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interpretation, and so far as possible, effect be given to after giving a large number of pecuniary legacies to each distinct provision, courts anxiously lay hold of his relatives and next of kin, gives the sum of $10 to every expression as a ground of avoiding a construc- the Reverend H. G. Bowers, and immediately followtion which may defeat the testator's intention by ex- ing this last legacy, is the clause in question, which cluding the issue of a deceased child from participat- reads as follows: "I give and bequeath and devise ing in a general family provision. The impression unto the Reverend H. G. Bowers, of Jefferson, Marymade in reading this bequest, in connection with the land, all the rest and residue of my estate, and desire other provisions of the will, is that the testator in-him to use and appropriate the same for such religious tended it as a family provision for all the children of and charitable purposes and objects, and in such sums Clarissa, and their representatives, if deceased at the and in such manner, as will, in his judgment, best time of her decease, except her grandchild George promote the cause of Christ." Wilber. This exception indicates very strongly that the testator had in view the issue of the children of Clarissa who were deceased at the time of the making of the will. The exception of one only shows that he intended to include the other issue of said deceased children among the objects of the bequest, and such intention must govern it. It is decisive.

The controversy is between the heirs at law and next of kin of the testator on the one side, aud the Reverend Mr. Bowers on the other. The former contend that a trust was created by this clause of the will, and that such a trust is void, and therefore the property descends to them; while the latter insists that no trust is created, and that he takes the property in his own right, or if there be a trust, that it is valid and effective.

In Giles v. Giles, 8 Sim. 360, a testator bequeathed the general residue to trustees, in trust for his children living at the decease of his wife, and if any such children or child should be deceased before his wife, and should leave issue, then the children of such his son or daughter should be entitled to the portion of such his son or daughter who might be deceased before the decease of his wife, and with a proviso, that until the portions thereby provided for any of the said children of his said sons or daughters, who might have died before their mother should become vested, it should be lawful for his trustee to apply the interest of the portion for the maintenance of the child entitled in expectancy. The testator at the date of the will had four sons and one daughter living, and he had had another daughter, who was then dead, leaving children. The question was whether these children of the deceased daughter were objects of the bequest, and Sir L. Shadwell, V. C., decided that they were relying on the expression sons and daughters," which he considered to indicate that the testator had the issue of the deceased daughter in his view, he having but one daughter living at the date of the will.


See also Jarvis v. Pond, 9 Sim. 549; In re Sibley's Trusts, 5 Ch. Div. 494; Gowling v. Thompson, 11 Eq. Cas. 366, note. These cases are strong authorities showing that the intention of the testator, as evidenced by the will, is controlling in construing the language used by the testator in making a bequest, and must govern in determining who are the objects of it.

The judgment of the court is that the judgment of the County Court, affirming the decree of the Probate Court, is affirmed, and the same is ordered to be certified to the Probate Court.

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If there had been no decisions of the courts upon the subject, and this possession could be carried out in accordance with the intention of the testator, there would be very little difficulty in the case. He did not mean that this property should go to his heirs at law and next of kin; for if he did, he would not have inserted this clause in his will. Neither did he intend that Mr. Bowers, a stranger to him in blood, should take the property for his own individual benefit. He gave him a legacy of $10, and this is manifestly all the personal benefit he intended to bestow upon him. His intention undoubtedly was that this residue of his estate should be devoted to the " cause of Christ," and in order to carry this into effect, he selected his friend, the Reverend Mr. Bowers, as his disbursing agent or trustee. He gives to this ageut the discretion to select the religious and charitable purposes upon which his bounty was to be bestowed, and the amount to be allotted to each, but gives him no discretion so to distribute it or not, as he pleased. He says to him, in effect: "I give you this property, not for your own benefit, but to use and appropriate it to the cause of Christ, leaving it to you to select what religious and charitable purposes and objects shall be the recipients of my bounty, as well as the sums which each shall receive, and you must make such selection and distribution among the objects selected as will, in your judgment, best promote that cause." This as it appears to us was the plain intention of the testator, and is the plain reading of this clause. It is true, he does not use the term "in trust," but the language," and I desire him to use and appropriate" the same for the purpose and in the manner specified, is just as effective, so far as his intention is concerned, to create a trust as if the proper technical term had been employed.

