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 incapable of performing his work.

THIS

HIS was an action brought in the Lord Mayor's Court of London by the plaintiff, who was a mercantile 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 20th 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 was afterward obtained on his behalf calling upon the defendants to show cause why a verdict should not be entered for the plaintiff for the sum 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, reuder 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 consideration 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. Grieves, 2 H. Bl. 606 (note); Taylor v. Caldwell, 8 L. T. Rep. (N. S.) 356; 32 L. J. 164, Q. B.; 3 B. & S. 82; 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 knowledge 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

64

brought it about. It was a misfortune which could not have been foreseen at the time the contract was made, and I think the plaintiff is entitled to say that it is a reasonable excuse for his absence from his duties, and that our judgment should be given for the plaintiff, setting aside the nonsuit, and entering the verdict for him for the £16 13s. 4d, the amount of damages claimed by him in this action.

HAWKINS, J.-I am of the same opinion. If the plaintiff had been aware, at the time of the making of the contract, that he would be incapacitated by illness from performing his duties, I am not prepared to say that he could recover in this action. But there is nothing to show that he knew any thing of the illness which he subsequently suffered from until after the agreement had been entered into. There was no cross-examination on that point, and no question was put to get out of him, and there was no evidence to show that he had any suspicion of the misfortune which subsequently overtook him, or that he was aware that the seeds of the disease existed in him at that time. Now I base my opinion upon that fact, and I think, under these circumstances, that he is entitled to the amount claimed. The misconduct alleged in the pleadings is his staying away without a reasonable excuse. How can it be called misconduct if a man stays away, on the advice of a doctor, in order to get himself cured? The third plea is similar to the one set up in Cuckson v. Stones (ubi sup.); and as to that Lord Campbell, C. J., says: We think that 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 and willfully refused or omitted to serve. If so, we think he could not claim the wages to be paid to him in consideration of his service." Now, in the present case, the plaintiff did not voluntarily and willfully refuse to serve, but was compelled to absent himself by an illness which came upon him during the time of service, and which was not the result of any misconduct that occurred after the agreement was made. As a matter of fact, I conclude that the malady was contracted before he entered into the defendants' service; and he did not improperly obtain admission there. At the time that he entered into the contract, which he did honestly, he neither believed nor knew that he would not be able to fulfill it. In my opinion, therefore, the plaintiff is entitled to have the verdict for the amount claimed entered for him.

Nonsuit set aside, and judgment entered for the plaintiff.

Leave to appeal was refused.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF WISCONSIN, FEBRUARY, 1878.*

ALTERATION OF INSTRUMENT.

Changing from "order" to "bearer" material. An alteration of a promissory note by the holder, changing it from a promise to pay to the order of M., to a promise to pay M. or bearer, would be material. A promissory note altered by a trespasser, against the will of the holder, remains valid as originally written. Union National Bank, etc. v. Roberts. Opinion by Ryan, C. J. Decided February 28, 1878.

From O. M. Conover, Esq., State Reporter. To appear in 43 Wisconsin Reports.

ATTORNEY AT LAW.

Employed to draw mortgage acts as attorney not as notary: evidence.- An attorney at law, employed to draw an assignment of a mortgage, acts as an attorney, and not as a notary merely; and the court should not permit him, as a witness, to testify against his client as to disclosures made to him by the latter in the course of such employment. Getzlaff v. Seliger. Opinion by Ryan, C. J. Decided February 28, 1878.

CONSTITUTIONAL LAW.

1. Improvement of navigable streams under State authority: right to take tolls.-That provision of our State Constitution (Art. IX, § 1) which declares that "the river Mississippi, and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the State as to the citizens of the United States, without any tax, impost or duty therefor," does not deprive the legislature of power to authorize the clearing out of the channel and construction of works in a navigable stream, at points where its waters are either unnavigable or only partially navigable, for the purpose of improving the navigation, and the charging of a reasonable toll as compensation for such improvements. The Wisconsin River Imp Co. v. Manson'. Opinion by Cole, J.

