only term subject to any appearance of ambiguity or indefiniteness, was the direction to sell. But I think that also is sufficiently definite in the law to relieve the present inquiry from difficulty. A sale of a chattel is a transfer of its title by the vendor to the vendee for a price paid or promised. 1 Parsons on Contracts, 519. A direction to sell, therefore, nothing more appearing, would confer upon a special agent no authority beyond that of agreeing with the purchaser in regard to these component particulars. Under certain circumstances a sale legally imports more than these particulars, and in such cases the authority under a power to sell would be correspondingly enlarged. Thus, if a sale be made by sample, it is thereby impliedly warranted that the bulk is of as good quality as the sample. Hence it has been properly held that where a broker was empowered to sell goods which were in bulk, and, by the custom of brokers, it was permissible to sell such goods by sample, and he was not restricted by his instructions as to the mode of sale, his sale by sample, and the warranty of quality therein implied, were binding upon his principal. The Monte Allegre, 9 Wheat. 616; Andrews v. Kneeland, 6 Cow. 354; Schuchardt v. Allens, 1 Wall. 354.

But in a sale of a horse, subject to the buyer's inspection, no warranty of quality is implied, and it seems a short and clear deduction of reasoning thence to conclude that in an authority to make such a sale, no authority so to warrant is implied. The warranty is outside of the sale, and he who is empowered to make the warranty must have some other power than that to sell. Accordingly, in Brady v. Todd, 9 C. B. (N. S.) 592, the court directly decided that the servant of a private owner, intrusted by his master to sell and deliver a horse on one occasion, is not, by law, authorized to bind his employer by a warranty of quality, but, to do so, authority in fact must be shown. The significant circumstances of that case were precisely like those in this, and Chief Justice Erle points out the soundness, both in law and policy, of the rule there applied.

The case of Fenn v. Harrison, 3 T. R. 757, (1790), which is a leading case, illustrates the true principle. There the defendants directed H to take a negotiable bill of exchange to market and get cash for it, but stated that they would not indorse it. It was held that H could not make a contract to bind the defendants to pay the bill. On a second trial, (S. C. 4 T. R. 177,) it appeared that the only direction to H was to get the bill discounted, and upon this the court decided that H. could bind the defendants by indorsement. The purpose of the defendants, in both cases, was to authorize a transfer of the bill; the law recognized two methods of doing this-one by mere delivery, the other by indorsement. The instruction "to get the bill discounted," or "to get cash for that bill," was broad enough to include both methods of transfer, but the limitation shown on the first trial, "that the defendants would not indorse the bill," necessarily confined the agents to the transfer by delivery. On both trials the court bounded the power of the agent by his express

authority; but when, on the second trial, it appeared that, within his authority, he had chosen to transfer by indorsement, the liability legally incident thereto attached to his principals. A remark of Ashhurst, J., in the case just cited, and two cases tried before Lord Ellenborough, have given rise to some decisions and more numerous dicta in opposition to the views above expressed. Ashhurst, J., said, in illustration of the difference between a general and a particular agent, "I take the distinction to be that if a person keeping livery stables, and having a horse to sell, directed his servant not to warrant him, and the servant did, nevertheless, warrant him, still the master would be liable on the warranty, because the servant was acting within the general scope of his authority, and the public can not be supposed to be cognizant of any private conversation between the master and servant; but if the owner of a horse were to send a stranger to a fair, with express directions not to warrant the horse, and the latter acted contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse, and the owner would not be liable on the warranty, because the servant was not acting within the scope of his employment." This remark lends some countenance to the idea which, however, it does not directly assert, that an authority to sell, given even to a particular agent embraces an authority to warrant in the absence of an express exclusion.

