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property and holders of money freely parted with District Court for the Southern Distriot of New York, both, well knowing that no future law could impair offering to bring this sum into court, and praying that the obligation of the contract.”—2 Ramsey, supra, 433. it might be distributed among all complainants, and
Chief Justice Taney, in Bronson v. Kenzie, supra, they relieved from further liability. Neither the ship, 218, speaking of the protection of the remedy, said: the cargo, nor proceeds of either, nor the freight “It is this protection which the clause of the Constitu- money had been libeled. tion now in question mainly intended to secure."
The act of Congress of March 3d, 1851, limiting the The point decided in The Dartmouth College v. Wood- liability of ship-owners, had never been, by a judicial ward, 4 Wheat. 518, had not, it is believed, when the decision, extended to aliens, nor to foreign bottoms, Constitution was adopted, occurred to any one. There nor to foreign waters, and not to domestio vessels or is no trace of it in the Federalist nor in any other waters unless the ship or cargo was libeled in the contemporaneous publication. It was first made and district. No assignment of the owners' interest to a judicially decided under the Constitution in that trustee for the benefit of all claimants, as authorized case. Its novelty was admitted by Chief Justice Mar-by the act, was made; and it was claimed that bringshall, but it was met and conclusively answered in his ing this $8,000 here was illegal, as under the British opinion.
law, the salved cargo ought to have been returned to We think the views we have expressed carry out the Liverpool. On the trial it was shown that the British intent of contracts and the intent of the Constitution. "Merchants' Shipping Acts" of 1854 and 1862, limited The obligation of the former is placed under the safe- steamship owners' liability, in cases of personal inguard of the latter. No State can invade it and Con- jury, to £15 per ton gross tonnage, without deduction gress is incompetent to authorize such invasion. Its for engine room, which would have made the fund in position is impregnable, and will be so while the or- this case $300,000, instead of $8,422; that in each of the ganic law of the Nation remains as it is. The trust cases where the British courts had entertained the touching the subject with which this court charged | limitation of the ship-owners' liability the ship had is one of magnitude and delicacy. We must always been libeled in rem, was in British waters, or the be careful to see that there is neither nonfeasance nor owners of a British ship came in voluntarily and paid misfeasance on our part.
in the statutory sum per ton. The Normandy, L. R., 3 The importance of the point involved in this con- Ad. & Ecc. 152; The Amalia, 32 L. J. (N. S.) Admirtroversy induces us to re-state succinctly the conclu- / alty, 191; The Northumbria, L. R., 3 Ad. & Ece. 24; sions at which we have arrived and which will be the Genl. Iron Screw Collier Co., 1 Jo. & H. 180; The ground of our judgment.
Rajah, L. R., 3 Ad. & Eco. 539. The remedy subsisting in a State when and where a It was further shown that there was no comity of contract is made and is to be performed is a part of its decisions by British courts in favor of American ships, obligation, and any subsequent law of the State which which should lead our courts to strain a single point in so affects that remedy as substantially to impair and favor of British ships: that British courts had lessen the value of the contract is forbidden by the refused to extend over American ships the benefit of Constitution, and is, therefore, void.
their Merchants' Shipping Acts, in the case of collision The judgment of the Supreme Court of North Car- between two American ships on the high seas (Cope v. olina is reversed, and the cause will be remanded with Doherty, 2 De Gex & J. 614); that in a collision between directions to proceed in conformity to this opinion. a British and foreign ship on the high seas, where the
foreign ship was at fault, the latter could not have the LIABILITY OF SHIP-OWNERS.
benefit of the limitation of those acts (The Wild Ranger, 1 Jo. & H. 180); that the courts of Nova
Scotia had jurisdiction of this steamship and had exLEVINSON v. THE OCEANIC STEAM NAVIGATION COM
ercised it; that the New York courts had given a conPANY.
struction to the act of Congress to the effect that it NEW YORK, 24th April, 1878.
did not apply to this case by decisions at Circuit like To the Editor of the Albany Law Journal :
that which on other points has now been passed upon SIR — Under this head, your issue of the 13th instant by the General Term of the Supreme Court in Markcontains the opinion of Judge Shipman, and the note wald v. The Oceanic Co., 11 Hun, 462; that the Court of E. P. Wheeler, Esq., one of the counsel, in this of Appeals had held that the jurisdiction of the very interesting case, which is of so much importance United States District Court could be attacked colas to justify a further reference to it if permitted by laterally (Tracey v. Corse, 58 N. Y. 143); that the United the state of your columns.
