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property and holders of money freely parted with both, well knowing that no future law could impair | the obligation of the contract."-2 Ramsey, supra, 433.

Chief Justice Taney, in Bronson v. Kenzie, supra, 218, speaking of the protection of the remedy, said: "It is this protection which the clause of the Constitution now in question mainly intended to secure."

District Court for the Southern District of New York, offering to bring this sum into court, and praying that it might be distributed among all complainants, and they relieved from further liability. Neither the ship, the cargo, nor proceeds of either, nor the freight money had been libeled.

The point decided in The Dartmouth College v. Woodward, 4 Wheat. 518, had not, it is believed, when the Constitution was adopted, occurred to any one. There is no trace of it in the Federalist nor in any other contemporaneous publication. It was first made and judicially decided under the Constitution in that case. Its novelty was admitted by Chief Justice Marshall, but it was met and conclusively answered in his opinion.

The act of Congress of March 3d, 1851, limiting the liability of ship-owners, had never been, by a judicial decision, extended to aliens, nor to foreign bottoms, nor to foreign waters, and not to domestic vessels or waters unless the ship or cargo was libeled in the district. No assignment of the owners' interest to a trustee for the benefit of all claimants, as authorized by the act, was made; and it was claimed that bringing this $8,000 here was illegal, as under the British law, the salved cargo ought to have been returned to Liverpool. On the trial it was shown that the British "Merchants' Shipping Acts" of 1854 and 1862, limited steamship owners' liability, in cases of personal in

We think the views we have expressed carry out the intent of contracts and the intent of the Constitution. The obligation of the former is placed under the safeguard 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 position is impregnable, and will be so while the organic law of the Nation remains as it is. The trust touching the subject with which this court is charged is one of magnitude and delicacy. We must always be careful to see that there is neither nonfeasance nor misfeasance on our part.

for engine room, which would have made the fund in this case $300,000, instead of $8,422; that in each of the cases where the British courts had entertained the limitation of the ship-owners' liability the ship had been libeled in rem, was in British waters, or the owners of a British ship came in voluntarily and paid in the statutory sum per ton. The Normandy, L. R., 3 Ad. & Ecc. 152; The Amalia, 32 L. J. (N. S.) Admiralty, 191; The Northumbria, L. R., 3 Ad. & Ece. 24; Genl. Iron Screw Collier Co., 1 Jo. & H. 180; The Rajah, L. R., 3 Ad. & Ecc. 539.

It was further shown that there was no comity of decisions by British courts in favor of American ships, which should lead our courts to strain a single point in favor of British ships: that British courts had refused to extend over American ships the benefit of their Merchants' Shipping Acts, in the case of collision between two American ships on the high seas (Cope v. Doherty, 2 De Gex & J. 614); that in a collision between a British and foreign ship on the high seas, where the foreign ship was at fault, the latter could not have the 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 exercised it; that the New York courts had given a construction to the act of Congress to the effect that it did not apply to this case by decisions at Circuit like that which on other points has now been passed upon by the General Term of the Supreme Court in Markwald v. The Oceanic Co., 11 Hun, 462; that the Court of Appeals had held that the jurisdiction of the United States District Court could be attacked collaterally (Tracey v. Corse, 58 N. Y. 143); that the United States courts had held the same doctrine (Thompson v. Tolmie, 2 Pet. 157; Elliott v. Peirsoll, 1 id. 328); that the District Court itself in the similar case of Markwald (another passenger by the same boat), held that the owners' libel did not foreclose him, and that, through the master, the owners, being a corporation, were privy to the loss and injury.

Formerly, it would have been thought that the plaintiff had made out his case. The Circuit Court found that he had, so far as fixing the responsibility of the injury upon the owners, through the master's negligence: on this point agreeing with the State courts. But the Circuit Court then held, substantially, that it could apply the U. S. Statute, being the same as the maritime law, to the protection of these alien owners of a foreign bottom, in foreign waters, where the mari

The importance of the point involved in this controversy induces us to re-state succinctly the conclusions at which we have arrived and which will be the ground of our judgment.

The remedy subsisting in a State when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is, therefore, void.

