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titled to wages for that period, and that it was no answer to his claim that the illness was caused by an act of misconduct on his part, which occurred before the contract, and which he did not know, at the time of the contract, would lead to his illness, and render him in

capable of performing his work. THIS was an action brought in the Lord Mayor's

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cantile clerk, to recover the sum of £16 13s. 4d., alleged to be due to him from the defendants, his employers, and the particulars stated the claim to be for the amount of his wages and salary at £120 a year, from the 1st August to the 20th September, 1877, according to an agreement between them dated the 27th June, 1877. The plaintiff had been employed under that agreement at the above-mentioned salary of £120, subject to increase in events which did not occur, and the employment was to be determinable on either side by one month's notice. He served under the contract from the 2d until the 30th July, when he was unwell. He obtained the permission of his employers to absent himself from work until the 6th August. He remained away, however, and was under medical treatment, and was unable to return to his employment until the first week in September, when he returned and tendered his services, which the defendants refused; and they had, moreover, in the meantime, namely, on the 201h August, given him notice, by letter of that date, terminating the employment, and stating that, as they could not do without a clerk to fill his place, they had engaged another person. They refused to pay him the amount claimed by him for wages during his absence, on the ground that he had, by his own misconduct, rendered himself incapable of performing his duties, and therefore was not entitled to any remuneration. The illness under which the plaintiff was suffering arose from venereal disease. The learned Common Serjeant of the City of London nonsuited the plaintiff, but a rule way afterward obtained on his behalf calling upon the defendants to show cause why a verdict should not be entered for the plaintiff for the sun claimed, on the ground that there was no evidence at the trial in support of the defendants' plea.

Reed now showed cause on behalf of the defendants, and contended that in a contract of service capacity to serve is a condition precedent to the right to sue, and there is no right to sue unless the service is performed, or the inability to perform it arises otherwise than through the plaintiff's own act or default, as, for instance, by accident or the act of God. Even if the defendants did not know at the time they dismissed him that he had himself put it out of his power to serve, they may rely on that defense at the trial. See Spotswood v. Barrow, 5 Ex. 110; 10 L. J. 226, Ex. If the plaintiff put it out of his own power and rendered himself unable to continue his services, the defendants were at liberty to rescind the contract, or to sue for a breach of it. It seems to be assumed in all the cases that, though temporary illness which arises through the act of God is an excuse for the non-performance of services, the servant would not be excused where it arises, as it did in the present case, through his own misconduct. [HAWKINS, J.-The misconduct of the plaintiff in the present case occurred before the contract.] The incapacity to work followed immediately upon, and could be traced to, the misconduct. In Cuckson v. Stones, 28 L. J. 25, Q. B.; 1 El. & El. 248, a plea similar to that in the present case was held good, Lord Campbell, C. J., there saying: “The plea is that the plaintiff was not, during any part of the

time for and in respect of which such wages are claimed, ready and willing or able to render, and did not, in fact, during any part of such time, render the agreed or any service! We think the gist of the plea is that the plaintiff, during the time in question, was not ready and willing to render, and did not render, any service in the sense that he voluntarily or willfully refused or omitted to serve. If so, he could not claim his wages in cousideration of his service, for the breach goes to the whole consideration. He could recover if he were ready and willing to serve, if he had been able to do so and was only temporarily prevented by the visitation of God." So in Boast v. Firth, 19 L. T. Rep. (N. S.) 264; L. Rep., 4 C. P.1; 38 L. J. 1, C. P., the learned judges (M. Smith and Brett, JJ.) confine the cases where illness excuses performance to those in which the illness is caused by the visitation of God. No doubt a temporary illness without the servant's own default would not suspend his right to wages, or constitute a breach of contract. But here this is not such a case, for the illness was caused by the plaintiff's own act, not to put it even as his own misconduct. In fact, all the cases support the proposition that to excuse performance the illness must arise without any default on the servant's part. The defendants were entitled to dismiss him the moment he absented himself beyond the six days' leave, as it was then equivalent to intentional absence, which, together with the moral misconduct, justified the dismissal. He cited also De Bernardy v. Harding, 8 Ex. 822; 22 L. J. 340, Ex.; Chandler v. Grieres, 2 H. Bl. 606 (note); Taylor v. Caldwell, 8 L. T. Rep. (N. S.) 356; 32 L. J. 164, Q. B.; 3 B. & S. 8:?; Cort v. The Ambergate, etc., Railway Company, 17 Q. B. Rep. 144; 20 L. J. 460, Q. B.

