tion that the owner shall pay a greater sum than the holder can lawfully demand. Ib.

3. The duty to act is upon the owner, and the refusal of the owner, although coupled with an unlawful condition, is a non feasance, which does not make him a trespasser ab initio. Ib.

COMMON CARRIER.

1. Delivery.-Action against defendant, owner of the ship Carolus Magnus, for an alleged improper delivery of some goods, which were shipped on defendant's vessel by plaintiffs consigned to J. C. McA. at New York. The vessel arrived at New York, August 26, 1860, and the consignee was notified. He paid the duties on a portion of the goods and entered the remainder for warehousing, and received directions for placing them in certain designated United States bonded warehouses, and delivered a permit for the discharge of the goods on board the vessel. Defendant's agent was notified that the goods were perishable and must be discharged on a fine day. The agents of the parties agreed that the goods should be discharged September 20th, if the day was fine. On that day it was raining until 9 A. M., then cleared, it rained again about 2.30 P. M., and from 4.30 P. M., during the day and night. Defendant's agent began to discharge the goods at 9 A. M., and continued until noon, when the consignee was notified. At that time nearly all the goods were unloaded and placed upon the wharf. were unloaded before 2 P. M. Before removal they had to be weighed by a United States officer. He reached the place at 2.30 P. M. The consignee used great diligence, but was unable during that day to secure the goods and a portion of them was injured. Held, that the day selected for the delivery of the goods was not fine, and hence the consignee had no notice that they were then to be delivered, and that defendant landed them without reasonable notice upon an unsuitable day, and was chargeable with a breach of his obligation and duty as a common carrier. McAndrews et al. v. Whitlock. Opinion by Folger, J.

All

2. A common carrier by water, of goods consigned to one not the owner, is not bound to deliver them personally to the consignee, or at his warehouse. He may land them at a wharf, but before unloading must notify the consignee of their arrival and unloading, and give him reasonable time after notice to take charge of and secure them, and, in case the consignee does not appear to claim the goods or does not receive them, the carrier is obliged to take care of them for the owner. Ib.

3. A custom-house officer on board a ship in the discharge of his official duty to care for the lawful unlading of the cargo, is not as such authorized to receive the goods, and a discharge with his knowledge and assent is not such a delivery as relieves the carrier from liability. When the carrier is apprised of the distance which the goods are to be carted after delivery, this enters into the question, as to what is reasonable time and notice. Such notice and time as give the consignee time enough under all proper and ordinary circumstances and proceeding in the ordinary mode of those engaged in the same business, to provide for the care and removal of the goods is reasonable. Between a carrier by sea and a carrier by inland water, there is no difference in the obligation as to delivery. Ib.

CONTRACT.

1. Legal tender decisions.- Plaintiff was the holder of a bond and mortgage executed by defendant prior to

the passage of the legal tender act. After the passage of that act, and while a case was pending, having been argued but not decided, in the supreme court of the United States (Hepburn v. Griswold, 8 Wall. 603), involving the question of the effect of that act upon prior contracts, plaintiff received a payment in legal tender notes under an agreement by which the parties, to avoid litigation, stipulated in substance, that if it should, at any time thereafter, be decided by said court that plaintiff was entitled to demaud and defendant bound to pay gold; that on such decision being made and becoming the law of the land, defendant would, upon return of the legal tender notes, pay in gold. After the decision in that action, holding the act unconstitutional as to debts previously contracted, defendant refusing to substitute gold as agreed, plaintiff brought an action to recover damages. The decision having been subsequently overruled by the same court (Knox v. Lee, 12 Wall. 457), defendant claimed that the latter decision controlled.

Held, that the contract must be construed, if practicable, with the view to carry out the declared object (i. e., to avoid litigation) and in the light of such existing circumstances as the parties are presumed to have known; that the fact of the pendency of the first action must be presumed to have been known to them, and that the contract had reference thereto and in effect made the decision therein final; that although the subsequent decision was a legal adjudication, that the prior one was not the law at the time it was made, yet it did not affect a right thus acquired. Woodruff v. Woodruff; Woodruff v. Robinson. Opinion by Church, Ch. J.

2. Also held, that as the first case (Hepburn v. Griswold) was heard by a full court, was fully considered and was made under circumstances which entitled it to confidence as a final adjudication, there was nothing in the facts or in the merits of the question from which the court would have the right to infer that the parties contemplated any further litigation. Ib.

