tax-deed. The court, with every inclination towards sustaining a transaction of fifty-three years' standing, held the sale void, as it was impossible that the notice required could have been given under these circumstances. Farrar v. Eastman, 1 Fairf. 191. Where the statute prescribed three months' notice, without stating that it was to be the three months next preceding the sale, and the advertisement was published in December, omitting January, and then in February and March, and the sale took place in April, the court construed the law to mean that the notice should be published for the three months next preceding the sale, and consequently that the sale was void for noncompliance with the terms of the statute. Delogney v. Smith, 3 La. 418. And where "three successive publications in a newspaper three months prior to the sale," was prescribed, it was construed to mean that the last publication should be three months prior to the sale. Bussey v. Leavitt, 3 Fairf. 378. In Francis v. Norris, 2 Miles, 150, "during three successive weeks" is held to mean three full weeks, or twenty-one days. See In re Wallace, 2 Pitts. R. 145. Another important requisite of the notice as to time is, that the publication should commence after the tax becomes due; and where any other antecedent duties are prescribed for the officer, such as making a return of the delinquent list and the expiration of a certain time thereafter before the publication of the notice, this time must have elapsed before the first publication, in order that the notice may be sufficient to support a title under the sale. Rockendorff v, Taylor's Lessee, 4 Pet. 364; Early v. Doe, 16 How. (U. S.), 610.

The notice should also contain a correct statement of the amount due, the true object of the tax, an accurate description of the property, and the name of the tax debtor. Washington v. Pratt, 8 Wheat. 681; Pierce v. Richardson, 37 N. H. 306; Alvord v. Collins, 20 Pick. 418. In a case where the form followed was one prescribed by the secretary of the treasury, who was authorized by statute to establish necessary regulations for carrying into effect the provisions of the revenue law, and the notice as published failed to state the name of the tax debtors, or the amount due on each piece of land, the omissions were deemed of sufficient importance to invalidate the sale. Eastman v. Little, 5 N. H. 290; Shimmin v. Inman, 26 Me. 228: Sargent v. Bean, 7 Gray 125. Such sales have frequently been declared void, on account of a misdescription of the property to be sold. Patrick v. Davis, 15 Ark. 363; Tallman v. White, 2 Comst. 66. When no form is prescribed, the notice should contain everything made requisite by the statute, and should be so expressed as to convey with reasonable certainty the necessary information to the public and the tax debtor. Chandler v. Speer, 22 Vt. 388; Hobbs v. Clements, 32 Me. 67. Where it is necessary to give notice of a discharge of antecedent duties by the officer, they should be recited as facts, and not as conclusions of law. But it has been said, in Blackwell on Tax Titles (page 223), that where a certain form of notice is laid down,

it must be "strictly, if not literally, followed.” This statement of the doctrine is questioned by Judge Cooley (Cooley on Taxation, 337, n. 2), who denies that the law requires a literal adhesion to prescribed forms. It may fairly de doubted whether a "literal" adhesion to statutory forms would be insisted upon, even where the law was subjected to its strictest construction. There is also room for a doubt as to whether in all cases even a literal compliance would meet the requirements of the law. The prescribed form might not contain sufficient to amount to notice at all to the tax debtor; as where the prescribed form of notice was simply that, at a time uncertain, the officer would proceed to sell all the lands of delinquent tax-payers, without designating names, amount, description, or any of the other essential particulars. It may even be fairly doubted whether the form of notice prescribed in the revenue law of the State of Missouri (Acts, 1871-2, p. 119, § 185 [184]) is sufficient for the purposes it is intended to subserve. Its object is to inform delinquent tax-payers of an intended application to the county court for an order to sell their lands, and in the same notice they are informed that "all of said lands and lots, for the sale of which an order shall be made," will be sold, etc. The names of the tax debtors are not mentioned in the notice, the form of which is prescribed, nor do they seem to be required in the list of lands advertised in conjunction with, and as part of the notice.

The proof of publication ordinarily required is the affidavit of the printer or publisher of the newspaper. If upon the face of the advertisement it appears insufficient, parol testimony is not admissible to explain its defects. Kellogg v. McLaughlin, 8 Ohio, 114; Fitch v. Pincard, 4 Scamm. 69; Nelson v. Pierce, 6 N. H. 194; People v. Highway Comrs. 14 Mich. 528; Lovejoy v. Lent, 48 Me. 377; Sexton v. Rhomer, 13 Wis. 99.