Glyn, for the plaintiff, contra.

CLEASBY, B.-Some little difficulty has arisen here owing to the form of the pleading. The plaintiff in this case entered into the service of the defendants and was employed by them under an agreement by which he was to be paid a salary of £120 per annum, and by the agreement he was to have one month's notice in case of dismissal The plaintiff entered upon his duties on the 2d July, and there is nothing to show that, at the time he entered into the agreement and subsequently thereto, upon his duties under it, he concealed from his employers any thing which he ought to have disclosed, or that he knew that he would not be able to perform his duties in the defendants' service. Therefore, the contract is not tainted by a kuowledge on his part of any circumstances which would render him unable to perform it. After a month's service illness supervened, and the plaintiff was unable to continue his attendance at the defendant's office. The question is whether or not illness is such an excuse as to disentitle him to recover wages during his absence from the employment in consequence of it. I think, prima facie, illness is to be attributed to the act of God, and we are not justified in going back for any length of time, and entering into an investigation as to what may have been the cause of it. We ought not, I think, to extend the effect of disability arising from illness. The illness which rendered him unable to perform his duties for a time came upon him unexpectedly, and we cannot go back to first causes and into the question of how it arose. The maxim, “ causa proxima non remota spectatur” is applicable here. As to how precisely the disease arose, there may be various different opinions, and there might be the greatest uncertainty as to the cause or matter which originally

brought it about. It was a misfortune which could

ATTORNEY AT LAW. not have been foreseen at the time the contract was

Employed to draw mortgage acts as attorney not as made, and I think the plaintiff is entitled to say that

notary: evidence.- An attorney at law, employed to it is a reasonable excuse for his absence from his

draw an assignment of a mortgage, acts as an attorduties, and that our judgment should be given for the

ney, and not as a notary merely; and the court should plaintiff, setting aside the nonsuit, and entering the

not permit him, as a witness, to testify against his verdict for him for the £16 13s. 4d , the amount of

client as to disclosures made to him by the latter in damages claimed by him in this action.

the course of such employment. Getzlaj v. Seliger. HAWKINS, J.-I am of the same opinion. If the

Opinion by Ryan, C. J. Decided February 28, 1878. plaintiff had been aware, at the time of the making of the contract, that he would be incapacitated by illness

CONSTITUTIONAL LAW from performing his duties, I am uot prepared to say 1. Improvement of navigable streams under State authat he could recover in this action. But there is thority: right to take tolls. That provision of our State nothing to show that he knew any thing of the illness Constitution (Art. IX, $ 1) which declares that which he subsequently suffered from until after the “the river Mississippi, and the navigable waters leadagreement had been entered into. There was no

ing into the Mississippi and St. Lawrence, and the cross-examination on that point, and no question was carrying places between the same, shall be common put to get out of him, and there was no evidence to

highways, and forever free, as well to the inhabitants show that he had any suspicion of the misfortune of the State as to the citizens of the United States, which subsequently overtook him, or that he was without any tax, impost or duty therefor," does not aware that the seeds of the disease existed in him at

deprive the legislature of power to authorize the clearthat time. Now I base my opinion upon that fact, ing out of the channel and construction of works in a and I think, under these circumstances, that he is en

navigable stream, at points where its waters are either titled to the amount claimed. The misconduct alleged unnavigable or only partially navigable, for the purin the pleadings is his staying away without a reason- pose of improving the navigation, and the charging of a able excuse. How can it be called misconduct if a

reasonable toll as compensation for such improveman stays away, on the advice of a doctor, in order to

ments. The Wisconsin River Imp Co. v. Manson. get himself cured? The third plea is similar to the one Opinion by (ole, J. set up in Cuckson v. Stones (ubi sup.); and as to that 2. Validity of State law authorizing improvement and Lord Campbell, C. J., says: “We think that the gist tolls. The act of 1853 incorporating the plaintiff comof the plea is that the plaiutiff, during the time in

pany, with power to improve the navigation of the question, was not ready and willing to render, and did Wiscousin river between certain termini, by erecting not render, any service, in the sense that he volun