2. Validity of State law authorizing improvement and tolls. The act of 1853 incorporating the plaintiff company, with power to improve the navigation of the Wisconsin river between certain termini, by erecting and maintaining dams and piers at points where they should seem necessary, etc., and to collect tolls upon all lumber, etc., which should pass over or through any improvements so made, with a proviso that such tolls should be no greater than were reasonable in con sequence of such increased facilities of navigation, is valid. The mere fact that plaintiff's improvements occupy the entire breadth of the channel, so that the river cannot be used as a highway without passing through or over them, is no defense in an action for tolls. Ib.

3. State authority cannot be called in question until Congress exercises its powers.-Until Congress exercises its power over the subject, improvements authorized by the law of the State cannot be called in question by a private person on the ground that they conflict with the paramount authority of Congress over the public navigable waters of the United States. Decided February 28, 1878.

CONTRACT.

Ib..

Between two parties for the benefit of a third one.— It is the settled law of this State, that when one person, for a valuable consideration, engages with another (whether by simple contract or by covenant under seal) to do some act for the benefit of a third person, the latter may maintain an action against the promisor for breach of the engagement. After knowledge of and assent to such engagement by the person for whose benefit it is made, his right of action on it cannot be affected by a rescission of the agreement by the immediate parties thereto. Bassett v. Hughes. Opinion by Lyon, J. Decided February 28, 1878.

ing the canvass before a State election, delivered speeches at certain points in the State, in which he "made the most fanatical and incendiary appeals to the Roman Catholic voters to cast their suffrages against' a certain candidate; that such voters spurn the appeals of this dirty Reform politician; that plaintiff "smells so badly that decent men avoid him when they pass him on the street; " that "he has attempted a lower depth of degradation than any leading politician ever before attempted in Wisconsin;" and that "as for this fellow (naming the plaintiff), no American, no patriot can speak of him without contempt and indignation." Held, that these words are prima facie libelous. Cottrill v. Cramer. Opinion by Lyon, J. Decided February 5, 1878.

OFFICER.

Paid by fees cannot charge public for wages paid assistants.-Officers take their offices cum onere, and services required of them by law, for which they are not specifically paid, must be considered compensated by the fees allowed for other services. Crocker v. Brown & Co., 35 Wis. 284. Under the statutes regulating the compensation of sheriffs, they cannot charge the county for the board and services of a turnkey or deputy sheriff in taking charge of the county jail and performing the duties of jailer. Tay. Stats., ch. 187, and § 147, ch. 13. Hartwell v. Supervisors of Milwaukee. Opinion by Cole, J. Decided February 28, 1878.

PARTNERSHIP.

Claim of firm cannot be applied to pay private debt. -One partner, without the consent, express or implied, of his copartners, cannot apply a claim of the firm to the payment of his individual debt, even in order to retain for the firm its debtor's custom; and such attempted application, with knowledge of the facts by such debtor, will not defeat an action at law upon the claim, by the firm or its assignee. (Viles v. Bangs, 36 Wis. 131.) Cotzhausen v. Judd. Opinion by Lyon, J. Decided February 6, 1878.

STATUTE OF FRAUDS.

1. Burden of proof. In an action for breach of a contract to sell and deliver goods, plaintiff must show a contract valid under the statute of frauds. Bacon v. Eceles.

2. What acts of vendee necessary to ratify void contract: acceptance.- No acts of the vendee of goods by contract otherwise void by the statute, constitute an acceptance of the goods. within the meaning of the *statute, unless they west the title in the vendee. Where, therefore, the vendee insures the goods in transitu, pays the freight, and, intending to accept the goods if found to be such as ordered, takes them into his possession for examination, and then, within a reasonable time, refuses to accept them, as not conforming to the order, this is not an acceptance within the meaning of the statute, if the goods are not in fact such as the order called for. (Smith v. Stoller, 26 Wis. 671, distinguished.) Ib. Opinion by Lyon, J. Decided February 5, 1878.

RECENT ENGLISH DECISIONS.

LIBEL.