In Helyear v. Hawke, 5 Esp. 72, (1803), Lord Ellenborough said, "I think the master having intrusted the servant to sell, he is intrusted to do all he can to effectuate the sale, and if he does exceed his authority in so doing, he binds his master." As no warranty was shown in this case, it did not become necessary to apply the doctrine thus announced. In Alexander v. Gibson, 2 Camp. 555, (1811,) the same learned chief justice declared that if the servant was authorized to sell the horse, and to receive the stipulated price, he thought he was incidentally authorized to give a warranty of soundness; that it was most usual, on the sale of horses, to require a warranty, and the agent who is employed to sell, when he warrants the horse, may fairly be presumed to be acting within the scope of his authority. In this case the plaintiff called the servant as a witness, who swore that he was expressly forbidden by his master to warrant the horse, and there was no other evidence as to his authority, yet, because the warranty by the servant was proved, the plaintiff recovered on the warranty against the master.

For these dicta and decisions no authority is cited. Chief Justice Erle says, in Brady v. Todd, ubi supra, that he understands these judges to refer to a general agent employed for a principal to carry on his business of horse dealing. Certainly if the ruling in Alexander v. Gibson had regard to a particular agent, it has not been followed to the extent to which it was there carried. No other case holds that such an agent could bind his principal by a warranty expressly interdicted. But to the extent of holding that a special agent

might warrant if not forbidden, these observations have formed the foundation of some judicial assertions and adjudications.

The earliest case I find in this country is Lane v. Dudley, 2 Murph. 119, (1812,) where Taylor, Chief Justice, citing the substance of Ashhurst's illustration, says an authority to warrant a horse is within the scope of an authority to sell. The decision itself turned on a ratification. In Skinner V. Gunn, 9 Port. 305, (1839,)

a

it is said, "an agent employed to sell horse may warrant him to be sound, that being usually done in such cases." The suit was on the warranty of a slave, but failed for want of proof. Fenn v. Harrison, Helyear v. Hawke and Alexander v. Gibson, ubi supra, are the only cases cited. Following this are Gaines v. McKinley, 1 Ala. 446, and Cocke v. Campbell, 13 Ala. 286, on warranty of soundness of slaves, and Bradford v. Bush, 10 Ala. 386, on warranty of the age of a horse. In Ezell v. Franklin, 2 Sneed, 236. it was held that authority to sell a slave gave authority to warrant soundness, citing Fenn v. Harrison, but no case of special agency; and in Tice v. Gallup, 2 Hun, 446, it was decided that a special agent, authorized to sell a horse, might warrant its age and the cause of its apparant lameness, by virtue of his agency to sell, unless forbidden to so do by his principal. The only case cited for this position is Nelson v. Cowing, 6 Hill, 336, which, however, supports it by a dictum only.

These are the only cases I have found wherein it has been decided that an authority to a special agent to sell, embraces an authority to warrant quality. Resting, as they all do, either directly or indirectly, on Fenn v. Harrison, Helyear v. Hawke and Alexander v. Gibson, they no longer have any foundation on authority, since these three cases, if they ever applied to a special agency, are now, in that respect, distinctly overruled by Brady v. Todd, ubi supra; a decision foreshadowed by Creswell, J., when, in Coleman v. Riches, 16 C. B. 104, 113 (1855), he asked counsel, citing 2 Camp. 555, "would you hold that to be good law at the present day?" and clearly approved as correct in principle in Udell v. Atherton, 7 H. & N. 170.

Nor have they any better basis on principle than on authority. Their underlying principle is said to be that the agent, being empowered to sell, is intrusted with all powers proper for effectuating the sale, and a warranty of quality is both a proper and a usual power for that purpose. If by this were meant that the agent is intrusted with all powers proper to the making of an effectual sale, its accuracy could not be questioned. Undoubtedly his authority extends to whatever is proper to be done in fixing the price, and the time and mode of payment, and the time and mode of vesting the title and delivering the chattel. All these things are incident to the sale. But if the expression means that the agent is intrusted with all powers convenient for the purpose of inducing the purchaser to buy, even to the extent of enabling him to make collateral contracts to that end, then I think it is in violation of the settled rule that the special agent must be confined strictly to