and maintaining dams and piers at points where they tarily and willfully refused or omitted to serve. If so,

should seem necessary, etc., and to collect tolls upon we think he could not claim the wages to be paid to all lumber, etc., which should pass over or through him in consideration of his service.” Now, in the

any improvements so made, with a proviso that such present case, the plaintiff did not voluntarily and will

tolls should be no greater than were reasonable in con fully refuse to serve, but was compelled to absent him

sequence of such increased facilities of navigation, is self by an illness which came upon him during the valid. The mere fact that plaintiff's improvements time of service, and which was not the result of any occupy the entire breadth of the channel, so that the misconduct that occurred after the agreement was river cannot be used as a highway without passing made. As a matter of fact, I conclude that the malady

through or over them, is no defense in an action for was contracted before he entered into the defendants' tolls. Ib. service; and he did not improperly obtain admission

3. State authority cannot be called in question until there. At the time that he entered into the contract,

Congress exercises its powers.-Until Congress exerwhich he did honestly, he neither believed nor knew cises its power over the subject, improvements authorthat he would not be able to fulfill it. In my opinion, ized by the law of the State cannot be called in question therefore, the plaintiff is entitled to have the verdict

by a private person on the ground that they conflict for the amount claimed entered for him.

with the paramount authority of Congress over the Nonsuit set aside, and judgment entered for the publio navigable waters of the United States. plaintiff.

Decided February 28, 1878. Leave to appeal was refused.

CONTRACT.

Between two parties for the benefit of a third one.RECENT AMERICAN DECISIONS.

It is the settled law of this State, that when one per

son, for a valuable consideration, engages with another SUPREME COURT OF WISCONSIN, FEBRUARY, 1878.*

(whether by simple contract or by covenant under ALTERATION OF INSTRUMENT.

seal) to do some act for the benefit of a third person, Changing from "order" to bearermaterial. the latter may maintain an action against the promisor An alteration of a promissory note by the holder, for breach of the engagement. After knowledge of and changing it from a promise to pay to the order of M., to assent to such engagement by the person for whose a promise to pay M. or bearer, would be material. A benefit it is made, his right of action on it cannot be promissory note altered by a trespasser, against the will affected by a rescission of the agreement by the immeof the holder, remains valid as originally written. diate parties thereto. Bassett v. Hughes. Opinion Union National Bank, etc. v. Roberts. Opinion by by Lyon, J. Decided February 28, 1878. Ryan, C. J. Decided February 28, 1878.

Ib.,

LIBEL.

* From 0. M. Conover, Esq., State Reporter. To appear in

43 Wisconsin Reports.

What words are actionable per se. Words were published in a newspaper charging that plaintiff, during the canvass before a State election, delivered

and sentenced to a term of imprisonment on a certain speeches at certain points in the State, in which he

charge. His actual guilt in fact must be shown, and " made the most fanatical and incendiary appeals to the also, since 9 Geo. 4, c. 32 (per Brett and Cotton, L.JJ., Roman Catholic voters to cast their suffrages against"

Bramwell, L. J., giving no opinion on the matter), that a certain candidate; that such voters" spurn the ap

he has not undergone the punishment awarded him. peals of this dirty Reform politician; " that plaintiff

The same holds of a libel that calls a man "a convicted "smells so badly that decent men avoid him when

felon,” if a jury should find that the libel meant any they pass him on the street;" that “ he has attempted

thing more than merely that he had been convicted on a lower depth of degradation than any leading politi

a charge of felony at some past time. Per Brett and ciau ever before attempted in Wisconsin;" and that

Cotton, L. JJ.: 9 Geo. 4, o. 32, was passed, among "as for this fellow (naming the plaintiff), no American,

other reasons, in order to restore convicts affected by no patriot can speak of him without contempt and in

it, after they had suffered the punishment awarded dignation." Held, that these words are prima facie

them, to their full civil rights and status. Ct. App., libelous. Cotlrill v. Cramer. Opinion by Lyon, J.

Jan. 24, 1878. Leyman v. Latimer, 37 L. T. Rep. (N. S.) Decided February 5, 1878.

