assigned to him, and of this he put himself upon the country. By consent of parties a jury was waived, and the case was tried by the court, and resulted in a finding "that, though the note was assigned before maturity, it being received as collateral to secure a pre-existing debt, the defendant should have been notified of the assignment, and the plaintiff cannot recover on the note, because defendant was not so notified (before paying the note to Pollard & Co). The court thereupon gave judgment for the defendant, from which the plaintiff has appealed in error to this court. Held, That the principle laid down by the court below in effect places negotiable paper upon the same footing as open accounts, and attaches a condition to the legal and complete transfer thereof, which cannot be supported either upon principle or authority. When the title has passed by endorsement and delivery, even as collateral security, the actual or legal holder alone has the right to receive the money due thereon, and if the maker pays to the original payee after such transfer, in the absence of the paper, either before or after its maturity, such payment is not made in the due course of business, and the party paying must be held to do so at his own risk. The case of Vatterlien v. Howell, 5 Sneed., 441, was incorrectly decided, and should not be adhered to as an authority. Judgment reversed, and judgment for plaintiff, with costs. Opinion by Jackson, J. they have complied with all the requirements of section 120 of the Military Code of 1870. The Military Code of 1862, is repealed by the Military Code of 1870, except as to certain legal proceedings. This action was brought to recover rent claimed to be due upon a lease between the plaintiff and the Board of Supervisors of the County of New York, executed September 19th, 1872, for the term of ten years and seven months, by the clerk of the Board of Supervisors, pursuant to a resolution of that body, authorizing the lease to be taken for the purposes of armories and drill rooms, which resolution was based upon a report of a committee of the board, stating they had considered the subject of providing suitable armories for such portion of the militia as were in immediate want of the same, and that the Sixth Regiment must have an armory forthwith as the lease of the building it had occupied had been cancelled, and said regiment would be compelled to vacate, and that other portions of the militia had pressing need of new, or additional accommodation, and they recommended the leasing of plaintiff's premises, and on the same day the lease was executed. The Twelfth Regiment then occupied the premises under a lease for five years from May 1, 1870. In December, 1871, this lease was cancelled, and plaintiff's premises were assigned by the supervisors to the use of that regiment, which has occupied them ever since. The defendants claimed that the lease was void, because it was executed without authority. W. H. Townley, for applt. Held, That the plaintiff could not recover that the Board of Supervisors ex Ford, applt., v. The Mayor, &c., of N. ercising simply a delegated authority, posY., respt. Decided December 21, 1875. A board of Supervisors have no power to enter into a lease of a building for armory and drill purposes, until sess only such powers as have been conferred upon them by statute, or such as are necessary to the exercise of powers expressly given (6 Hill 244); that they had no power to make such a lease W. F. Coggswell for respt. until they had complied with all the requirements of § 120 of the Military Code of 1870, (Laws of 1870, Chap. 80); that the power conferred by said section is to fence to an action brought upon a prom be exercised in view of and in reference to a special exigency brought to the notice of the supervisors by a demand supported and accompanied by the certificates of proofs specified in said section. Held, Usury is now only a partial de issory note, which had been discounted by a state bank. The interest only is forfeited. The recent judgment of the Supreme Court of the United States, in the Farmers' and Mechanics' Bank of Buffalo It appeared that a demand had been made in 1862, by the companies of the V. Deering, 1 N. Y. WEEKLY DIGEST, Twelfth Regiment, upon the supervisors P. 289, has effectually exploded the doctrine of our Court of Appeals on this to be furnished with an armory, made pursuant to the Military Code of 1862, subject, and has established the prin(Laws 1862, Chap. 177); and plaintiff ciple that the usury laws of the States, claimed that this demand was sufficient. so far as they apply to national banks, This demand had been complied with. have been superseded by the Act of The supervisors in making the lease, did Congress which authorizes the creation not act upon the demand of 1862, and it of them. (U. S. Rev. Stat., Sec. 5197.) There is, therefore, no longer any reason did not appear the lease was made with for withholding the full operation of the any reference to the Twelfth Regiment. Held, That this deman I was not good; act of our own Legislature, which prothat the act of 1862, was repealed by the vides, as a penalty for usury by State act of 1870, except only as to certain le- banks, the same consequence as that prescribed by the Act of Congress cited, gal proceedings. namely, a forfeiture of the interest. (Laws 1870, Chap. 163.) This act, also, has put at rest a question often mooted, by declaring that the discount of a note, or other evidence of debt, payable at another place at not more than the rate of exchange, or a reasonable charge