3. Facts of public notoriety relating to the subject of a contract, must be presumed to have been known to the parties at the time of making the contract, and the language used must be construed in reference to these facts. Ib.

4. Plaintiffs entered into a contract to import for defendants from South America, nitrate of soda, for costs and charges with three and a half per cent commissions and brokerage on entire cost, delivered in New York duty paid. Plaintiffs charged defendants the currency value at the time of payment of the gold paid to make the purchases and for duties and commissions in currency upon the amount of costs and charges thus ascertained. Held, that the account was correct. (Grover, J., dissenting.) Where there are two currencies, in the absence of any provision in a contract, or of any circumstance excluding contracts between citizens of money refer to the ordinary and usual currency in which business is transacted, and a reference in a contract to the cost of a commodity, unexplained, will be deemed to refer to its costs in the same currency. Fabbri et al. v. Kalbfleisch et al. Opinion by Andrews, J.

FERRY.

Action to recover damages for the loss of plaintiff's horse and wagon, alleged to have been caused by defendant's neglect. Plaintiff drove his horse and wagon on board defendant's ferry-boat, at Astoria, to cross to New York. He and his wife remained in the wagon.

When the whistle was blown for the boat to start, the horse became restive, and, upon the blowing of the second whistle, rushed forward, and the establishment with the occupants were precipitated into the river. There was evidence tending to show that the chain at the outer end of the boat was not up, or entirely insufficient.

Held, that the ferrymen are not chargeable, as common carriers, for the absolute safety of property retained by a passenger in his own custody, and under his control; while, from the nature of the franchise they exercise, and the character of the service they render, they are held to extreme diligence and care, and to a strict liability for any neglect or omission of duty; they do not assume all the liability of common carriers. The property, in such case, is not at the sole risk of either part, but the ordinary rules in actions for negligence apply. The ferryman undertakes for the safety of the property, as against defects and insufficiencies of his boat and other appliances, for the performance of the services, and for the neglect or want of skill of himself and servants, while the owner is bound to use ordinary care and diligence to prevent loss or injury; and, if guilty of contributory negligence, he cannot recover. Fisher v. Clisbee (12 Ill. 344); Powell v. Mills (37 Mass. 691), and Wilson v. Hamilton, 8 Ohio (N. S.), 722, disapproved. Where the loss is occasioned by the ferryman's apparent negligence, in omitting to provide safe and sufficient means to perform what he has undertaken, the burden is upon him, to show that the accident was not occasioned by his fault. Wyckoff v. Queens County Ferry Co. Opinion by Allen, J.

PRINCIPAL AND AGENT.

Where an agent deposits in a bank to his own account the proceeds of property sold by him for his principal, the debt thus constituted against the bank belongs to the principal, and his right thereto is not affected by the fact that the agent at the same time deposited other moneys belonging to himself. Nor is it affected by the fact that the agent, instead of depositing the identical moneys received by him on account of his principal. substitutes other moneys therefor. And upon presentation for payment at the bank by the principal, and a refusal to pay by the bank, of a check for the amount of said debt, received from the agent, a legal action may be maintained against the bank therefor. (Allen and Grover, JJ., dissenting.) A bank in such case cannot set up the want of privity. Privity has nothing to do with the question. Van Alen v. American National Bank. Opinion by Church, Ch. J.

VENDOR AND PURCHASER.

1. A sold to B certain goods upon credit, B transferred them, with other property, in trust for the payment of antecedent debts. Upon discovering the fraud A accepted as security for the purchase-money of the goods, a written assignment of B's claim to any surplus remaining after payment of the debts, in which assignment was inserted a clause, declaring that the acceptance thereof shall not preclude A from claiming and commencing proceedings to recover the goods. Held, that the assignment taken by A was an unequivocal affirmance of the sale and subsequent transfer to B, and an abandonment of the right to reclaim the goods. The clause as to A not being precluded from claiming the goods, etc., is repugnant to the other parts of the

instrument and is inoperative. Joslin v. Cowee. Opinion by Rapallo, J.

2. If through fraud a factor is induced to part with his goods to an insolvent purchaser, who, before the fraud is discovered, places them in such a condition that it is difficult, if not impossible, to follow them, if acting in good faith, the factor takes security for the goods and thus affirms the sale, he is acting within the scope of his powers and his principal is bound. Ib.

WILL.

