor dissolved the said injunction. Ferguson v. Baber, and Bullock v. Ferguson are overruled. JOHN P. DICKERSON V. FRANCIS CONNIFF ET AL. Contracts with executors, trustees or guardians for improvements to be made on the premises of the cestui que trust impose upon such executors a personal liability merely, and does not bind the land, unless such improvements be for repairs, or they are expressly provided for in the instrument creating the trust. Any interest such trustee may have in the trust estate improved, unless exempt from legal process, is liable for the claim for such improvements. E. A. STEELE ET AL. v. H. C. GRAVES ET AL. Where an administrator makes a final settlement of his administration, whose account is properly stated and accepted, but no order for distribution is made, and subsequently he is appointed administrator de bonis non and charges himself as such with the decree against him as the original administrator, which charge is allowed by the probate court auditing the account: Held, That the sureties on the original bond are released, and no execution can issue against them either by themselves or jointly, with the sureties on the second bond. The last named sureties are alone liable. CHARLES ROBERTS v. STATE OF ALABAMA. On trials for homicide where the circumstances in evidence raise a case of self-defense, proof of uncommunicated threats recently made are admissible for the purpose of showing the quo animo of the attack making the killing one of self-defense. Uncommunicated threats are frequently admitted corroborating communicated ones already in evidence. They are also admissible to show who was the first assailant. MICHAEL W. SHERRY V. JESSE D. BROWN. Where under an execution from a justice's court lands which embraced the homestead are levied on in default of personal property, the right to claim exemption is waived unless filed with the constable making the levy. MATTHEW J. TURNLEY ET AL. v. ALEXANDER B. HANA. A court of chancery will not protect one in the tortious possession of lands although he may have a perfect title to the same. MARY ANN KING v. JOSEPHINE MARTIN et al. Records-Proof of A record is proved merely by its own production and inspection, whether of the original or of a copy, and where authenticated transcript discloses a clerical error in a copy of a record formerly before the court, it is said by means of such authenticated transcript, to correct itself. Civil Law-Rights of heirs under the same.-Under the civil law, heirs acquire co instanti all the rights of the deceased ancestors, including that of posession, which is held to be continuous in the person of such heir. Where the rights of an heir are once fixed by the action of a proper court in the State of Louisiana in regard to the validity of a will, they are not changed because of the appointment of administrator on estate of the testator, who subsequently brought funds into and died in this State. THE BENEVOLENT ASSOCIATION OF THE PAID FIRE DEPARTMENT OF CHICAGO v. JOHN A. FARWELL, COMPTROLLER, &c.-Opinion by DICKEY, J., affirming. Filed Sept. 26, 1881. 1 Statute-Repeal by other statute taking its place.The various provisions in the charter of the city of Chicago, and amendments thereto, for the setting apart of a portion of the fire insurance rates annually received by the city, and the Act of March 5, 1867, creating the Benevolent Association of the Paid Fire Department of Chicago, and giving it the management of the fund arising from such source, &c., if not otherwise repealed before the time, have all been superceded by the Act of May 24, 1877, entitled "An Act for the relief of disabled members of the police and fire departments in cities and villages," which was intended as a revision of all the statutes on that subject. 2. This association never held a vested right to the fund which, by a clause in its charter, was directed to be paid over to it by the comptroller of the city. As to that fund, this corporation was merely created or selected as a public functionary to manage and apply the same, and it was liable to be cut off or changed at the will of the State. WILLIAM B. OAKLEY ET AL. v. EDMUND B. HURLBUT. 1. Cloud on title-Jurisdiction of court of equity to remove. -Under our law a court of chancery will not entertain a bill to remove a cloud upon the title of a complainant, unless he is in the lawful possession of the land, or the land is unoccupied. 2. Chancery--Laches, when a defense.-After a delay of more than fourteen years from the sale of land for taxes, permitting the purchaser to pay taxes and make improvements on the land, the former owner will be precluded from having the sale set aside in equity for a fraudulent combination, preventing competition at the sale, in the absence of any excuse being shown for the delay. |