821. OFFICER.

2. Privilege : report of judicial proceedings : ex parte Paid by fees cannot charge public for wages paid upplication dismissed: want of jurisdiction.- An ex assistants.-Officers take their offices cum onere, and parte application was made to a police magistrate in services required of them by law, for which they are

open court by certain persons who had been employed not specifically paid, must he considered compensated

by the plaintiff upon a railway, for a summons against by the fees allowed for other services. Crocker v.

the plaintiff under the Masters and Servants Act, 1867 Brown & Co., 35 Wis. 284. Under the statutes regu

(30 & 31 Vict., c. 141), on the allegation that he had not lating the compensation of sheriffs, they cannot charge paid them their wages, though he had received funds the county for the board and services of a turnkey or

to enable him to do so. The magistrate refused to deputy sheriff in taking charge of the county jail and grant their application, on the ground that the facts performing the duties of jailer. Tay. Stats., ch. 187, as stated by them did not bring the case within his and $ 147, ch. 13. Hartwell v. Supervisor's of Milwau- jurisdiction to do so, and afforded no ground for crimkee. Opinion by Cole, J. Decided February 28, 1878.

inal proceedings. The defendants, who were news

paper proprietors, published a fair report of the proPARTNERSHIP.

ceedings before the magistrate, which contained Claim of firm cannot be applied to pay private debt.

matter defamatory to the plaintiff. Held, that the -One partner, without the consent, express or implied, of his copartners, cannot apply a claim of the

defendants were protected by the privilege wbich at

taches to all fair and impartial reports of judicial profirm to the payment of his individual debt, even in

ceedings, and that such privilege was not taken away order to retain for the firm its debtor's custom; and

either by the fact that the magistrate decided that he such attempted application, with knowledge of the

had no jurisdiction, or that the application was made facts by such debtor, will not defeat an action at law

ex parte. Common Pleas Div., Jan. 30, 1878. Usil v. upon the claim, by the firm or its assignee. (Viles v.

Hules, 38 L. T. Rep. (N. S.) 65.
Bangs, 36 Wis. 131.) Cotzhausen v. Judd. Opinion
by Lyon, J. Decided February 6, 1878.

PARTNERSHIP.
STATUTE OF FRAUDS.

Dissolution: right of each member of late firm to use 1. Burden of proof. - In an action for breach of a the trade name: fancy article: spurious compound.-M. contract to sell and deliver goods, plaintiff must show

and C., who had traded together in copartnership, and a contract valid under the statute of frauds. Bacon v. manufactured and sold an article kuown in the market Eceles.

as C.'s Fluid, dissolved partnership, and each com2. What acts of vendee necessary to ratify void con

menced the same business on his own account, C. in tract: acceptance.- No acts of the vendee of goods by

his own name, and M. under the name of C.'s Fluid contract otherwise void by the statute, constitute an Company. On a bill filed by C. to restrain M. from acceptance of the goods, within the meaning of the trading under the name of C.'s Fluid Company, and *statute, unless they vest the title in the vendee. Where,

from manufacturing and selling as C.'s Fluid an alleged therefore, the vendee insures the goods in transitu, spurious compound, held (atfirming the decision of pays the freight, and, intending to accept the goods if Bacon, V. C.), that as M. had under the partnership found to be such as ordered, takes them into his articles the right to manufacture and sell C.'s Fluid, possession for examination, and then, within a reason

he could not be restrained from selling a spurious able time, refuses to accept them, as not conforming

article as C.'s Fluid, so long as he did not induce the to the order, this is not an acceptance within the public to believe that the article sold by him was the meaning of the statuie, if the goods are not in fact article manufactured and sold by C. Ct. App., Nov. such as the order called for. (Smith v. Stoller, 26 Wis. 27, 1877. Condy v. Mitchell, 37 L. T. Rep. (N. S.) 766. 671, distinguished.) Ib. Opinion by Lyon, J. Decided February 5, 1878.

Collision between ships of same owner: Merchant Ship

ping Act, 1862, $ 54: rights of parties.—The Merchant RECENT ENGLISH DECISIONS.

Shipping Acts do not create any new rights, but re

strain existing rights by limiting liability. The right of 1. Calling a man " a convicted felon" and "a felon edi. the underwriters of a lost ship for damages against a tor": justification, that he hud been previously convict. wrong-doer is merely to make the same claim that the ed: reply, punishment undergone: demurrers.-It is no insured might have made. In the case of a collision justification for a libel which calls a man a felon between two ships belonging to the same owner, by editor" to show that he had been convicted of felony, which one was totally lost, through the exclusive

SHIPPING.

