FEDER4L"REPORTER, vol. {S., no power "to bind itself by making or indorsing promissory notes for theaQcommodation of the makers for a consideration oaid." Nor was the court in error in holding that the plaintiff had notice of the fact that the notes were not indorsed in the usual course of business. The presentation, for discount, by the makers was something more than a circumstance. There was notice direct and explicit upon the notes themselves that the indorsements were invalid. The discounter when confronted with such facts cannot protect himself by inaction. If thei'e a possible explanation he must seek it, but where, as in this case, nothing of the kind is required and no statement is made inconsistent with the pl/l.in provisions of the notes; the unerring presumption attaches., As the non-liability of the warehousing company defeats the plaintiff's aotion at the threshold it is, of course, unnecessary to pass upon the difficult but interesting questions relating to the liability of the defendant as trustee. ,There must be a judgment for the defendant.
AI,LEN ex rei. SPICKLER v. BI,ACK, Sheriff. (Gircuit Gourt, S. D. Iowa, G. D. August 11, 1890.) INToxiCATING LIQUOR-ILLEGAL SALE-oRIGINAL PACKAGE.
, A box containing Whisky iIi bottles was shipped from lllinois to Iowa, and while in the latter state the box was opened by a resident of Iowa, who sold one of the bottles of whiskY, contrary to the Iowa statute. For this he was convicted by a justice; and he applied to be released on habeas corpus, because his sale was protected Under the' interstate ,commerce clause of the' national constitution. Held, that he should not be released. since the question whether the bottle or the box was the original package was suftlcilmtly doubtful to make the proper remedy an appeal, rather than an applicatipnfor habeas corpus.
At ,pnpetition for habeas corpUlJ. B. J. Sg,linger, and P. A. Charles, for petitioner. F. A.qhurch, for respondent. ", SHIRAS; J. Upon the petition, of E. E. SpiQkler, averring that one Ed. Allen waE!illegally restrained of his liberty by the sheriff of Greene county, Igwa, ,a writ of habeas corp'us was issued, and due return has been made thereto by the sheriff,setting forth that said Allen is in castody of said sheriff by virtue of a commitment issued by one R. P. Mora of the peace in Greene county, Iowa, and the counsel for t,he respective parties have agreed on the facts of the case, in substance as follows: That the relator, E. E. Spickler, resides in the state of Iowa, s,nd is engaged in the business of acting as agent of parties residing in the; states of Nebraska and :Wisconsin in the selling of intoxicating liquors in the .state of Iowa, shipped to him by them from said states; that said Allen was the clerk of said relator, employed to sell such liquors for relator Cooper, in said county of Greene, Iowa, at a place provided fOJ( purpose byrelatorj that said relator, Spickler, had, authority
ALLEN fl. BLACK:.
229
from his principals to employ subagents in the conduct of said businessj th8t neither Allen nor Spickler had a permit to sell intoxicating liquors for any purpose under the provisions of the statutes of Iowa; that there was shipped to said Spickler at Templeton, Iowa, from his principal in Nebraska, a wooden box containing a number of bottles of whisky; that said box and contents were received by said Spickler at Templeton, Iowa, and were by him reshipped to Allen, at Cooper, without change in their condition; that when received by Allen at Cooper he opened said box, took therefrom the bottles of whisky, and sold one or more of the same; that said bottles were not removed from the box until they were sold by Allen; that an information was brought before a justice of the peace; charging Allen with selling intoxicating liquors contrary to law; that upon the hearing before the justice the evidence showed a sale of one bottle of whisky to Thomas Anderson, the said bottle so sold being one of those contained in the box shipped to Allen by Spickler, under the Circumstances hereinbefore detailed; that the justice found Allen guilty of the offense charged, fined him $50, and in default of payment ordered his committal to the custody of the sheriff. On behalf of the petitioner it is claimed that Allen is protected in making sales of intoxicating liquors, under the circumstances of the sale to Anderson, under the interstate commerce clause of the federal constitution, as construed by thesupreme co.urt in the recent case of LeiBy v. Hardin, 10 Sup. Ct. Rep. 681. In the opinion in that caseit is pointed out that by the previous decisions of the supreme court it had been settled that the power of the state to tax or control the disposition of property brought. from another state or from a foreign country did not commence until the importer had soacfed upon it that it had become incorporated and mixed up with the mass of property in the state, or, to quote the language used in the License Cases, 5 How. 504: "These state laws act altogether upon the retail or domestic traffic withiri theIr respective 'borders. They act lipan the article after it has passed- tbe line of foreign commerce, and become a part of the general mass of property in the state." Applying these principles to the facts of the particular case before the court in v. Hardin, it was held that Leisy & Co. "had the right to import this beer into that state; and in the view which we have expressed had the right to sell it, by which act alone it would become min:'" gled in the cornman mass of property within the state. Up to that point; of time we hold that, in the absence of congressional permission to do so, the state had no power to interfere by seizLlre or any other action in proof importation and sale by the foreign or non-resident importer.'" The question of fact which will arise in each case is whether the property imported from another country or state has, by the act of the importer,: become mingled with the common mass of property in the state. When' so mingled it beCOmes subject to the laws of the state, may be taxed,or the sale thereof may be controlled or prohibited by such laws. Under' the rule laid: down in the LeiBy Case, beer or liquors imported into Iowa. 80 long as tllCy kept in original packages imported, arid in the'
\.13.0
DDEnA-L'UPORTEB ;
vol. 43.
