DEBT.

When due. Option to pay, with whom,

when two dates are named.

I. Plaintiff lent defendant £50, under the following agreement :- Kilburn Co-operative Society, Limited, 19th Nov., 18:3. We hereby agree to borrow from C. Reed the sum of £50, at the rate of £6 per annum; and the said C. Reed agrees to lend the said society the above sum for the term of nine or six months," which was signed by the officers of the company and the plaintiffs. The six months elapsed, and the plaintiffs did not demand the return of the money, but before the expiration of nine months did make a demand. The question was whether the credit had expired.

were, by a decree awarding a writ of assion of the mortgaged property sold unsistance to put the purchaser in possesder the decree of the court, directed to be removed from the property, and the parchaser put in possession.

In April, 1868, the mortgagees brought suit for a decree for the sale of the property, on which, under the mortgage, $2,400 was due, and for the application of the proceeds to the payment of the amount found to be due. In this suit the only parties defendant were Hilburn and his wife, who had joined in the mortgage. The decree was made, and at the sale, Allison, one of the mortgagees, purchased the property. The Terrells refused to surrender the property to Allison, who then applied for the writ of assistance, which was granted but subsequently revoked, and an order was made that the Terrells show cause why the writ should not issue on the petition. They answered that the property was sold to Eliza Kyle by the mortgagor, and that he placed her in possession before the suit was brought, and that she had sold, conveyed, and delivered possession to one of them. Both conveyances were produced. May They took the position that the decree

Held, 1. That the option was with the borrower, he being the party to do the first act by paying. A lease for seven, fourteen, or twenty-one years, without saying at whose option, is at the option of the lessee.

Reed v. The Kilburn Co-operative So-
ciety, Limited. Law Reports, 10
Queen's Bench, pp. 264, 265.
Opinions by Blackburn and Quain
J.J., and Cockburn, C. J.
11, 1875.

EQUITY.

Parties to a decree granting a writ of assistance.

directing the sale of the property was void as to her and as to them, because she was a necessary party to the foreclosure suit. There was no replication, and on the papers the answer was dismissed, and by a decree an alias writ was directed to issue. The Terrells appealed from this

I. In April, 1866, V. A. Hilburn bor-decree. rowed from Hugh Allison and others Held, 1. The writ of assistance could $12,000, on his note, secured by a mort- not be executed against Eliza Kyle, or gage on real estate in Mississippi. The those claiming under her, since her rights note was payable in March, 1867. In were not affected by the decree of sale, April, 1867, Hilburn conveyed the land, she not having been made a party therefor a valuable consideration, to Eliza to.

property after the suit was commenced, they are not bound, since they did not buy from the parties to the suit, or from any one who acquired their interest after

Kyle, and placed her at the time in pos- 2. Though the Terrells bought the session. In May, 1871, Eliza Kyle conveyed the property for a like consideration to J. C. Terrell, who afterwards transferred a part of his interest to his brother, and they, the appellants herein, its commencement.

INSURANCE, LIFE.

Application. Right to modify terms of, in policy. Necessary elements of the contract. Duty of agent as to giving advice of acts of the company.

On June 5, 1867, McPherson Young applied to the agent of the plaintiff in error, in San Francisco, for an insurance on his life. Young gave his note, to the order of agent, individually, dated June 5, 1867, at sixty days, for $99.30, and took the following receipt:

"$99.30.

Insurance $5,000.

The Mutual Life Insurance Company of
New York; H. S. Homans, General
Agent, 424 Montgomery Street, San
Francisco.

I. This action was brought to set aside, on the ground of fraud, the alleged lien of a certain mortgage made by plaintiff to defendant's testator. The answer was a general denial, and also alleged that another action for the same cause was pending in the Superior Court. Defendant offered in evidence a judgment in the Superior Court in an action to foreclose the mortgage in question as a bar to plaintiff's recovery. Plaintiff objected to its admission on the ground that the answer did not set up the judgment, and unless so pleaded it could not be offered in evidence to defeat the plaintiff's recovery. The court overruled the objection and plaintiff excepted. Plaintiff offered to show that the judgment was obtained by perjury of the defendant and his witness. The court rejected the evidence and the plaintiff excepted. The court gave judgment for the defendant. being the quarter-annual premium on Held, That the record of the Superior his application for a policy of insurance Court having been offered as evidence of the Mutual Life Insurance Company upon a question in issue (i.e., the fraud), of New York, for the sum of five thouand not as a bar to the action, it was sand ($5,000) dollars, on the life of Mack competent although not pleaded; that it P. Young, payable at 45 or death, and was competent to disprove a material premiums paid up in full in 10 years; allegation of the complaint traversed by said policy of insurance to take effect and the answer, and it was conclusive as an be in force from and after the date hereof, adjudication upon the same question in provided that said application shall be an action between the same parties. That accepted by the said company; but plaintiff's remedy was by application for should the same be declined or rejected a re-trial of the action in the Superior by the said company, then the full Court, or for other relief therein. amount hereby paid will be returned to

Received, San Francisco, June 5, 1867, from Mack P. Young, of San Francisco, Cal., ninety-nine dollars,

30

The court granted an extra allowance said applicant upon the production of upon amount of mortgage with interest, this receipt.

For the Mutual Life Insurance Com- by whom not known, "cancelled." The

pany,

H. S. HOMANS,

General Agent for the Pacific Coast."

communication between San Francisco and New York consumed, in 1867, from 23 to 30 days.

Held, 1. That the company could actions of the terms specified as it might cept the application with such modificaprescribe.