1. Execution of.-The statute prescribing the 'formalities to be observed in the execution of wills (2 R. S. 63, § 40), is to be construed so as to secure the purposes of its enactment. A substantial compliance therewith is sufficient. The words of request or acknowledgment may proceed from another, and will be regarded as those of the testator, if the circumstances show that he adopted them, and that the party speaking them was acting for him with his assent. To establish the valid publication of a will, the testator must, at the time of subscribing or acknowledging his subscription, in the presence of witnesses, "declare the instrument so subscribed, to be his last will and testament." It is not sufficient that it appears that the nature of the instrument was known to the testator and subscribing witnesses at the time it was executed. Knowledge derived from any other source or at any other time, cannot stand as a substitute for the declaration of the testator. Gilbert, ex'r, v. Knox et al.; American Bible Society v. Knox et al. Opinion by Andrews, J.

2. The fact that the testator was fully apprised of the testamentary character of the instrument, may be considered in aid of proof tending to establish a publication. Ib.

WILL-CONSTRUCTION Of.

1. Where in a will there are two clauses so inconsistent and irreconcilable that they cannot possibly stand together, the one posterior in position will be considered as indicating a subsequent intention, and will prevail unless the general scope of the will leads to a contrary conclusion; although the latter clause is invalid, yet it must be retained and considered for the purpose of ascertaining the intentions of the testator, and for this it is as effectual and its operation upon the preceding clause is the same as though no leading obstacle to its being carried into execution existed. Van Nostrand et al. v. Moore et al. Opinion by Rapallo, J.

2. Where from the language of a will the meaning of the testator is apparent, the plain import of the language cannot be departed from, though it result in rendering the will valid. Ib.

BANKRUPTCY LAW.

NOTE OF RECENT DECISIONS.
FRAUD.

A, being about to start to Europe, applies to K., a banker, for two five hundred dollar bills, in exchange for one thousand dollars of small notes. K. declines, under pretense of not having the five hundred dollar bills. A. then asks for exchange on New York, and K. gives him a check for one thousand dollars on a bark in New York, knowing at the time that the New York bank had protested his checks, and that he was largely overdrawn. K., at the time of giving the check and receiving the money, being in the act of preparing a

petition in bankruptcy, and in consultation with his legal adviser in the private office. A filed a bill, setting up the fraud, and alleging that the title to the thousand dollars never vested in K. or his assignees by reason thereof, and claiming to be paid in full.

Held, The title to the money vested in K., notwithstanding the fraud, and that A was not entitled to be paid in full, but only to share pro rata with the other creditors. In re John King, Sup. Ct. Ga., 8 N. B. R. 285.

INDORSER.

The indorser of a promissory note or bill of exchange, who, after due protest and notice, fails to provide for payment of his liability within fourteen days, thereby commits an act of bankruptcy, and may be adjudged a bankrupt upon the application of a petitioning creditor, and it matters not whether the paper be indorsed for accommodation, or in the course of business. In re John Clemens, U. S. Dist. Ct., E. D. Mo., 8 N. B. R. 279.

See Notes of Cases.

PARTNERSHIP.

Where one of the partners has died, and, under the statute of the State, the partnership property is placed in the hands of the personal representative of the deceased partner to be administered, the court in bankruptcy will not, on a petition against the surviving partners, take the estate out of the hands of the administrator. In re Daggett et al., U. S. Dist. Ct., E. D. Mo., 8 N. B. R. 287.

TRUST-SECURED CLAIMS.

A held a mortgage on the property of the bankrupts, to secure him as indorser of their paper, to a large amount. The holders of this paper proved their claims on their respective notes, against the estate of the bankrupts, as debts for which they held no security, they having no knowledge of the mortgage above mentioned to A, when they received the notes bearing his indorsement.

Held, that the security was not personal to the surety (A), nor intended for his personal indemnity only, for the reason that the mortgage was conditioned for the payment of the indorsed notes as well as for the indemnity of the indorser; that it makes no difference whether the trust is created and defined by law, or written out by the parties; that the claimants in this case, before they proved their debts, had such a lien or security as prevented them from proving their claims for the whole amount as unsecured debts, without releasing their equitable interest in the mortgage before referred to. When, however, such proof was made through ignorance or mistake, a creditor ought to be allowed to withdraw his proof and prove as a secured creditor, but after the taking of a dividend upon his whole debt, as an unsecured creditor, to the prejudice of the general creditors, he must be held to his election. In re Jaycox & Green, U. S. Dist. Ct., N. D. N. Y., 8 N. B. R. 241.