The judgment of the Supreme Court of North Carolina is reversed, and the cause will be remanded with directions to proceed in conformity to this opinion.


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NEW YORK, 24th April, 1878. To the Editor of the Albany Law Journal:

SIR-Under this head, your issue of the 13th instant contains the opinion of Judge Shipman, and the note of E. P. Wheeler, Esq., one of the counsel, in this very interesting case, which is of so much importance as to justify a further reference to it if permitted by the state of your columns.

Levinson was a passenger by the "Atlantic;" he paid his passage money in the foreign port of Liverpool on board of this foreign ship, owned by a foreign corporation, which transported him and his baggage till it cast him upon a foreign shore at Mar's Head, where his baggage was lost and himself severely injured in person. The action was brought to recover for these damages.

The ship-owners fished out of the wreck certain articles of cargo and sold them in Halifax; they also brought some to this city, delivered them to the consignees, and collected a small amount of freight thereon. The two sums thus received by them amounted to $8,422; when, having been sued here by various parties, they filed a libel in the United States

time law does not prevail, and would remit the plaintiff to his share of the value of that portion of the wreck which had been turned into money, and offered by the owners to be and had been in the District Court already distributed to other claimants, and which, as he had not previously received it, he must go without entirely, and that it was sufficient defense to show that the ship-owners had filed a libel in the District Court, on which a decree had been obtained without opposition, although no libel had been filed against the ship or cargo.

The court, also, held that the service of a monition in the admiralty proceedings upon a person who was attorney for the party in another jurisdiction, another court, and another matter, was good service upon the party.

From this summary, you will see the exceeding length and breadth of this important decision by Judge Shipman. It is law. It is excellent for foreign shipowners. I am not prepared to say that it is not every way fortunate that this is the law, because individual interests must yield to the general interests, and a liberal course of exemption and protection to commerce, both on sea and land, is undoubtedly for the general interests. This decision, if sufficiently made known abroad, ought largely to increase the admiralty business of this country. Englishmen, especially, will be found escaping from the limitation, or rather imposition, of liability at the rate of £15 per ton, as prescribed by their Imperial law, and protecting themselves under this Republican decision.

Those who may wish further to trace this question of maritime law may be interested to refer to "The Niagara," 21 How. (U. S.) 26; Moore v. Transportation Co., 24 How. 1; Norwich Co. v. Wright, 13 Wall. 104; Allen v. Mackay, 1 Sprague, 219; the "Lottawana," 21 Wall. 558; the "Epsilon," 6 Ben. 378.

Like the decision of the U. S. Supreme Court, doing away with the necessity of the assessment of a tax as a prerequisite to its collection, this case is an illustration of the easy way in which the United States courts sweep away pre-existent views of the law, technicalities, that observance of forms which may be called the mechanics of the law, and literal construction, as cobwebs, before a broad principle which they feel bound to follow.

Very respectfully yours,




1. Canceling signature of makers of dishonored note: effect of.-The mere fact of canceling the signature of the makers of a dishonored promissory note and writing "paid" on the note, corrected before the note is sent back to the plaintiffs by a memorandum thereon "canceled in error," cannot be effectual to charge a bank with the receipt of the money. (Warwick v. Rogers, 5 M. & G. 340, approved.) Prince v. Oriental Bank Association, L. R., 3 Ap. Cas., P. C., 325.

2. When bank will not be charged with receipt of money. -Where a promissory note is returned dishonored to the plaintiffs, the amount thereof having been transmitted by transfer drafts and entries in the bank's books, from the branch where the same was made payable to the branch where the plaintiffs paid the same in, such transfer and entries not being communicated

to the plaintiffs, held, that the bank could not be charged with the receipt of the money. Ib.

3. Branch bank: position of.-The position of branch banks is, that in principle and in fact they are agencies of one principal banking corporation or firm, notwithstanding that they may be regarded as distinct for special purposes, e. g., that of estimating the time at which notice of dishonor should be given; or of entitling a banker to refuse payment of a customer's check except at that branch where he keeps his account. Ib.