But by the decisions of the courts it has become the settled law of this State that such a trust is void, because it is too vague and indefinite to be carried into effect. The uniform course of our decisions is that a trust, to be upheld, must be of such a nature that the cestuis que trust are defined, and capable of enforcing its execution by proceedings in a court of chancery. This doctrine has been laid down in a series of adjudications, from Dasheill v. Attorney-General, in 5 Harr. & J. 320, to Isaac v. Emery, in 64 Md. 333. The most prominent of the intermediate cases are Wilderman v. Mayor, etc., of Baltimore, 8 id. 555; Needles v. Murtin, 33 id. 609; and Church, etc., v. Smith, 56 id. 397. It requires no argument to show that the trust in this will falls within the rule established by these decisions, and must therefore be held to be void. The consequence of this is, that if we are right in holding this to be a trust, the property goes to the heirs at law and next of kin.

But it has been strenuously argued, that where pre

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catory words are used, the very fact that the objects
or parties to be benefited, or to be selected for that
purpose, are uncertain, is conclusive that no trust is
created, and in such case the donee takes the property
absolutely In other words, the contention is that no
trust arises by force of any precatory words unless
there is certainty in the object, as well as in the sub-
ject. This doctrine, no doubt, receives support from
statements contained in some of the text-books, and
is apparently sustained by some of the decisions; but
we do not find that the authorities have laid it down
as an inflexible rule applicable to all cases, and wholly
irrespective of the intention of the testator or donor
to create a trust. Lord Eldon, in the noted case of
Morice v. Bishop of Durham, 10 Ves. 522, went no
further than to say: "Wherever the subject to be
administered as trust property, and the objects for
whose benefit it is to be administered, are to be found
in a will not expressly creating a trust, the indefinite
nature and quantum of the subject, and the indefinite It is also to be remarked that the distinction be-
nature of the objects, are always used by the courts as tween this class of cases, and others in which preca-
evidence that the mind of the testator was not to tory words have been held not to create a trust, is
create a trust; and the difficulty that would be im-recognized in 1 Jarm. Wills (4th Am. ed.) 693, where
posed upon the court to say what should be so applied,
or to what objects, has been the foundation of the
argument that no trust was intended."

And as strongly sustaining the same proposition, reference may be made to the antecedent cases of Ommanney v. Butcher, 1 Turn. & R. 260; Ellis v. Selby, 1 Mylne & C. 286; Stubbs v. Sargon, 4 id. 513; and Corporation of Gloucester v. Osborn, 1 H. L. Cas, 272.

On the other hand, Lord Chancellor Truso, in the case of Briggs v. Penny, 3 Macn. & G. 546 (decided in 1851), deduces the principles from the then state of the authorities thus: "I conceive the rule of construction to be that words accompanying a gift or bequest, expressive of confidence, or belief or desire or hope that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions: First, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain; and thirdly, the objects expressed must not be too vague or indefinite to be enforced."

the learned author says: "It is to be observed that in all these cases the consequence of holding the expressions to be too vague for the creation of a trust was that the devisee or legatee retained the property for his or her own benefit; and in this respect these cases stand distinguished from those in which there was considered to be sufficient indication of the testator's intention to create a trust, though the objects of it were uncertain, a state of things which of course lets in the claim of the heir or next of kin to the beneficial ownership. In such cases there is no uncertainty as to the intention to create a trust, but merely as to the objects. In the other class of cases it is uncertain whether any trust is intended to be created."

In this country, also, adjudications are to be found in which the same doctrine is approved. Even in the case of Pennock's Estate, 20 Penn. St. 26, where the court decided that the old Roman and English doctrine, that precatory words will be sufficient to convert a devise or bequest into a trust was not part of the common law of Pennsylvania, they yet held that such words may amount to a declaration of trust when it appears from other parts of the will that the testator intended not to commit the estate to the devisee or legatee, or the ultimate disposition of it to his kindness, justice, or discretion. The case of Ingram v. Graley, 29 Ga. 553, is directly in point. There the decision in Briggs v. Penny was approved and followed, and it was held that a trust was created by precatory words, though not sufficiently declared, and that the legatee did not take the estate beneficially, but as trustee for the next of kin.