for collecting the same in addition to the inter- est, shall not constitute usury. There can be no doubt that this statute operates retractively, and takes away the previous Also held, That the second section of chapter 758, Laws of 1873, authorizing payment of arrears of rent on certain leases, could not be construed as confirming the leases in question. Judgment of General Term, reversing verdict at Circuit for plaintiff, affirmed. Opinion by Andrews, J. USURY. N. Y. SUPREME COURT-GEN'L TERM. penalty, for it repealed all acts and parts FOURTH DEPT. Bank of Monroe respt., v. Finley, applt one. This was an action on a note, and defendant set up a defence of usury. The There was plaintiff is a state bank. judgment for plaintiff at the Circuit. of acts inconsistent with it. No penalty can be enforced after the repeal of the law imposing it, unless saved by express words in the repealing act. (Curtiss v. Leavitt, 15 N. Y., 229; Cooley Const. Lien, 373-4) Such being the effect of the act of 1870, there is no occasion to examine the evidence to see whether a case of usury under pre-existing laws was made out. The judgment must be affirmed. or twenty per cent. of the par value of the same, to the company upon receipt of the certificates. Later in the same year the company met with severe losses by reason of the Chicago fire, whereby the whole of the twenty per cent. cash fund, and U. S. CIRCUIT COURT, EASTERN DISTRICT all funds possessed by them, were exhaust OF PENNSYLVANIA. ed, and in 1872 the company was adjudiMichener v. Payson. Assignee, &c. cated bankrupt, and Payson was duly apDecided October 4, 1875. pointed assignee. In 1873, the BankruptThe assignee of a corporation, by virtue cy Court in Chicago decreed that a call of bankruptcy, has complete domin- and assessment should be made upon the ion over the assets transferred to stockholders of sixty per cent. upon each him, and could sue for the recovery share of unpaid stock, and if default in of an unpaid assignment upon stock. payment should be made after March 1st, An exemplification of a portion of the 1873, after proper notice and publication, bankruptcy record is admissible to the assignee should be empowered to bring prove the assignment in bankruptcy suit for its recovery. The defendant had and the assessment by the authority refused to pay the sixty per cent. assessment, and the amount claimed was $1,200 with interest. of the Court. It is incompetent for the defendant to testify that he had purchased the stock upon representations of the company's agent, which had not been carried out. Error to the District Court of the United States for the Eastern District of Pennsylvania. Assumpsit by Payson, assignee in bankruptcy of the Republic Insurance Co., of Chicago, against Michener, a resident of Philadelphia. Plea, non assumpsit. Upon the trial, after proof of the conditions above mentioned, and of the defendant's ownership of the stock, the plaintiff offered in evidence as exemplification of the record of the Bankruptcy Court of Chicago to prove (1) the assignment to the assignees in bankruptcy, and (2) that an assessment had been decreed by the Court, and authority given to the assignee to collect it. Admitted under objection by the defendant, (1) that the papers were not properly bound together; (2) because it was not a copy of the whole record; and, (3) it did not appear that the defendant had notice of the proceedings referred to therein. The following cause of action was set forth in the declaration: The Republic Insurance Co. issued shares of stock, at the par value of $100, upon certain terms, viz. The real and personal property of each stockholder was to be held liable for losses of the company in the amount of stock held by him, and not actually paid The defendant offered to prove by his in; twenty per cent. of the par value was to own testimony that he was induced to be paid in upon delivery of the cer- purchase the stock by the representations tificates, and the remaining eighty per of the agent of the company in Philadelcent. was to be assessed only in the event phia, to the effect that all Philadelphia of the twenty per cent. cash fund of the subscriptions were to be the capital stock company becoming exhausted by losses. of a Philadelphia branch of the company, In 1871, the defendant became the owner to be securely held and invested in Philof twenty shares of stock, having agreed adelphia under the management of a local to the above terms, and having paid $400,|board of directors, elected by the Phila delphia stockholders; that this arrange- cation and his appointment, the assignee ment was, in fact, carried out for about acquired complete dominion over the astwenty months, when the company abol- sets of the company; that it was an unished the local branch at Philadelphia questionable faculty of the board of diand the local board of management rectors to assess ratably; that the assignee without the consent of the Philadelphia succeeded to this right, subject to the stockholders. Objected to; objection sus-order of the Bankrupt Court; that the tained. court having exercised its jurisdiction, the right to make assessment could not be questioned collaterally, and the plaintiff was entitled to recover. 