stitution and laws, shall be liable to the party injured in an action at law, suit at equity, or other proper proceeding for redress." (§ 1979.)

It is certainly something in which a citizen of the United States may feel a generous pride that the government of his country extends protection to all persons within its jurisdiction; and that every blow aimed at any of them, however humble, come from what quarter it may, is "caught upon the broad shield of our blessed Constitution and our equal laws."*

We are aware of the general feeling-amounting to positive hostility - prevailing in California against the Chinese, which would prevent their further immigration hither, and expel from the State those already here. Their dissimilarity in physical characteristics, in language, manners and religion, would seem, from past experience, to prevent the possibility of assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration. We feel the force and importance of these considerations; but the remedy for the apprehended evil is to be sought from the general government, where, except in certain special cases, all power over the subject lies. To that government belong exclusively the treaty-making power, and the power to regulate commerce with foreign nations, which includes intercourse as well as traffic, and with the exceptions presently mentioned, the power to prescribe the conditions of immigration or importation of persons. The State in these partic-❘ ulars, with those exceptions, is powerless, and nothing is gained by the attempted assertion of a control which can never be admitted. The State may exclude from its limits paupers and convicts of other countries, persons incurably diseased, and others likely to become a burden upon its resources. It may, perhaps, also exclude persons whose presence would be dangerous to its established institutions. But there its power ends. Whatever is done by way of exclusion beyond this must come from the general government. That government alone can determine what aliens shall be permitted to land within the United States, and upon what conditions they shall be permitted to remain; whether they shall be restricted in business transactions to such as appertain to foreign commerce, as is practically the case with our people in China, or whether they shall be allowed to engage in all pursuits equally with citizens. For restrictions necessary or desirable in these matters, the appeal must be made to the general government; and it is not believed that the appeal will ultimately be disregarded. Be that as it may, nothing can be accomplished in that direction by hostile and spiteful legislation on the part of the State, or of its municipal bodies, like the ordinance in question — legislation which is unworthy of a brave and manly people. Against such legislation it will always be the duty of the judiciary to declare and enforce the paramount law of the nation.

The plaintiff must have judgment on the demurrer to the defendant's plea of justification; and it is

So ordered.

THE INTEREST QUESTION.

STATE OF NEW YORK,

OFFICE OF THE ATTORNEY-GENERAL
ALBANY,

JOHN TEMPLETON, Esq., Cashier Albany County Bank:
DEAR SIR-I have examined your paper submitted
Judge Black's argument in the Fossat case, 2 Wall.

703.

to me a few days ago, relating to the six per cent interest law (ch. 538, Laws of 1879), in which you express the opinion that the act referred to does not apply to State banks, for the reason that, by special act (ch. 163, Laws of 1870), those banks are in terms authorized to charge seven per cent on loans of money, and placed in other respects upon the same footing with National banks. which act you claim has not been specifically repealed, and, therefore, remains in force; and I am of opinion that your conclusions cannot be sustained.

It is true that the act of 1879 amends a single section of the Revised Statutes, prescribing the rate of interest upon the loan or forbearance of money, and if the act contained no other provisions, the argument would be sound, that special statutes, prescribing a specific rate of interest for institutions like banks, and for public officers like Commissioners of the United States Deposit Fund, would not be affected by the change in the general law, for the reason that such cases would remain exceptions to the general rule established by the Revised Statutes. But the act goes further, and by a separate section repeals, in terms, all acts or parts of acts inconsistent with its provisions.

The intention of the Legislature must be deduced from the entire act and from the language employed. At the time of the passage of this act the existing statutes authorized seven per cent interest in all transactions, whether by individuals, by corporations or by public officers.

The first section of the act reduced the rate of interest from seven to six per cent. This would apply to all classes of contracts or transactions not excepted from the general statute or provided for by independ

ent acts.

The next session repeals all acts inconsistent with the rate of interest established by the first section. This manifests a clear legislative intention to make the rate of six per cent universal in its application, and to abrogate all provisions of law authorizing a greater rate. The repealing section was not necessary to effect the change made by the first section amending the Revised Statutes. The change was complete and effectual by the amendment itself. The statute, as amended, became the law and ipso facto repealed the former law. Moore v. Mansert, 49 N. Y. 332. The repealing section could have no importance, nor be necessary for any purpose, except to repeal other statutes and establish a uniformity of interest in all cases. It is a familiar rule that effect must, if possible, be given to every part of a statute, and this section is meaningless unless construed to repeal laws not embodied in the Revised Statutes. The Legislature, it must be presumed, was aware that, by special statutes, State banks and Loan Commissioners were authorized to charge seven per cent interest, and the language repealing all laws inconsistent with the provisions of the act in question, to give full effect to it, must be deemed to refer to all such laws, and to intend that no statute should be left standing which would authorize more than six per cent interest. The absence of a saving clause necessarily implies that the repeal was intended to be general.