States courts had held the same doctrine (Thompson v. Levinson was a passenger by the “ Atlantic;" he | Tolmie, 2 Pet. 157; Elliott v. Peirsoll, 1 id. 328); that paid his passage money in the foreign port of Liver- the Distriot Court itself in the similar case of Markpool on board of this foreign ship, owned by a foreign wald (another passenger by the same boat), held that corporation, which transported him and his baggage the owners' libel did not foreclose him, and that, till it cast him upon a foreign shore at Mar's Head, through the master, the owners, being & corporation, where his baggage was lost and himself severely in- were privy to the loss and injury. jured in person. The action was brought to recover Formerly, it would have been thought that the for these damages.
plaintiff had made out his case. The Circuit Court The ship-owners fished out of the wreck certain found that he had, so far as fixing the responsibility of articles of cargo and sold them in Halifax; they also the injury upon the owners, through the master's negbrought some to this city, delivered them to the con- ligence: on this point agreeing with the State courts. signees, and collected a small amount of freight
But the Circuit Court then held, substantially, that it thereon. The two
thus received by them could apply the U. S. Statute, being the same as the amounted to $8,422; when, having been sued here by maritime law, to the protection of these alien owners various parties, they filed a libel in the United States of a foreigu bottom, in foreign waters, where the mari
time law does not prevail, and would remit the plaintiff to the plaintiffs, held, that the bank could not be to his share of the value of that portion of the wreck charged with the receipt of the money. Ib. which had been turned into money, and offered by the 3. Branch bank: position of.—The position of branch owners to be and had been in the District Court al
banks is, that in principle and in fact they are agencies ready distributed to other claimants, and which, as he of one principal banking corporation or firm, notwithhad not previously received it, he must go without en
standing that they may be regarded as distinct for tirely, and that it was sufficient defense to show that
special purposes, e. g., that of estimating the time at the ship-owners had filed a libel in the District Court,
which notice of dishonor should be given; or of enon which a decree had been obtained without opposi- titling a banker to refuse payment of a customer's tion, although no libel had been filed against the ship check except at that branch where he keeps his acor cargo.
count. Ib. The court, also, held that the service of a monition
BILL OF EXCHANGE. in the admiralty proceedings upon a person who was
Acceptance: 1& 2 Geo. 4, c. 78, s. 2: 19 & 20'Vict., C. attorney for the party in another jurisdiction, another
97, 8. 6.-Since the passing of the statute 19 & 20 Vict., court, and another matter, was good service upon the
c. 97, s. 6, simply writing the name of the drawee party.
across the face of a bill of exchange does not constiFrom this summary, you will see the exceeding
tute a valid acceptance; there must also be upon the length and breadth of this important decision by Judge
face of the bill some word or words indicating an inShipman. It is law. It is excellent for foreign ship
tention on the part of the drawee to be bound by it as owners. I am not prepared to say that it is not every
acceptor. Hindhaugh v. Blakey, L. R., 3 C. P. D. 136. way fortunate that this is the law, because individual
CARRIER. interests must yield to the general interests, and a liberal course of exemption and protection to commerce, Conditions limiting liability: willful misconduct: alboth on sea and land, is undoubtedly for the general ternative rates. The plaintiff, under a contract in interests. This decision, if sufficiently made known writing signed by his agent, delivered to the defendabroad, ought largely to increase the admiralty busi- ants certain cheeses to be carried from L. to S. at ness of this country. Englishmen, especially, will be "owner's risk.” As the plaintiff know, the defendfound escaping from the limitation, or rather imposi- ants had two rates of carriage: a higher rate, when tion, of liability at the rate of £15 per ton, as pre- they took the ordinary liability of carriers, and a scribed by their Imperial law, and protecting them- lower, when they were relieved of all liability, except selves under this Republican decision.