And then, in reference to this third condition, he says: "It is most important to observe that vagueness in the object will unquestionably furnish reasons for holding that no trust was intended; yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual; and it is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust. It is only necessary that it should clearly appear that a trust was intended. *** Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of the trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next of kin take. But there is no peculiar effect in the word 'trust.' Other expressions may be equally indicative of a fiduciary intent, though not equally apt and clear."

He then refers to the fact that in the will before him, as in the will before us, another legacy had been given to the legatee, as clearly showing "that she was not intended to take the residue beneficially," and dismissed the appeal, which was taken from a decree passed by Vice-chancellor Sir Knight Bruce, whose opinion in the case is reported in 3 De Gex & S.


So in the more recent case of Bernard v. Minshull, Johns. Eng. Ch. 276 (decided by Vice-chancelor Sir Page Wood in 1859), the maxim that a certain subject and a certain object are necessary in order to constitute a trust, where the words used are precatory

only, is again examined and explained, and it was again held that to to constitute such a trust as shall exclude the donee to whom the precatory words are addressed, it is sufficient if it appears a trust was intended, although the object of such trust is uncertain and cannot be ascertained. The conclusion reached by this learned judge was, that although the certainty of both subject and object may clearly indicate the existence of a trust, the converse of the proposition is by no means true; and that however uncertain may be the objects of the testator's bounty, if it clearly appear that such objects were intended by him to have the benefit of the gift, it will exclude the donee, and create a trust.


In short, our examination of the authorities, both English and American, has led us to the same conclusions that were reached by the commentators to Hill Trustees (4th Am. ed. 116, and which are also cited with approval in Perry Trusts, § 114, note 4. Among the rules there laid down as fairly deducible from the adjudged cases are these: (1) Discretionary expressions which leave the application or nonapplication of the subject of the devise to the objects contemplated by the testator entirely to the caprice of the devisee, will prevent a trust from attaching, but a mere discretion in regard to the method of application of the subject, or the selection of the object, will not be inconsistent with a trust; (2) precatory words will not be construed to confer an absolute gift on the first taker, merely because of failure or uncertainty in the object or subject of the devise; and (3) failure or uncertainty will be an element to guide the court in construing words of doubtful significauce adversely to

a trust.

But our own decision in Taylor v. Plaine, 39 Md. 58, if not conclusive, goes very far to settle the question now before us. In that case a devise of property, real and personal, to certain named parties, "to be disposed of according to their verbal directions, or the direction of either of them," was held to be upon trust; and as the terms of the trust had not been declared in the will, a trust arose by operation of law in favor of the heirs and personal representatives of the testator. Several passages in the opinion in that case have a direct application to this. After stating that no positive rule can be laid down which shall determine in all cases what terms or expressious will carry a beneficial interest, or what will create a trust, the court say: "The words 'trust' and 'trustees' have, it is true, a defined and technical meaning, and are more generally as well as more properly used, but it is well settled that there is no magic in particular words, and any language which satisfactorily indicates an intention to stamp upon the devise the character of a trust will be sufficient."

Again, after comparing the several provisions of the will with each other, they say: "We think it may be fairly inferred that the testator did not design to give to these donees, who were neither his heirs nor next of kin, but strangers in blood, a beneficial interest in the property, but that they should take it in trust."

The trust failed for uncertainty in the objects, no cestuis que trust being named, and the property was adjudged to belong to the heirs and next of kin.

If after the bequest and devise to Mr. Bowers, the words "in trust" had been used, it is conceded, and all the authorities show, he would have taken no beneficial interest whatever, by reason of the failure of the trust for uncertainty in its objects. But other words plainly indicating an intention to create a trust are used, and it is manifest from the whole will that the testator never intended to give bim this property in his own right and for his own use. We have already given our reading of this clause, and we think no one can read this will, or hear it read, without saying at once that the testator never intended to make an absolute gift of the residue of his estate to Mr. Bowers, or to give him any beneficial interest therein. Can then the omission of the words "in trust," coupled with the fact that the law, as laid down by the courts, declares that the testator's intentions are too vague and indefinite to be carried into effect, work an absolute gift of the property to one whom he never intended should be the recipient of such a gift? A result like this could only be attained by disregarding intention, and relying upon some arbitrary, inflexible, and technical rule of construction which has no foundation in reason; and we have shown that no such rule has been sanctioned by any controlling weight of authority.

