The New York herald., 1872-12-12

Liability OF . Surety ON q Bond-Tho
Dover Interest ON q First Husband's
Estate-An Army Descrter's Bounty-A
Claim for Rent Made Under Contract
with . Quartermaster-Impor De-
cisions by the Court.
WASHINGTON, Dec. II, 1872.
No. 20. Pekerskil Survivor, &C., vs. Lahens ct
al.-Appeal from the Circuit Court for the South
ern district ofNew York.-This is a suit in equity
on joint bond made by Lahens as principal and
one Laforge as surety, conditioned to pay all
moneys which might be recovered in certain suit,
or the collection OF which might be stayed by the
issuing OF IN Injunction therein. The suit was
upon certain notes which Lahens had endorsed In
the name OF his 1rm as alleged, without considera-
ton, and was brought against all the members of
the firm. BY the law Of New York, when this ac-
tion on the notes was commenced and when the
bonds were given, there could have been no recov-
cry in the action without establishing the original
liability of all the defendants therein; but before
the trial of the case the law changed so that
defendants. Under the change of the law the case
resulted in Judgment against Lahens only, and
the question Is whether Latorge or his executor
is liable as the surety OF Lahcns alone under the
change OF the law during the pendency of the
action. The Court below dismissed the bill, hold
ing that the bond being JOINT and not several there
could be no recovery against the Laforge estate
and that the change in the New York law could not
alter the liability OF Laorge as surety on bond
executed prior to the enactment. 1t is here
argued In support OF the appeal that the prohibi-
tion against laws impairing the obligation OF con-
tracts has never been understood to embrace laws
that relate merely to the remedy for their en-
Lahens and Laforge must be regarded as princi-
pals on this bond, so far as the rights Of
the plaintils, are concerned. In the case Of
statutory obligations OF this character 1t Is
the intention OF the law and not the intention ofthe
party that ought to control. The law requires the
OF the parties against whom the relief is sought
ana whose rights are imperllled by its being
granted, and the law requires that sureties shall
be given for the better security OF the plaintn 1t
is not question Of contract. The plafntir has no
election to accept or to refuse to accept the bond.
The only right he has in the premises Is to require
that the sureties shall justify as required by the
statute. The intention OF the law was that the
property Of the principal and Of the surety should
stand charged with the liability assumed in favor
OF the plaintiff and so 1t should be construed. T.
J. Glover, f. H. Dykers and Francis Herman for ap-
pellees; w. w. Macfarland for appellants.
No. "a. Dainse vs. DeZeyk-Appeal from the
Supreme Court of the District OF Columbia.-The
bill in this case seeks to subject the dover interest
OF Mrs Dezeyk in her first husbands estate to the
payment OF Judgment against her present hus-
band, on promissory notes made by the husband
decision the District act OF 1862 relative to the
rights OF married women, as here asserted, dis
missed the bill: 1t is here maintained that under
the laws OF the District when the notes were
made, the dover being unassigned, could be
charged and that the present law OF the District
tifs rights, the case is not affected by the change
In the law. Carlisle and MCPHERSON for appellants.
No. s5. United States vs. Kelly-Appeal from the
Court OF Claims-Kelly, a citizen Of Detroit, en-
listed in the Nineteenth infantry, in February,
1854, and thereby became entitled to bounty OF
$40O payable In instruments, as certain periods Of
his service should expire. While q soldier he
deserted but was afterwards restored to duty
without trial and made good the time OF his deser
tiOn. He was paid SITS, the amount OF bounty due
up to the time OF desertion, but was refused the
balance. This suit was brought to recover the
ae S e ea t a ne
tion and was afterwards honorably discharged
from the service, he was entitled to the bounty.
From that decision the government appeal, con-
tending that the circumstances of the case defeat
the claim. G. II. Hill for government, Chapman Il
Hosmer for claimant.
No. "A. United States vs. Provine-Appeal from
the Court OF Claims.-This was claim for rent
under contract made with depot quartermaster
at Memphis, p IN lses, whereby the governments
eight stores which had been taken possession OF
alter the occupation OF that city. The original
amount agreed upon was $125 per month, and it
was subsequently increased in respect of q portion
OF the houses but by mistake, not as to ali. This
claim Is for the time which elapsed by mistake on
q portion OF the block before the Increase was
made, the ground being taken that 1t should be
paid because It was paid on the balance OF the
houses, although no formal agreement to increase
the rent had been made. The Court held that
without specific agreement at all the government
pairs which 1t became necessary to make after the
surrender OF the premises by the department
Officers; II Is mere maintained that the Court Of
the receipts In full given by the claimant were q
final settlement OF the demand; also that as the in
crease OF rent was without the sanction Of the
Quartermaster Generals Department II was void.
1t is further claimed that the government Is in no
case bound for the repairs. c. II. Hill for govern
ment; claimant not appearing.
No. 5S. United states vs.. Cook-Certifcate of
division from the Circuit Court for the Southern
district Of Ohio.-The defendant wasl indicted at
the october term OF 1854 for embezzlement OF
funds held by HIM as paymaster in the army, the
indictment charging acts OF embezzlement at cer-
tain times In May, July, September and October,
1862. Demurrer was interp0sed to the counts SO
charging, on the ground that more than TWO years
had elapsed since the commission OF the offence
charged. on the questions whether he could de-
mur to the counts, whether he liable to ndict-
ment and whether the statute Of limitations was
applicable the Court were divided In opinion and
the case was certified here, where 1t Is held that he
cannot take exception to the counts in the ndict.
cuted, convicted and punished under the counts,
and that the thirty-sec0nd section OF the Crimes
act contains the only limitation applicable to the
murrer to the indictment. Mr.. Justice Clifford de.
livered the opinion.
No. S. James ct al. VS.. city OF Milwaukee-Error
70 the Circuit Court for the District OF Wisconsin.
This was an action to recover on certain bonds
issued by the city in aid OF the Milwaukee and Su.
peri0r Railroad Company and to the Milwaukee and
Beioit Railroad Company. The general act OF the
State authorizing such aid TO railroads by munich
pal corporations prohibited subscriptions In aid OF
roads not duly Incorporated and organized; and
the roads In question not at the date Of the
act incorporated and organized, the question was
The Court below held that they were not, and the
judgment was for the CITY, The writ OF error main.
tanned that the legislation did not mean that ard
should be extended only to roads then incorporated
and organized, but that aid should not be ut any
time extended to roads which were not incorpo-
rated and organized; and the theory was that
whenever at any future time q railroad should be
Incorporated and organized 1t was competent for
municipal corporations TO subscribe Its aid. The
Court sustained this construction OF .he legislation
and reversed the Judgment. Mr.. Justice Swayne
delivered the opinion.
NO. 40. Young vs. Steamboat Key City--Ap-
peal from the Circuit Court for the Eastern Dis
trict OF " Nisconsin.-The libel in this case was filed
to recover for quantity or wheat lost on the
Mississippi In May, 1854, by the alleged negligence
OF the steamer, It's officers, &C. The answer set
forth that another company were now the owners
OF the steamer; that she remained the property OF
the company which undertook to carry the wheat