Section 17 of article 3 of the Constitution, forbidding the Legislature to pass a law that any existing law shall be made or deemed part of an act passed, or be applicable, except by inserting its provisions, does not apply to repealing statutes. Existing statutes, relating to a particular subject-matter, may be repealed by laws designating, in general terms, all acts relating to such subjects.

If, as you state, the effect of the change to six per cent will be prejudicial to the banks, it must be assumed that the necessary consequences of the change were considered and contemplated by the Legislature. The office of construction of statutes is to ascertain

from the pre-existing law, and from the language of the new enactment, what was intended by the Legislature, and to give effect to that intention, unless some constitutional provision interposes. The responsibility for the results of changes rests with the Legislature. That body must have deemed that the public welfare would be best promoted by a reduction of the rate of interest, and that special instances of possible hardship should yield to the good of the greater number.

Courts cannot be asked to give a construction which will do violence to the language of a statute, or reject a material provision not repugnant to, but in harmony with, its purpose. That would be judicial legislation and not construction. Executive and administrative officers certainly have no such discretion, and must apply statutes as they are enacted.

The intention of the Legislature clearly was to limit the rate of interest to six per cent, by individuals, by corporations, including banks, both State and National, and public officers charged with the loaning of money, like Loan Commissioners. The effect of the reduction of interest may be injurious to banks. It is equally injurious to the United States Deposit Fund, the interest upon which is applied to the support of the common schools. A deficiency of interest arising from that fund, by reason of the change, will have to be supplied by public taxation. Banks may have no method of supplying the deficiency, but these results, it must be assumed, were not overlooked by the Legislature.

By the last section of the interest act, no part of its provision takes effect until the 1st day of January, 1880. All contracts, therefore, made prior to the first of January may provide for seven per cent interest, and will not be affected by the act.

The act only applies to contracts made on and after the first of January. It can have no retrospective effect, nor impair the obligation of any contract made prior to that date.

The provision in the first section, that nothing contained in the act shall be so construed as to affect a contract or obligation made before the passage of the act, is altogether superfluous. Nothing contained in the act could, by any possibility, have such an effect without that clause. The clause is negative in form, and is only a disclaimer by the Legislature of an intention that would have been nugatory, and does not purport to declare that the act shall have any effect upon contracts or obligations made between the date of its passage and the time when, by its terms, it is made to take effect.

Nor, in my opinion, does the act affect the various statutes in relation to usury. They remain in full force in respect to the reduced rate of interest fixed by the new law. All the provisions of those statutes are, by their terms, as applicable to violations of the six per cent rate as to the old rate. They are, in no respect, inconsistent with a lower rate of interest than seven per cent, and every portion of the act is operative without application to the usury provisions.

The act of 1870, in relation to banks (chap. 163), designed to place State banks on an equality with National banks organized under the act of Congress, is not repealed as an entirety, only the rate of interest thereby authorized is repealed. But the other provisions remain in force, applicable, as in other cases, to the six per cent rate of interest. The equality, however, with the National banks is not disturbed, as by the act of Congress those banks can only charge the rate of interest established by law in the States in which they are located. (§ 519, U. S. Rev. Stat.) Very respectfully yours,

A. SCHOONMAKER, JR.,

Attorney-General.

STATE OF NEW YORK:

OFFICE OF THE ATTORNEY-GENERAL, }
ALBANY, September 10, 1879.

JOHN L. McWHORTER, Esq. :

DEAR SIR-Your two letters of August twentysecond and August twenty-ninth ultimo were duly received at this office, but on account of my absence, and other engagements, I have not been able to answer them until to-day.

The question you submit as to what effect, if any, the new six per cent interest law (chap. 538, Laws of 1879) will have upon contracts made prior to the 1st day of January, 1880, where such contracts provide for the payment of seven per cent interest, has been considered by me, and my views upon it briefly expressed, in a communication to Mr. Templeton, of Albany, dated July 28, 1879, a copy of which I inclose.

