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."

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.

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 Congress 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.

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.

LIABILITY OF SHIP-OWNERS.

LEVINSON V. THE OCEANIC STEAM NAVIGATION COM

PANY.

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

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 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 injury, to £15 per ton gross tonnage, without deduction 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. & Eco. 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

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 no 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.

NEGLIGENCE.

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 having no control over the vessel. cargo under a charter made by B 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.

supply the stores, A While discharging "for and on behalf

RECENT BANKRUPTCY DECISIONS.

CHATTEL MORTGAGE.

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. There One hour thereafter the petition was filed. 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.

CONTRACT.

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.

DISCHARGE.

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.

JURISDICTION.

1. Of Circuit Court: of State court.-The Circuit Courts having concurrent jurisdiction with the District Courts of all actions by an assignee against persons claiming an adverse interest in the estate of a bankrupt, no suit by an assignee for a sum exceeding five hundred dollars can be prosecuted in a State court. U. S. Circ. Ct., Colorado. Hallack v. Tritch, 17 Nat. Bankr. Reg. 293.

2. Practice: objection: declaration.-Objection that there was no direction from the Bankrupt Court to bring the suit cannot be first raised in the appellate court. In an action brought by an assignee to set aside a sale or transfer of goods, as having been made in violation of the Bankrupt Act (8 5128), the declaration must set out the facts of the illegal transaction. Ib.

3. Chattel mortgage: possession: fraud.-As between the parties to a chattel mortgage, the circumstance that the mortgagees allowed the mortgagor to retain possession of the mortgaged property, after condition broken, will not affect the validity of the mortgage. When a secured creditor takes goods in fair exchange for the security, the transaction is not in fraud of the Bankrupt Act. Ib.

SALE.

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, 133.1

FIRE INSURANCE.

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.]

MANDAMUS.

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.]

PROMISSORY NOTE.

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.]

NOTES OF RECENT DECISIONS.

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 (Ceut. L. J.). MORTGAGE: AGREEMENT NOT TO CALL IN PRINCIPAL ON PUNCTUAL PAYMENT OF INTEREST: BREACH OF COVENANT: 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,