his express authority, and is in opposition to wellconsidered and authoritative decisions. For example, it might very much facilitate the sale if the agent could indorse the vendee's note for the purpose of raising the money to pay the price, and such an exercise of power would jeopardise the principal no more than would a sale on credit, and very much less than might a warranty of quality; and yet I imagine that a special agent could not make such an indorsement binding on his employer, for in Gulick v. Grover, 4 Vroom, 463, the Court of Errors held that even a general agent had no authority so to indorse, to enable his principal's debtor to borrow money to pay the debt. So in Upton v. Suffolk County Mills, 11 Cush. 586, it was adjudged that even a general agent for the sale of flour could not warrant that it would keep good during a voyage to California. And in Bryant v. Moore, 26 Vt. 84, a warranty of oxen by a special agent empowered to exchange, was held invalid against the principal. Likewise, in Lipscomb v. Kitrell, 11 Humph. 256, it was decided that an authority to sell a claim confers no authority to guarantee it-that such a guaranty is not a necessary incident of the sale; and a similar conclusion was reached as to bank stock, in Smith v. Tracy, 36 N. Y. 79.

Undoubtedly there are many cases where it has been held that a general agent to sell might warrant quality. A general agent, Mr. Russell, in his treatise on Factors and Brokers, p. 75, defines to be either, first, a person who is appointed by the principal to transact all his business of a particular kind; or, secondly, an agent who is himself engaged in a particular trade or business, and who is employed by his principal to do certain acts for him in the course of that trade or business. Such agencies extend. it is said, to whatever is fairly included among the dealings of that branch of business in which the agent is employed. But their scope arises not out of the instructions given, but out of those implied powers which the law confers, even in spite of instructions, because of which these are often called implied agencies in contra-distinction from special agencies which are express. Thus, in Howard v. Sheward, L. R. 2 C. P. 148, an agent of a horsedealer bound his master to a warranty of the quality of a horse sold, although directed not to warrant. Other cases of warranty of quality by a general agent are Hunter v. Jameson, 6 Ired. 252; Woodford v. McClenahan, 9 Ill. 85; Milburn v. Belloni, 34 Barb. 607; Nelson v. Cowing, 6 Hill, 336. But it is utterly inadmissible to deduce from these instances of general agency the existence of similar powers in special agents, between whom and general agents Dr. Story says it is very important carefully to discriminate. Story on Agency, $ 21.

Nor do I see the propriety of asserting, as a matter of law, that a warranty of quality is a usual means of effecting the sale of a chattel by a private person, i. e., one not a tradesman in the line of the sale, or that it is even a usual attendant upon such a sale. Such warranties may be as various as the qualities of the objects sold, and to

determine, as by a rule of law, which are usual and which not, will involve the courts in discussions where the personal experience of judges must have more influence than legal principles. In every such case the question of usage should be regarded as one of fact and not of law.

Sometimes it has been intimated that a distinction might be based upon whether the warranty by the agent were set up by a plaintiff to maintain a suit against the principal, or by a defendant to resist the principal's suit for the price, and that the attempt of the principal to collect the price, after he has learned of the warranty, is a ratification of it. On the idea that the authority does not cover the warranty, and that the purchaser is chargeable with knowledge of the authority, it is not plain how he can withstand the vendor's claim on a contract made, by alleging a contract which he knew was not made. But if there be anything at all in the distinction, it must be confined to those cases where, when the principal obtains, knowledge of his agent's unauthorized warranty the sale is in fieri, or can be declared void and the parties restored to their original position. What the principal does in pursuance of a bargain which he has authorized his agent to make, without knowledge that his agent has entered into an unwarranted contract, is not a ratification of such contract. Combs v. Scott, 12 Allen, 493; Smith v. Tracy, 36 N. Y. 79; Titus v. Phillips, 3 C. E. Green, 541; Gulick v. Grover, 4 Vroom. 463. And if, when he acquires knowledge, he can not, in justice to himself, disavow the whole of his agent's contracts, he is entitled to stand upon what he authorized, and repudiate the rest; the purchasers who dealt with a special agent without noting the bounds of his power, must suffer rather than the innocent principal. Bryant v. Moore, 26 Me. 84.