3. That the evidence offered by defendant was incompetent; the equities of the creditors were superior to defendant's, and must prevail. The defendant then offered to prove, by the testimony of the assignee, Payson, (1) that the company before bankruptcy had abolished a similar branch office in 2. The exemplification of the record New York, and had bought back from was admissible; proceedings in bankruptthe local stockholders there, the stock they cy do not constitute an integral record; had subscribed for, and had released them the bankrupt act contemplates that any from all liability for any further assess-portion may be used as evidence where ment on the stock; (2) that after the properly authenticated. Chicago fire the insured received a payment of twenty-five per cent. of their losses, and in consideration of immediate payment released the company from further liability, which releases the company afterwards surrendered without consideration, and allowed them to prove their claims in full, on account of which the assessment became necessary; and (3) that losses to a large amount were adjusted by the company, and policy holders and stockholders were permitted by the company to pay their assessment by certificates of indebtedness, issued for adjusted losses after insolvency. Objections to these offers were sustained. The defendant then testified that he paid $500 when he received his certificate of stock, $400 on the stock, and $100 premium. The Court charged the jury that the the plaintiff was entitled to recover amount claimed by him, unless the defendant was entitled to a credit of $100. Verdict for plaintiff for $1,232. Defendant assigned as error: The admission in evidence of the exemplification of the bankruptcy record, the rejection of his offers, and the charge of the Court as given above. Held, 1, That by virtue of the adjudi Judgment affirmed. MUNICIPAL CORPORATIONS. DIVISION OF BY THE LEGISLATURE. U. S. SUPREME COURT. The Board of the County Commissioners of the County of Laramie, applts. v. The Board of the County Commissioners of the County of Albany, and the Board of the County Commissioners of the County of Carbon. Decided February 1875. The legislature of a State has authority tion towards such indebtedness, cannot be maintained. Appeal from the Supreme Court of the ty, the present suit was instituted in her Payment of the outstanding debt having been made by the complainant coun Territory of Wyoming. behalf to compel the new counties to contribute their just proportion towards such The complainant county was first orindebtedness. Attempt is made to show ganized under the act of the third of January, 1868, passed by the legislature of the that an equitable cause of action exists in Territory of Dakota, which repealed the the case, by referring to the several imprior act to create and establish that counprovements made in that part of the terty. When organized the county was still ritory included in the new counties, before they were incorporated, and by refer a part of the territory, and embraced with withdrawn from taxation in the old coun Process was served and the respondents in its territorial limits all the territory ing to the great value of the property now comprising the counties of Laramie, Albany, and Carbon, in the Territory of ty, and included within the limits of the Wyoming, an area of three and one-half newly created counties. degrees from east to west, and four degrees from north to south. Very heavy appeared and filed separate demurrers to the bill of complaint. Hearing was had, expenses, it seems, were incurred by the in the district court of the territory, where county during that year and prior thereto, the suit was commenced, and the court greatly in excess of their current means, entered a decree sustaining the demurrers as more fully explained in the bill of complaint, which increased the indebtedness and dismissing the bill of complaint. Imto the sum of twenty-eight thousand dol- mediate appeal was taken by the complainOther liabilities, it is alleged, were ant to the supreme court of the territory, also incurred by the authorities of the where the parties having been again heard, county, during that period, which augthe supreme court entered a decree affirmmented their indebtedness to the sum of ing the decree of the district court, and forty thousand dollars in the aggregate. the present appeal is prosecuted by the complainant. lars. the Two errors are assigned, as follows: 1. That the supreme court erred in affirming the decree of the district court sustaining the demurrers of the respondents to the bill of complaint. 2. That the supreme court erred in rende ring judgment for the respondents. Pending these embarrassments charge is that the legislature of the territory passed two acts on the same day, to wit, December 16, 1868, creating the counties, of Albany and Carbon, out of the western portion of the territory of the complainant county, reducing the area of that county more than two-thirds; that by the said acts, creating said new coun- Held, 1. Counties, cities and towns are. ties fully two-thirds of the wealth and taxa- municipal corporations created by the auble property previously existing in the old thority of the legislature, and they derive county were withdrawn from its jurisdic-all their powers from the source of their tion, and its limits were reduced to less creation, except where the State Constituthan one-third of its former size, without any provision being made in either of said acts that the new counties, or either of them, should assume any proportion of the debts and liabilities which had been incurred for the welfare of the whole, before these acts were passed. tion otherwise provides, and that the legislature possesses the power to divide them at their pleasure, and to apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable; they are the mere creatures of the legislative will, and |