1. Calling a man a convicted felon" and "a felon editor": justification, that he had been previously convicted: reply, punishment undergone: demurrers.-It is no justification for a libel which calls a man "a felon editor" to show that he had been convicted of felony,

and sentenced to a term of imprisonment on a certain charge. His actual guilt in fact must be shown, and also, since 9 Geo. 4, c. 32 (per Brett and Cotton, L.JJ., Bramwell, L. J., giving no opinion on the matter), that he has not undergone the punishment awarded him. The same holds of a libel that calls a man "a convicted felon," if a jury should find that the libel meant any thing more than merely that he had been convicted on a charge of felony at some past time. Per Brett and Cotton, L. JJ.: 9 Geo. 4, c. 32, was passed, among other reasons, in order to restore convicts affected by it, after they had suffered the punishment awarded them, to their full civil rights and status. Ct. App.. Jan. 24, 1878. Leyman v. Latimer, 37 L. T. Rep. (N. S.) 821.

2. Privilege: report of judicial proceedings: ex parte application dismissed: want of jurisdiction.—An ex parte application was made to a police magistrate in open court by certain persons who had been employed by the plaintiff upon a railway, for a summons against the plaintiff under the Masters and Servants Act, 1867 (30 & 31 Vict., c. 141), on the allegation that he had not paid them their wages, though he had received funds to enable him to do 80. The magistrate refused to grant their application, on the ground that the facts as stated by them did not bring the case within his jurisdiction to do so, and afforded no ground for criminal proceedings. The defendants, who were newspaper proprietors, published a fair report of the proceedings before the magistrate, which contained matter defamatory to the plaintiff. Held, that the defendants were protected by the privilege which attaches to all fair and impartial reports of judicial proceedings, and that such privilege was not taken away either by the fact that the magistrate decided that he had no jurisdiction, or that the application was made ex parte. Common Pleas Div., Jan. 30, 1878. Usil v. Hales, 38 L. T. Rep. (N. S.) 65.

PARTNERSHIP.

Dissolution: right of each member of late firm to use the trade name: fancy article: spurious compound.-M. and C., who had traded together in copartnership, and manufactured and sold an article known in the market as C.'s Fluid, dissolved partnership, and each commenced the same business on his own account, C. in his own name, and M. under the name of C.'s Fluid Company. On a bill filed by C. to restrain M. from trading under the name of C.'s Fluid Company, and from manufacturing and selling as C.'s Fluid an alleged spurious compound, held (affirming the decision of Bacon, V. C.), that as M. had under the partnership articles the right to manufacture and sell C.'s Fluid, he could not be restrained from selling a spurious article as C.'s Fluid, so long as he did not induce the public to believe that the article sold by him was the article manufactured and sold by C. Ct. App., Nov. 27, 1877. Condy v. Mitchell, 37 L. T. Rep. (N. S.) 766.

SHIPPING.

Collision between ships of same owner: Merchant Shipping Act, 1862, § 54: rights of parties.-The Merchant Shipping Acts do not create any new rights, but restrain existing rights by limiting liability. The right of the underwriters of a lost ship for damages against a wrong-doer is merely to make the same claim that the insured might have made. In the case of a collision between two ships belonging to the same owner, by which one was totally lost, through the exclusive

fault of the other, held (reversing the judgment of the court below), that the underwriters could make no claim against 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 been 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.

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 than its par value, whatever may have been its original infirmity. (Stoddard v. Kimball, 6 Cush. 471; Allaire 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.

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. $.] 144; Morgan v. Jones [Exch.], 20 Eug. 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, 634; 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 coupons at the rate of six per cent a year. (Hand v. Armstrong, 18 Iowa, 324; Lucas v. Pickel, 20 id. 490.) 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

affirmed. Lamborn, plaintiff in error, v. County Commissioners of Dixon. Opinion by Bradley, J.