The practical effect of the decree appealed from is to give this property to the heirs-at-law and next of kin of the testator, and we affirm it.


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ified in the note is sufficient evidence of the intention of the parties to contract with reference to such law, rather than that of the place of payment.

A contract to pay interest on a coupon or interest note after maturity may be enforced.

NEW ENGLAND MORTGAGE SECURITY Co. v. VADER. Prima facie the place of payment of a promissory note is the place of performance, including the rate of interest that may be demanded thereon; but the parties thereto may adopt the law of the place of making the contract as the place of payment, so far as such interest is concerned, and the fact that the higher rate of interest allowed by the law of the place of the making of the contract is spec

UIT to enforce the lien of a mortgage.


J. D. Fenton, for plaintiff.

L. H. Montanye, for defendants.

corporation formed under the law of Connecticut, DEADY, J. This suit is brought by the plaintiff, a against the defendants, citizens of Oregon, to enforce the lien of a mortgage on certain real property. The suit was commenced on August 12, 1885, in the State Circuit Court for the county of Linn, and afterward removed here by the plaintiff. Here the plaintiff filed an amended "complaint," and the cause was heard on a demurrer thereto.

CONFLICT OF LAWS NOTE PAYABLE IN the same at the rate of ten per cent per annum, for


which the mortgage shall be a security; (3) if the defendants fail to pay any of said money within five days after the same shall become due, or to conform to or comply with any of these stipulations, then the whole amount secured by the mortgage shall become due at once; and (4) that on filing of a bill to enforce the lien of said mortgage the plaintiff therein shall recover a reasonable attorney's fee, to be taxed by the court, for which the mortgage shall stand as security.

From the amended bill or complaint it appears that their promissory note, payable to the order of the on April 21, 1881, the defendants made and delivered plaintiff, on April 21, 1886, for $2,000, "with interest from date until paid, at eight per cent per annum, as ing Company, New York city." The note also conper coupons attached, at the office of the Corbin Banktained the following stipulations:

"Unpaid interest shall bear interest at ten per cent per annum. On failure to pay interest within five days after due, the holder may collect the principal and interest at once. And in case suit is instituted to collect this note, or any portion thereof, I promise to pay such additional sum as the court may adjudge reasonable, as attorney's fees in said suit."

And also made and delivered to the plaintiff their six coupon or interest notes, for the interest to accrue on said principal note, for the sums and payable as follows: One for $110.68, payable January 1, 1882; four for $160 each, payable, respectively, January 1, 1883, 1881, 1885, and 1886; and one for $49.32, payable April 21, 1886. There is now due on the principal note and the last two coupons the sum of $2,320, with infrom January 1, 1886, and on said coupon notes from terest on $2,000 thereof at eight per cent per annum the date when they became payable at ten per cent per annum, in the United States gold coin, no part of which has been paid.

On April 21, 1881, the defendants, to secure the payment of said note and coupons, and all sums of money mortgage on a certain tract of land, situate in Lane thereby agreed to be paid, executed to the plaintiff a county, Oregon, containing 640 acres; which mortgage contained the following stipulations: (1) That if said defendants fail to pay any of said interest when due, the same shall bear interest at the rate of ten per cent per annum; (2) the defendants will pay all taxes and assessments levied on said real property before the same becomes delinquent, and if not so paid, the holder of the mortgage may, without notice, declare the whole sum thereby secured due at once, or may elect to pay said taxes and assessments, and be entitled to interest on

For the years 1883, 1884, and 1885 taxes were levied on said land by Liun county amounting to $106.11, which became delinquent, and were a lien thereon, and

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have since been paid by the plaintiff; and by a stipula-
tion filed April 13, 1886, it was agreed that on the argu-
ment of the demurrer the court may consider the lia-
bility of the defendants to pay the taxes mentioned,
and in so doing may consider the bill and the original
mortgage, and "allow or disallow such claim for
taxes" as it may be advised.

