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The condition of the mortgage having been broken, B. entered to foreclose; when the three years had nearly elapsed the buildings were burned; B. demanded payment of the loss from the insurance companies, who at first refused to pay. The three years elapsed and the land was not redeemed, and subsequently the companies paid the loss. The money received from the insurance companies was nearly as large as the amount of the whole mortgage debt. The value of the land, at the time of foreclosure, together with the amount received for the loss by fire, considerably. exceeded the mortgage debt due at that time.

After some time, a creditor of D. sued him, and summoned B. as trustee. It appeared in evidence that B. had, just before the expiration of the three years, agreed with a subsequent mortgagee to collect the money from the companies and apply it towards the debt, and allow the second mortgagee a few months further time for redemption. The second mortgagee, however, did not redeem. Held, B. was not chargeable as trustee of D.

Tax

DORR v. Boston.

Cestui que trust residing here, Trustee in another State.

Feme cestui que trust, residing in this state, was the beneficial owner of certain shares in foreign corporate companies, and was entitled to receive the income and dividends thereof; but the legal title to the shares was in the trustee who resided in another state.

Held, the cestui que trust was not taxable in this state upon the shares, nor upon the income derived therefrom.

PINGREE V. COFFIN.

Equity- Examination of nominal Parties -Jurisdiction whom avoidable for illegality — Mortgage.

Contracts, by

A defendant to a bill in equity, who has an interest in the result, may be examined as a witness for the plaintiff by order of the court.

A resident of another state, who is a necessary party to a bill in equity, brought here for the specific performance of a contract to convey land in that state, cannot, after being served with summons here, and filing an answer to the bill, object that the court have not acquired jurisdiction of his person.

A land agent of the Commonwealth, who has purchased from the obligee and agreed to convey to another a bond from the commonwealth, which he had executed as land agent, cannot object to a bill for the specific performance of his agreement, that his purchase of the land was void as against public policy, no objection having been made by the commonwealth, who had received the entire consideration of the original bond.

V., the obligee of a bond from the commonwealth for the conveyance of land in Maine, agreed to sell his interest in the land to S., and took therefor the note of S., which he indorsed and loaned to S. for his accommodation, and S. procured to be discounted by C.; and V., at S.'s request, made the assignment to C., " subject to the payment of the note, if the aforesaid note is not paid at maturity, this assignment to be null and void." Held, a mortgage to secure payment of the note, and also a conveyance of the equity of redemption in trust for S. S. afterwards took up the note, made a settlement with C., paid him some money, and gave him a new note; and C. agreed to assign the bond to S., provided S. paid his note at maturity. Held, that this agreement was also a mortgage, that time was not of its essence, and there having been no foreclosure, that a bill might be maintained, after dishonor of the note, for an account and conveyance.

Condition

HANCOCK V. CARLTON.

Forfeiture for non-payment of Money · Jurisdiction in
Equity-Laches Waiver.

A. sold and conveyed a lot of land to B., upon condition that B., his heirs and assigns should pay certain mortgages on the land, and save A. harmless therefrom.

B. afterwards mortgaged the land back to A., to secure a sum less than the consideration named in the deed. One of the mortgages referred to in the condition was not paid by B. or his assigns, and A. was obliged to pay it. He then entered for breach of the condition.

On a bill to redeem, brought against A. by C., holder of a subsequent mortgage made by B., A. pleaded the condition, forfeiture and entry.

Held, that A.'s act in taking a mortgage back from B. had not defeated the condition of his deed, the mortgage never having been foreclosed.

That the court had jurisdiction in equity of this bill as a bill to redeem, and might incidentally determine the question of relief against forfeiture, though it might not have jurisdiction to relieve against a forfeiture simply.

That equity will relieve against a forfeiture incurred by non-payment of money, in case of fraud, accident, mistake or surprise; and ordered the case to stand for a hearing, saving to the defendant the benefit of his plea.

Upon the hearing it appeared that the plaintiff had received due notice to pay the debt, and had been guilty of laches.

It also appeared that the defendant, before his entry, assigned his mortgage from B. to a third person, upon whom he entered, and after his entry took a re-assignment of the same mortgage; that he sold and conveyed the land to a purchaser, to whom he made a deed of assignment of the mortgage, the note and debt thereby secured, "so far as the same is unsatisfied and owing," and of all his right, title and interest in the mortgaged premises, excluding warranty, and in the covenants of the mortgage deed, to hold" without merger in, or prejudice to any other title he may have, and as another and independent source and protection of title."

Held, That this was not a waiver of the defendant's rights by the forfeiture and entry, so as to set up the mortgage so assigned as a subsisting incumbrance, and thus entitle the plaintiff (who was neither party nor privy to that assignment) to redeem.

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An agreement in writing whereby a firm of machinists, in consideration of an individual's soliciting and procuring for them contracts for making locomotive engines and tenders, agrees to "allow and pay him a commission of two and a half per cent. on all their locomotive business, computing the same upon the total amount of sales of locomotives and tenders manufactured and sold by them during the term of five years from the date," does not bind them to pay him such a commission on locomotives and tenders, the contract for which are procured at his solicita tion, the manufacture of which is commenced, but not com pleted nor paid for during such term.

Miscellany.

WHO'S WHO ON THE BENCH?

We, in this journal, have always endeavored to support to the extent of our ability, the respect and regard towards the judiciary of the states and of the nation, which are the main stay of their influence and power. We have been old fashioned enough to believe and maintain that all pos sible safeguards to this respect and regard should be exacted and maintained. We have occasionally seen, or thought that we saw, a tendency in some quarters, and as the effect of some popular measures, to weaken these feelings; and such measures and tendencies we have uniformly opposed.