It is reported that Judge Busteed of the United States District Court for Alabama, will shortly resign that position and resume the practice of the law in New York city. Hon. John C. Breckenridge of Kentucky, also, it is said, contemplates becoming a member of the bar of that city.

NATIONAL BANKS AND THE USURY LAWS.

CIRCUIT COURT OF THE UNITED STATES, FOR THE SOUTHERN DISTRICT OF NEW YORK.

IN THE MATTER OF WILD, A BANKRUPT. As to dealings with corporations, national banks, in the State of New York, are not subject to the usury laws thereof.

Appeal of Wm. H. Rainey, assignee, from an order allowing the claim of Theodore M. Davis, as receiver of the Ocean National Bank.

Francis Silvester and Everett P. Wheeler, for the assignee, appellant.

Francis N. Bangs, for the receiver, appellee.

WOODRUFF, C. J. On the 13th of February, 1871, the bankrupt, Alfred Wild, without consideration, and as mere surety, became the indorser of two promissory notes, made by the Portage Lake and Lake Superior Canal Company, one for $73,902.51, and the other for $35,111.49, which on that day were delivered to the Ocean National Bank, and were made payable with interest.

These notes were given in renewal of a number of other notes then unpaid which had been also given in renewal of prior notes held by the bank, and which were taken from the canal company for a loan of two sums of $75,000 each, made on and after the 7th of January, 1867, by the said bank, one of the sums agreed on the 5th of January aforesaid to be made in form to the said canal company, and the other at the same time agreed to be made to P. J. Avery, but proved by the testimony and found by the referee in the district court to have been, in fact, for the benefit of the canal company, who, in the accounts kept of the transaction, was treated as the actual debtor for both amounts.

The reason assigned for giving to the transaction the form of two loans, one to the canal company and the other to P. J. Avery, was that the national banking law prohibits an indebtedness by any one party as borrower to associations formed thereunder to an amount greater than one-tenth of the capital of the association making the loan.

There is inconsistency in permitting the bank or its receiver to make such a transaction and avoid the charge of violating the banking act by making it a loan in part to Avery, and in part only to the canal company; and, on the other hand, avoid the statutes against usury of the State of New York by declaring the whole to be a loan to the canal company (a corporation).

It would be no injustice to the bank to hold the form given to the transaction, in order to save the bank from a violation, or from an apparent violation of the banking act, conclusive, and circumstances might, I think, be suggested in which the bank would be estopped by it to aver that the transaction was other than it appeared on its face, and in the written instruments by which it was agreed that the loan should be made, and the form of the notes actually given to the bank by Avery therefor.

For the purposes of the case before me, I have concluded to treat the transaction in the aspect most favorable to the bank, and in accordance with the claim made in its behalf, viz., as a loan to the canal company, a corporation of the State of Michigan.

The above-mentioned note for $73,902.51 was, on the 18th of September, 1871, renewed for the amount of

$70,000, and a new note for the last named sum, payable with interest thereon, was given by the same corporation under a new name, "Lake Superior Ship Canal, Railroad and Iron Company," indorsed by the bankrupt, Wild and others.

The two notes, one dated September 18, 1871, for $70,000, and interest; the other, dated February 13, 1871, for $35,111.49, and interest, constitute the claim made by the receiver of the bank against the estate of the bankrupt, Wild, who indorsed them; and it is the allowance of that claim by the district court which is appealed from by the assignee to this court.

The loan originally made by the bank was further secured by the delivery to the bank of coupon bonds of the canal company, secured by mortgage to the amount of $200,000; and it was made a condition of the loan that the canal company should purchase and receive from the bank certain bonds, amounting on their face to $237,000, of a Georgia railroad corporation, whose road had been stripped of its rails and furniture, its tracks grown up with trees and bushes, and had not been used for many years, on whose bonds no interest had been for a long time paid, and whose bonds had no market value. And their want of intrinsic value was more fully shown by a foreclosure soon after effected, on which the road, the mortgage security for the entire issue of bonds, $924,600, of which these were a part, sold at public auction to the highest bidder for $1,500. It is true that the purchaser of the road, who seems to have acted for the canal company, states that, after obtaining an act of the legislature of Georgia incorporating a new company, and an act authorizing the State to guarantee another large issue of bonds to enȧble the new company to reconstruct the railroad, he received a like amount of stock in the new company, $237,000, and succeeded in selling that for $47,000, which sum he paid to the canal company as and for the proceeds of the purchase which they made from the bank, and of his exertions to obtain a new charter and the pledge of State aid, without which the stock would seem of little, if any, value.