Acceptance: 1 & 2 Geo. 4, c. 78, s. 2: 19 & 20 Vict., c. 97, 8. 6. Since the passing of the statute 19 & 20 Vict., c. 97, s. 6, simply writing the name of the drawee across the face of a bill of exchange does not constitute a valid acceptance; there must also be upon the face of the bill some word or words indicating an intention on the part of the drawee to be bound by it as acceptor. Hindhaugh v. Blakey, L. R., 3 C. P. D. 136.


Conditions limiting liability: willful misconduct: alternative rates.-The plaintiff, under a contract in writing signed by his agent, delivered to the defendants certain cheeses to be carried from L. to S. at "owner's risk." As the plaintiff knew, the defendants had two rates of carriage: a higher rate, when they took the ordinary liability of carriers, and a lower, when they were relieved of all liability, except that arising from the willful misconduct of their servants. In using the words "owner's risk" the plaintiff intended that the cheeses should be carried at the lower rate, and subject to the conditions restricting the defendants' liability. The defendants' servants packed the cheeses in such a manner that during their aged, but the defendants' servants did not know that transit upon the defendants' railway they were damdamage would result from the mode in which the cheeses were packed. Held, that as the defendants carried at alternative rates, the condition excepting them from liability when carrying at the lower rate was just and reasonable; and that the injury to the cheeses had not arisen from the willful misconduct of their servants. Lewis v. The Great Western Railway 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 actually used: damages.—In an action for the obstruction of ancient lights, the judge directed the jury that they were to consider whether there had been a sensible diminution of light, so as to make the plaintiff's premises less available for the purposes of occupation or business, to which they were then, or might thereafter, be made applicable, and that the damages were to be estimated according to the diminution of value of the premises for such purposes. Held, a right direction, on the ground that the purposes for which the premises had actually been used while the light had been enjoyed, were not the proper measure of the right. (Martin v. Goble 1 Campbell, 320, dissented from.) Moore v. Hall, L. R., 3 Q. B. D. 178.


Right of underwriters to maintain action for damage to thing insured.-There is no independent right in underwriters to maintain in their own name, and without reference to the person insured, an action for

damage to the thing insured. Although the underwriters have paid for a total loss, and are entitled to all the rights in the injured ship which belong to its owner, yet if that owner cannot assert a right for damages against the wrong-doer, neither can the underwriters. Two ships, the property of the same owner, collided; the underwriters paid the insurance effected on the lost ship, and then claimed to rank pari passu, with the owners of cargo destroyed, in the distribution of the fund lodged in court by the owner as proprietor of the ship which did the damage. Held (reversing the decision of the court below), that the underwriters had no such right under the circumstances of the case. Per The Lord Chancellor (Lord Cairns):-The underwriters' right must be asserted in the name of the person insured, but if he be the person who has caused the damage, the right cannot be maintained against himself. Per Lord Penzance:The underwriters of the lost ship have uo right of action against the owner of the ship that did the mischief, as he himself had no such right, inasmuch as, being the owner of both vessels, any right of action he had must be a right of action against himself, which is an absurdity, and a thing unknown to the law. Simpson & Co. v. Thomson, L. R., 3 Ap. Cas., H. L. (Sc.) 279.


Ship: liability of “managing owner" for negligence of captain trading independently and rendering a share of profits to owner: Merchant Shipping Act, 1875 (38 & 39 Vict., c. 88, s. 4, sub-s. 55.)-A sloop was navigated under a verbal agreement between A, the "managing owner," registered according to the Merchant Shipping Act, 1875, and B, the captain, by which, on condition that A should have one-third of the net profits, accounts of which were to be rendered to him by B from time to time, B was at liberty to go to any port, and take or refuse any cargo he chose, and was also to hire and pay the crew and supply the stores, A having no control over the vessel. While discharging cargo under a charter made by B "for and on behalf of the owner," the vessel, through the negligence of B, broke loose from her moorings and damaged the wharf of the plaintiff, who brought an action against A and B. Held, that the agreement did not amount to a demise of the vessel, and whatever was the precise relationship thereby created between the defendants inter se, A was responsible to the public for the negligence of B, and, therefore, both were liable in the action. Steel v. Lester and Lilee, L. R., 3 C. P. D. 121.