do not part of the common property of in that condition the importer has the right to sell ,the sanje. It does not seemprohable that this matter of sale will be held to b$ the only te&t· by which to determine when property passes from ,under,the protection of the interstate commerce clause of the constitution. For iIiatance, cattle or horses may.'be imported into Iowa by a citizen of not for the purpose. of immediate sale, but to be placed ,upon th.El flj,rms in Io.wa to be fed' for one or more years. 'May not the ,same be Iowa, and be otherwise held subject to the laws of that state?, In the Leisy CUBe the evidence showed that the beer owned by Leisy &i,Oo."who were citizens 'o!fIllinois, ,was taken to Keokuk, Iowa, 'to bethere sold in the original packages, and under these facts the court held thatitwus only when sold by the non-resident importer that the propeI'tY became part of the common mass of property within the state, so as to become subject to the operation of the prohibitory law of the state. In .other words, it is settled that a non-resident of Iowa may import into the state intoxicating liquors, and sell the same in the original packages, and that, so long as the same remain in the original packages in the hands of the importer, they do not become so intermingled with tpe Common mass of the property in the state as to lose the protection afforded' tQ importation'3by the interstate commerce clause of the constitution.. ,Whether this clause will protect the importer in selling at retail, and whefher the term "original package" is to be confined to the box, crate, ol\barrel in which the bottles of liquor are placed for convenience in shipping, or is 'to be construed to apply also to the bottles in which the liquors are and whether any distinction exists in the rights of a non-resident importer as compared with those of a resident ·of the state, are questions which have not yet been passed on by the supreme court. The charge against Allen was for a violation of the statute of Iowa in' that he had sold intoxicating liquors contrary to the provisions of the statute. The justice of the peace had jurisdiction to bear and determine the case. Tbe evidence disclosed the fact that Allen was a clerk for Spickler; that Spickler resided at Templeton, Iowa, and Allen at Cooper, in the same oOlinty; that Spickler acted as agent for parties in other states, receiving liquors from them; that Spickler had received frOm ,a ,party in Nebraska a box containing a number of bottles of whisky; that he had reshipped the box to Allen, who opened the same for thepurpoae of selling at retail the bottles of whisky therein contained; that heaold one bottle thereof to one Anderson; that he had no permit to sell for any purpose under the provisions of the state statute, but that he claimed the right to sell the same under the protection of the interstate commere,o clause of the federal constitution. The justice held the claUse in question could not be extended to include a case of t1;J.is character.. Can .it be denied. that the case presented doubtful questions of the kind heretofore indicated? Can it be fairly said that the ruling of the justice was unquestionably wrong? Does not the case stand simply thus: If the ruling of the justice upon these debatable questions of law WAS right, theD
TIMBERLAKE tl.FmST NAT. SAMIt.
the conviction and sentence ofAllen was rightful; but if the justice erred in his view of the law, then the conviction was erroneous? Under the facts of this case, I do not think that the writ of habeas coryU8 is the proper proceeding to determine the questions involved. The decision of the justice complained of could have been carried by appea.l to the higher state courts, and thence to the supreme court of the United States, and thus the rights of the state and of the defendant could alike have been protected. The present proceeding is before me as a judge and not as the circuit court, and hence no appeal can be taken to the supreme court from the ruling now to be made. Certainly I would not be justified in holding the action of the justice in sentencing Allen to imprisonment to be illegal and void unless such illegality is made clear, and I do It may not think it can be fairly said that such illegality is be that it will ultimately appear that the ruling of the justice in construing the rights of Allen under the federal constitution was erroneous, but it is certainly yet a debatable question, and under these circumstances I do not think he has established his right to be by meansaf a writ of lutbeas corpus. The writ will be discharged, and Allen will be remanded to the custody of the sheriff.
TIMBERLAKE
et 01. v.
FIRST NAT. BAR.
(Circuit Court, N. D. MiBll't8s1.ppf" E. D. April 25, 1890;)
1.
USURy-WHAT CoNSTITUTES-BANXS.
I.
Where drafts. are from time to time depO'sited in a bank, some of them able on demand and some on time, an agreement between the bank and the depositor that credit shall be given for such drafts on the day after their deposit, the depositor being charged the full legal rate for any overdraft, does not constitJ1teusu17 when such agreement is made in good faith in order to save involved calculations. . .
.
BAME-COMPOUND INTEREST.
.Chargingja depositor, by agreement, at the end of each month, with. interest at the full rate on his overdraft, and adding suoh oharge to the overdraft. dOllll not constitute usury. . . Under Code Miss. 1880, whioh only allows interest on the amount of money actu. 8.11y lent, a: national'bank in that state cannot deduct interest in advance. In an action for the recovery. of interest alleged to have been charged in exces' of the legal rate for oral contrllcts, a plea setting up a writ1;en agreement to pay the interest charged, without denying that the charges alleged in the declaration were made before tile written agreement was entered ioto, and without stating the date of the written contract. is bad. . BANK. ..
B.
BA14E-PISCOUNT-NATIONAL ·BANK.
B.UIE-AcTIoN TO RECOVER BACK-PLEADING.
Ullder Rev. St. U. S. § 5198, which empowers one paying illegal Interest:. to a. national bank to recover double the amount paid, one of the joint makers of a note on which illegal ioterestis charged cannot recover the penalty from the bank where the illegal interest was paid by the other maker. : .
At Law. Sullivan k Whitfield and Beall & McClelland, for plaintiffs. Barry & Becket and Fw & Roane, for defendant.