that arising from the willful misconduct of their seryThose who may wish further to trace this question of ants. In using the words “ owner's risk" the plainmaritime law may be interested to refer to “The tiff intended that the cheeses should be carried at the Niagara," 21 How. (U. S.) 26; Moore v. Transportation lower rate, and subject to the conditions restricting Co., 24 How. 1; Norwich Co. v. Wright, 13 Wall. 104; the defendants' liability. The defendants servants Allen v. Mackay, 1 Sprague, 219; the “Lottawana," A packed the cheeses in such a manner that during their Wall. 558; the Epsilon,” 6 Ben. 378.
transit upon the defendants' railway they were damLike the decision of the U. 8. Supreme Court, doing aged, but the defendants' servants did not know that away with the necessity of the assessment of a tax as damage would result from the mode in which the a prerequisite to its collection, this case is an illustra- cheeses were packed. Held, that as the defendants tion of the easy way in which the United States courts carried at alternative rates, the condition excepting sweep away pre-existent views of the law, technicali- them from liability wben carrying at the lower rate ties, that observance of forms which may be called the was just and reasonable; and that the injury to the mechanics of the law, and literal construction, as cob
cheeses had not arisen from the willful misconduct of webs, before a broad principle which they feel bound their servants. Lewis v. The Great Western Railway to follow.
Company, L. R., 3 (C. A.) Q. B. D. 195.
Light, prescriptive right to: quantum of enjoyment: right not to be measured by purpose for which light act
ually used: damages.-In an action for the obstruction RECENT ENGLISH DECISIONS.
of ancient lights, the judge directed the jury that BANKS AND BANKING.
they were to consider whether there had been a sensi1. Canceling signature of makers of dishonored note : ble diminution of light, so as to make the plaintiff's effect of.—The mere fact of canceling the signature of
premises less available for the purposes of occupation the makers of a dishonored promissory note and writ- or business, to which they were then, or might thereing “paid ” on the note, corrected before the note is
after, be made applicable, and that the damages were sent back to the plaintiffs by a memorandum thereon to be estimated according to the diminution of value canceled in error,” cannot be effectual to charge a
of the premises for such purposes. Held, a right dibank with the receipt of the money. (Warwick v.
rection, on the ground that the purposes for which Rogers, 5 M. & G. 340, approved.) Prince v. Oriental the premises had actually been used while the light Bank Association, L. R., 3 Ap. Cas., P. C., 325.
had been enjoyed, were not the proper measure of the 2. When bank will not be charged with receipt of money.
right. (Martin v. Goble 1 Campbell, 320, dissented -Where a promissory note is returned dishonored to
from.) Moore v. Hall, L. R., 3 Q. B. D. 178. the plaintiffs, the amount thereof having been trans
MARINE INSURANCE. mitted by transfer drafts and entries in the bank's Right of underwriters to maintain action for damage books, from the branch where the same was made pay- to thing insured.–There is no independent right in able to the branch where the plaintiffs paid the same underwriters to maintain in their own name, and in, such transfer and entries not being communicated without reference to the person insured, an action for
damage to the thing insured. Although the under- property, which the seller has not got when the conwriters have paid for a total loss, and are entitled to tract is made, nor any means of getting it, is not void all the rights in the injured ship which belong to its for illegality. The secret intention of one of the parowner, yet if that owner cannot assert a right for dam- ties, uncommunicated to the other, not to fulfill his ages against the wrong-doer, neither can the under- contract, is not enough to make the transaction illegal. writers. Two ships, the property of the same owner, The intent that it should be a mere betting on the collided; the underwriters paid the insurance effected
market, without any expectation of actual performon the lost ship, and then claimed to rank pari passu, ance, must be mutual and constitute an integral part with the owners of cargo destroyed, in the distribu