Where an official certificate has been prescribed by statute as the proper means of authenticating the publication of the notice, its statements must be unequivocal and certain in order to support a sale. As where the county auditor was required to publish notices by posting them in certain localities, and his certificate stated that he had delivered the copies to another officer of the county, who, he believed, had posted them in the places designated by law, the certificate was held fatally defective, and its omissions could not be supplied by parol evidence. Doe v. Sweetser, 2 Carter (Ind.), 649. And where the Treasurer failed to authenticate as true a copy of the printed advertisement, this was held to render the sale void. Flint v. Sawyer, 30 Me. 226; Hill v. Mason, 38 Id. 461.

Publication is a means authorized by statute in most, if not all the states, for obtaining constructive service of process, in suits brought by attachment, for the foreclosure of mortgages, and other judicial proceedings affecting the property of nonresident or absconding defendants. As this form of summons depends for its validity more upon its

strict conformity to the statute by which it is authorized, than upon any inherent probability of its conveying intelligence of the impending suit to the person whose property is jeopardized, it is subjected to the same strict construction as other published notices. Where the statute authorized a publication after a return upon the original writ of non inventus, such a return, made before the return day, will not support a notice by publication, and such published notice could not be aided by parol evidence that the defendant remained absent from the date of the return to the day when the writ was returnable. Schell v. Leland, 45 Mo. 289; Palmer v. Cowdry, 2 Col. 1, and cases cited. In every substantial particular the notice must conform to the statute, and its recitals should be sufficient to inform defendant of the nature of the suit to which he is called upon to answer. As to matters of time of publication, and the term at which defendant is required to answer, the recitals of the notice should be sufficiently explicit and unequivocal to convey the information, without regard to any antecedent knowledge of the defendant, to whom it is addressed. Bobb v. Woodward, 42 Mo. 482; Haywood v. Russell, 44 Mo. 252; Durrossett v. Hale, 38 Mo. 346.

There are, authorized by statute, special proceedings, too numerous for even brief mention here, where the persons to be affected are notified by publication in the newspapers. Among these are proceedings to condemn private property to public use, the letting of contracts for the graduation or improvement of streets and highways, etc. In a case arising under the latter sort of proceeding (Haskell v. Bartlett, 34 Cal. 281), a decision was rendered which would be applicable to a case of notice by publication, for any purpose whatever. The statute required notice of the intention to order the work to be published in the paper having the contract for city and county printing, for ten days, excepting Sundays. Cal. Stats. 1862, p. 403, § 25. The paper having this contract published two editions daily, the morning edition for circulation in the city, and the evening edition for circulation in the country. The notice of intention was published in the morning edition; but for two days of the ten the morning edition was not published, and it did not appear that the evening edition containing the advertisement was circulated in the city. The statute (Cal. Stats. 1856, pp. 163-4, §§ 68-9) required the city printing to be done in a paper published within the city. The publication was held insufficient, as the statute required the paper not only to be printed, but circulated, within the city; such being the construction put upon the word "published."

In proceedings to condemn private property to public use, the failure to publish notice as required by statute might defeat the condemnation; but such failure could not be taken advantage of, when all the parties interested voluntarily appeared. E. Saginaw and St. Clair R. R. Co. v. Benham, 28 Mich. 459.

The above examples will probably illustrate with

sufficient amplitude the various circumstances under which notice by publication is warranted, and the degrees of strictness of conformity to statutory rules, varying as the matter published is intended to affect the rights of the individual, to a greater or less extent. When the proceeding is most clearly in derogation of the common law, and the foundation of the liability is farthest removed from the nature of a voluntary contract, the construction is most strictly against the validity of the notice.