Recurring to the transaction between the Ocean National Bank and the canal company, it was made a condition of the loan of the $150,000 by the bank to the canal company, that besides paying interest at seven per cent per annum, and securing the same by $200,000 of their mortgage bonds, with power to the bank, at any time, to sell such bonds at any price not less than ninety cents on the dollar toward the repayment of the loan (which might therefore not continue for more than a very brief term), the canal company should also purchase from the bank the before mentioned nearly worthless bonds of the Georgia railroad company, and should pay therefor the sum of $100,000, securing such payment by a like amount of their mortgage coupon bonds.

There was also a further requirement, to wit: that the trustee to whom the mortgage securing the canal company's coupon bonds was executed should be removed, or should resign his trust, and the president of the bank should be substituted in his place, and that the moneys loaned by the bank should only be drawn by the canal company from the bank by checks, countersigned by the president of the bank, as such trustee. Their president was active in the negotiation with the company, and in settling the terms of the loan; and he required of the canal company, professedly for his own benefit, $50,000 of their mortgage coupon bonds as compensation for acting as trustee.

I shall place no special stress upon this payment to the president as affecting the question of the liability of the bankrupt in this case. It, however, belongs to the history of the transaction.

.The canal company having received the proceeds of the discounts of the various notes given for the loan, subsequently paid considerable sums by paying the interest coupons attached to the bonds held by the bank as collateral security, and other considerable sums derived otherwise, and it seems conceded that the two notes, indorsed by the bankrupt Wild, and the subject of controversy here, constitute the residue of the claim of the bank arising out of the said loan, assuming its entire validity and their title to the same, with interest. The assignee of Wild (appellant here) insists, that the loan was usurious, and that there is on that ground no valid claim against Wild as indorser; and further, that under the national banking act, the loan being made by the bank, reserving a compensation exceeding seven per cent interest per annum, all interest on the loan was forfeited, and that the payments made by the canal company amount to satisfaction of the principal debt, and the notes therefor, which are here presented, bearing the indorsement of the bankrupt, are without consideration and constitute no valid claim against his estate.

In the court below the transaction was assumed to be such, that had the loan been made to an individual instead of a corporation, it was a violation of the statutes of New York regulating the subject of interest, and the securities or notes given therefor would have been void for usury. In that view of the subject I most fully concur, and must find as a fact upon the evidence that the conditions of the loan reserved to the bank in money more than seven per cent per annum. No one unaffected by interest, bias or prejudice can, I think, read the testimony without being satisfied that the bank, in prescribing the terms of the loan, made it an occasion for extorting from the canal company most onerous conditions, greatly exceeding lawful interest, and that the form of a sale of Georgia railroad bonds for a price far above their real or market value (if indeed they had any value, which is very doubtful), was only a cover and means of securing in money the excessive and illegal compensation they reserved and secured for making the loan.

It was, however, held below, that under the laws of the State of New York, which forbid a corporation to interpose the defense of usury, the transaction must be deemed, between the bank and the canal company, a legal transaction, the notes given by the canal company to the bank legal and binding notes, and therefore the indorsement thereof by the bankrupt as surety for the canal company, a legal and binding indorsement; and further, that the provisions of the national banking law relating to the interest which national banks may receive, and imposing penalties for charging more do not affect the transaction, because they only apply to States which have no laws fixing the rate of interest.

It was not the intention of congress when enacting the national banking law, to authorize national banks, in respect to exacting interest, to violate the laws of the States within which they might be organized; nor, as I think, to relieve them from the consequences of such violation, prescribed by the State laws, if they were guilty thereof.

This is the result of the decision of the court of appeals in the State of New York in First National Bank

of Whitehall v. Lamb, 50 N. Y. 95. Without adopting the reasoning of the opinion in that case, I deem the conclusion as above stated correct.

