where controverted and material | and corporations in various States, questions of fact are involved it is not reviewable. and J., defendant's testator, was among the subscribers. The court Harris v. Burdett, 73 N. Y., 136, found that J. subscribed, by au distinguished. Appeal dismissed. thority and for the benefit of plaintiff, to the extent of one-half of the Opinion by Danforth, J. All amount that should be awarded to concur. BANKS. CONTRACT. N. Y. COURT OF APPEALS. The Nassau Bank, applt., v. Jones et al., exrs., respts. Decided Feb. 26, 1884. Defendant's testator subscribed for stock and bonds of a foreign railroad corporation by authority and for the benefit of plaintiff to the extent of one-half the amount that should be allotted to him. In an action to recover the profits on plaintiff's share, Held, That the action could not be maintained; that the contract was ultra vires and con trary to public policy, and that testator could not be treated as a trustee for plain tiff's benefit. In 1879 the D. & R. G. RR. Co., a corporation organized to construct railroads in Colorado and adjoining territories, to raise money to extend its lines, published a circular, whereby it proposed to issue $5,000.000 of its bonds, in sums of $1,000 each, payable thirty years after date, with annual interest at seven per cent. in gold, secured by mortgage upon its property, and to deliver one of said bonds with five shares of its capital stock to every person who should advance thereon $900, reserving to the railroad company the privilege of withdrawing the proposition when $3,000,000 of said loan was subscribed. The loan was subscribed for by citizens him, and by this action plaintiff seeks to recover from defendants, as J.'s executors, the profits claimed to have been made by him upon its share of the transaction. Plaintiff is a banking corporation chartered under the laws of this State. Chapter 260 Laws of 1838. Samuel Hand, for applt. Held, That this action cannot be maintained; that J. by his subscription became a stockholder of the RR. Co.; that the contract under which plaintiff claims was executory and was ultra vires and contrary to public policy. The language employed in the act under which plaintiff was incorporated defines the powers and duties of such corporations, and excludes by necessary implication a capacity to carry on any other business than that of banking and the adoption of any other methods for the prosecution of such business than those specially pointed out by the statute. 79 N. Y., 440, 444; Morse on Banking, 5; 7 N. Y., 347; 15 Johns., 383; 71 N. Y., 161. The establishment of the national banking system has not altered the policy of the law regarding the institutions organized under the State system. Also held, That defendant's testator cannot be treated as a trustee for the benefit of plaintiff. The law does not raise an implied obli- | watchful custody. See 12 R. I., gation to effectuate a purpose 462; 5 N. Y., Leg. Obs., 265. In which is forbidden and which cannot be effected by the parties through the agency of an express contract. Perry on Trusts, § 214. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Ruger, Ch. J. All concur, except Rapallo and Earl, JJ., dissenting. INFANTS. CUSTODY. N. Y. SUPREME COURT. GENERAL In re petition of Ulrich Maurer. In determining as to the custody of children Appeal from order awarding to petitioner the custody of his infant son. Petitioner claims that where a wife without cause abandons her husband it is such unlawful conduct as entitles him to the custody of the children as against her. Held, That the latest rule is that the interest of the child is the chief concern of the law and of society, to which the right of parents must at all times yield. Even where the mother is solely in fault the tender age, the sex or the feeble health of the child may sometimes make it the duty of the court to leave the child in her the case at bar the question is whether the child shall be confided to the mother or to a nurse. With the best disposition the father cannot personally render the services made necessary by the child's tender age and feeble health. . Order reversed and child remanded to the mother. Held, That the order was unauthorized. Merely alleging that a defendant is a non-resident affords no grounds for assuming that due diligence has been used. 85 N. Y., 313. The first part of the affidavit is the equivalent of saying that defendants, being residents of Bal timore, cannot be found within the state. It is a conclusion or opinion from the fact that defendants were non-residents. Neither does the bare statement that "defendants cannot after due diligence be found" state or imply that any effort or attempt has been made. to serve within the state. It in no sense is a statement of fact, but is purely the statement of the opinion of the affiant. The last part is equally deficient of any necessary statement of fact to confer jurisdiction for granting the order. Stating that "the summons herein was duly issued for said defend ants" does not imply any diligence to serve it. No fact is stated in the affidavit from which the judge to whom it was presented might infer that an attempt had been made to serve it within the state. The law requires proof that a defendant cannot be found after due diligence or proof of such a state of facts as to show that diligence would be of no would be of no avail in effecting a service within the state. Proof as to where defendant actually was at the time would excuse any effort to serve at another place. Vol. 18.-No. 24b. ! } Judgment reversed and new trial granted, costs to abide event. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur. WILLS. EVIDENCE. