Ward v. Marietta and Newport Turnpike and Bridge Co. commencement of this suit, had ascertained and determined the plaintiff's damage, as provided for in the charter of the company. At the April term of the district court the cause was submitted to the judges, and a judgment given for defendant. A bill of exceptions was tendered by the plaintiff, and allowed by the court. From this it appears that the defendant, after constructing its road and bridges, built a toll-house and dug a well within the sixty feet appropriated for the road. The house was erected near the bridge over Duck creek, and was used by the tollgatherer and his family as a residence, and as a shop, where he sometimes worked at shoes. The well was near the building, and was used to furnish the family of the toll-gatherer with water. C. B. Goddard, for plaintiff. Wm. S. Nye, for defendant. BOWEN, J. The defendant, by its charter, is authorized to construct and employ a road and bridges for purposes of private gain, and has power conferred on it to "perform every act necessary to construct them." This authority and power emanated from the legislature, and are sanctioned by the constitution in force at the time of the enactment. *The principal question involved in [17 the case is, whether the defendant can, in the exercise of its right to locate its road over private property, do anything more than to make a road-bed and bridges over which travelers may pass? We think that something more than this is implied, if not expressed, in the grant of its franchise. It is authorized, in terms, "to erect gates at both of the bridges over Duck creek and Little Muskingum, and demand and receive from persons passing either of said bridges, tolls," etc. Section 11 of the charter, Local Laws, vol. 36, p. 167. incident to the power to demand and receive tolls, is the authority to appoint agents; to provide tenements in which to shelter them from the weather; and to furnish and prepare for them such facilities for transacting that peculiar business of the company, at the place where it is required to be done, as may be requisite and proper. This right of occupying the sixty feet in width of the land of others, was conferred for that among other purposes. The construction of a toll-house and the digging of a well to furnish water to those who, from necessity, must occupy it, is within the plain intendment of the charter. Any other structure, within the Ward v. Marietta and Newport Turnpike and Bridge Co. sixty feet, and essential to the carrying out of the object sought by the corporators, and consonant with their charter, may, as an unavoidable and legitimate incident of the powers given them, be, at the option of defendant, placed within its road limits. But it is urged by counsel for plaintiff, that although this rule may, in the main, be sanctioned by authority, yet the plaintiff, before he was required to yield the possession of his land for a tollhouse and well, was entitled to remuneration in damages, for such use of it; that the freeholders who determined his damages did not take into the account anything for the obstruction occasioned 18] by the toll-house; that their judgment was based on the injury which would be likely to result to plaintiff from the location and construction of the road and bridges alone. There is nothing in the record which discloses the principles or the items on which the freeholders made up their award. The application of plaintiff to the county commissioners for the appointment of viewers, sets forth that the defendant "had run its road through his land in a manner that was very injurious to his interests." The order of appointment made by the commissioners, directed the freeholders to assess damages to plaintiff for the running of defendant's road through his land. These freeholders, whose services were thus procured by plaintiff, decided that his premises were rendered more valuable by the location of the road, and consequently they refused to report for him any compensation in money. Whether this was a faithful proceeding and a just conclusion of the freeholders, in their estimate of the plaintiff's damages, or whether they omitted to consider all of the detriment which might accrue to him by reason of the premises, we have no means of knowing, and if we possessed such knowledge, we could not, in this proceeding, be controlled by it. If the plaintiff was injured by the erroneous conclusions of the freeholders, he should, in another form, have relieved himself from the consequences of their mistakes. The defendant lawfully acquired a right to enter upon and occupy the sixty feet of plaintiff's ground for its road and bridges. It acquired, as incidental thereto, and inseparable therefrom, the further right of improving the land for all of the purposes embraced within the object of its incorporation. While the defendant, therefore, does not, in the use and management of its road, go beyond its prescribed boundaries of sixty feet, but con19] fines itself within these limits, and its operations and doings Corcoran & Riggs v. Powers, Williams, et al. to what shall be strictly consistent with its creation, it will not be liable nor held to answer as a trespasser. The judgment of the district court is affirmed. BARTLEY, C. J., SWAN, and BRINKERHOFF, and SCOTT, J.J., concurred. WILLIAM W. CORCORAN AND GEORGE W. RIGGS v. BENJAMIN POWERS, HOSEA WILLIAMS, AND OTHERS. Where H., for the purpose of raising funds, proposes to C. & R., bankers at Washington City, to sell them three drafts, each for $6,666.66, to be drawn by him on the post-office department, at Washington City, and made payable, one at six, one at nine, and one at twelve months from date, out of the pay which may become due to the drawer under his contracts for mail transportation, and to take for said drafts the sum of $16,000-the drafts to be made payable to the order of V., and their payment at maturity secured by his accommodation indorsement, as well as by a power of attorney to