in the real contract, in order to vitiate it. If the contion of the fund lodged in court by the owner as pro- tracts were valid in their inception, and not tainted prietor of the ship which did the damage. Held (re- with any gambling intent or device, a subsequent muversing the decision of the court below), that the tual settlement by the parties, which took the place of underwriters had no such right under the circum- actual performance, cannot have the retroactive effect stances of the case. Per The Lord Chancellor (Lord of making them void for illegality. U. S. Dist. Ct., Cairns):—The underwriters' right must be asserted in W. D. Wisconsin. Clark, Assignee, etc., v. Foss, 17 the name of the person insured, but if he be the per- Nat. Bankr. Reg. 261. son who has caused the damage, the right cannot be
DISOHARGE. maintained against himself. Per Lord Penzance:
Does not impair right of creditor as to bond given on The underwriters of the lost ship have uo right of ac
attachment.-Where a creditor had commenced a suit tion against the owner of the ship that did the mis
against the bankrupt in a State court more than four chief, as he himself had no such right, inasmuch as,
months before the commencement of proceedings in being the owner of both vessels, any right of action
bankruptcy, and had garnished credits in the hands of he had must be a right of action against himself,
a third person, and the garnishment had been released which is an absurdity, and a thing unknown to the
by giving a bond to pay the judgment, held, that the law. Simpson & Co. v. Thomson, L. R., 3 Ap. Cas., H.
plaintiff had a right to prosecute the suit so far as to L. (Sc.) 279.
fix the liability of the sureties upon the bond, notwithNEGLI E.
standing the discharge. A discharge of the bankrupt Ship: liability of " managing owner" for negligence does not impair the remedy of a creditor against the of captain trading independently and rendering a
sureties upon a bond given to dissolve an attachment share of profits to owner: Merchant Shipping Act, 1875
issued more than four months before the commence(38 & 39 Vict., c. 88, 8. 4, sub-s. 55.)- A sloop was navi
ment of proceedings in bankruptcy. U.S. Dist. Ct., gated under a verbal agreement between A, the "man
E. D. Mich. In re Albrecht, 17 Nat. Bankr. Reg. 287. aging owner,” registered according to the Merchant
JURISDICTION. Shipping Act, 1875, and B, the captain, by which, on condition that A should have one-third of the net
1. Of Circuit Court: of State court.— The Circuit
Courts having concurrent jurisdiction with the Disprofits, accounts of which were to be rendered to him
trict Courts of all actions by an assignee against perby B from time to time, B was at liberty to go to any
sons claiming an adverse interest in the estate of a port, and take or refuse any cargo he chose, and was also to hire and pay the crew and supply tho stores, A
bankrupt, no suit by an assignee for a sum exceeding
five hundred dollars can be prosecuted in a State having no control over the vessel. While discharging
court. U. S. Circ. Ct., Colorado. Hallack v. Tritch, cargo under a charter made by B “for and on behalf
17 Nat. Bankr. Reg. 293. of the owner," the vessel, through the negligence of B, broke loose from her moorings and damaged the
2. Practice : objection : declaration.-Objection that
there was no direction from the Bankrupt Court to wharf of the plaintiff, who brought an action against A
bring the suit cannot be first raised in the appellate and B. Held, that the agreement did not amount to a
court. In an action brought by an assignee to set demise of the vessel, and whatever was the precise rela
aside a sale or transfer of goods, as having been made tionship thereby created between the defendants inter
in violation of the Bankrupt Act ( 85128 ), the decse, A was responsible to the public for the negligence
laration must set out the facts of the illegal transof B, and, therefore, both were liable in the action.
action. Ib. Steel v. Lester and Lilee, L. R., 3 C. P. D. 121.
3. Chattel mortgage : possession: fraud.-As between
the parties to a chattel mortgage, the circumstance RECENT BANKRUPTCY DECISIONS.
that the mortgagees allowed the mortgagor to retain CHATTEL MORTGAGE.
possession of the mortgaged property, after condition Title to surplus after payment of debt.—
broken, will not affect the validity of the mortgage. having made default in the payment of a chattel mort- When a secured creditor takes goods in fair exchange gage, the mortgagees, pursuant to the terms thereof,
for the security, the transaction is not in fraud of the took possession of the mortgaged property. Before
Bankrupt Act. Ib. the sale a creditor issued execution to the sheriff.