2. Recovery on ground of mistake: must be mistake of 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; Hunt v. Rousmaniere, 1 Pet. 15; Bilbie v. Lumley, 2 East, 469; 2 Smith's Lead. Cas. 398; 6th ed., 458; notes to Marriot v. Hampton. A voluntary payment, made with a full knowledge of all the facts and circumstances of the case, though made under a mistaken view of the law, cannot be revoked; and the money so paid cannot be recovered back. (Clarke v. Dutcher, 9 Cowen, 674; Ege v. Koontz, Barr, 109; Boston and Sandwich Glass Co. v. Boston, 4 Metc. 187; Benson v. Monroe, 7 Cush. 125; Milnes v. Duncan, 6 B. & C. 671; Stewart v. Stewart, 6 Cl. & Fin. 968; and see cases cited in note to 2 Smith's Lead. Cas. 403, 404; 6th ed., 466; Marriot v. Hampton.) Ib.

WITNESS.

1. When judgment reversed for lack of evidence.-When the Court of Claims sends to us as part of its finding of fact on any particular point, all the evidence on which that fact was found, and it there appears that there was no legal evidence to support it, this court must reverse the judgment if the fact so found is essential to the judgment. Judgment of Court of Claims reversed. United States v. Clark. Opinion by Miller J.

2. When party competent witness at common law.-At common law a party to a suit is a competent witness to prove the contents of a trunk or package, which by other testimony is shown to have been lost or destroyed under circumstances that render some one liable for the loss. Ib.

3. Effect of $1079, R. S., as to parties being witnesses. -Section 1079, Rev. Stat., was intended to do no more than to restore in the Court of Claims the common law rule excluding parties as witnesses, which had been abolished by the act of July 1, 1864; and, hence, claimant in this case was competent to prove the contents of a package of government money taken from his official safe by robbers. Ib. Per Miller, J. Harlan, Clifford, Swayne and Strong, JJ., dissented.

4. Competency of testimony given in another court.Claimant being competent, neither his testimony before the court-martial which convicted the robbers, nor his report of the loss to his superior officer, are competent as independent or original evidence, though it may be proper as corroborative of his own testimony. Ib.

5. Statute of limitation of suits in Court of Claims.The statute of limitation of suits in the Court of Claims, section 1069, Rev. Stat., is not applicable to a suit brought under sections 1059-1062, because such a suit is not brought to establish a claim against the United States in the just sense of that word, but to establish a peculiar defense to a cause of action which the United States has against the petitioner. And so long as the United States neglects to bring suit in the proper court to establish her claim, so long must the defendant be allowed to set up any defense, not in itself a separate demand or cause of action. Ib. Per Miller, J. Harlan, Clifford, Swayne and Strong, JJ., dissented.

6. When right of action accrues.-The right to bring this suit in the Court of Claims did not accrue until the accounting officers had held claimant liable for the sum lost, by refusing to credit his account with the

When it does not lie.-The relator was the lowest bidder for a contract for grading a street in New York city, when the commissioners advertised for bids, his bid was accepted and the contract awarded to him. He furnished the security as required by the city charter, and in all respects conformed to the provisions of the law on the subject. It was claimed by him that he made out a clear legal right to the contract. Several questions were made to the right of relator to compel the execution of the contract which seriously affected its validity, and which were considered in the courts below. Held, that relator was not entitled to mandamus to enforce his contract because he had a remedy by an action at law against the city for damages if the city refused to perform a valid contract with him. Held, also, that under the circumstances the granting or refusing a mandamus was a matter of discretion with the courts below, and an appeal would not lie from these decisions. Appeal dismissed. People ex rel. Lunney, appellant, v. Campbell. Opinion by Miller, J.

[Decided February 12, 1878.]

PAYMENT.

Application of payments: election by debtor: what amounts to.- Defendant, as administrator of an estate in which plaintiff was entitled to a distributive share, had charged, in his verified account rendered to the surrogate, certain payments made by him upon drafts made by plaintiff as payments on such distributive share. The surrogate did not allow the payments, but his decision was reversed on appeal by the General Term, and an appeal was taken therefrom to the Court of Appeals. Held, that pending this appeal defendant could not set up such payments as a counterclaim on an action by plaintiff against him upon an