aggrieved, that takes away the common-law remedy to recover back usury in an action for money had and received, and there is no presumption that the legislature so intended.

The defendant also contends that the action is founded on a penal statute, and so was long since barred. The obvious and conclusive answer is, that the action is not so founded either in form or in substance.

But he further contends that the action must be dismissed because it was not authorized by the town. This contention cannot avail him. The office of selectmen being instituted by the legislature, an implied authority is conferred on them to bring all suits, as incident to their office, which the proper and faithful discharge of their duties requires. Pittstown v. Plattsburgh, 18 Johns. 407; Dillon Mun. Corp. (3d ed.), s. 237, note. And, aside from this, the statute expressly requires that selectmen "shall manage all the prudential affairs of the town," and act as agents when others are not chosen by the town. Gen. Sts., c. 37, ss. 2, 4; G. L., c. 40, ss. 2, 4. The authority of the plaintiffs' selectmen to institute this suit is too clear to be disputed.

The next objection is that the $1000 note belonged to the defendant's wife, and that consequently he cannot be held liable for the usury paid upon it. But the facts disprove the conclusion; for having made and entered into the contract in respect to that note with the plaintiffs in his own name, it is not for him now to object that in making it he acted as the agent of a disclosed or an undisclosed principal, and thus discharge himself from liability. Chandler v. Coe, 54 N H. 561, 576.

The only remaining question is as to the amount which the plaintiffs are entitled to recover, and this depends upon the inquiry, When, in cases like the present one, does the statute of limitations begin to run? The plaintiffs contend that it is only from the time when the notes were finally paid and taken up, while the defendant contends that it is from the time they were given in pursuance of the usurious agreement between the parties. Both are wrong. Every time the plaintiffs paid the defendant usury, a cause of action accrued (Breckenridge v. Churchill, 3 J. J. Marsh. 15), against which the statute immediately commenced to run (Rushing v. Rhodes, 6 Ga. 228, Davis v. Converse, 35 Vt. 503), and consequently the plaintiffs can only recover the illegal interest actually paid as such within six years next before the commencement of this suit. Judgment accordingly.

All concurred.

BURKE &a. v. CONCORD RAILROAD & a.

The interpretation of a railroad charter, like the interpretation of any other grant, statutory, contractual, or testamentary, is the ascertainment of intention, and the question of intention is a question of fact to be determined upon competent evidence.

The general rule, that a grantor intends, if he is able, to convey the rights and powers without which the grant would be of no effect, or the means reasonably necessary for the enjoyment of the granted property or right, the exercise of the granted power, and the accomplishment of the object of the grant, is applicable to the charter of a railroad. The charter of the Concord Railroad shows that the grantor and grantee intended the grantee's road should be not a detached and isolated road, but one of several connected roads forming a line between Concord and Boston.

The Concord Railroad Corporation is authorized to make, with the Nashua & Lowell Railroad Corporation, such a business connection as will give the public the accommodation of a continuous line from Concord to Boston, but not to form a general partnership with the Nashua & Lowell for the operation of their roads by both corporations as joint principals.

The stipulations of a certain contract made by those corporations held to be an unauthorized formation of such a partnership.

BILL IN EQUITY, by stockholders of the Concord Railroad Corporation, for an injunction against the performance of a contract made by that corporation and the Boston & Lowell Railroad Corporation for a joint management, for five years, of the line of railroads running from Concord through Nashua and Lowell to Boston.

Merrimack ss.

[COPY OF THE BILL.]

To the Supreme Court.