These views are not at all in conflict with the class of cases which hold that the principal is responsible for the fraud or deceit of his agent, committed in the course of his employment for his employer's benefit. Jeffrey v. Bigelow, 13 Wend. 518; Sandford v. Handy, 23 Wend. 260; Barwick v. Eng. Joint Stock Bank, L. R. 2 Ex. 259; Mackay v. Com. Bank of N. Brunswick, L. R. 5 P. C. 394. Those cases are well founded upon the principle that, as every man is bound to be honest in his dealings with others, so is he bound to employ honest agents, whether they be general or special, and if in transacting his business, and within the range of their authority, they be dishonest, the consequences are legally chargeable to the employer, and not to a stranger. Hern v. Nichols, 1 Salk. 289.

In the present suit I think that the unauthorized warranty, inferred from the honest statement of the agent that the horse was all right, not communicated to the vendor or his representatives until after the horse was delivered to and had died in the possession of the vendee, formed no defense to the claim for the price, and that the appellee's prayer for instructions to the jury was justified by the facts and the law, and should have been granted. Its refusal was error, for which the judge of should be reversed, with costs.

The cause may be remitted to the Common Pleas for a new trial.

NOTES OF RECENT DECISIONS.

CONSTITUTIONAL LAW-DISCRIMINATION IN STATE PROCEDURE AGAINST NON-RESIDENTS. The code

of Nebraska provides that an attachment may be issued against a non-resident of the State without the undertaking which is required in the case of a resident. Held, that the provision is not in conflict with the requirement of the Federal Constitution (§ 2, art, 4), that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.-Marsh v. Steele. Supreme Court of Nebraska. Opinion by MAXWELL, C. J. 20 Alb. L. J. 290.

CONFLICT OF LAWS PROMISSORY NOTES GovERNED BY THE LAW OF PLACE WHERE MADE AND PAYABLE.-A promissory note made by defendant as accommodation maker in New York and payable in that State, was discounted for the payee in Massachusetts at a rate lawful there but usurious in New York. Held, that the contract was governed by the law of New York, and the note was invalid for usury. Jewell v. Wright, 30 N. Y. 259, approved; Bowen v. Bradley, 9 Abb. Pr. (N. S.) 395, disapproved.Dickinson v. Edwards. New York Court of Appeals. Opinion by FOLGER, J. 20 Alb. L. J. 310. EXECUTION

SEAT IN THE BOARD OF BROKERS NOT SUBJECT TO.-By the constitution of the Philadelphia Stock Exchange, it was provided that membership might be sold, with the consent of the exchange, and the balance of the proceeds, after satisfying the owner's debts to members, was to be paid to the owner. Heid, that such membership in the exchange is not property subject to execution in any form, but that it is a mere personal privilege or license to buy and sell at the meeting of the board, It can not be levied on and sold under a fi. fa. or attachment execution.-Pancoast v. Gowen. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7 W. N. 457.

SALES CONCURRENCE OF DELIVERY AND PAYMENT.- Plaintiff sold defendant certain tobacco in three lots at three different prices, to be delivered on plaintiff's premises, but to be taken to the railroad depot by plaintiff free of charge. Plaintiff, assisted by defendant, packed two lots of the tobacco, and defendant went away, after directing plaintiff to pack the other lot. The tobacco so packed was forwarded to defendant and duly received, and defendant paid part of the purchase-money. Plaintiff packed the third lot as directed and made it ready for delivery on his premises, and requested payment, which defendant refused, insisting that the tobacco was to be delivered at the depot, and paid for there. Plaintiff, in the exercise of reasonable diligence, afterwards sold the third lot for its full value, but for less than defendant had agreed to pay for it. Held, that as plaintiff was required only to be ready to deliver the tobacco at the time and place agreed on, and as he had done that, and as defendant had neither paid nor offered to pay, defendant had broken the contract; that the contract was entire; that plaintiff had a right to re-sell the tobacco, and might recover of defendant the difference between the most that he could get on re-sale and the agreed price, and in addition, the unpaid balance of the agreed price of what was delivered, and that as the cause was referred and the damages sought to be recovered such as might have been recovered on dec

laration such as the court might have allowed in amendment of a declaration in common counts in assumpsit, plaintiff might recover on such count. Phelps v. Hubbard. Supreme Court of Vermont, Opinion by DUNTON, J. Advance sheets of 51 Vt.

