doubt that regarding those items as
brokers' charges for effecting loans, they Daniels, JJ., concurring.
were in violation of the statute which
regulate and limit such charges.
S., 5th Ed., 979.)

Opinion by Davis, P. J.; Brady and

(2 R.

But assuming that they were payments in excess of the commissions allowed by statute to brokers, made by the plaintiffs on behalf of the defendant, and for his benefit, we think it does not lie in his mouth to assail their legality on that ground after so long a period had elapsed. He should have interfered promptly, and have forbidden the plaintiffs from making such payments on his behalf, and that would have put him in position to deny his liability for the amounts paid whenever the plaintiffs assumed to demand them from him.

If the brokers be regarded as agents for their customers, they have no legal right to charge their customers higher rates of interest than they themselves in fact pay. So where the broker as such agent, in order to carry the stock of his customer is compelled to borrow money, by the actual payment of commissions in excess of seven per cent., his right to charge such excess depends upon the relation of agency, and his duty is to advise his customer promptly of the commissions paid, and give him opportunity to protect himself.

In cases, however, where the broker is the lender of the money upon which his customer's stocks are carried by him, he cannot charge a rate of interest beyond that allowed by statute, because in such case he becomes a lender making a loan to his own customer.

CONSULS JURISDICTION.

N. Y. SUPREME Court-GenL TERM.

rested. The master of the vessel and the defendant, after the arrest applied to the relator, who is the Consul General of the German Empire, at the City of New York, complained of the arrest, and asked him to take cognizance of the matter under the treaty of Dec. 11, 1871, But in this case the court has found, between the United States and Germany. and the testimony on the part of the Upon the application of the relator, the plaintiffs shows, that no commissions are order of arrest was vacated. Further charged in the account except the application was then made at Special amount actually paid to brokers for ob- Term of the Marine Court, for an order taining loans, and we think the finding dismissing the suit for want of jurisdicand the evidence upon which it is based tion. This was denied. The relator eliminate from the case the question of then applied to this Court for a writ of usury. prohibition, and from the order denying the application this appeal is taken.

Judgment affirmed with costs.

This action was brought upon a contract made by plaintiff with the defendants for the transportation upon their vessel of some lumber. Plaintiff claimed that defendants were to transport it to Morris' dock, on the Harlem river, and defendants that they were to transport it to the first dock on the Harlem river above the railroad bridge, and that plain

The treaty with Germany of 1871, by Article 13, provides :-"Consuls General, Consuls, Vice-Consuls or Consular Agents, shall have exclusive charge of the internal order of the Merchants' vessels of their nation, and shall have exclusive powers to take cognizance of and to determine differences of every kind which may arise either at sea or in port between the Captains, Officers and crews * * * *tiff represented that the water at the Neither any court or authority shall, on any pretext, interfere in these differences, except in cases when the differences on board ship are of a nature to disturb the peace and public order in port, or on shore, or where persons other than officers and crew of the vessel are parties to the disturbance."

On Appeal.

dock at low tide was not less than eight or nine feet deep, and that there would be no difficulty in getting the vessel there. It appeared that after a part of the lumber had been placed on the vessel, and in the absence of the defendants, plaintiff had a conversation with L., who had charge of the vessel, in which he said that it was the arrangement with Held, That the provisions of the defendants that the vessel should carry treaty of 1871 clearly cover this case, and the lumber to Morris' dock, on Cromdeprive the Marine Court of jurisdiction well's brook, a small stream emptying herein. Our courts or authorities may into the Harlem river. L. said he had only interfere when the difficulty is of no orders to go there, and would not go such a nature as will be apt to disturb unless plaintiff would guarantee that the the public peace and order, and then but for the purpose of preventing such an

occurrence.

A mere quarrel not likely to disturb the public peace and order, does not come within the exceptional clauses of the treaty giving the right of interference to local authorities.

Order reversed.

water was deep enough, and that the steamboat which was to tow the vessel could take her to that place. This plaintiff agreed to. L. then started with the vessel, and in attempting to pass up Cromwell's creek to Morris' dock found the water so shallow that the vessel could not float, became stranded, and sustained damages which defendants pleaded as a

Opinion by Brady, J.; Davis, P. J., counter claim in this action. It was not and Daniels, J., concurring.