On the other hand it was entirely competent for congress, when providing for the organization of national banks, to place them under such restrictions in respect to the rate of interest which they might charge or receive as congress might see fit. As creatures of their own creation they could be subjected to such inhibitions as were deemed expedient, even though the privileges were far short of those enjoyed by State banks or by individuals within the several States. This would involve no conflict with State laws, nor be an attempt to regulate private and domestic affairs within the States beyond the powers of the federal government. It would be merely defining the powers and regulating the conduct of the organizations which existed only by force of federal enactment, possessed the powers congress chose to confer upon them, and exercised them subject to the restrictions and conditions of the law giving them existence. Indeed, the acceptance of an organization under the law and the enjoyment of its privileges are necessarily subordinate to the conditions upon which the powers and privileges are conferred. Hence, had congress seen fit to say that no national bank should contract for, reserve or receive more than at the rate of five per cent per annum for a loan of money, or for or upon the discounting of a note, bill or other security, it would have been a perfectly valid limitation of their powers. It would be in no conflict with any law of a State which permitted the making of loans in general at a higher rate of interest. And if congress could do this, congress could also declare the forfeiture or penalty incurred by the national bank for violating the prohibition. Such bank would still be left subject to the operation of the State law, imposing, it might be, a different penalty for violation of its own State laws, as was held by the New York court of appeals in the case above referred to.

It follows that transactions may not be condemned by the State laws, applied to individuals or to corporations in general, and may under such State laws be legal and valid, which, nevertheless, national banks may not make, and for which, if made, they may be liable to penalties or forfeitures prescribed by the law of their being.

It may be that in reference to the conduct of merely private or domestic affairs, within the States having no connection with or relation to their functions as agents of the government, congress cannot authorize national banks to do what is forbidden by State laws, nor relieve them from the forfeitures or penalties prescribed by State laws, for the doing what is so forbidden. But this concession would be far short of admitting that, within the range of what the State laws do permit, congress may not restrict national banks as it sees fit, or may not impose such penalties and forfeitures for a violation of those restrictions, as congress thinks proper.

Those latter propositions are unquestionable. How then do the laws of the State of New York and the national banking law bear upon the case under consideration? The 30th section of the national banking law (13 U. S. Stat. at Large, 108) provides that "Every association may take, receive, reserve and charge on any loan or discount made, or upon any note, bill of exchange or other evidences of debt, interest at the rate allowed by the laws of the State or territory

where the bank is located, and no more, except that where, by the laws of any State, a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed for associations organized in any such State under this act. And when no rate is fixed by the laws of the State or territory, the bank may take, receive, reserve or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill or other evidence of debt has to run; and the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon; and in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same. Provided, that such action is commenced within two years from the time the usurious transaction occurred." * *

*

The State of New York has statutes which prohibit the taking, receiving or reserving of interest for the loan or forbearance of money at a greater rate than seven per cent per annum, and making any note or bill or other contract, whereon or whereby any greater rate is reserved, void.

But the State has a further statute (Laws of 1850, ch. 172, p. 334) which forbids that corporations shall interpose the defense of usury to their contracts. Such was the state of the law in New York when the national banking act was passed.

The force and effect of this last-named statute has been declared by the courts of the State of New York in numerous cases. Those cases are collected, carried to what is deemed their legitimate conclusions by the court of appeals, and distinctly affirmed in Rose v. Butterfield, 33 N. Y. 665.

And the doctrine of that case is, that the dealings of a corporation as a borrower, and their contracts or obligations for loans, are unaffected by any laws of the State of New York regulating interest. That, as to them, such laws, theretofore existing, are repealed. That, therefore, the rate of interest which a corporation may agree to pay is not fixed or limited, but they may agree to pay any rate they see fit, and their contract will be valid. And, also, that one who becomes surety, guarantor or indorser of such contract is legally bound to its performance. In short, that as to contracts made by corporations, whether foreign or domestic, whether made in the State of New York or elsewhere, they stand in the State of New York as if no usury laws existed. See, also, Belmont Bank v. Hoge, 35 N. Y. 65. In respect to contracts made within the State of New York, or entered into under and with reference to the laws of that State, I may accept the exposition thus given of the state of the law of New York, and it follows that there is no law in New York fixing the rate of interest which any one may take upon the loan of money to a corporation, or, in other words, any rate of interest is allowed to which the parties may agree.

As to dealings with corporations, national banks, in the State of New York, are, therefore, within the case described in the national banking law above cited, to wit: "When no rate is fixed by the laws of the State or territory, the bank may take, receive, reserve or charge a rate not exceeding seven per centum," etc.