LUNATIC ACCOMMODATION INDORSER - INQUISITION AFTER DATE OF INDORSEMENT BONA FIDE HOLDER. An accommodation indorser of a promissory note, given in renewal of a note for a similar amount indorsed by him while of sound mind, who was found by inquisition to have been a lunatic at the time of indorsement of the renewal note, is liable to a bona fide holder who received the note before the inquisition and without notice of the indorser's lunacy. Lancaster County Bank v. Moore, 28 Sm. 407, and Moore v. Lancaster Nat. Bank, 2 W. N. 674, followed. -Snyder v. Laubach. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7 W. N. 464.

FIRE INSURANCE-INCREASE OF RISK-SET-OFF IN DIMINUTION OF RISK.-1. Neglect or omission to mention, at the time of application for a policy of insurance, the existence of a carpenter shop in close proximity to the building insured, and the subsequent erection of a new building adjoining the house insured, without notice to the company, is such an increase of risk as will vitiate a policy of insurance containing the following conditions: "The insured hereby covenants that the representations given in the application for this insurance is a warranty on the part of the insured, and contains a just, full, and true exposition of all the facts and circumstances in regard to condition, situation, value, and risk of the property;" and further, that if, after insurance, the risk shall be increased by any means whatsoever and the assured shall neglect to notify the company of said increased risk, such insurance shall be void." 2. Setoff in diminution of risk by removal of a building warranted in the application for insurance not to be on the premises on which the insured dwelling stood, is inadmissible against the defense of increase of risk, in violation of the covenants of the policy, by the erection of a new building on an adjoining lot of which the insurance company had no notice.-Pottsville Mut. Ins. Co. v. Horan. Supreme Court of Pennsylvania. Opinion by TRUNKEY, J. 7 W. N. 461.

SALES-IMPLIED WARRANTY OF THE FITNESS OF GOODS FOR PURPOSE FOR WHICH THEY ARE BOUGHT.-1. Defendant was the sole stockholder and officer of an incorporated gas company. Plaintiffs, who were makers of gas-meters, shipped and billed to said company a lot of meters, which defendant received and used. Several months afterward defendant wrote plaintiffs that he had taken out three of the meters, and that they refused to pass gas. Plaintiffs replied that they could not account for it, unless the valves were stuck by impurities or other cause, but that if defendant would send the meters back they would repair and return them at their own expense, if they were in fault. Defendant thereupon, by personal letter, ordered of plaintiffs another lot of meters, and wrote them that they could draw on him for the amount of the first bill. The plaintiffs in like manner shipped and billed the meters so ordered to said company, and they were received and used by defendant. A long correspondence ensued in regard to the meters and payment therefor, wherein defendant wrote. "I will remit for your bill very soon," and again, that he proposed to settle the account, and would have done so before, but could not fix in his mind what he ought to do; that he thought he was entitled to some allowance for the imperfect working of meters. Held, that although it did not appear that defendant ordered the first lot, it was to be presumed from the way in

which the parties had treated the claim that he did, and that as he ordered the second lot and had acknowledged his liability to pay for both lots, he was properly made defendant in assumpsit to recover for both lots. 2. Goods ordered of a manufacturer for a particular purpose, are impliedly warranted fit for that purpose. But the manufacturer is not bound to furnish the best goods of the kind that are or can be made, but only such as are usually made and usedsuch as are reasonably fit for the purpose. Thus, where it appeared that gas-meters furnished by manufacturers on a general order worked as accurately and well and lasted as long as the meters of other reputable makers, but did not work as accurately and well, nor last as long as the meters of certain English, and perhaps certain other American, makers, it was held, that the meters were of the kind and quality required by the order.-Harris v. Waite. Supreme Court of Vermont. Opinion by ROYCE, J. Advance sheets of 51 Vt.

SOME RECENT FOREIGN DECISIONS.