CONTRACT.

alleged in the answer, or proved or claimed upon the trial, that plaintiff's representations to L. were fraudulently made, or that plaintiff's conduct was in any way wrongful or tortious.

Held, That there was no new agreement made with L.; that plaintiff, by stating the arrangement with defendants as he understood it, and giving an assurance as to the abundance of water, did not, in the absence of fraud, incur any new liability.

N. Y. COURT OF APPEALS. Glover, applt., v. Thomas et al, respts. Decided Dec. 21, 1875. On a contract to deliver freight at a certain place, it is not a change of contract, nor is it a new contract made, when the owner of the freight requests its delivery at another place, and says that it is safe, as to the depth of water, for the vessel to go to this second place, If the agreement had been varied by and he is not liable for an injury to the the conversation between plaintiff and vessel by reason of a deficiency of water. L., when defendants' vessel reached the

mouth of Cromwell's creek and found a a short time before the sale of the stone deficiency of water, they were bound to in suit, had refused to sell to K. because go no further, and had earned the freight. he did not consider him responsible. They could have stopped and notified When the stone were purchased defendplaintiff and waited for instructions, and ant went with K. to plaintiff's yard, not receiving any they could have landed and was introduced by K., who said— the lumber at the nearest dock and "this is Mr. Woodruff; I think he is good charged plaintiff with any expenses in- enough for all the stone I want;" and curred by the necessary delay and in-plaintiff replied: "I suppose he is good creased labor. They could not attempt enough, and I would sell him stone whento force their way up the creek and thus ever he wants." Plaintiff, defendant and wreck their vessel and charge the damage K., then went through the yard, and at to plaintiff. Such damage would be too the request of K. defendant made out remote, and not the natural consequence the bill of stone and handed it to plainof the breach of the agreement. tiff's book-keeper. K. said he would give his note for the amount due, and plaintiff said it was all right. The stone were charged to K. on plaintiff's books, and were shipped to him at Albany. K. paid the freight. Plaintiff sent several letters to K. saying they had sent the stone, and enclosing bill and requesting him to send money and note for the balance, and acknowledging the receipt of K.'s note. When the note became due, K. called on plaintiff and offered to pay it if a deduction was made. Plaintiff refused this offer and the note was not paid, and was protested. After that plaintiff, for the first time since the sale, communicated with defendant on the subject, and demanded payment for the stone. Plaintiff swore he sold the stone to defendant.

Judgment of General Term, reversing order of Special Term, setting aside verdict and granting new trial, reversed. Opinion by Earl, J.

CONTRACT. EVIDENCE.

N. Y. COURT OF APPEALS. Donovan, survivor, etc., respt. v. Woodruff, applt,

Decided Dec. 14, 1875.

The presence of one who was willing to become a surety at a sale will not authorize the inference that he was there as a purchaser.

Unless the sole credit is given to the surety he will not be liable except his promise is in writing.

This action was brought to recover for a quantity of stone, which plaintiff claimed were purchased by defendant. Upon the trial, at the close of all the evidence, plaintiff was non-suited upon the ground that it conclusively appeared that upon the sale credit was not given exclusively to defendant. The General Term set the nonsuit aside on the ground that the evidenge was so conflcting that it should have been submitted to the jury. It appeared from plaintiff's evidence that the stone were purchased for and used by one D., who had before that made pur

chases of plaintiff, and that the latter,

Held, That the nonsuit was properly granted, as it is conclusive from the evidence that the sale was made to K.; that defendant's presence at the sale did not authorize the inference that he was there as a purchaser; that no weight can be given to plaintiff's testimony that he sold the stone to defendant, as it was a mere inference or conclusion on his part.

As no written promise to be liable as surety for K. was given by defendant, no such liability can be enforced by plaintiff, as this was not a case where the sole credit was given to the surety. 55 N. Y., 650.

Appeal dismissed with costs.

Decided November 24, 1875.