be executed by H., in favor of C. & R., authorizing them, upon the dishonor of the drafts, to sell and transfer 145 shares of bank stock, owned by H.; and C. & R., accept the proposal, advance the $16,000, and receive the drafts and securities; the transaction is at least prima facie a loan, and not a sale. The validity of such agreement depends upon the lex loci of the contract, and under the statute of Maryland, in force at Washington City, such contract is utterly void for usury. The form of a contract is by no means decisive of its real character. The question in such case is not what did the parties call it, but what do the facts and circumstances require the court to call it. In such cases, the distinction is well taken between business and accommodation paper. Collateral securities taken on a contract void for usury are also void in the hands of the usurer. Where H. makes an absolute general assignment and transfer of such securities, for full consideration, to P. & W., though they receive the same with full knowledge of the claim of C. & R., the assignees may set up the defense *of usury to a bill subsequently filed against them and H., by C. & R., [20 seeking to subject the securities thus assigned to the payment of a balance due on the drafts. Nor will this right of the assignees be affected by a stipulation which H., after suit brought, filed in the cause, waiving the defense of usury. It is suffictent if the usury proved be substantially the same with that averred in the pleading. Corcoran & Riggs v. Powers, Williams, et al. IN chancery. Reserved in the district court of Franklin county The facts are sufficiently stated in the opinion of the court. Swan & Andrews, and P. B. Wilcox, for complainants. N. H. Swayne, and Finch & Jones, for the defendants, Powers & Williams. The Reporter has not been able to find the original argument of Swan & Andrews. N. H. Swayne. The second ground of defense relied upon is usury. The answer avers that the contract was made at Washington City, and to be performed there; that at the time of the making of the contract, and for a long time before, and ever since, the following statutory provisions were in full force there as law: "That no person upon any contract shall exact or take, directly or indirectly, for loan of any money above the value of six pounds for the forbearance of one hundred pounds for one year; and so after that rate for a greater or less sum, or for a longer or shorter time." "That all bonds, contracts, and assurances whatever, made for the payment of any principal money lent, or covenant to be per21] formed upon or for any usury, whereupon *or whereby there shall be received above the rate of six pounds in the hundred for money, as aforesaid, shall be utterly void." "And that any person taking more than the rate aforesaid shall be liable to pay treble the value of the money lent, to be recovered by action of debt, bill, plaint, or information; one-half to the informer," etc. 1. If the complainants are entitled to a decree for anything, it can only be for the unpaid balance of the amount advanced by them and interest. Ch. on Bills, 667, 668; Sedgwick Dam. 241; Wiffin v. Roberts, 1 Esp. 251; Braman v. Hess, 13 Johns. 52; Cram v. Hendricks, 7 Wend. 569. 2. Whether the facts make a case of usury is to be determined by the lex loci of the contract. If the contract be void there, it is void everywhere. All securities tainted with the usury are void. Story's Confl. of Laws, 202; 2 Kent's Com. 461; DeWolf v. Johnston, 10 Wheat. 367; Chapman v. Robertson, 6 Paige, 627; Morgan Corcoran & Riggs v. Powers, Williams, et al. v. Tipton, 3 M'Lean, 345; Loyd v. Scott, 4 Pet. 228; Fanning v. Dunham, 5 Johns. Ch. 136, 142; 3 Gill & Johns. 123, 482; 5 Ib. 23. 3. Receiving or reserving usurious interest, sufficient evidence of an usurious agreement. Bank of Utica v. Wager, 2 Cow. 769; Powell v. Waters, 8 Ib. 696; Bank United States v. Owens, 2 Pet. 538. Usury paid, or promised to be paid, is the same thing. Hammond v. Hoping, 13 Wend. 505. 4. If there be usury, the intention of the parties, ignorance of the legal effect, and usage are immaterial. Manhattan Bank v. Osgood, 15 Johns. 152; 13 Johns. 40; N. Y. Firemen's Ins. Co. v. Ely, 2 Cow. 672; Bank of Utica v. Wager, Ib. 712; 1 Vesey, 527, note; 11 Paige, 660; 3 Sandf. 215; Ib. 315; 7 B. & C. 430; 9 Mass. 55. *5. Usury defined-where it exists any shift, device, or pre- [22 tense unavailing to protect the usurer. Bank United States v. Owen. 2 Pet. 537; Loyd v. Scott, 4 Ib. 205; Floyer v. Edwards, Cowp. 112. 6. Where usury is charged, and the paper is claimed to have been sold, the TEST as to usury is, whether before the holder took the paper, a suit could have been maintained upon it as between the prior parties to it. In other words, whether the paper was of any validity before it was transferred to the alleged usurer. According to this principle, the facts of this case make out a clear case of usury. Munn v. The Com. Co., 15 Johns. 55, 56; Bennet v. Smith, Ib. 356; Powell v. Waters, 17 Johns. 181; S. C., 8 Cow. 607; Wilkin v. Roosevelt, 3 Johns. Ch. 68; Churchill v. Suter, 4 Mass. 156; Knight v. Putnam, 3 Pick. 184; Ely v. McClung, 4 Porter, 383; Sock v. Parker, 2 McCord Ch. 383; Fleming v. Mulligan, Ib. 174; Holman v. Hobson, 8 Humph. 127; Nat. Fire Ins. Co. v. Fitch, 11 Paige, 660; Anderson v. Rapelye, 9 Paige, 483; S. C., 4 Hill (Cowen's opinion), 472; Yanke v. Lockhart, 4 J. J. Marsh. 277; Belden v. Lamb, 17 Conn. 441, 452; Cutler v. Johnson, 8 Mass. 266; 2 Denio, 24; 7 Blackf. 540; 10 Eng. C. L. 75; Mitchell v. Winston, 2 Story, 639; Woodworth v. Sherman, 3 Ib. 174; Price v. Ridger, 4 Price, 50; Bernard v. Young, 17 Vesey, 43. 7. See the following cases, decided under the statute relied upon in this case: Sauerwine v. Bruner, 1 H. & G. 477; Nichols v. Fearson, 7 Pet. 103. The holders of the stock in question have a right to make this defense. The cases of Post v. Dart, 8 Paige, 639; Lloyd v. Scott, 4 Pet. VOL. VI-2 17 |