There is another important consideration, applicable alike to all cases where notice is authorized by publication in newspapers, and that is—what is a newspaper? It was thought, at one time, that where the publication of notices was directed to be made in a newspaper, without any special designation of any particular paper, the notice should be published in one devoted to the dissemination of general news. But it has been held that any paper, publishing any sort of news—a trade journal, a religious publication, or any sort of paper, circulating in the community where printed, whether its news items are general or special in their character,-will meet the requirements of the law. Following this construction of the statute, it was held in the case of Kellogg v. Corrico, 47 Mo. 157, that a paper devoted to the gathering up and disseminating of legal news was a newspaper within the meaning of the statute, and as such the proper and legal medium for circulating any sort of legal notice required or permitted by statute to be constructively served by publication in a newspaper. And in Illinois, in Kerr v. Hitt, 75 Ill. 51, the decision of the Missouri court was cited with approval and the same opinion expressed. W.

with the conditions upon which the subscription was made, in this: That relator failed to construct its road or build its depot, within one mile of the town of Pattonburg.

The non-compliance with the conditions was admitted in the reply; but relator attempted to excuse its failure on the grounds that such failure was induced in consequence of, and "at the request and desire" of, the inhabitants of Pattonburg.

It is obvious that this could constitute no valid excuse for the non-performance of the conditions which were the basis of the subscription. For the power of the voters of a township is purely statutory, and exhausts itself, when such voters give expression at the polls to their assent to or dissent from the proposed subscription. Any subsequent action on their part, therefore, being unknown to the law, is possessed of no legal validity, and can by no means absolve the railroad company from the conditions which were imposed at the time the vote to subscribe was taken; and if such results must attend the after-action of the voters of the township, most assuredly no greater effect could be produced in favor of the railroad company, by the "request and desire" of a portion of the inhabitants of the given township.

Since, then, one of the chief essentials of the subscription made by Benton township has not been performed, it was no part of the duty of the county court to depart from the conditions which had been imposed and issue bonds in violation of those conditions. This view renders unnecessary an examination into numerous other points raised and discussed, and leads to an affirmance of the ruling of the lower court in its denial of the peremptory writ. All concur.

THE TAKING AND CERTIFICATION OF DEPOSITIONS DE BENE ESSE.

WILSON SEWING MACHINE CO. v. JACKSON, EX. United States Circuit Court, District of Maryland, February Term, 1877.

Before HON. HUGH L. BOND, Circuit Judge.

1. IN TAKING TESTIMONY DE BENE ESSE, WHAT FORM OF OATH NECESSARY.-In taking the testimony of a witness de bene esse under the Revised Statutes of the United States, the witness must be sworn to tell the whole truth, as far as he knows it, respecting, the matter in controversy between the parties. It is not sufficient to swear him to tell the whole truth touching such interrogatories as may be propounded to him.

2. STATUTORY FORM OF OATH-CONSCIENTIOUS SCRUPLES OF WITNESS-CERTIFICATE OF OFFICER.-If there is a statutory form of oath in the place where a witness is examined for the purpose of taking his deposition de bene esse that is the form to be used, unless the witness expresses conscientious scruples respecting that form. If he expresses such conscientious scruples, the oath which he regards as binding upon his conscience must be administered to him, and the officer must certify the reason which caused him to vary from the customary or statutory form of oath.

William Daniel and Archibald Stirling, Jr., for plaintiff; T. M. Lanahan and O. F. Bump, for defendant BOND J.:

At the trial of this cause the plaintiff, in support of its claim, offered to read to the jury the deposition of its president, one Wilson, taken de bene esse. The defendant objected, on the ground that the statute. (Rev. St., Sec. 864) had not been complied with, the deponent not having been properly cautioned and sworn, and the court sustained the objection, and re

fused to allow the deposition to be read. The verdict being for the defendant, the plaintiff (makes this its motion for a new trial. 282 282 282

It appears from the certificate of the notary who took the deposition, that, in pursuance of the notice given, he attended at the time and place appointed, and that "William G. Wilson, a witness of lawful age, proceeded, on the part of the plaintiff, being by me first duly sworn on interrogatories propounded to him, to testifiy as is set forth." Originally there followed, after the word "sworn," the words "on the Holy Evangely of Almighty God;" but on cross-examination the witness stated he had not been so sworn, and the notary struck those words out of his certificate. At the close of the deposition the notary certifies, that "William G. Wilson was by me first duly sworn to tell the truth, the whole truth, and nothing but the truth," touching the interrogatories propounded to him; and at the close of his certificate be certified "that the said Wilson was by me sworn on the Holy Evangely of Almighty God."