Edmund Burke, of Newport in the county of Sullivan; Edward L. Knowlton, Eliphalet S. Nutter, Horatio G. Belknap, Bradbury Gill, Charles Hall, John H. Pearson, and Charles C. Pearson, all of Concord in said county of Merrimack; Smith S. Page, of Hopkinton in said county of Merrimack; Caleb Page, of Dunbarton in said county of Merrimack; and E. H. Spalding, of Nashua in the county of Hillsborough,-complain against the Concord Railroad, a corporation duly established according to and existing under the laws of the state of New Hampshire, and having its principal place of business at Concord aforesaid; and Frederick Smyth and Samuel N. Bell, both of. Manchester in the county of Hillsborough; J. Thomas Vose, of Boston in the county of Suffolk and commonwealth of Massachusetts; Benjamin A. Kimball and

Henry C. Sherburne, both of Concord aforesaid; and James W. Johnson, of Enfield in the county of Grafton in the state of New Hampshire, all of whom are directors of said Concord Railroad; and Francis B. Hayes, of Boston aforesaid, who is enjoying and exercising the powers, privileges, and franchises of a directorship in said Concord Railroad; the Boston & Lowell Railroad, a corporation duly established by and existing under the laws of the commonwealth of Massachusetts and having its principal place of business at Boston aforesaid; and the Boston, Concord & Montreal Railroad, a corporation duly established by and existing under the laws of the state of New Hampshire, and having its principal place of business at Plymouth in the county of Grafton; and the Northern Railroad, a corporation duly established by and existing under the laws of the state of New Hampshire and having its principal place of business at Concord aforesaid, and say,—

That they, the said plaintiffs, are stockholders in said Concord Railroad, owning and holding in their own right, respectively, shares of the capital stock of said Concord Railroad, as follows: Edmund Burke, sixty-six shares; Edward L. Knowlton, three hundred shares; Eliphalet S. Nutter, one hundred and sixty-two shares; Horatio G. Belknap, one hundred and nine shares; Bradbury Gill, forty-three shares; Charles Hall, fifteen shares; Charles C. Pearson, two hundred and ninety-one shares; John H. Pearson, eighteen hundred and thirty-eight shares; Smith S. Page, forty-six shares; Caleb Page, sixty-one shares; and E. H. Spalding, one hundred and six shares ;-and they make this complaint as well in behalf of all other stockholders in said Concord Railroad, except the defendants, as in behalf of themselves:

That the railroad of said defendants, the Concord Railroad Corporation, is thirty-five miles in length, and for a long time has been, still is, and of necessity must continue to be, a necessary and natural outlet for the traffic of the said Northern and Boston, Concord & Montreal railroads and their respective branches, and by reason thereof the said Concord Railroad, up to the time of the acts done and agreement and contract made and entered into by the defendants, as hereinafter complained of, had earned large sums from said traffic, and from which ought to have inured good profits to its stockholders;

That said defendants, or some of them, as the plaintiffs are informed and believe, have but little direct pecuniary interest in the stock or successful operation of said Concord Railroad, while all or nearly all of them have large interests in the stock, successful operation, and profits of other and rival railroads, viz., the said Boston & Lowell, Boston, Concord & Montreal, and Northern railroads, the interests of which are adverse to the interests of said Concord Railroad and its stockholders, and they, said defendants, were elected or declared to be elected directors of said Concord Railroad, at its last annual meeting, on account of their known VOL. LXI. 12

interest in and partiality to said other and rival railroads, whose interests were and are adverse to the interests of said Concord Railroad and its stockholders as aforesaid;

That the said defendants, Smyth, Bell, Vose, Johnson, Sherburne, Kimball, and Hayes, holding and representing interests adverse to said Concord Railroad and its stockholders, and contriving and designing to protect, improve, and enhance in value and increase the profits of said adverse interests, and contriving and designing, as said plaintiffs believe, to injure said Concord Railroad and its stockholders, and to decrease its and their legitimate profits and depreciate the value of its stock, and to give to other railroads, and those having adverse interests, the benefits and profits derived from its advantageous location, and without the consent of the stockholders, and in direct violation of the public law of New Hampshire and the charter and by-laws of said Concord Railroad, did, on August 19, 1881, in the name of said Concord Railroad, make and enter into a contract with the said Boston & Lowell Railroad, which is a foreign corporation, the terms, stipulations, and provisions of which contract are injurious to the interests and destructive of the rights and property of the Concord Railroad, and are unwarranted by the public law of said state of New Hampshire and the charter of said Concord Railroad, and, if permitted to be carried out, must, as the plaintiffs believe, result in the material decrease of the profits and the depreciation in value of said Concord Railroad, and therefore work great injury to the rights, property, and interests of the stockholders of said Concord Railroad;