SALE. One hour thereafter the petition was filed. There
Purchaser of estate takes subject to equities.-A purwas a surplus on the sale of the property. Held, that
chaser at a sale by an assignee takes the estate of the at the time the execution was issued the bankrupts bankrupt subject to all equities against it, and it is had no leviable interest in the property, and that the
immaterial whether he knows of them or not. Sup. creditor had no lien on the surplus to the exclusion of
Ct., North Carolina Steadman v. Taylor, 17 Nat. the assignee. U. S. Dist. Ct., s. D. New York.
Bankr. Reg. 283.
Bankrupt surety discharged by extension of time of For future delivery of personal property : illegal con- payment of principal debt.-The bankrupts made a certract.-A contract for the future delivery of personal
tain note for six thousand dollars, for the accommodation of one H., who indorsed and procured its dis- ment debtor may sell and convey the land with poscount at the bank. Before it came due the bank had session to the party setting up the statute. The knowledge of the purpose for which it was given. The statute does not begin to run in such case until the bank then discounted H.'s note at ninety days for five land has been sold under the judgment, and the purthousand dollars, and took his check for the six thou- chaser becomes entitled to a deed, because until theu sand dollars. The last pote not being indorsed, the there is no right of entry or right of action against bank held the old note and sought to prove it against the defendant, in any one. Judgment of U. 8. Cir. the estate of the bankrupts. Held, that the bankrupts Ct., N. D. Illinois, reversed. Pratt v. Pratt. Opinion were sureties and that they were discharged by the by Miller, J. Clifford, J., dissented. extension of time to H., the actual principal, without 2. When it begins to run: Statute of Illinois.-But as their assent. U. S. Dist. Ct., E. D. Missouri. Val- soon as the judgment creditor places himself, by a sale ley National Bank v. Meyers, 17 Nat. Bankr. Reg. 257. and purchase of the land, in a condition tbat he can
bring suit for the possession, the statute begins to run
against him. These propositions are applicable to the UNITED STATES SUPREME COURT ABSTRACT,
Illinois act of 1835, limiting actions for the recovery OCTOBER TERM, 1877.
of land to seven years. Ib. CONFISCATION. Sale of land before passage of act by one in rebellion
COURT OF APPEALS ABSTRACT. to government gives good title.--In May, 1862, C, who
APPEAL. was a member of the Confederate Congress, and engaged in armed hostility to the United States within
Discontinuance of appeal upon application of party the Confederate lines, conveyed to plaintiff, his son,
appealing.–Where a party has appealed to this court also within the Confederate lines and engaged in hos
from an order of the General Term granting a new trial, tility to the United States, certain real estate situate under a mistake as to the effect of the appeal, and in the city of New Orleans, then within the Federal
before a decision of the appeal by the court asks perlines. Subsequently, and under authority of the Act of
mission to withdraw the appeal, the court, if satisCongress of July 17, 1862, the property was confiscated fied that the proceeding has beeu in good faith, ordiin proceedings against C, and sold by the United States narily grants leave to dismiss the appeal on payment of marshal. Held, (1) that the Confiscation Act mentioned costs. Leave to discontinue appeal granted. Mackay did not authorize proceedings for acts committed v. Lewis. Opinion per Curiam. before its passage. (2) That transfers of property be
[Decided April 23, 1878.] tween those in hostility to the government before its
CORPORATION. passage were not invalid. (3) That the proceedings
1. Action pending against, terminates by dissolution cou ld only affect the interest of C in the property at
from expiration of charter.-In an action against defendthe time the act was passed, and that the proceedings ants to compel them to apply certain moneys received did not invalidate the title of plaintiff to the property by them as stockholders of a New Jersey corporation acquired by transfer from C in May, 1862. Judgment out of its assets to the payment of a judgment against of U. S. Cir.Ct., Louisiana, reversed. Conrad, plaintiff the corporation, held, that .when a corporation is disin error, v. Waples. Opinion by Field, J.
solved by reason of the expiration of the term of its MORTGAGE.