The statutes of Illinois, the place where this deposition was taken, provide (Rev. St. 1874, ch. 101), "it shall be lawful for any person empowered to administer an oath, to administer it in the following form: The person swearing shall, with his hand uplifted, swear by the ever living God, and shall not be compelled to lay the hand on or kiss the Gospels." The Supreme Court of the United States has determined that the statute now expressed in Sec. 864 of the Revised Statutes is in derogation of the common law, and must be strictly construed and complied with. It required that the party about to testify shall be cautioned and sworn to tell the whole truth, and (be) carefully examined. The first certificate of the notary is that he was duly sworn, and the witness was legally sworn, that is, that he took the oath prescribed by the statute of Illinois. But that is not sufficient. He must be certified, in the form prescribed by the statute, to have sworn to tell the whole truth, not merely that he should true answer make to the interrogatories propounded to him. But the second certificate of the notary is that the witness was first sworn to tell the truth, the whole truth and nothing but the truth, touching the interrogatories propounded to him.

What the witness should have been sworn to do in this ex parte proceeding, was to tell the whole truth, as far as he knew it respecting the matter in controversy between the plaintiff and defendant. He might well have told the truth in answer to all questions propounded to him, and then have suppressed facts within his knowledge about which he was not interrogated, and yet those facts might have been of infinite importance to the defendant. But laying this aside, how was the witness sworn on this occasion. The notary further certifies that he was sworn on the Holy Evangely of Almighty God. The witness says he was not. If there be a statutory form of oath in the place where the witness is examined, that is the form to be used upon an examination under Sec. 864 of the Revised Statutes of the United States, unless the deponent expresses conscientious scruples respecting that form. If he expresses such conscientious scruples, the oath which he regards as binding upon his conscience must be administered to him, and the commissioner, or other examining officer must certify the reason which caused him to vary from the customary or statutory form of oath. But in this instance the notary certifies, first, that he duly swore the witness, that is, according to the statutory or customary form; and then he certifies that he swore him according to another form, without alleging any conscientious objections to the statutory form on the part of the witness; and the witness states in his examination that he was not sworn on the Holy Evangely of Almighty God, as the notary certi

fies he was sworn. The notary had no authority to vary the customary form of oath, unless the witness had conscientious scruples respecting that form, and we suppose he did so vary it because of the witness' scruples. If he did so do, the witness declares he was not sworn at all, and even if he were, the notary does not certify that, under this form, the witness was sworn to tell the whole truth.

There are other reasons filed for a new trial, but they all depend upon the disposition of this question, respecting the admissibility of this deposition, except perhaps one, and that is, that the verdict was contrary to the evidence. We think the jury was right in its finding, and that the verdict must stand.

MOTION DENIED.

NOTE. This case shows the necessity of exercising great care on taking and certifying depositions de bene esse, to be used in the federal conrts. The first case bearing on the leading proposition involved in it is that of Garrett v. Woodward, 2 Cranch. C. C. 190. There the witness was affirmed to testify the truth concerning all the matters touching which he should be questioned. The deposition was rejected. The next case was that of Rainer v. Haines, Hemp. 689. There the witness was duly sworn to testify the truth in regard to the matters in controversy. The deposition was suppressed. The next case was that of Shutte v. Thompson, 15 Wall. 151. There it did not appear that the witness was sworn to testify the whole truth. The court held that this defect was sufficient to require the rejection of the deposition, but also decided that the objection had been waived. From this review of the authorities, it will be seen, that the principal proposition involved in this case is fully supported. The forms contained in reliable works on practice in the federal courts are in comformity with this doctrine. O. F. B.

USURY.

COCKLE ET AL. v. FLACK ET AL. Supreme Court of the United States, October Term, 1876.

1. COMMISSIONS-USURY-QUESTION FOR JURY.-Where a commission merchant in Baltimore advanced to a pork packer in Peoria $100,000, for which he was to receive interest at the rate of 10 per cent. per annum, and a fixed commission for the sale of the product, to be paid whether it was sold by the commission merchant or not, it was properly left to the jury to decide on all the facts, whether or not the commissions were a cover for usury, or were an honest contract for commission business, in connection with use of money.

2. THE EXPRESS AGREEMENT of ten per cent. is not usurious, because lawful in Illinois, though not so in Maryland. Andrews v. Pond, 13 Peters, 65, re-affirmed.