2. That the modifications of the aption of the parties, and the policy not plication in the policy reversed the posihaving been accepted, there was not that

The application was forwarded to New York, and was answered by a policy, received Aug. 2, 1867, by the agent, which differed from the terms of the receipt in three things: 1. The risk began from the 5th of April, two months earlier. 2. The quarterly payments were to be $96.60. 3. The days of payment were to be on the 6th days of April, July, October, and January, during the ten years. And 3. That it was not the duty of the there were provisions that the company agent to inform the applicant of the arshould not be liable, unless the premiums rival of policy, in the absence of some were paid on or before the said days, and that, on failure of such payments, the policy should cease and determine.

With the policy were two receipts; one for the installment due April 16, 1867. and the other for that due July 6, 1867, and these were to be signed by the secretary of the company, and to be counter. signed by the agent before delivery.

The agent, on August 8, 1867, wrote to Young, at Vallejo, that the policy had arrived, and asking him whether he should forward it, or hold it until he called. The case neither shows how, or when, this letter was sent to Young, nor whether he received it. It was not shown that notice of the receipt of the application by the company, or of the receipt by the agent of the policy, was given to or received by him. No demand for any further payment was made, and no receipt requiring such payment was ever presented to him.

assent which is vital to the existence of a contract.

express agreement to that effect, but that
it was the applicant's duty to keep him-
self informed by communicating with the
agent.

The Mutual Life Ins. Co. of New
York v. Young, admtr.

U. S. Supreme Court.
Opinion by Mr. Justice Swayne. Case
not yet reported.

INSURANCE, MARITIME. Policy dropped, when. Assignment after

assignors' interest ceased.

Plaintiffs bought a quantity of linseed which was on the seas, and insured by the vendors, who were to deliver the goods at a certain place; but on the arrival of the ship the plaintiffs unloaded the linseed in lighters, one of which sunk, and plaintiffs claimed damages under His note, due August 7, was not paid. the policy. The policy provided for the On August 21, at Vallejo, he was shot payment of the loss of a single lighter, and mortally wounded, and on the next to be used in unloading the vessel, as if day was removed to a hospital in San separately insured. Two months after Francisco, where he died in a month. the loss the policy was assigned to plainFrom the time he was shot, he was in- tiffs. competent, mentally and physically, to attend to any business. The policy was cancelled a month later by the company in New York, and Young's note marked,

Held, 1. That vendors' interest in the cargo ceased on plaintiffs' taking possession, and the policy dropped.

2. The policy not having been assigned

until after the interest of the assignors
ceased, an effective assignment was im-
possible.

The North of England Pure Oil Cake
Co. v. The Archangel Maritime
Ins. Co.

Law Reports, 10 Queen's Bench, pp.
249-255.

Opinions by Cockburn, C. J., Lush and
Quain, J. J., April 30, 1875,

JURISDICTION.

War power in instituting courts. Their jurisdiction. Appeal.

Butler, and of his appointee, the Provost
Judge, were unauthorized.

A Provost Court has, ordinarily, cognizance only of minor criminal offences.

Held, 1. That the Constitution refers only to courts of the United States: this was a military court.

2. That in the insurgent States, as on a foreign territory, when conquered and occupied by the conquerors, there was authority in the military power to establish courts of both civil and criminal jurisdiction.

3. It must be presumed that the commanding officer acied under the order of the President.

4. That the jurisdiction of a court can be defined by the power creating it, but, I. In May, 1862, Gen. Butler, com- in this case, that was a question for the manding the U. S. troops in possession State Court. It is not a federal ques

The Mechanics and Traders' Bank, plaintiffs in error, v. The Union Bank of Louisiana.

U. S. Supreme Court.

of New Orleans, issued a general order, tion.
appointing Major J. M. Bell, of the divi-
sion staff, Provost Judge of the city, and
directed that he should be obeyed and
respected accordingly. The same order
appointed Capt. J. French, Provost Mar-
shal of the city, and Capt. Stafford,
Deputy Provost Marshal. A few days
after this order, the plaintiffs in error
borrowed from the Union Bank of Louis-
iana $130,000. The loan not having
been repaid, suit was brought before the

Opinion by Mr. Justice Strong. Case not yet reported.

MEASURE OF DAMAGES.

Provost Judge to recover the debt. The On contract to deliver goods, when there

is no market price.

I. Defendants agreed to supply plain

defense was that the judge was without jurisdiction of the cause of action, but plaintiffs recovered, and the judgment tiff 2,000 pieces of gray shirtings, for was paid under protest. Suit was brought which there was no market in England, for the recovery of the amount so paid, for shipment, to be delivered in thirtythe plaintiffs alleging that the judgment five days. They notified plaintiff five of the Provost Judge, for want of juris- days before the time they were to be dediction of the action, was illegal and livered, that they could not execute the void. The District Court gave judgment order by the time specified. The plainfor defendants, which was affirmed by the tiff at once went into the market, and Supreme Court of the State, to which being unable to buy such goods, bought affirmance error is assigned. Plaintiffs goods of like character, but somewhat urge that the only valid courts of the United States, under the Constitution, are the Supreme Court and such inferior courts as Congress may ordain and establish, and that the proceedings of Gen.

superior, at an advance of 164d. per piece, and the difference amounted to £137 108. He filled his contract with the goods purchased, but received no advance on the price at which he had

agreed to deliver the goods ordered from where there was evidence that the premithe defendants. ses would sell for less if the nuisance were continued.

2. To entitle a reversioner to sue, it must be shown that the injury must, Attorney-how changed in N. Y. Com

tinue the nuisance was not sufficient, even be changed in the Court of Common Pleas