That said defendants, Bell, Smyth, Vose, Johnson, Kimball, Sherburne, and Hayes, assuming to act as directors of said Concord Railroad, authorized, or attempted to authorize, the said defendant, J. Thomas Vose, to sign and seal said contract by a vote passed August 19, 1881, a copy of which is as follows:

"On motion, voted, that the president of this corporation be authorized to affix the corporate name and seal to the agreement with the Boston & Lowell Railroad for a joint operation of the two railroads for five years from September 1, 1881."

And said defendant, J. Thomas Vose, did sign and seal said contract, a copy of which is hereunto annexed, marked "A;"

That said contract contemplates and provides for the transfer of "the entire control" of said Concord Railroad and its "shops, depots, furniture, rolling-stock, machinery, tools," and its other property used in its operation, from its directors to "a general manager, who shall be chosen by the concurrent vote of a majority of the directors of each party," which is a management and delegation of authority which are neither recognized in or authorized by the charter of said Concord Railroad, which was granted by the legislature of New Hampshire, June 27, 1835; because section two of said charter provides that "the immediate government and

direction of the affairs of the said corporation shall be vested in seven directors," chosen by the corporation annually, and not in an authority selected by a foreign corporation, as provided for by said contract in articles two and nine;

That under said contract "the care and custody of the finances" of said Concord Railroad are "to be confided to a cashier," in the choice of which said foreign corporation participates, and who is, or is to be, as the plaintiffs are informed and believe, a citizen of the commonwealth of Massachusetts, and therefore beyond the jurisdiction both of the courts and legislature of New Hampshire, and who is also, as the plaintiffs are informed and believe, a stockholder in and an officer of said foreign corporation, while said section two of said charter provides for "a treasurer, who shall give bonds to the corporation with sureties, to the satisfaction of the directors, in a sum not less than twenty thousand dollars, for the faithful discharge of his trust;" and article seven of the by-laws of said corporation, adopted July 7, 1841, defines the duties of the treasurer of said corporation as follows:

"The bond of the treasurer shall be for a sum not less than thirty thousand dollars, and be in the custody of the president. It shall be the duty of the treasurer to collect all instalments, safely to keep the seal of the corporation, and all the moneys, securities, and valuable papers; to disburse and deliver over the same as the directors shall require; keep his books and accounts in an approved form, showing the true condition of the finances and funds of the corporation";

That, notwithstanding these provisions of the charter and bylaws of the Concord Railroad, the defendants have transferred and are transferring all the moneys and earnings of said Concord Railroad from the hands and possession of the treasurer, agents, servants, and employés of said Concord Railroad to the possession and custody and into the control of said cashier, who is a citizen of Massachusetts and beyond the control and jurisdiction of the courts and legislature of New Hampshire, to the great injury and prejudice to the rights of said stockholders, and in direct violation of said charter and by-laws and the public laws of said state of New Hampshire, and also in violation and disregard of a perpetual injunction made by the circuit court of New Hampshire at its October term, 1875, for Merrimack county aforesaid;

That under article nine of said contract, the "general manager," who is to be "chosen by the concurrent vote of a majority of the directors of each party," "may be removed" by the unanimous vote of the directors of said foreign corporation, and so said Concord Railroad directors cannot prevent it, even if they desired it, and the interests of the Concord Railroad and its stockholders required it, and thus the immediate direction of the affairs of said Concord Railroad Corporation, which, by said section two of said charter of said Concord Railroad, are vested in seven directors