Title to surplus after payment of debt.-The bankrupts having made default in the payment of a chattel mortgage, the mortgagees, pursuant to the terms thereof, took possession of the mortgaged property. Before the sale a creditor issued execution to the sheriff. One hour thereafter the petition was filed. There was a surplus on the sale of the property. Held, that at the time the execution was issued the bankrupts had no leviable interest in the property, and that the creditor had no lien on the surplus to the exclusion of the assignee. U. S. Dist. Ct., S. D. New York. In re Wrisley, 17 Nat. Bankr. Reg. 259.


For future delivery of personal property: illegal contract.-A contract for the future delivery of personal

property, which the seller has not got when the contract is made, nor any means of getting it, is not void for illegality. The secret intention of one of the parties, uncommunicated to the other, not to fulfill his contract, is not enough to make the transaction illegal. The intent that it should be a mere betting on the market, without any expectation of actual performance, must be mutual and constitute an integral part in the real contract, in order to vitiate it. If the contracts were valid in their inception, and not tainted with any gambling intent or device, a subsequent mutual settlement by the parties, which took the place of actual performance, cannot have the retroactive effect of making them void for illegality. U. S. Dist. Ct., W. D. Wisconsin. Clark, Assignee, etc., v. Foss, 17 Nat. Bankr. Reg. 261.


Does not impair right of creditor as to bond given on attachment.-Where a creditor had commenced a suit against the bankrupt in a State court more than four months before the commencement of proceedings in bankruptcy, and had garnished credits in the hands of a third person, and the garnishment had been released by giving a bond to pay the judgment, held, that the plaintiff had a right to prosecute the suit so far as to fix the liability of the sureties upon the bond, notwithstanding the discharge. A discharge of the bankrupt does not impair the remedy of a creditor against the sureties upon a bond given to dissolve an attachment issued more than four months before the commencement of proceedings in bankruptcy. U. S. Dist. Ct., E. D. Mich. In re Albrecht, 17 Nat. Bankr. Reg. 287.

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dation of one H., who indorsed and procured its discount at the bank. Before it came due the bank had knowledge of the purpose for which it was given. The bank then discounted H.'s note at ninety days for five thousand dollars, and took his check for the six thousand dollars. The last note not being indorsed, the bank held the old note and sought to prove it against the estate of the bankrupts. Held, that the bankrupts were sureties and that they were discharged by the extension of time to H., the actual principal, without their assent. U. S. Dist. Ct., E. D. Missouri. Valley National Bank v. Meyers, 17 Nat. Bankr. Reg. 257.



Sale of land before passage of act by one in rebellion to government gives good title.-In May, 1862, C, who was a member of the Confederate Congress, and engaged in armed hostility to the United States within the Confederate lines, conveyed to plaintiff, his son, also within the Confederate lines and engaged in hostility to the United States, certain real estate situate in the city of New Orleans, then within the Federal lines. Subsequently, and under authority of the Act of Congress of July 17, 1862, the property was confiscated in proceedings against C, and sold by the United States marshal. Held, (1) that the Confiscation Act mentioned did not authorize proceedings for acts committed before its passage. (2) That transfers of property between those in hostility to the government before its passage were not invalid. (3) That the proceedings could only affect the interest of C in the property at the time the act was passed, and that the proceedings did not invalidate the title of plaintiff to the property acquired by transfer from C in May, 1862. Judgment of U. S. Cir. Ct., Louisiana, reversed. Conrad, plaintiff in error, v. Waples. Opinion by Field, J.


1. What constitutes: conveyance with power of sale. A conveyance of land to secure the payment of a sum of money with power of sale, whether made to the creditor or a third person, is in equity a mortgage, if there be left a right to redeem on payment of the debt thereby secured. Decree of U. S. Cir. Ct., E. D. New York, reversed. Shillaber, appellant, v. Robinson. Opinion by Miller, J.

2. Sale under power: statute must be followed strictly.A sale under the power in such an instrument must be made in strict conformity to the directions therein prescribed, or to such as may be prescribed by statute, or the sale will be absolutely void. Ib.

3. When sale void.-A sale made on six weeks' notice, though followed by conveyance, when the mortgage and the statute of the State require twelve, is void, and does not divest the equity of the party who had the right of redemption. Ib.