The grounds of the demurrer as maintained on the argument are substantially these: (1) The plaintiff has not the capacity to maintain this suit; (2) the notes are made payable in New York, in violation of the usury laws of that State, and are therefore void; (3) the agreement to pay interest on the interest notes after maturity is an agreement to pay compound interest, and is therefore void; (4) the agreement to pay the taxes is either without consideration or usurious, and therefore void.

rate of interest had reference to the law of Oregon, and intended to be governed thereby. The contract was made here, and the rate of interest specified therein. The money was used here, and the rate of interest agreed on is allowed by the law of this State, but forbidden by that of New York.

In Miller v. Tiffany, 1 Wall. 310, Mr. Justice Swayne, quoting with approval from Andrews v. Pond, 13 Pet. 77, 78, says: "The general principle in relation to contracts made in one place to be performed in another is well settled. They are to be governed by the law of the place of performance, and if the interest allowed by the law of the place of performance is higher than that permitted at the place of contract, the parties may stipulate for the higher interest without incurring the penalties of usury." And adds: "The converse of this proposition is also well settled. If the rate of interest be higher at the place of contract than at the place of performance, the parties may lawfully contract in that casefalso for the higher rate;" citing De Pau v. Humphreys, 10 Mart. (La.) 1.

In Jones on Mortgages (§ 657) the result of the authorities is stated as follows: "The parties may stipulate for interest with reference to the laws of either the place of contract or the place of payment, so long as the provision be made in good faith, and not as a cover for usury;" citing Townsend v. Riley, 46 N. H. 300; Peck v. Mayo, 14 Vt. 33, 38.

In Kilgore v. Dempsey, 18 Am. Rep. 310; S. C., 25 Ohio St. 413, it was held that where a note is made in one State, and payable in another, and the rate of interest allowed in such States is different, the law of either State may be applied to the contract.

In Thornton v. Dean, 45 Am. Rep. 799; S. C., 19 S. C. 583, it was held that when a contract is entered into in one State, to be performed in another, the parties may stipulate for the rate of interest allowed in either

[Omitting the other grounds.]

As to the second point, it is admitted that the rate
of interest allowed by the statute (June 27, 1879) of
New York is only six per cent, and that this court
will take judicial knowledge of the laws of that State.
Owings v. Hull, 9 Pet. 624; Bennett v. Bennett, 1 Deady,
309. The argument in behalf of the defendants on
this point is, that by making this note payable in New
York, the parties to the contract made that the place
of performance, including the rate of interest payable
by the law thereof. There is some confusion and con-
tradiction in the writers and authorities on this sub-
ject, but the current of the later ones establishes the
just and convenient rule for the solution of the prob-
lem, namely, the place of performance depends on
the intention of the parties to the contract. Where a
note made in one place is made payable in another,
prima facie the place of payment is the place of per-
formance, and the law of the latter, for the purposes
of payment and its incidents, applies to the transac-
tion. But this fact is by no means conclusive evi-country.
dence that such was the intention of the parties; and
the contrary may be inferred from the immediate cir-
cumstances, as shown by extraneous evidence. Whart.
Confil. Laws, § 505. And even when the place of pay-
ment is to be taken as the place of performance, for
the purposes of payment, and matters incidental
thereto, including days of grace, the rate of interest,
where none is specified in the contract, and the like, it
may satisfactorily appear from the circumstances of
the case that it was not the intention of the parties
that the rate of interest should be governed by the
law of such place. And generally "the law of the
place where the contract is made is to determine the
rate of interest, when the contract specifically gives
interest." 2 Kent Comm. 460; Story Confl. Laws,
$305. And this conclusion must be based on the fact
that an agreement for a specific rate of interest on a
loan constitutes a part of the obligation of a contract
which is always measured or tried by the lex loci con-
tractus and not the lex loci solutionis; and for the pur-
poses of this question, it is said by an eminent writer
that "the true view seems to be that the place of per-
formance of an obligation for the payment of money
is the place where the money is used" and put at
risk. Whart. Conf. Laws, § 508. Again, when the
rate of interest is different in the place where a note
is made and where it is payable, and two conflicting
laws are thus brought to bear on the same point, the
court will apply that law to the transaction which will
best support the validity of the obligation; for it is
not to be presumed that the parties in fixing the rate
of interest acted with reference to the law of a place
which would make the contract void. Whart. Conf.
Laws, $507.