Mr. Justice MILLER delivered the opinion of the Court:

Plaintiffs in error were engaged in the business of packing pork in Peoria, Illinois, and the defendants were commission merchants at Baltimore, in the fall of 1872, when the contract was made which is the foundation of this suit. There had been transactions between the parties the previous year in the line of their business; and with reference to the packing business of the approaching season this agreement was made by letter. The substance of it is that defendants should advance to the plaintiffs, as it was needed, the sum of $100,000, which they were to invest in the hog product, at the rate of 80 per cent. of the money so advanced, and 20 per cent. of the money put in to the purchase by plaintiffs. Defendants were to have interest on the money at the rate of 10 per cent. per annum. The product was to be shipped to them for sale, and they were to have 24 per cent. commission on the amount, if sold

within sixty days, and 1 per cent. commission for every thirty days it was carried thereafter. The contract gave to plaintiffs the right to sell for themselves without sending to defendants; but the latter were to have their commission all the same. When the product had all been sold out and an account rendered, a balance was found to be due defendants, for which they brought this suit and recovered a judgment of $7,054.48.

It appears by the bill of exceptions that this was mainly, if not wholly, made up of the commissions charged on sales not made by defendants, of products which never came to their possession, and the recovery was resisted on the sole ground that these commissions were a device to cover usurious interest.

The charge of the court to the jury on this point was to the effect that the trensaction was not necessarily usurious; that defendants being engaged in the commission business, which required the use of money, might loan their money at lawful rates of interest to such parties and on such terms that it would bring to them also the business which would grow out of the investment of it; that, if the contract was made only with the honest purpose of securing, in addition to interest, the profits incidental to handling the product as commission merchants, it was not usurious; that, on the other hand, such a contract might be used as a mere evasive device to cover usurious interest, and it left it to the jury to say, from all the circumstances, whether this were so.

There can be no question that, on the general doctrine as to the line which marks the division between an honest transaction and a usurious cover, the charge of the court was correct, and that it is in this class of cases the province of the jury in jury trials, and of the chancellor in suits of equity, to determine, on a full consideration of all other facts, whether it be the one or the other. But counsel for plaintiffs argue that, as to these commissions which defendants never earned by sale of the property or by handling it, and as to which they were put to no cost or inconvenience, there can be no other consideration but the use of the money, and they are necessarily usurious.

It must be confessed that the argument has much force. But we are of opinion that it is not so conclusive that the court ought to have held, as matter of law, that it was usury. It is to be considered that defendants were engaged in a business which was legitimate, and in which both custom and sound principle authorized the joint use of their money and their personal service, increased in value by their character for integrity and experience. To both these sources they looked for their profits, and they were necessarily united. It was a necessity of their trade, and it was lawful for them, while loaning their money at a specified rate of interest, to stipulate with the parties to whom it was loaned for the incidental advantages of acting as commission merchants for the sale of the property in which the money was to be invested by the borrower. They had the right also to require, as a condition of the loan, that it should be invested in such property as would require their services in selling and handling it. All this is admitted.

We see no reason why the parties could not go a step further and stipulate that, if for any reason operating in the interest of the borrower he should prefer to become his own broker or commission merchant, or to sell at home, he should pay the commission which the other had a right to contract for and receive. Like the port pilot, and other instances, they were ready and willing to perform. They had a place of business, clerks, and their own time and skill ready to devote to theplaintiff's business. In that business they had a large pecuniary interest. They had loaned their money

without requiring any other security than the obligation of the other party, except that which might arise from the property coming to their hands. To make this property a sufficient security, the contract required of the plaintiffs that they should invest in the same property $20 of their own money to every $80 borrowed of defendants. The relinquishment of this right to control the sale of the property was a good consideration for the commissions which they would have made, if they had sold it.

While it was possible to make such a transaction a mere cover for usury, it was at the same time possible that the contract was a fair one, in aid of defendants' business, a business in which they were actually and largely engaged, and in which lending money was the mere incident and not the main pursuit. It was, thereiore, properly left to the jury to say whether, under all the circumstances, it was or was not a usurious transaction, under instructions to which we can see no objection.

We do not think, the express reservation of ten per cent. interest makes the contract usurious, because the law of Maryland forbids more than six. The contract was quite as much an Illinois contract, where ten per cent. is lawful, as a Maryland contract, and the former is the law of the forum. The ruling of the court below was in accord with what this court had held in Andrews v. Pond, 13 Peters, 65. The judgment of the circuit court is affirmed.