The late proceedings in the Supreme Court of the City of New York, (a court of large powers, and of the highest original jurisdiction in the state), with reference to the disputed seat upon its bench, are not calculated, we think, to strengthen the hands of the friends of the judiciary. Were it not that the actors in this scene were persons of eminent gravity, selected by their fellow-citizens to be the interpreters and expounders of the law, and whose decisions have been and are of deserved authority and weight, we should be inclined to call the matter a farce. As it is, we will narrate the affair without that comment.

In February, 1855, Judge Edwards, whose term of office would have expired on the 31st of December last, died, and the governor immediately appointed Mr. Edward P. Cowles to fill the vacancy thus created. On the 25th of August in the same year, the secretary of state gave notice that at the ensuing election, a justice of the Supreme Court was to be elected in the place of Judge Cowles, whose term of office would expire on the 31st of December.

On the 23d of October, 1855, Judge Morris, of the same court, died, thus creating a vacancy, required by the constitution to be filled at the next election after the happening thereof. Either from want of time, or some other reason not apparent on the record, no official notice was given of an election to fill this vacancy. Each of the several parties, however, nominated a candidate, ostensibly for the seat thus vacated, and no less than four gentlemen received votes for this office. Among whom were Mr. Peabody and Mr. Davies On the 3d of December, 1855, Judge Cowles resigned the office to which he had been appointed on the death of Judge Edwards, and Mr. Peabody was appointed to fill it. He accepted the appointment, and acted under it for the space of twenty-seven days, when his term expired, and Mr. Whiting who had been duly elected to succeed to this office, entered upon its duties. On the same 3d of December, the governor, treating the votes in the fall for a judge in the place of Judge Morris as irregular, illegal and void, for want of due notice from the proper authorities, nominated Judge Cowles for the unexpired term of Judge Morris, and on the 6th of December, Judge Cowles entered upon the duties of that office. The attorney general immediately filed a bill in the nature of an information quo warranto against Judge Cowles, and to this proceeding, Mr. Davies, who had received at the fall election a plurality of the votes given for the candidates nominated to fill Judge Morris's vacancy, was made a party plaintiff. To this bill Judge Cowles demurred, the Supreme Court in the city, composed of his associates on the bench, sustained the demurrer, and decided the election invalid. The case was removed to the Court of

Appeals, and this decision was there overruled, that court holding the election valid, and in their judgment ordering, among other things, "that Henry E. Davies named in this complaint be, and he is hereby declared to be entitled to the said office by virtue of the election in said complaint mentioned." On the 4th of February, succeeding the announcement of this opinion, but before Mr. Davies had taken any action upon it, or endeavored to assume the office thus apparently secured to him, two of the judges of the Supreme Court addressed him a letter, stating that they had examined the claims of the "contestants" to the vacant seat; that, in their opinion, the votes given for him at the election in the fall were irregular in form and void for uncertainty, and that they considered Judge Peabody (another of the candidates not a party to the information) duly elected. To this letter Judge Davies replied. On the 14th of February, the court, consisting of three judges, among them Judge Peabody, came in at the usual hour, and almost at the same instant Judge Davies entered the court room, handed the clerk a copy of the opinion of the Court of Appeals, directing him to file it, asked an officer for a chair, and took his seat upon the bench. An hour later the court directed the clerk to make the following entry.

Ordered, That the court does not recognize any persons as judges present at this general term, except Judges Roosevelt, Clerke and Peabody, and that the clerk and other officers be directed to govern themselves accordingly.

The next morning, punctual to the moment, Judge Davies again appeared and took his seat of the previous day; a large crowd, induced by curiosity, had filled the court room. The other judges entered the room, and an officer handed Judge Peabody a chair, without either party speaking a word, or in any way recognizing the presence of the other. The sheriff opened the court, and the presiding justice immediately ordered its adjournment for a week. In a different apartment another judge was holding sittings in chambers, and upon the adjournment, Judge Davies walked directly into this room, was received by him with great cordiality, and invited to hold court; he immediately assented, took his seat, heard motions and granted orders in the exercise of his judicial discretion during the rest of the morning. This continued for some days, Judge Davies holding court at chambers, assuming to act as judge, and issuing his orders in the cases brought before him, decreeing divorces, and directing one or more arrests. The court, it is said, were divided in opinion. Some of the judges thinking that he should be recognized as judge, and others adhering to the doctrine of the letter already referred to. The officers of the court were left to act pretty much according to their discretion, and the clerk and the sheriff both finally declared for Judge Davies. The members of the bar appear to have been a little shy at first of this unrecognized judge, but their timidity was probably of short duration, for the Tribune of February 21st, announces Judge Davies as still holding court at chambers, and that he appeared to have less time for the newspapers than on preceding days.

On the 26th of February, two matters occurred which did not certainly disentangle this complicated knot. Judge Clerke, one of the signers of the letter, vacated an order of arrest granted by Judge Davies, on the ground that he was not de facto a judge of that court; and Judge Peabody presided at the examination of candidates for admission to the bar, which is required to be held in open court. Meanwhile both judges still continued to be present at the general term; the only change in the aspect of the bench, arising from the fact that the seats of the two contestants (to borrow the judicial phrase) were placed at each extremity of the bench, instead of side by side as on the first memorable day. It was

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