Now, in this case, all these controlling circumstances
point to the conclusion, that although the note was
made payable in New York, the parties in fixing the

In Daniel on Negotiable Instruments (§ 922) is is said: "There are some contracts however which would be illegal if all the parties resided or contracted either in the State where it is made or where it is to be performed, which are nevertheless recognized and enforced if valid either in the one place or the other; and of this nature are contracts to pay interest at rates, which by the law of one place or the other, would be usurious and void. In such cases the intention of the parties is effectuated us a concession to trade and commerce between nations; and if the transaction is not in itself immoral, the rate of interest authorized either by the country where the contract is made or to be performed is allowed to prevail.'

In the leading case of De Pau v. Humphreys, 10 Mart. La.) 1, it was held that a note made in Louisiana, payable with ten per cent interest-the legal rate in that State-was not usurious, but valid, although payable in New York, where the interest is only seven per cent.

Mr. Daniel (Neg. Inst., § 922), in referring to this case, says: "The like view has been recognized and adopted in numerous cases, and may be regarded as a recognized principle of English and American jurisprudence," citing a great number of authorities.

In the light of these authorities, and on every consideration of convenience and utility, the parties to this transaction, being at liberty to contract for either the Oregon or New York rate of interest, the very fact that they adopted the former is satisfactory evidence that they contracted in this respect with reference to the laws of this State, and intended to be governed thereby. The note of the defendants was made payable in New York simply for the convenience of the lender. There is no pretense that there was any design or purpose to contract for or obtain what might be regarded as a usurious rate of interest. On the

contrary, the contract was openly made in good faith, in accordance with the law of this State, where the defendants resided, and it would be a reproach to the administration of justice if the defendants could now defraud the plaintiff out of its money simply because their note was, with their consent, and only for the convenience of the lender, made payable in New York rather than Oregon.

There is no law of this State that prohibits the payment of interest on interest; and the better opinion is that no contract for the payment of interest, whether on interest or principal, is usurious or illegal, unless prohibited by statute. Tyler Usury, 64. But the rule was early established in equity that compound interest would not be allowed, not because it was usurious or contrary to the statute on that subject, but because the practice, if allowed, would lead to the oppression of improvident debtors. Connecticut v. Jackson, 1 Johns. Ch. 13. This rule doubtless had its origin in the old ecclesiastical idea that the taking of interest, under any circumstances, was usury, and a grievous sin. But the tendency of opinion has been toward the suggestion of Lord Thurlow, in Waring v. Cunliffe, 1 Ves. Jr. 99, that there is nothing unjust in compelling a debtor who neglects to pay interest when it becomes due, to pay interest upon that interest; and so it was early settled that a promise to pay interest on interest after the latter became due is valid. Kellogg v. Hickok, 1 Wend. 521; Hathaway v. Meads, 11 Or. 66; S. C., 4 Pac. Rep. 519.

* *

By the law of this State (Sess. Laws 1880, p. 17) interest is allowed at "eight per cent per annum, and no more, on all moneys after the same become due; *but on contracts, interest at the rate of ten per cent per annum may be charged by express agreement of the parties. and no more." These interest notes are distinct contracts for the payment of money, and when they became due were entitled, under this statute, without any agreement of the parties on the subject, to draw interest at eight per cent per annum until paid, or by the agreement of the parties, they might draw ten per cent. The provision of the statute is in effect that interest shall be allowed "on all moneys after the same become due," and that at least includes the case of money due on an interest or coupon note, or a promise or agreement in a principal note to the effect that the interest thereon shall be paid at a certain period or periods prior to the maturity thereof. But interest concerning the payment of which no special promise is made, and which no otherwise exists or is due than as an increment of the principal sum, is not included in this statute as "money" due and entitled to bear interest. But a promise to pay interest as a distinct debt or liability, either in or out of the principal contract, and before or as the principal sum falls due, is a promise to pay a sum of money, which when due, bears interest under the statute, either at the legal rate, or according to the agreement of the parties, within the limit allowed thereby.