4. Accounting by vendor to innocent purchasers.—A person holding the strict legal title, with no other right than a lien for a given sum, who sells the land to innocent purchasers, must account to the holder of the equity for all he receives beyond his lien. Ib.


1. Action to recover possession of land: when statute not applicable.-The statute of limitation for the action to recover possession of land is not applicable to the lien of a judgment creditor on the land, though the judg

ment debtor may sell and convey the land with possession to the party setting up the statute. The statute does not begin to run in such case until the land has been sold under the judgment, and the purchaser becomes entitled to a deed, because until then there is no right of entry or right of action against the defendant, in any one. Judgment of U. S. Cir. Ct., N. D. Illinois, reversed. Pratt v. Pratt. Opinion by Miller, J. Clifford, J., dissented.

2. When it begins to run: Statute of Illinois.-But as soon as the judgment creditor places himself, by a sale and purchase of the land, in a condition that he can bring suit for the possession, the statute begins to run against him. These propositions are applicable to the Illinois act of 1835, limiting actions for the recovery of land to seven years. Ib.



Discontinuance of appeal upon application of party appealing.-Where a party has appealed to this court from an order of the General Term granting a new trial, under a mistake as to the effect of the appeal, and before a decision of the appeal by the court asks permission to withdraw the appeal, the court, if satisfied that the proceeding has been in good faith, ordinarily grants leave to dismiss the appeal on payment of Leave to discontinue appeal granted. Mackay v. Lewis. Opinion per Curiam. [Decided April 23, 1878.]



1. Action pending against, terminates by dissolution from expiration of charter.-In an action against defendants to compel them to apply certain moneys received by them as stockholders of a New Jersey corporation out of its assets to the payment of a judgment against the corporation, held, that when a corporation is dissolved by reason of the expiration of the term of its charter, this terminates actions against it then pend| ing, and it is not necessary that the dissolution be judicially declared. Judgment below reversed. Sturgis v. Vanderbilt. Opinion by Rapallo, J.

2. Estoppel: director of corporation who has sold stock and no longer acts, when not estopped by action of. -V. was a director and stockholder in a corporation in 1864, having been elected director for one year. In that year he sold his stock and took no part in the affairs of the corporation thereafter. In 1869 the charter of the corporation expired. In 1871 plaintiff commenced an action against the corporation in its corporate name, which was defended by those in charge of the corporation, they using the corporate name in such defense. Held, that the action of V. in selling his stock and neglecting to take part in the affairs of the corporation amounted to a resignation of his office, and that he was not estopped from setting up that a judgment obtained against the corporation after its dissolution was invalid. Ib.

[Decided April 23, 1878. Reported below, 11 Hun, 136.1


1. General objection to, when sufficient and when insufficient.-A general objection may be sufficient upon which to base a good exception when it is palpable to the appellate court, and must have been to the trial court, what that objection was, and that it could not have been obviated at the time if it had been precisely

stated, but it is otherwise if it does not necessarily point out the particular defect in the testimony offered upon which the objection is founded. Accordingly where an objection was raised to the admission of parol testimony of the contents of the letter, held, that the point could not be taken on appeal, that it was not sworn that the letter spoken of was genuine. Judgment below affirmed. McCulloch v. Hoffman. Opinion by Folger, J.

2. Party may contradict his own witness.-While a party cannot impeach his own witness he may show by other witnesses that what the witness testifies to is untrue. Ib.

[Decided April 23, 1878. Reported below, 10 Hun, 133.]


Subrogation to interest of mortgagee: when contract for, valid.-By a mortgage held by plaintiff upon real estate belonging to S., the owner was required to procure an insurance for the benefit of the mortgagee. A policy was issued to S., the loss payable to plaintiff. The policy was conditioned against other insurance which would render it void. By a contract made some years previously between plaintiff and the insurance company, it was provided that in case any policy should be issued by it for the benefit of plaintiff as mortgagee, which might be avoided by the acts of the owner of the property, it should not be void as to plaintiff, but the company, in case it was avoided as 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 and the company paid the loss to plaintiff. Held, that the contract for subrogation was valid, and that the insurance company was entitled to hold plaintiff's rights under the mortgage. Order below reversed. Ulster County Savings Institution v. Decker. Opinion by Church, C. J. [Decided March 26, 1878. Reported below, 11 Hun, 515.]


