THIRD DEPARTMENT, DECEMBER TERM, 1874. trine that the provisions of the federal statute were controlling and conclusive as against the laws of the State. The action was brought under the federal statute, to recover back twice the amount of interest paid on a contract made in Missouri, and reserving nine per cent as such interest. It appeared in evidence that the local law limited the State banks to eight per cent, but allowed ten per cent as the general rate of interest. The question was, whether the national banks were governed by the special or the general rate of interest prescribed by the State; which, according to the opinion of the court, turned on the construction to be given to the first sentence of section 30 of the act of congress; and it was held that they were allowed to take the same rate of interest as natural persons, generally, in the State, and a higher rate if the State banks were allowed to do so. It did not appear whether the local statute limited the special rate of interest, in terms, to the banks organized under the laws of the State, and therefore did not include national banks; nor whether there were any penalties prescribed in the local statute for a violation of its provisions. It is true, the case was decided purely on the construction of the federal statute; but as the question here presented was not raised or considered by the court, and as the result reached was a dismissal of the action, the same as if this question had been argued and the point sustained, we cannot regard that case as an authority for the plaintiff. It is urged that the provisions in question of the act of congress are now in force in this State, even if that act was not ipso facto controlling, by virtue of a subsequent act of the legislature approving and adopting them. * But the latter act is limited, in terms, to banking associations organized under the local laws, and has no application to national banks. And it has been decided by the Court of Appeals, since the argument of this case, † that the act of 1870 does not change the status of the State banks in reference to the laws regulating the rate of interest and the penalties of usury. The act was merely passed to provide against the inequality temporarily created between the State and national banks by the decision of this court in the case of The National Bank of * Laws of 1870, chap. 163. + Farmers' Bank of Fayetteville v. Hale, MS. opinion. THIRD DEPARTMENT, DECEMBER TERM, 1874. Whitehall v. Lamb, before it was reversed in the Court of Appeals; and the statute became nugatory, by its terms, with that reversal, when the occasion for which it provided had passed away. The judgment of the Special Term must be reversed and a new trial granted, costs to abide the event. Present-BOCKES, P. J., LANDON and COUNTRYMAN, JJ. Judgment reversed and new trial granted, costs to abide the MEMORANDA OF CASES NOT REPORTED IN FULL. ADELIA P. FLETCHER AND OTHERS, APPELLANTS, v. ELEANOR D. UPDIKE, RESPONDENT. Money of wife received by husband· when he is not liable to account for it— Statute of limitations. Appeal from a decree of the surrogate of Schuyler county, allowing to the respondent the amount of the claim made by her against the estate of her deceased husband. It appeared that the money was received by the husband from his wife, during coverture, in small sums and at various times between February, 1847, and June, 1852. Held (1), that, in the absence of any agreement on the part of the husband to refund these moneys, they became his absolute property by virtue of his marital rights; (2), that, even if they were received under an agreement to refund them, they constituted a claim or debt against the husband, then due, and that the same was barred by the statute of limitations. APPEAL from a decree of the surrogate of Schuyler county, allowing to the respondent, against the estate of her deceased husband, the sum of $2,491.27, the amount of her claim presented to that officer for allowance. Hurd & Fletcher, for the appellants. M. J. Sunderlin and S. L. Rood, for the respondent. Opinion by BоCKES, P. J. Present-BOCKES, P. J., LANDON and COUNTRYMAN, JJ. Decree reversed and proceedings remitted, etc., with costs of appeal to abide the result. THIRD DEPARTMENT, DECEMBER TERM, 1874. EDWIN L. JONES AND OTHERS, HEIRS AT LAW, AND LUCY D. JONES AND ANOTHER, ADMINISTRATRIX AND ADMINISTRATOR, ETC., OF DUDLEY H. JONES, DECEASED, APPELLANTS, V. ELBERT O. SMITH, RESPONDENT. Ejectment - Patent line-what evidence admissible to establish—what sufficient to establish a line by acquiescence. Upon the trial of an action of ejectment, in order to establish a patent line, evidence as to its location was given by persons who had been conversant with the patents, and with their recognized boundaries, for many years, and who knew the line between them by tradition; knew of its recognition by those owning lands bounded by such line, and had also traced it by ancient maps purporting to represent it. Held, that the evidence was properly admitted. Van Rensselaer v. Vickery (3 Lans., 57) followed. To establish a line by practical location, it must appear that it has been actually created and acquiesced in for a long period of time, generally not less than twenty years;* and mutual recognition of the line, and acquiescence in it by the parties, are necessary requisites.† APPEAL from a judgment in favor of the defendant, entered upon the trial of this action at the circuit. R. L. Hand, for the appellant. Francis A. Smith, for the respondent. Opinion by BоCKES, P. J. Present-BOCKES, P. J., HARDIN and COUNTRYMAN, JJ. Judgment affirmed, with costs. *Reed v. Farr, 35 N. Y., 113. +Corning v. Troy Iron and Nail Factory, 44 N. Y., 577; Hubbell v. McCullough, 47 Barb., 287. 3352 79 544 THIRD DEPARTMENT, DECEMBER TERM, 1874. LOVELLA SCOTT, RESPONDENT, v. DANIEL STEVENSON, Agent― authority of — how proved. In an action brought upon a promissory note, alleged to have been transferred by the payee, through the agency of one Hunt, to the plaintiff, the defendant interposed the defense of payment. Upon the trial plaintiff testified that the note was brought to her by one Hunt; and she was also allowed, against the objection and exception of the defendant, to state what was said by Hunt at that time. No evidence was given to show that Hunt had any authority to act for the payee. Held, that the declarations of Hunt were improperly received; that his authority could not be proved by his own declarations; nor could it be implied from his possession and delivery of the note.* APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury. Charles Hughes, for the appellant. E. F. Bullard, for the respondent. Opinion by COUNTRYMAN, J. Present HARDIN and COUNTRYMAN, JJ. Judgment reversed and new trial granted, costs to abide event. JACOB P. MILLER, APPELLANT, v. WILLIAM IRISH AND APPEAL from a judgment in favor of the defendants entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge's minutes. The action was brought to recover the value of services rendered by the plaintiff, as broker, in effecting the sale of certain real estate for the defendants. Upon the trial evidence was given tending to *Marvin v. Wilber, 52 N. Y., 270. |