8upra;) but assuredly she did not release them from their personal
liability as obligors in the bond to Dr; Alexander Johnston. Her course of action has in nowise hurt them, and her rights against them remained unimpaired. Merchants' Nat. Bank v. Comstock, 11 N. B. R. 235. That case is directly in point, and the luoid opinion of Judge Allen (who there speaks for the whole oourt of appeals of New York) convincingly shows that the proposition that the personal liability of a surety is released by reason of proof in bankruptcy made in the manner and under such a state of facts as here, is fallacious. This mortgage, therefore, must stand for the indemnity of the bankrupt's sureties in accordance with the intention of the parties thereto. One of the prayers of this bill is that John Lloyd account for the rents of said real estate during the period of his occupancy. His possession was personal to himself and unconnected with the mortgage. The other defendants, therefore, had no interest whatever in the controversy touching his ocoupanoy, and clearly the bill might have been demurred to for multifariousness. But this part of the bill is obnoxious to a more radical objection. The plaintiffs having a plain, adequate,an,d complete remedy at law against John Lloyd, if liable for the use and occupation of these premises, are not entitled to equitable relief. This objection, being jurisdictional, cannot be overlooked by the court, although not raised by thb pleadings. Baker v. Biddle, Bald. 394; Hipp v. Babin, 19 How. 278; Parker v. Minnipiseogee Co. 2 Black, 545; Oelrichs v. Spain, 15 Wall. 228. If, as has been suggested, the right of the assignees to bring an aetion at law is now barred by the two years' statutory limitation, it is unfortunate, but this is no justification for l'etaining a bill in a matter over which the court has no equitable cognizance. Let a decree be drawn dismissing the bill, with costs to be paid out of the bankrupt's estate.
ENGSTROM: 'V. LIVINGSTON
(Oircuit Court, D. Ma,8sachusetts. llfarch 31,1882.1
CONVEYANCE, WIlEN DOES NOT VACATE A TRUST.
Plaintiff, tho owner of a mine, had conveyed it to :t by deed intended as a mortgage. He then authorized A. to dispose of part of the mine to M. and S., who were to do work and open the mine. Mrs. A" the wife of A" received from ber husband one-twelfth of the mine, and M. and 8. received
ENGSTROM V. LIVINGSTON.
three-twelfths. Mrs. A. conveyed to M. her one-twelfth of the mine, and received in payment certain lands. A. became bankrupt, and his assignee, the defendant herein, recovered these lands from Mrs. A. BS the property of her husband. Held, in this suit by plaintiff against the assignee, that plaintiff, having known of the conveyance by Mrs. A. to M., and having approved thereof, that Mrs. A. did not hold the one-twelfth of the mine, nor the proceeds thereof, in trust for the plainti1f.
In Equity. LOWELL, C. J. The plaintiff, Engstrom, had been the owner of a. mine in Nevada, and had conveyed it to a stranger by a deed which was intended to be a mortgage. He then authorized N. Allen, of Lowell, to dispose of part of the mine to Morse and Sherburne, of Lowell, who were to do work in opening the mine. Mrs. Allen, the wife of N. Allen, received from her husband, acting as attorney for the plaintiff, one-twelfth of the mine, and Morse and Sherburne received three-twelfths, and did some work and spent some money in opening the mine. There was to be a still further conveyance, to a company which was to be formed, after a certain amount 'of work had been done. When Morse and Sherburne demanded this further conveyance the plaintiff refused to give it, and the parties quarrelled and separated, and the work was abandoned-the plaintiff insisting that Morse and Sherburne had not fulfilled their part of the contract, and they maintaining that they had fulfilled it. Before this time Mrs. Allen had conveyed her one-twelfth of the mine to Morse, and he had conveyed to her in payment certain lands in Massachusetts. Allen became bankrupt, aud his assignee, the defendant Livingston, by a suit in the supreme judicial court, recovered these Massachusetts lands from Mrs. Allen, as being. in fact, the property of her husband. Afterwards Engstrom brought this suit for those lands, alleging that Mrs. Allen had held the one-twelfth of the mine in trust for him, and therefore held the proceeds upon the same trusts. I have considered the voluminous evidence with care, and am of opinion that the plaintiff has not proved the trust alleged in the onetwelfth of the mine; that he was informed of the conveyance by Mrs. Allen to Morse, at or about the time it was made, and approved the same; that if he has a claim it is for breach -of contract which he· might enforce against Morse, but not a trust binding the proceeds of sale. It would not be profitable to recite the evidence which establishes these points. No doubt if a bankrupt holds property in trust the beneficiary may follow it into the hands of an assignee in bankruptcy, but no such case has been made out. Bill dismissed.
and others v.
(Oircuit Oou"rt, D. Maine.
September Term, 1881.)
1n contracts for services, for marriage, for rleliveries of merchandise. if the principal, before the time for performance arrives, renounces the contract an immediate action will lie.
2. 8AME-OON'l'RACT TO DELIVER ICE.
Where defendants contracted to deliver a quantity of ice at. 50 cents per ton during the season, " while the river is open," and in consequence of the price of ice during the season rising to five dollars per ton they unqualifiedly refused to ship the ice that season, it was held that an action may be maintained, though brought before the close of the season
In such action the measure of damages is the value of the ice, to be estimated at what plaintiffs lost.
LOWELL, C. J. This case was heard by Judge Fox: and me, upon evidence taken at the jury trial, the decision of the court being substituted for that of the jury by stipulation. We had consulted upon the case before Judge Fox's lamented death, and the result which I shall state was arrived at by both of us. I find the facts to be:
That late in the season of 1879 the plaintiffs, finding themselves in possession of a large quantity of ice undisposed of, and which threatened to be a total loss, pressed the defendants to buy some or all of it. Both parties were dealers in ice, cutting it upon the Kennebec river, and shipping it thence duro ing the season; that is, while the river is open. The offers of the plaintiffs were rejected, but the defendants, by their letter of sixth September, 1879, made a counter offer to take a cargo and "return the same to you next year from our houses." The plaintiffs, by their letter of September, 1879, accepted this offer, and several cargoes were delivered upon the same terms. The total delivery was 3,245 25-100 tons. In July, 1880, one of the plaintiffs spoke to one of the defendants about delivering the ice, and he replied that he did not know about that-delivering ice when it was worth five dollars a ton, Which they had taken when it was worth 50 cents a ton; but he promised to write an answer. July 7, 1880, the defendants wrote, repeating their objections, and saying, among other things: "We must, therefore, decline to ship the ice for yon this season, and claim as bur right to pay you for the ice in cash, at the price you offered other parties here, (that is, 50 cents,) or give yon ice when the market reaches that point." The plaintiffs, July 10,1880, wrote that they had a right to the ice, and had sold it in expectation of its delivery; to which the defendants answered, July 15, 1880, reciting the circumstances of the case and the hardship of such a demand, and again denying the obligation. The letter contains this sentence: "We cannot, therefore, comply with your request to deliver you the ice claimed, and respectfully submit that you ought not to ask this of us," etc., asking for a reply or a personal interview. Neither