I see no reason to change the opinion then expressed. Professional opinions are likely to differ upon the question, and unless the Legislature shall amend the act, the courts will have to give it authoritative and final construction before the question can be regarded as settled.

The new act cannot, by any possibility, affect loans made or contracts entered into prior to June 20, 1879the day the act passed — -no matter how long the loan or contract may run after January 1, 1880. In all such cases the rights and obligations of the parties were fixed, and are protected by the Federal Constitution. The Legislature has no power to pass a law impairing the obligation of contracts. U. S. Const., art. 1, § 10. The lawful rate of interest until January first next is seven per cent. All loans and other contracts made between June twentieth and January first may therefore lawfully provide for the payment of seven per cent interest, and the contract being lawful when made, would seem to fall as fully under the protection of the Federal Constitution as contracts in existence when the law was passed. In fact the Legislature guarded against a construction which would endanger business transactions by declaring that the act should not be so construed as in any way to affect any contract or obligation made before its passage. The phrase, “before the passage of this act," must doubtless be construed to mean before the act shall become an operative law.

Reading the first and third sections of the act together, as must be done to reach a correct interpretation, the statute provides that the rate of interest upon the loan or forbearance of any money, goods, or things in action, on and after January 1, 1880, shall be at the rate of six dollars upon one hundred dollars; that is to say, that upon all contracts made on or after January 1, 1880, for the loan or forbearance of money, etc., the rate of interest shall not be greater than six per cent.

This construction gives the act prospective application from the time it takes effect, which, in my opinion, was the intention of the Legislature, and harmonizes with established rules in the construction of statutes, and is the view which I believe the courts will sustain, if the question shall come before those tribunals.

Neither original statutes nor amendments can have retroactive force, unless in exceptional cases, the Legislature so declares. Benton v. Wickwire, 54 N. Y. 226; Potter's Dwarris on Statutes, 163.

The statute contains no such declaration, but provides that it shall take effect, that is, it shall only apply to cases or transactions arising on and after January first, next.

It is just to say, however, that with the important aid afforded by the discussions of learned counsel, the courts may reach a different conclusion, but without the benefit of such assistance, I am of the opinion

not inure to plaintiff's benefit, and they cannot take advantage of its breach. It would not even avail the promisees themselves. The foreclosure not having covered the whole property, the plaintiffs are entitled to redeem the rest. On such redemption the trial court held that they were not entitled to set off a balance due from Austin on the original purchase, as against defendant, Austin's devisee, Austin's estate being solvent and sufficient to pay such balance. Held, error. Defendant's position is analogous to that of a devisee of lands contracted for sale. Gaines v. Winthrop, 2 Edw. 571; Knight v. Weatherwax, 7 Pai. 182; 41 Barb. 60. She is the legatee of the money due upon the mortgage, and has the rights of an assignee. Her right is subject to redemption like her testator's right, and she takes subject to all burdens and equities in Austin's hands. All debts due from mortgagee to mortgagor at the time of assignment of a mortgage may be set off on a bill to redeem. Bank of Niagara v. Roosevelt, 9 Cow. 409; Sutphen v. Fowler, 9 Pai. 280; Ingraham v. Desborough, 47 N. Y. 421. Insurance Co. v. Winthrop, 2 N. Y. Leg. Obs. 37, distinguished. Where a separate judgment in favor of one of the plaintiffs may be had, a set-off existing against him alone in favor of defendant may be adjudged. Newell v. Salmons, 22 Barb. 647. So here, the land remaining to be redeemed belonging to Mrs. Bennett alone, she can have a separate redemption, and the debt due from Austin existing in her favor alone, may be set off in reduction of the mortgage as a lien on her land. Order of General Term reversed, and new trial. David S. Bennett and Harriet Bennett v. Lavinia H. Austin. Opinion by Hand, J.

[Decided Sept. 16, 1879.]