LIBEL.

fault of the other, held (reversing the judgment of the court below), that the underwriters could make no claim agaiust the sum paid into court, under the Merchant Shipping Act, 1862 (25 & 26 Vict., c. 63), s. 54, the insured being himself the person who had caused the damage. (Yates v. Whyte, 4 Bing. N. C. 272. approved and followed.) House of Lords, Dec. 13, 1877. Simpson v. Thomson, 38 L, T. Rep. (N. S.) 1.

SURETYSHIP.

Bill of exchange : indorser: creditor dealing with afteracquired security: surety thereby discharged.-A surety is entitled to the same benefit from a security acquired by the creditor subsequently to the contract of suretyship as he would have beeu if it had been in existence at the time such contract was entered into, and if the creditor so deals with such security that he cannot give it up to the surety in the same condition as it was when he acquired it, the surety is discharged. A., as B.'s surety, indorsed bills, drawn by B. to C. Subsequently B. gave C. a lien, in respect of such bills, upon goods of his in C.'s possession. B. having written to C. authorizing him to deliver up such goods to D., C. undertook to do so upon D.'s paying him a less sum than the amount of the bills. Held, that A. was thereby released. High Ct. Justice, C. P. Div., Dec. 21, 1877. Campbell v. Rothwell, 38 L. T. Rep. (N. S.) 33.

5. Conflict of law: rules as to interest.- When the rate of interest at the place of contract differs from the rate at the place of payment, the parties may contract for either rate, and the contract will govern. (Brannan v. Hursell, 112 Mass. 63; Marietta Iron Works v. Lottimer, 25 Ohio St. 621; Monnet v. Sturges, id. 384; Kilgore v. Powers, 5 Blackf. 22; Phinney v. Baldwin, 16 Ill. 108; Etnyre v. McDaniel, 28 id. 201; Spencer v. Maxfield, 16 Wis. 185; Pruyn v. Milwaukee, 18 id. 367; Kohler v. Smith, 2 Cal. 597; McLane v. Abrams, 2 Nev. 199; Hopkins v. Crittenden, 10 Tex. 189; Keene v. Keene, 3 C. B. [N. S.] 144; Morgan v. Jones [Exch.), 20 Eng. Law and Eq. 454; Pearce v. Hennessey, 10 R. I. 223; Lash v. Lambert, 15 Minn. 416; Searle v. Adams, 3 Kan, 515; Kitchen v. Branch Bank, 14 Ala. 233; Miller v. Tiffany, 1 Wall. 298; Depeau v. Humphreys, 20 Mart. (La.] 1; Chapman v. Robertson, 6 Paige, 627, 631; Peck v. Mayo, 14 Vt. 33; Hutters v. Old, 11 Ia. 1.) Ib.

6. Judgment does not change rate of interest in Iowa. --Municipal bonds in Iowa, drawing ten per cent interest before maturity, draw the same interest, under the law of the State, after maturity, and coupons attached to such bonds draw six per cent after maturity. Judgments in that State entered upon such bonds and coupons draw interest for the amount due on the bonds at the rate of ten per cent a year, and upon the amount due upon the coupous at the rate of six per cent a year. (Hand v. Armstrong, 18 Iowa, 324; Lucas v. Pickel, 20 id. 490.) Ib.

UNITED STATES SUPREME COURT ABSTRACT,

OCTOBER TERM, 1877.

MUNICIPAL BONDS.

1. Bond with overdue coupons not dishonored paper so as to let in defense against bona fide holder.- Where to a municipal bond which has several years to run, an overdue and unpaid coupon for interest is attached, that fact does not render the bond and the subsequently maturing coupons dishonored paper, so as to subject them, in the hands of a purchaser for value, to defenses good against the original holder. Judgment of Circuit Court of Iowa affirmed. Cromwell, plaintiff in error, v. County of Sac. Opinion by Field, J.