PERSONAL INJURIES ACTION MAINTAINABLE WITHOUT PROOF OF PERMANENT INJURY. — 1. In an action for damages for personal injuries, when the defendant on the pleadings admits negligence, in order to entitle the plaintiff to recover it is not necessary that he should prove that he sustained substantial injury. 2. If a railway company contract to carry A from B to C upon their line of railway, and before the train in which A is traveling reaches C, an accident happens to the train, by reason of the railway company's negligence, and if in consequence A is thrown out of the carriage in which he was traveling, he is entitled to recover damages against the company, whether he sustained any permanent injury or not.-Philpot v. Cork, etc. R. Co. Irish High Court, Ex. Div. Ir. L. T. Rep. 155.

EASEMENT LIGHT- AGREEMENT-VENDOR AND PURCHASER - CONSTRUCTIVE NOTICE. — The mere fact of a purchaser of a plot of land seeing a window in an adjoining tenement facing such land is not sufficient to give him constructive notice of an agreement between his vendor and the owner of the tenement that such window should have an indefeasible right to the access of light, the purchase having been completed without any actual notice of such agreement. Decision of Hall, V. C., reversed. Dicta of Lord Chelmsford, in Miles v. Tobin, 16 W. R. 465, disapproved. —- Allen v. Seckham. English High Court, Chy. Div., 28 W. R. 26.

RECEIVER-APPLICATION FOR PAYMENT OUT OF MONEYS RECEIVED BY HIM BY A JUDGMENT-CREDITOR NOT A PARTY TO THE ACTION.-Where a judgment-creditor of a railway company applied for an order for payment of the sums due under the judgment out of moneys in the hands of a receiver, the receiver having been appointed in a debenture-holder's action against the company, to which action the judgmentcreditor was not a party: held, that the judgmentcreditor, not being a party to the action had no locus standi to apply for payment out of the moneys in the receiver's hands. Neate v. Pink, 3 Macn. & G. 476, considered.- Brocklebank v. East London R. Co. English High Court, Chy. Div. 28 W. R. 30.

MARINE INSURANCE-PARTIAL LOSS-COST OF REPAIR-SALVAGE-SUING AND LABORING CLAUSE.1. The doctrine that a policy of marine insurance is a contract of indemnity is subject to some qualifications. 2. A ship which was insured for £1,200, and valued at

DUC

ΤΟ

£2,600, was damaged by perils of the sea, and the owner became liable to the payment of £519 for salvage. The owner elected to repair the ship, which thus became more valuable than it was at the date of the insurance. Held (affirming the judgment of the court of appeal, reported 26 W. R. 780, L. R. 3 Q. B. D. 558), that the owner was entitled to recover the cost of repair, less the usual reduction of one-third new for old, up to the amount insured, even though he would have recovered less in the event of a total loss; but (reversing the judgment of the Court of Appeal, and restoring the judgment of the Queen's Bench Division, reported in 26 W. R. 42, L. R. 2 Q. B. D. 501), that no portion of the salvage expenses were recoverable under the suing and laboring clause contained in the policy. Kidston v. Empire Marine Insurance Co., 15 W. R. 769, L. R. 2 C. P. 357, distinguished.-Atchison v. Loher. English House of Lords, 28 W. R. 1. MARRIED WOMAN'S CHOSE IN ACTION— TION INTO POSSESSION GIFT BY HUSBA WIFE. The executors of a will, under which a married woman was entitled to a legacy, paid the legacy by a check for the amount, drawn to the order of the husband and wife. They went to the husband's bankers with the check, duly indorsed, and the wife handed it to the manager, and instructed him, in the husband's presence and with his assent, to open an account in her own sole name, and to place part of the proceeds of the check to the credit of such account, and the remainder to the husband's current account. These instructions were carried into effect, and the wife drew checks on the account from time to time in her own name, in several instances in favor of the husband, who never interfered with the account. The bankers invested a part of the sum in the purchase of certain bonds, and they sent her a memorandum by which they stated that they held the bonds as her property. The wife afterwards declined to accede to a request by her husband to charge her moneys and securities with the payment of the overdrawn balance of his account with the bankers, and the husband went into liquidation. Held, that the husband had not reduced the legacy into possession. Semble, that if it had been held that the husband had reduced the legacy into possession, it would have been held that there had been a valid gift of the amount by the husband to the wife.- Parker v. Lechmere. English High Court, Chy. Div., 28 W. R. 48.