1. TOLLS.-A toll-bridge corporation, organized for thirty years, was duly authorized to exact tolls for twenty. Held, that, notwithstanding the continued existence of the corporation, no passenger was bound to pay after the twenty years had expired.

2. LIMITATIONS ON TAKING TOLL.-A board of supervisors had statutory power to prescribe the period for which a bridge corporation might take toll. Held, that its authority to limit that period was as great after as before the organization of the company.

3. RIGHT OF PRIVATE PERSON TO ATTACK SUBSIDIARY CORPORATE FRANCHISES.-The existence of a corporation is independent of annexed franchises, and not affected by their surrender or forfeiture. And although an individual may not dispute corporate existence, nor in a private action take advantage, collaterally, of the forfeiture of that franchise, he may yet question distinct and subordinate annexed franchises.

4. FORFEITURE OF FRANCHISES.-Any one of the distinct annexed franchises of a corporation may be forfeited without disturbing the rest or affecting the corporate existence.

5. WAIVER-EXPIRED FRANCHISES.-A waiver can not renew an estate that has expired by limitation. And where a corporation's right to a special franchise is limited to a certain period, it expires with that period, and the fact that the corporation continues to exercise it without interference from the state, neither continues nor restores it.

COOLEY, C. J., delivered the opinion of the court: The present suit is one for the recovery of tolls for crossing the plaintiff's bridge, over the Grand river at Grand Rapids. The plaintiff is a corporation or

ganized in 1851 for the period of thirty years. The purpose of the organization was to build the bridge in question; but as the river at this point wes a navigable stream, the assent of the supervisors of the county was essential, before the bridge could be constructed. Comp. L. 1871, § 2649. The same board was also by law the competent authority to fix the tolls. The assent was given by resolution of the board, dated January 17, 1852, "to erect, rebuild, repair and keep up and use for the sole use and profit of said company a tollbridge * *for the term of twenty years; " and the tolls were fixed at the same time. The bridge was duly constructed, and tolls collected of passengers for the term of this permission; but after the twenty years had expired, the defendant refused any longer to pay tolls, and passed over the bridge repeatedly without doing so. The plaintiff, claiming the right to continue to exact tolls according to the established rates, has brought this suit.

The questions which have been argued are exclusively questions of law.

1. It is first claimed that, as the law authorized the organization of the corporation for the purpose of constructing the bridge, subject only to the assent of the supervisors, but with a corporate life extending to thirty years, the assent of the board to the construction was in law, of necessity, an assent for the full period of thirty years, and could not be restricted by the board to any shorter term. We are referred to no authority which countenances this view, and we think it not maintainable. If the statute, under which the company had been organized, had contemplated the necessary existence of the company for the purposes of its organization for the full period of thirty years, and there had been apparent in it a policy that the franchise of taking tolls should be one of that duration, the argument would have had some force; but the statute expressly permitted corporations to be organized for any period not exceeding thirty years, and a bridge company for five years is as much within the policy of the statute as one for thirty. Had the plaintiff been organized for twenty years only, the question here considered could scarcely have been raised, and it can not be doubted that the board might, in advance, have negotiated with the parties proposing to form a corporation, and required of them, as a condition of assent to the building of the bridge, that the corporate life should be limited to any number of years specified. There might be reasons in the growing business of the place and of the river, which would seem to require such a limitation; and the authority conferred upon the local board to give or withhold assent would lose very much of its value, if it were confined within unvarying limits. It is not unreasonable to suppose that consent might sometimes be withheld under such circumstances, when otherwise it would not be.

But if the supervisors could bargain for a limitation of time before the corporate organization, so they could afterwards. The plaintiff, by the organization, only acquired corporate powers; it gained nothing that was originally within the control of the supervisors. That board was bound by nothing that so far had been done. The members of the board may not, in any manner, have become aware of the steps to organize, until application was made to them for permission to construct the bridge, and they were at liberty to act on such public considerations as were there presented, and with no more concession of privilege than they supposed the public interest to require. They might have consented for five years, having a future board at the end of that time to consent or refuse to consent, according as the public good would appear to be consulted by the one course or by the other. On this part of the case there does not appear to us to be any serious question.