2. Bona fide purchaser for value takes free from all infirmities.- A bona fide purchaser of negotiable paper for value, before maturity, takes it freed from all infirmities in its origin; the only exceptions being where the paper is absolutely void for want of power in the maker to issue it, or where the circulation is prohibited by law for the illegality of the consideration. Municipal bonds payable to bearer are negotiable instruments and subject to the same rules as other negotiable paper. (Murray v. Lunder, 2 Wall. ; National Bank of North America v. Kirby, 108 Mass. 497.) Ib.

3. Notice to purchaser from bona fide holder.- A pur. chaser of a municipal bond from a bona fide holder who had obtained it for value before maturity, takes it equally freed as in the hands of such holder, though he may have had notice of infirmities in its origin. Ib.

4. Purchaser at less than par value may recover.- A purchaser of a negotiable security before maturity, unless personally chargeable with fraud in the purchase, can recover the full amount of the security against the maker, though he may have paid less thau its par value, whatever may have been its original infirmity. (Stoddard v. Kimball, 6 Cush. 471; Alaire v. Hartshorne, 1 Zabr. 665; Williams v. Smith, 2 Hill, 301; Chicopee Bank v. Chapin, 8 Metc. 40; Lay v. Wiseman, 36 Iowa, 305.) Ib.

TAXATION. Purchase under tax sale by party bound to pay taxes is but payment: what is voluntary payment: payment under mistake of law.- Plaintiff in error was trustee of a land company having a contract for the sale of lands in Kansas, which were illegally assessed. The company were, under the contract, bound to pay all taxes on the lands. The illegal assessment not being paid, the lands were sold and bid in for the county. By the laws of Kansas, if lands sold for taxes are bid in for the county, the county treasurer is authorized to issue a tax certificate to any person who shall pay into the county treasury an amount equal to the cost of redemption at the time of payment. And if any lands sold for taxes are not redeemed within three years from the day of sale, the clerk of the county may execute a deed to the purchaser, on the presentation to him of the certificate of sale. And if the assessment shall be discovered to be invalid, the amount paid on such sale shall be refunded to the purchaser on the return of the certificate, and also the amount of subsequent taxes and charges paid by him. In 1872 the plaintiff in error paid into the county treasury the sums due for taxes, interest, etc., on the said lands in Dickinson county, which had been sold for taxes, and received tax certificates therefor, without making any protest; not being aware at that time that the lands were exempt from taxation, but supposing that the taxes were legal and valid. After a decision in the case of Railroad Company v. Prescott, the plaintiff offered to return the tax certificates to the county treasurer, and demanded a return of the money paid, which was refused; and suit was brought to recover the same. Held, (1) that plaintiff was not a purchaser of the lands, but his acquisition of the tax certificates was but a payment of the taxes; (2) that the payment was voluntary so as to defeat the action; (3) and that the mistake in paying the tax was one of law, and not one of fact. Judgment of Circuit Court of Kansas

95.)

affirmed. Lamborn, plaintiff in error, v. County Com- amount, and their final action in this case was within missioners of Diron. Opinion by Bradley, J.

the six years. Per Miller, J. Harlan, Clifford, Swayne 2. Recovery on ground of mistake : must be mistake of and Strong, JJ., dissented. fuct. - Mistake, in order to be a ground of recovery, must be a mistake of fact, and not of law. Such, at least, is the general rule. 3 Parsons on Contracts, 398;

COURT OF APPEALS ABSTRACT.
Aunt v. Rousmaniere, 1 Pet. 15; Bilbie v. Lumley, 2
East, 469; 2 Smith's Lead. Cas. 398; 6th ed., 458; notes

EVIDENCE. to Marriot v. Hampton. A voluntary payment, made 1. Entries in books: what entries inadmissible.-In an with a full knowledge of all the facts and circumstances action by the assignee in bankruptcy of the firm ofs. of the case, though made under a mistaken view of & Co. against K., to foreclose a mortgage for a loan from the law, cannot be revoked; and the money so paid S. & Co. to K., K. set up as a counter-claim a balance cannot be recovered back. (Clarke v. Dutcher, 9 Cowen, of $4,000, alleged to be due as his share of the profits of 674; Ege v. Koontz, 8 Barr, 109; Boston and Sanduich S. & Co., by whom he was employed during the year Glass ('o. v. Boston, 4 Metc. 187; Benson V. Monroe, 1863. The books of S. & Co. for 1863 were introduced 7 Cush. 125; Milnes v. Duncan, 6 B. & C. 671; Stewart by plaintiff to show by entries therein that the firm v. Stewart, 6 Cl. & Fin. 968; and see cases cited in note were indebted to him the sum claimed. Held, that to 2 Smith's Lead. Cas. 403, 404; 6th ed., 466; Marriot the referee before whom the cause was tried was not v. Hampton.) Ib.