Rule as to, when party entitled to: application for mandamus to compel return to appeal. In an application for a mandamus, when the act, the doing of which is sought to be compelled, is the final thing, and if done, gives to the relator all that he seeks proximately or ultimately, then the question, whether he is entitled to have that act done, may be inquired into by the officer or person against whom the mandamus is sought, and is also to be considered by the tribunal which is moved to grant the mandamus. But where the act to be done is but a step toward the final result, and is but the means of setting in motion a tribunal which is to decide upon the right to the final relief claimed, then the superior officer or tribunal may not inquire whether there exists the right to that final relief, and can only ask whether the relator shows a right to have the act done which is sought from him or it. Accordingly, where a party was entitled to an appeal from the decision of the canal board, upon serving certain notices, and a return was necessary to bring the case before the appellate board, held, that in an application for mandamus to the canal board, to compel it to make the return, the question whether relator was entitled to succeed on appeal could not be examined. Order below affirmed. People ex rel. Freer v. Canal Appraisers. Opinion by Folger, J. [Decided April 23, 1878.]


1. Acceptance of new note in payment of old: when old note not canceled.- Plaintiff, who held a note made by the firm of P. & Co., of which M. was a member, to the order of the firm of B. & A., commenced action thereon. In settlement of this action a new note was taken, made by P. & Co. to the order of B. & A. and indorsed by them. At the time the new note was taken M. was dead, but plaintiff did not know the fact. Thereafter plaintiff sued the new note and obtained judgment thereon against P., survivor of P. & Co. Held, that the acceptance of the new note did not cancel the old note, but that remained valid against the makers, and the estate of M. was liable thereupon. Order affirmed. First National Bank of Chittenango v. Morgan. Opinion by Folger, J.

2. Suretyship: rule as to death of surety not applicable to partnership paper.—It was claimed that the note was given as an accommodation note of P. & Co., and that it was for the benefit of B. & A., and that P. & Co. merely signed as sureties for them, and that M. having died no action could lie against his estate. Held, that the doctrine of Houck v. Craighead, 67 N. Y. 432; Risley v. Brown, id. 160, etc., did not apply. This is a case of commercial paper, and the circumstance that P. & Co. were, as between themselves and the payees, sureties, would not affect third parties, but they would be bound as principals. Ib. [Decided March 26, 1878.]


JUDGMENT: RENDERED IN ANOTHER STATE: IMPEACHMENT OF RECORD OF SERVICE OF SUMMONS.--In an action in the nature of ejectment, it was shown that the plaintiff's title was founded upon a sheriff's deed made in pursuance of a sheriff's sale on an execution issued by the clerk of the District Court on a transcript of a judgment of a justice of the peace filed in said clerk's office, which judgment was rendered on default against Jane Hicks Brown, the then owner of the land in controversy, on a constable's return of service of summons, which was in the following words, to wit: "Executed on the 15th December, 1860, by leaving a certified copy at the usual place of residence of the within named defendant, Jane Hicks Brown. H. H. Sawyer, Const." The court below permitted the defendant to impeach said deed, judgment and constable's return by showing that the said return was false, that the said Jane Hicks Brown was not at the time a resident of Kansas, that she had no residence in Kansas, and was not herself in Kansas, but that at that time, and for a long time before and afterward, she resided and was herself personally in the Indian Territory. Held, that the court in this did not commit error. Sup. Ct., Kansas, January, 1878. Masten v. Duncan (Cent. L. J.).


MORTGAGE: AGREEMENT NOT TO CALL IN PRINCIPAL ON PUNCTUAL PAYMENT OF INTEREST: BREACH OF RECEIPTS OF INTEREST: WAIVER.-A mortgagee agreed with a mortgagor that, if he duly and punctually paid the interest, he would not call in the mortgage money for two years. Six months' interest became due, and, being unpaid, was frequently demanded. At the end of a month after it became due, the mortgagee demanded payment of the principal and interest. Three days afterward the mortgagor sent the mortgagee the six months' interest,

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