WATER-COURSE -RIGHTS OF RIPARIAN OWNERS TO DETAIN AND ACCUMULATE WATER.-The parties are proprietors of manufacturing establishments on the same stream, the defendant being the upper occupant. The stream in its natural flow is not sufficient constantly and fully to operate both mills in time of drought. The defendant therefore constructed canals in connection with natural reefs in the stream above its mills, by means whereof it gathered the water in reserve at night, in time of drought, in the same way as by a dam. The defendant's mill ran only by day; the plaintiff's, a paper mill, both night and day. The defendant's conduct caused injury to the plaintiff by atopping the operation of his mills in dry times, but the natural flow of the stream was not abated in the daytime. Except for such canals and such use of the reefs the defendant would not be able to operate its mills continuously in dry times. To manufacture paper successfully the mills must run night and day. The defendant used the canals only in time of drought. Held, that the defendant did not unreasonably use or detain the water, and was not liable for the injury to the plaintiff. The maxim, aqua currit et debet currere ut currere solebat, must be applied in connection with the rule that each riparian owner has a right to a reasonable use of the water. Injury to one proprietor in consequence of the use of the water by another is not an invariable test of the right of such use. The dam allows an appropriation of the water for reasonable and necessary domestic uses by the upper occupant, although injurious to the lower. A strict application of the above maxim would prevent the use of streams for manufacturing purposes. Dams, sluices and canals are necessary therefor, and a consequent injury to lower occupants must be disregarded. Palmer v. Mulligan, 3 Cai. 308. Reasonable use is a question of fact. Prentice v. Geiger, 74 N. Y. 341; 18 Alb. L. J. 237. See Embrey v. Owen, 6 Exch. 353; Gould v. Boston Dry Dock Co., 13 Gray, 443; Clinton v. Myers, 46 N. Y. 511. The rule as laid down in these cases is, that a party has a right to dam a stream upon his own land,

and establish such machinery as the ordinary stream will drive; and if the stream in time of drought becomes inadequate therefor, he may accumulate and detain the water for such reasonable time as is necessary to raise it to the head requisite to propel such machinery. Judgment affirmed. Bullard v. Saratoga Victory Manf. Co. Opinion by Andrews, J. [Decided Sept. 16, 1879.]

NEW YORK COMMON PLEAS ABSTRACT. GENERAL TERM, JULY, 1879.

OF

EVIDENCE- REPRESENTATIONS OF SOLVENCY THIRD PARTY.-This action was to recover damages suffered by plaintiffs by reason of false and fraudulent representations said to have been made by the defendant's testator, in relation to the responsibility of one Peck, which he knew to be untrue. The evidence shows that he did make false representations to other parties as to the responsibility of Peck. Plaintiff recovered a judgment from which this appeal is taken. Held, that the complaint should have been dismissed. That evidence of contemporaneous frauds may be introduced for the purpose of showing the intent with which representations proved were made, but such evidence is entirely inadmissible to prove that such representations were made to the plaintiff. That the statements were not made as of his own knowledge to the plaintiffs, but were communicated as the result of information and belief, and the evidence shows that such information had been received and good grounds for the belief existed. Judgment reversed and new trial ordered, with costs to abide event. Whitemore et al. v. Patterson, executor, etc. Opinion by Van Brunt, J. Larremore and Beach, JJ., concur.

SUPPLEMENTARY PROCEEDINGS - FORM OF ORDER FOR EXAMINATION..-On 1st March, 1879, an order in proceedings supplemental to execution was granted requiring the defendant to appear “before me or some other justice at Chambers," etc. Upon the return day of the order the defendant appeared and raised the objection that the order was irregular and void, because it contained the words, "or some other justice of this court," and made a motion to dismiss the order upon that ground, which motion was denied, and from the order denying this motion this appeal was taken. Held, that the objection could not be sustained; that the words objected to are merely surplusage, and could not possibly mislead the party, and only inserted in the order that which would have necessarily followed in case upon the return day of the order the judge granting it was absent from the Chambers of the court. Order affirmed, with costs and disbursements. Bank of Savings of City of New York v. Hope et al. Opinion by Van Brunt, J. Beach and J. F. Daly, JJ.,

concur.

VERDICTAMENDMENT OF-REVIEW.—The action was to recover damages against the defendants. Upon the trial the court charged the jury that the plaintiff was entitled to recover a certain amount of damages without interest. The plaintiff excepted to that portion of the charge and requested the court to charge that he was entitled to interest upon the damages. The court refused so to charge, and the plaintiff excepted. A verdict was rendered for the plaintiff for $7,500. The plaintiff then requested the court to add to the verdict the interest thereon. The court refused so to do, and the plaintiff excepted. Subsequently a formal order was entered denying this motion, and from this order this appeal is taken. Held, that as the defendants had secured a ruling in their favor upon the question of interest, to which ruling the plaintiff had duly excepted, and consequently the exclusion of interest by the jury cannot be called a mistake which