charter, this terminates actions against it then pend1. What constitutes: conveyance with power of sale.- ing, and it is not necessary that the dissolution be A conveyance of land to secure the payment of a sum judicially declared. Judgment below reversed. Sturof money with power of sale, whether made to the gis v. Vanderbilt. Opinion by Rapallo, J. creditor or a third person, is in equity a mortgage, 2. Estoppel: director of corporation who has sold if there be left a right to redeem on payment of the stock and no longer acts, when not estopped by action of. debt thereby secured. Decree of U. S. Cir. Ct., : E. D. -V. was a director and stockholder in a corporation in New York, reversed. Shillaber, appellant, v. Robinson. 1864, having been elected director for one year. In Opinion by Miller, J.
that year he sold his stock and took no part in the 2. Sale under power: statute must be followed strictly. - affairs of the corporation thereafter. In 1869 the charA sale under the power in such an instrument must be ter of the corporation expired. In 1871 plaintiff commade in strict conformity to the directions therein menced an action against the corporation in its corpoprescribed, or to such as may be prescribed by statute, rate name, which was defended by those in charge of or the sale will be absolutely void. Ib.
the corporation, they using the corporate name in 3. When sale void.—A sale made on six weeks' notice, such defense. Held, that the action of V. in selling though followed by conveyance, when the mortgage his stock and neglecting to take part in the affairs of and the statute of the State require twelve, is void, the corporation amounted to a resignation of his office, and does not divest the equity of the party who had and that he was not estopped from setting up that a the right of redemption. Ib.
judgment obtained against the corporation after its 4. Accounting by vendor to innocent purchasers.-A
dissolution was invalid. Ib. person holding the strict legal title, with no other [Decided April 23, 1878. Reported below, 11 Hun, right thana lien for a given sum, who sells the land to 136.] innocent purchasers, must account to the holder of
EVIDENCE. the equity for all he receives beyond his lien. Ib.
1. General objection to, when sufficient and when inSTATUTE OF LIMITATION.
sufficient.-A general objection may be sufficient upon 1. Action to recover possession of land: when statute which to base a good exception when it is palpable to not applicable. The statute of limitation for the action the appellate court, and must have been to the trial to recover possession of land is not applicable to the lien court, what that objection was, and that it could not of a judgment creditor on the land, though the judg- have been obviated at the time if it had been precisely
stated, but it is otherwise if it does not necessarily
PROMISSORY NOTE. point out the particular defect in the testimony offered
1. Acceptance of new note in payment of old: when upon which the objection is founded. Accordingly
old note not canceled.- Plaintiff, who held a note made where an objection was raised to the admission of
by the firm of P. & Co., of which M. was a member, to parol testimony of the contents of the letter, held, that
the order of the firm of B. & A., commenced action the point could not be taken on appeal, that it was not
thereon. In settlement of this action a new note vas sworn that the letter spoken of was genuine. Judg
taken, made by P. & Co. to the order of B. & A. and ment below affirmed. McCulloch v. Hoffman. Opinion
indorsed by them. At the time the new note was by Folger, J.
taken M. was dead, but plaintiff did not know the fact. 2. Party may contradict his own witness.-While a Thereafter plaintiff sued the new note and obtained party cannot impeach his own witness he may show judgment thereon against P., survivor of P. & Co. by other witnesses that what the witness testifies to is Held, that the acceptance of the new note did not canuntrue. Ib.
cel the old note, but that remained valid against the [Decided April 23, 1878. Reported below, 10 Hun, makers, and the estate of M. was liable thereupon. 133.]