Any contract made to equip, fit or fur-
nish a vessel after she is launched and
afloat, is a maritime contract.
For work and materials furnished a do-
mestic vessel in her home port, the libel-
lant has a lien for the amount of his
claim under Sec. 17, P. 656, of the
Oregon Code, and the contract being a
maritime one, the lien may be enforced
in the admiralty.

The amended libel in this case was filed October 18, 1875, and alleges substantially that the Eliza Ladd is a domestic vessel, propelled by steam, of the burden of 118.47 tons, and was enrolled at Portland, on August 31, 1875, and is employed in navigating the waters of the Wallamet; that she was launched at Portland, near Smith's mill, in October, 1874 and, on May 28, 1875, she made a voyage in tow of another vessel to the foot of Stark street, and there took on her boilers, engines, and machinery, the

cept $13.84, in old iron, has been paid libellants.

The claimant excepted to the libel, that the contract therein is not a maritime one, and that this court has no jurisdiction to enforce the supposed lien incident thereto.

Held, Deady J. 1. Any contract made to equip, fit or furnish a vessel after she is launched and afloat, is a maritime con

tract.

2. Although this is a domestic vessel, and this work and materials were furnished in her home port, yet the libellant has a lien for the amount of his claim under Sec. 17, P. 656, of the Oregon Code, and the contract being a maritime one, the lien may been enforced in the admiralty.

The exception is overruled.

CRIMINAL LAW-PRACTICE.
PHILADELPHIA OYER A ND TERMINER.
Commonwealth v. P.own.
Decided Nov. 24, 1875.

same having been in the ferryboat Port- The Oyer and Terminer at which a pris

oner must be tried for murder, or admitted to bail, in Pennsylvania, under the act of 1785, are sessions at which the offence is properly cognizable.

Motion to admit defendant to bail.

land No. 1, and from thence, on June 1, 1875, made a voyage in like manner to the libellant's works at Albina on said Wallamet river; that on June 1, 1875, the libellant, The Oregon Iron Works, a The prisoner was arrested and indicted corporation duly formed under the laws for murder in July, 1875. At the Octoof Oregon, and engaged in business at ber session of the Court of Oyer and Albina, was employed by the owner and Terminer he made the present motion to claimant of said vessel-Joseph Knott-be admitted to bail under the provisions to furnish the material, in addition to of Sec. 3 of the Act of February 18, 1785. the boilers, engines and machinery afore- (Purd. Dig. 755. pl. 4). "Sec. 3. If any said, and perform the labor necessary to person shall be committed for treason or fit, equip and furnish said vessel for such felony, and shall not be indicted and sum as the same should be reasonably tried some time in the next term, session worth; that between said last-mentioned of Oyer and Terminer, General Jail Dedate and August 18, 1875, said libellant livery or other court, where the defence performed said contract, and that the [offence] is properly cognizable, after reasonable value of the materials and such commitment, it shall and may be labor furnished by libellant in so doing lawful for the judges or justices thereof, is $1,498 in lawful money of the United and they are hereby required upon the States, and that no part of said sum, ex-last day of the term, sessions, or court,

to set at liberty the said prisoner upon cerned. But we are unable to see any bail, unless it shall appear to them, up-ground for a difference of construction. on oath or affirmation, that the witnesses They are parts of the same sentence, for the commonwealth, mentioning their are in pari materia, and are a logical and names, could not then be produced ***" consistent development of the legislative In the months of August and September, intent, that, if a prisoner be held one sessions of the Oyer and Terminer were term without trial, he shall be admitted held, by a single Judge, but no session to bail, and if held two terms he shall be was held by two Judges between the time discharged. The language of both is

The Court refused the motion, on the grounds that the sessions of the Court of Oyer and Terminer, held in August and September, were not sessions where, in the words of the act "the offence was properly cognizable." There are two kinds of Oyer and Terminer in this or legal necessity which prevent trial, county (Act 3d Feb. 1843, Sec. 4), to are exceptions which take a case out of wit, one for the trial of homicides, re- the statute. quiring two Judges; another for felonies, requiring but one Judge.