in error in excluding entries in the books made in

1864 against K., it appearing that the entries were not WITNESS.

made by K., and that he was not in the employ of 1. When judgment reversed for lack of evidence.-When

the firm at that time. Judgment below affirmed. the Court of Claims sends to us as part of its finding

Van Sachs, appellant, v. Kretz. Opinion by Andrews, J. of fact on any particular point, all the evidence on

2. Admissions made by bankrupt before bankruptcy which that fact was found, and it there appears that

admissible against, assignee.-- Admissions made by a there was no legal evidence to support it, this court

member of the firm of S. & Co. before it became bankmust reverse the judgment if the fact so found is

rupt, held admissible in an action by the assignee in essential to the judgment. Judgment of Court of

bankruptcy in behalf of defendant against the assignee. Claims reversed. United States v. Clark. Opinion by Ib. Miller J.

[Decided February 19, 1878. Reported below, 10 Hun, 2. When party competent witness at common law. At common law a party to a suit is a competent witness

MANDAMUS. to prove the contents of a trunk or package, which by other testimony is shown to have been lost or destroyed

When it does not lie.-The relator was the lowest bidder under circumstances that render some one liable for

for a contract for grading a street in New York city, the logs. Ib.

when the commissioners advertised for bids, his bid 3. Effect of $ 1079, R. S., as to parties being witnesses.

was accepted and the contract awarded to him. He - Section 1079, Rev. Stat., was intended to do no more

furnished the security as required by the city charter, than to restore in the Court of Claims the common law

and in all respects conformed to the provisions of the rule excluding parties as witnesses, which had been

law on the subject. It was claimed by him that he abolished by the act of July 1, 1864; and, hence, claim

made out a clear legal right to the contract. Several ant in this case was competent to prove the contents of

questions were made to the right of relator to compel a package of government money taken from his official the execution of the contract which seriously affected safe by robbers. Ib. Per Miller, J. Harlan, Clifford, its validity, and which were considered in the courts Swayne and Strong, JJ., dissented.

below. Held, that relator was not entitled to man4. Competency of testimony given in another court.- damus to enforce his contract because he had a remedy Claimant being competent, neither his testimony be

by an action at law against the city for damages if fore the court-martial which convicted the robbers, the city refused to perform a valid contract with him. nor his report of the logs to his superior officer, are Held, also, that under the circumstances the granting competent as independent or original evidence, though or refusing a mandamus was a matter of discretion it may be proper as corroborative of his own testi- with the courts below, and an appeal would not lie mony. Ib.

from these decisions. Appeal dismissed. People ex 5. Statute of limitation of suits in Court of Claims.- / rel. Lunney, appellant, v. Campbell. Opinion by The statute of limitation of suits in the Court of Miller, J. Claims, section 1069, Rev. Stat., is not applicable to a [Decided February 12, 1878.] suit brought under sections 1059-1062, because such a suit

PAYMENT. is uot brought to establish a claim against the United States in the just sense of that word, but to establish Application of payments: election by debtor: what a peculiar defense to a cause of action which the amounts to.- Defendant, as administrator of an estate United States has against the petitioner. And so long in which plaintiff was entitled to a distributive share, as the United States neglects to bring suit in the proper had charged, in his verified account rendered to the court to establish her claim, so long must the defend- surrogate, certain payments made by him upon ant be allowed to set up any defense, not in itself a drafts made by plaintiff as payments on such disseparate demand or cause of action. Ib. Per Miller, J. tributive share. The surrogate did not allow the Harlan, Clifford, Swayne and Strong, JJ., dissented. payments, but his decision was reversed on appeal by

6. When right of action accrues.—The right to bring the General Term, and an appeal was taken therefrom this suit in the Court of Claims did not accrue until to the Court of Appeals. Held, that pending this appeal the accounting officers had held claimant liable for the defendant could not set up such payments as a countersum lost, by refusing to credit his account with the claim on an action by plaintiff against him upon an

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