Moore v. Jackson. thorized encroachment upon, and appropriation of land or waters which are common and public. These rules of law apply to all highways, whether streets and roads or navigable streams, with equal force, and are founded upon the manifest necessity of assuring to the public the full and unobstructed use of public rights. It was in this view that the supreme court of Tennessee held that every obstruction or erection in a stream declared navigable by law, which injures the navigation of such stream, is a nuisance (Gold v. Carter, 9 Humphrey, 369). An attempt has been made, in cases where the erection or obstruction was productive of some substantial benefit to the local community, to justify its continuance, but the courts have inflexibly adhered to the strict and only safe rule of the common law, that the public rights are to be jealously guarded and not infringed upon under any pretext, or by any specious pretense of benefit. Nor is the degree of the obstruction to be measured or considered. It will not avail to say there is room enough left for all the public. There is no power to abridge the natural rights of the public in the least degree; for, if the imperfect judgment of man, however august the tribunal may be, is once allowed to measure the degree of obstruction that may lawfully exist, the public would eventually find that private enterprise had usurped the prerogatives and rights which should never have been impaired. In the case before us, if we grant for a moment that any right existed to moor the rafts in the stream, where shall we stop in determining how many rafts of equal size shall be allowed to occupy continuously the very place designed by nature for the free and equal use of all men? There can be no doubt but what the occupation of the stream by the plaintiff, or by his license, was illegal and unauthorized. He can found no right on, and no National State Bank of Newark v. Boylan. claim can accrue to him from, such a perversion of the natural and common privileges of all men. He might as well seek to recover for the use of the free air above his farm. The law will imply no obligation to pay him a price for such consideration, and even an express agreement should be considered as void, as being illegal and against public policy. In this view of the case, the judgment appealed from must be reversed, with costs. NATIONAL STATE BANK OF NEWARK v. BOYLAN. N. Y. Superior Court; Special Term, March, 1877. DEMURRER.-COUNTER-CLAIM. -PI EADING.-NATIONAL BANK.USURY. Under the United States statutes prohibiting national banks from taking greater interest than allowed by the State where they are located, if the borrower voluntarily pay usurious interest, he cannot recover it back, unless within two years after the usurious transaction, he brings the action provided by the statute for that purpose. * Advantage of a limitation of such a kind may be taken by demurrer instead of by answer. Whether, where some parts of a counter-claim refer to interest paid within the two years' limitation and other parts not, a demurrer will lie to the whole, quere. One of two joint defendants cannot set up any matter for a counterclaim, unless there can be under the pleadings a several judgment against him. * Compare Hintermister v. First Nat. Bank, 64 N. Y. 212; rev'g 3 Hun, 345. National State Bank of Newark v. Boylan. action against James B. Boylan and John Boylan to recover the amount of two judgments obtained by the plaintiff against the defendants in the supreme court of New Jersey; one being for $3059.01, obtained August 25, 1876, and the other for $1851.94, obtained September 18, 1876. The defendant John Boylan, answering separately, denied any knowledge or information sufficient to form a belief as to each and every allegation of the complaint not expressly admitted or denied. Then on information and belief he alleged the incorporation of the plaintiff originally under the laws of New Jersey and subsequently under the laws of the United States as a national bank. "That at the time of the commencement of this action there was not nor is there now any claim, demand, or cause of action existing in favor of said plaintiff and against this defendant upon which defendant was primarily or originally liable. And that, if any claim, demand, or cause of action existed at the time of the commencement of this action, or now exists against defendant and in favor of plaintiff, that the same is and was the original and proper debt or obligation of the defendant James B. Boylan, and this defendant is only liable thereon as surety and conditionally." That plaintiff had sufficient collateral security in its hands to pay the debt, but had refused to so apply it. By way of counter-claim the defendant alleged on information and belief that at the time of making several loans and discounts set forth in detail the legal rate of interest in New Jersey was seven per cent. That at the same time the United States statute allowed national banks to receive the same interest allowed by the laws of the State where the bank is located, and no more, and that when a greater amount was knowingly taken, the entire interest should be forfeited; that in case the greater rate had been paid, the person by whom National State Bank of Newark v. Boylan. it had been paid or his legal representatives could recover back from the association taking or receiving it, within two years from the time the usurious transaction occurred, twice the amount of interest so paid. That plaintiff's bank is located at Newark, in the State of New Jersey, and that, prior to the making of each of the discounts referred to, plaintiff and defendant, in violation of each of the said statutes, knowingly made a usurious agreement for said loans, and that usurious interest was received by plaintiff in pursuance of such agreement. After setting forth more than sixty separate usurious loans or discounts between February 11, 1871, and June 7, 1875, the answer continued, in substance, that each of the notes so discounted was either the note of the defendant, John Boylan, or a note made for the purpose of raising money, and had no valid or legal inception prior to the discount thereof. Also, that prior to the discounting of these notes the plaintiff made various loans to the defendant, for which he paid usurious interest, amounting in all to $5,000 over and above lawful interest. That prior to the action the plaintiff did, as aforesaid, have and receive to the use of the defendant the sum of $7,368.14, for money paid by him to said plaintiff in excess of legal interest upon loans. Wherefore he asked for a dismission of the complaint as to him, and judgment for $7,952.53. The plaintiff demurred to this answer. Martin & Smith, for plaintiff. Oliver J. Wells, for defendant. SEDGWICK, J.-The decision of this demurrer involves a construction of section 30 of 13 U. S. Stat at L., June 3, 1864, as to the time within which an action for an excess of interest received by the plaintiff on a usurious loan by it to the defendant may be brought. National State Bank of Newark v. Boylan. The act declares that every association may receive on a loan or discount, "interest at the rate allowed by the laws of the State or Territory, where the bank is located, and no more." "And the knowingly taking," &c., "a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest, which the . . . evidence of debt carries with it, or which has been agreed to be paid thereon. And, in case a greater rate of interest has been paid, the person or persons paying the same. may recover back, in an action of debt, twice the amount of interest thus paid, from the association taking . . the same: Pro'vided, That such action is commenced within two years from the time the usurious transaction occurred." Whether or not the statute gives a general cause of action, based upon the illegality of a national bank taking more interest than is allowed by the law of the State where the bank is situated, as declared by the first part of the section, in addition to the particular causes of action given thereafter, such general cause of action to be governed by the statute of limitations of the State or of the United States, in case there should be one, is to be determined solely by the intent of the section. It was competent, of course, for Congress to declare that a borrower should have no such general cause of action. I am of opinion that the section provides in its special clauses, for all the causes of action that result from an infraction of the section. The special clauses are so framed and attached to the rest of the section, that thereby is implied the negative of there being a general cause of action so to call it. The statute did not take away the right to recover the principal of a loan on which usurious interest had been taken or agreed for. It proceeds to say, that the taking or charging a usurious rate, is to be held a forfeiture of the entire interest, and if a usurious rate |