In Bledsoe v. Nixon, 12 Am. Rep. 642; S. C., 69 N. C. 89, it was held that when a promissory note contained a stipulation that the interest thereon should be paid semi-annually, an unpaid installment of interest drew interest, as if a note had been given therefor.

In Wheaton v. Pike, 11 Am. Rep. 227; S. C., 9 R. I. 132, it was held that where a promissory note was made payable in the three years after date, with interest payable semi-annually, each installment of interest falling due before the maturity of the note drew interest from the time it was due until paid.

In Aurora v. West, 7 Wall. 104, it was held that interest coupons, by universal usage and consent, have all the qualities of commercial paper, and should draw interest after payment is neglected or refused. To the

same effect is the ruling in Clark v. Iowa, 20 Wall. 589; Town of Genoa v. Woodruff, 92 U. S. 502; and Gelpcke v. Dubuque, 1 Wall. 200.

In Jones on Mortgages (§§ 653, 1141) it is said that coupons for the interest on a mortgage debt are, in effect, promissory notes, and draw interest in the same manner after maturity. To the same effect is Daniel Neg. Inst., § 1513. See also Harper v. Ely, 70 Ill. 581; Thayer v. Star Mining Co., 105 id. 552.

In my judgment these interest notes are entitled to draw interest, at the rate agreed on, from the date of their maturity.


CRIMINAL LAW-LIQUOR LAW-CONSPIRACY-SOLICITATION.-Several persons were charged in an indictment with conspiracy in that they had induced a sa. loon keeper to sell or give to them drinks on Sunday with the intention of proceeding against the person so supplying the liquor and getting the informer's share of the penalty. Held, the Quarter Sessions had properly quashed the indictment. It is impossible to hold that persons are guilty in law for conspiracy to do an act where the act imputed is such that if the intention had been consummated no offense would have been committed. It is not alleged that the defendants by furnishing a stock of liquor, or by any other means instigated or furthered the illegal act of selling or giving away on Sunday, nor that they conspired by force or threats to coerce the saloon keepers to sell. The latter were free agents; they sold or gave away the beer because they chose to do so. Where there is a confederacy, but nothing more than solicitations to an intelligent free agent to commit crime, it is not indictable unless it is made so by statute. 1 Whart. Cr. Laws (8th ed.), § 2691. Chief Justice Gibson, in Shannon v. Commonwealth, 2 H. 226, said that if confederacy constituted conspiracy, without regard to the quality of the act to be done, a party might incur the guilt of it by having agreed to be the passive subject of a battery. Accordingly these defendants would not have been indictable if they had combined and agreed together to go to the prosecutor's house and solicit and induce him to beat them; they are not indictable for having conspired to induce him to give to them drinks on Sunday. Counsel for the Commonwealth rely principally upon the case of Hazen v. Commonwealth, 11 H. 355. It is asserted that it was there held that Hazen and three others had been properly convicted upon an indictment charging that they had conspired to solicit, induce and procure the officers of a bank to violate a statute which made it a penal offense to issue notes of banks of other States of a denomination less than $5. The statute gave the former the one-half of the money penalty. But the counts upon which Hazen and his co-defendants were convicted charged more than the mere conspiracy to procure the bank officerss to issue the forbidden notes. It was also charged, and found, that one of them had deposited in the bank large sums of money, not for lawful business, and drew them by checks for unequal sums, and required the checks to be paid in bank notes of less than $5, and the defendants had threatened to bring penal actions unless they were paid $3,250; that it was the purpose of the conspiracy to compel the bank officers unjustly and unlawfully to pay large sums of money for the corrupt gain of the defendants. The Supreme Court said that they were left to infer that such large sums of money were to be obtained by some other means than a fair prosecution of the offending bank officers; that it was charged that the money was to be drawn from the victims by compound



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