ABSTRACTS OF RECENT DECISIONS.

and approved by the clerk, and the recognizance entered of record." Section 3298 is as follows: "Every recognizance taken as above provided, shall have the effect of a judgment confessed from the date thereof, against the property of the sureties." Where a stay bond was approved and filed by the clerk, but was not copied into the records of the court: Held, that it was not "entered of record' as contemplated by the above provisions, and did not constitute a lien upon the lands of the surety as against subsequent incumbrancers in good faith and without notice. Opinion by BECK, C. J.-Waldron v. Dickerson.

RECEIVER-JUDGMENT AGAINST, NOT A LIEN UPON PROPERTY AFTER SALE.-During the pendency of foreclosure proceedings against a railroad, the property was placed in the hands of a receiver, and while under his management the plaintiff, an employee, received injuries for which he recovered a judgment against the receiver. Before the rendition of the judgment, however, and while plaintiff's action was pending, the road was sold under the foreclosure decree and the receiver made his final settlement and was discharged. In an action to enforce plaintiff's judgment against the road: Held, that while the receiver might properly have paid it if rendered before his discharge, no lien could attach to the property while in the custody of the court, and the purchaser took the same free from any claim against the receiver. B. C. R. & N. R. Co. v. Verry, 48 Iowa, 458, 7 Cent. L. J. 65. Opinion by ROTHROCK, J.-White v. Keokuk, etc. R. Co.

NATIONAL BANKS

WHEN USURIOUS INTEREST IS RESERVED― JURISDICTION OF STATE COURTS.Where a national bank loans money upon a usurious contract, such penalties and only such can be enforced as are provided in the national banking act. Farmer's & Mechanic's Nat. Bank v. Dearing, 1 Otto, 29. This being the law, and conceding it to be true in a certain sense that the penal statutes of any sovereignty can be enforced only by the courts which belong to that sovereigety, yet where a borrower of money from a national bank at a rate of interest which is usurious is sued by the bank in a State court to recover such interest, he may maintain the plea of usury in the same court. The plaintiff's statement that it is entitled to recover certain interest is not true, and it would be strange if, in an action to enforce a claim which is not valid. the defendant could not be allowed to resist the claim. It is a civil right to make such resistance, and the defendant must be allowed the right in whatever forum the claim is asserted, even though its enforcement would operate in some sense as a penalty upon the plaintiff, Hade v. McVay, 31 Ohio, 231; Ordway. v. Cent. Nat. Bank, 47 Md. 217; Betz v. Columbia Nat. Bank of Pa., 87 Pa. St. Opinion by ADAMS, J.-Nat. Bank of Winterset v. Eyre.

SUPREME COURT OF IOWA.

October Term, (Dubuque), 1879.

REMOVAL OF CAUSE TO FEDERAL COURT CAN ONLY BE MADE WHERE THERE IS A CONTROVERSY. -Under the act of March 3, 1875, providing for removals from State to Federal courts in suits of a civil nature in which there shall be a controversy between citizens of different States," an order for a removal can not be made upon the application of a defendant who has neither answered nor demurred to the petition of plaintiff. The statute contemplates a controversy in a suit and not a suit to which there is no defense. Opinion by ROTHROCK, J.-Stanbrough v. Griffin.

SUPREME COURT OF KANSAS. July Term, 1879.

[Filed Nov. 15, 1879.]

SCHOOL TAX.-1. Section 4 of ch. 149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one mill tax for the State annual school fund. Said section is not invalid by reason of conflict with sec. 16 of art. 2 of the State Constitution. Judgment for defendant. Opinion by BREWER, J. All the justices concurring. -State v. Ewing.

PRACTICE-MOTION FOR A NEW TRIAL. Where an action has been tried in a justice's court by a jury,