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Edith E. Kerr, applt., v. James Bryan et al., respts. Decided Feb., 1884. ter. One T. devised certain property to his daugh By a codicil he provided that "in case of the decease of my daughter," the property devised to her should go to her children. Held, That the words "in case of the decease" had reference to her death prior to that of testator, and that, outliving him, she took an estate in fee. When the language used by a testator has a plain meaning, and is neither uncertain, ambiguous or doubtful, parol evidence to contradict or explain it is inadmissible. Appeal from judgment of Special Term in favor of defendants. Defendant Bryan derived title to the property in question through Anna M. Kerr, who acquired the same under the will of T., her father. in the codicil, "in case of the decease of my daughter" have refer USURY. ence to her death prior to that of N. Y. SUPREME COURT. GENERAL testator, but outliving the testator Mrs. Kerr took the estate in fee. 52 N. Y., 118; 61 id., 47; 119 Mass., 70; 9 Allen, 516. Testimony was offered as to a conversation between testator and his counsel who drew the will, to the effect that his intention was to limit Mrs. Kerr's interest in the property to a life estate. This was excluded. Held, No error. The intention of the testator must be ascertained from the language of the will, and when such language has a plain meaning, and is neither uncertain, ambiguous or doubtful, parol evidence to contradict or to explain it is inadmissible. 81 N. Y., 569; 61 id., 51; 52 id., 18; 3 Bradf., 64; 14 Johns., 1. To admit such evidence in this case would be to contradict the plain meaning of the will. The language used has been the frequent subject of consideration by the courts, and must be interpreted in the light of the decisions. It is not doubtful or uncertain. Its meaning is clear, and to admit evidence to contradict it would be to overthrow the clearly expressed intention of the testator. Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., concurs; Dykman, J., dissents on the ground that it was plainly the intention of testator to cut down his daughter's interest to a life estate. TERM. SECOND DEPT. Clark P. Tillinghast, respt., v. Mary E. Pratt et al., applts. Decided Feb., 1884. Plaintiff agreed to loan his money to one P., who employed him at a fixed salary to attend to his office business, keep books and solicit business. Held, That the agreement was not per se usurious but depended on the intention of the parties, and that the fact that plaintiff did not do as much work as was expected threw very little light on such intention. There is no rule of law which forbids an em ployer to borrow from his employee, or prevents the employee from lending to his master. Appeal from judgment in favor of plaintiff entered on report of referee. Action to recover money loaned. Defence, usury. Plaintiff desired to loan his money to some one with whom he might obtain employment and so advertised. Z. P., who did business in his wife's name, wanted some one to do his office business, and was also in need of money. The parties met and after some negotiations entered into an agreement by which plaintiff loaned his money to Z. P., and Z. P. employed him to attend to the office, keep the books and solicit business, his wages being fixed at the same sum that Z. P. drew out for living expenses, viz., $25 per week. Z. P. testified that the weekly wages were a mere cover for usury. This was contradicted by plaintiff, who says it was a bona fide transaction, and by one H. Defendants also introduced evidence to show that plaintiff did very little work and that a boy could have been hired for a few dollars a week to have rendered the same service. The referee found that the agreement was made in good faith as a business transaction. Held, No error; that the agreement was not per se usurious, but the question of usury depended on Quackenboss v. Sayre, 62 N. Y., 344, and Knickerbocker Ice Co. v. Nelson, 78 N. Y., 137, distinguished. Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur. MANSLAUGHTER. DENCE. EVI. the intention of the parties. There N. Y. SUPREME COURT. GENERAL is no rule of law which forbids an employer to borrow from his employee or prevents the employee from loaning to his master. That while the evidence introduced by defendants was competent, it threw but little light on the good faith of the transaction. Z. P. may have been disappointed in the extent and value of plaintiff's services; if so he could have discontinued the arrangement at any time by a repayment of the money. The fact that plaintiff did little mechanical work about the office was a very sligh circumstance to show the intention of the parties to violate the law when the agreement was signed. It was not intended that he should be a work man in the factory. He was to attend to the office business, keep the books and solicit business. He appears to have been at the office every day from eight in the morning to five in the evening, except when sick. That he did some work in the shop was conceded. solicited and procured some business and kept the books in part. His actions seem to have been consistent with the honesty of the agreement. He TERM. FOURTH DEPT. The People, respts.. v. John McKeon, applt. Decided Jan., 1884. Where the death of another was caused by defendant while he was engaged in the commission of an assault and battery upon deceased, the case is within the statutory definition of manslaughter in the first de gree. Declarations made by attendants for the in formation of a physician when called to attend the deceased as to her symptoms are proper evidence. Appeal from judgment of Court of Sessions entered upon conviction of appellant of manslaughter in the first degree. The evidence tended to show that defendant, after having respectfully demanded that de ceased, Eliza Moreland, let him have liquor at her saloon on Sunday, and having been refused, with his fist struck deceased a severe blow on the breast, and she, being advanced in pregnancy, was thereby thrown into convulsions and premature labor and died about 14 hours after being struck. The indictment contains two counts, the first charging that defendant feloniously assaulted de |