Order affirmed. First National Bank of Chittenango FIRE INSURANCE.
v. Morgan. Opinion by Folger, J. Subrogation to interest of mortgagee: when contract 2. Suretyship: rule as to death of surety not applicafor, valid.-By a mortgage held by plaintiff upon real ble to partnership paper.-It was claimed that the note estate belonging to S., the owner was required to pro- was given as an accommodation note of P. & Co., and cure an insurance for the benefit of the mortgagee. A that it was for the benefit of B. & A., and that P. & Co, policy was issued to S., the loss payable to plaintiff. merely signed as sureties for them, and that M. having The policy was conditioned against other insurance died no action could lie against his estate. Held, that which would render it void. By a contract made the doctrine of Houck v. Craighead, 67 N. Y. 432; Risley some years previously between plaintiff and the in- v. Brown, id. 160, etc., did not apply. This is a case of surance company, it was provided that in case any commercial paper, and the circumstance that P. & Co. polioy should be issued by it for the benefit of plaintiff were, as between themselves and the payees, sureties, as mortgagee, which might be avoided by the acts of would not affect third parties, but they would be the owner of the property, it should not be void as to bound as principals. Ib. plaintiff, but the company, in case it was avoided as [Decided March 26, 1878.] to the owner, should be subrogated to plaintiff's rights under the mortgage. S. procured other insurance and avoided the policy as to her. The property was burned
NOTES OF RECENT DECISIONS. and the company paid the loss to plaintiff. Held, that the contract for subrogation was valid, and that the JUDGMENT: RENDERED IN ANOTHER STATE: IMPEACHinsurance company was entitled to hold plaintiff's MENT OF RECORD OF SERVICE OF SUMMONS.--In an action rights under the mortgage. Order below reversed. in the nature of ejectment, it was shown that the plainUlster County Savings Institution v. Decker. Opinion tiff's title was founded upon a sheriff's deed made in by Church, C. J.
pursuance of a sheriff's sale on an execution issued by [Decided March 26, 1878. Reported below, 11 Hun, the clerk of the District Court on a transcript of a judg515.]
ment of a justice of the peace filed in said clerk's ofMANDAMUS.
fice, which judgment was rendered on default against Rule as to, when party entitled to: application for man
Jane Hicks Brown, the then owner of the land in condamus to compel return to appeal. - In an application troversy, on a constable's return of service of sumfor a mandamus, when the act, the doing of which is
mons, which was in the following words, to wit: “Exsought to be compelled, is the final thing, and if done, ecuted on the 15th December, 1860, by leaving a certigives to the relator all that he seeks proximately or
fied copy at the usual place of residence of the within ultimately, then the question, whether he is entitled
named defendant, Jane Hicks Brown. H. H. Sawyer, to have that act done, may be inquired into by the officer Const." The court below permitted the defendant to or person against whom the mandamus is sought, and impeach said deed, judgment and constable's return is also to be considered by the tribunal which is moved by showing that the said return was false, that the to grant the mandamus. But where the act to be said Jane Hicks Brown was not at the time a resident done is but a step toward the final result, and is but of Kansas, that she had no residence in Kansas, and the means of setting in motion a tribunal which is to was not herself in Kansas, but that at that time, and decide upon the right to the final relief claimed, then for a long time before and afterward, she resided and the superior officer or tribunal may not inquire whether was herself personally in the Indian Territory. Held, there exists the right to that final relief, and can only
that the court in this did not commit error. Sup. Ct., ask whether the relator shows a right to have the act Kansas, January, 1878. Masten v. Duncan (Ceut. L. J.). done which is sought from him or it. Accordingly, MORTGAGE: AGREEMENT NOT TO CALL IN PRINCIPAL where a party was entitled to an appeal from the de- ON PUNCTUAL PAYMENT OF INTEREST: BREACH OF cision of the canal board, upon serving certain notices, COVENANT: RECEIPTS OF INTEREST: WAIVER.-A and a return was necessary to bring the case before mortgagee agreed with a mortgagor that, if he duly the appellate board, held, that in an application for and punctually paid the interest, he would not call in mandamus to the canal board, to compel it to make
the mortgage money for two years. Six months' inthe return, the question whether relator was entitled terest became due, and, being unpaid, was frequently to succeed on appeal could not be examined. Order demanded. At the end of a month after it became below affirmed. People ex rel. Freer v. Canal Ap- due, the mortgagee demanded payment of the principraisers. Opinion by Folger, J.
pal and interest. Three days afterward the mort[Decided April 23, 1878.)
gagor sent the mortgagee the six months' interest,