purchasers at the sale", The plaintiff, deraigning titlethrqugh O1ie'of the' heirs, of the estate to a parcel of that property, now bririgsejectment on tbe'assumption that that sale was void for with thereof the statute of this state, in reference to the sale of the real ptopertyofthe decedent by the administrator. occasion for me tc! go extensively :jut<> the questions raised by" The learned counsel for the plaintiffs concedes that all the questions raised in the case have been definitely and precisely decided by the supreme court of this state, and that, too, in a case involving the regularity of this very sale. Some of the heirs of the intestate or decedelltappealed from that order of sale to the supreme court, and that court, sitting asa court of error, held that 'the proceedings were all regular; that the order of sale Was proper ,and that the title of the intestate to the property sold passed by that sale.' In that suit every question now n1adein.thls was brought to the attention of and' was definitelJ passed on by' the supreme court. ;'I'he case has 'once been' the samtj tried in this court before J udge as that of the supreme court. The statutes of this state give the beaten party in ejectment a second a,s of course, and so the case is before me for trial a second time. Independently of the decision of the supreme court, whose decision in the cOllstruction of the statutes of this state is binding upon this court],! shqul4 hqld that thi$.'iwas a valid sale, on the authority of a long line of dech;iollS of the supreme court of the United to do what was States. done in this case, and 'the ohly point raised is" tlie question of the regularity of n<;>tice to one or heirs. Now the supreme cou'rt o'f the United States has said a half-dozen times that yop cannot raise that question collaterally j,n this rule seems not to be in acoordance with the general doctrine on the subject of jurisdictiotl, but in t.qis class of cases maintained that doctrine. An interesting case on this subject is Mohr v.Manierre, 101 U. S. 417. The gU&i'dian of an insane man a'(Jplied to the probate court for authority to sell his real estate to pay his debts and to support him. The usual proceedings were had; the order of sale made; the property 4/(ed made; presently the man was restored. to. his. sepses, when restOred to his senses to reoover the .property back, on the ground that the proceedin:gs for the sale were void for want of lhEf required notioeof the petition to sell. Now it.h/:lppened at that . there were two purohasers of parcels, -'-one manpurohased one parcel ofthatproperty,arid anoth irinan purchaseq another . When the man who had to his senses brought his actions, it happened that one of the' purchasers was a citizen of allother state than' Wisoonsin, and whenha was sued, he removed his cause irito the circuit courtofthe United 'States, sO.that one case was progressing'itl the circuit court of the United States and atlOthetin the state cdu'rt.; The case in the state court w,ent to the supreme court of the state of Sll), and'they deCided the deed was void, because the notice required by statute :t<Hbose interested of the petition to seH had not been gNen'aS
M'CORMICK fl. ELIOT.
required by the statute. The other case progressed, and finally went on certificate of division of opinion between the circuit j\ldges to the supreme court of the United States, and, notwithstanding the decision of the supreme court of Wisconsin, the supreme court of the United States held that the purchaser got a good title. Mr. Justice FIELD, delivering the opinion of the court, says:
"We shall assume. however, that the notice was not published for the full period described, and the question for consideration[that is the very question in this case] is whether such omission, all other requisites of the statute ing been complied with. rendered the order of the court invalid as against the plaintiff Mohr."
That question Justice FIELD answers in the negative, and quoting the case of Grignm'8 LesSee v. Astor, 2 How. 319, says that it is the tled doctrine of the court of the United and declin,es to be, bound by the judgm,entof the supreme court of Wisconsin iI), case. Butih the case 1;lar the publication of notice seems to have been made in exact conformity to the requirements of the statute. The, supreme court of the stateeQdecided, and an independent investigation of the question me to'tlia'same conchJsion. Letjudgment for the ,defendant. ' " i' .
wtrClllf,t Court, D. Mas8achusetts. OctobeJ; 10, 1800.)
LIMITATION oIl' ACTIONS-FAILURE Ol!' ACTION BROUGHT IN
TIlIm. Pub. St. l'dasll. 0.197, § 13,'Provides: "If in an action dulyoommenced within thE!, time limited * * * the writ fails of a suftl.cient service,of return by an unavoidable accident, or by a defauit, or' neglMt of the ofllcer to whom it is oommitted, * * * or if,s judgment fol' the plaintiff is re'lersed on a writ of error, the plaintiff may commence a new action. for the same cause at any time withi.none year after tbeabatement or other deteruiination of the original sutt, or after the reversal' of the jqdgment." Plaintiff. dU,lY commenced an act,ion against defendant by SUing. out a writ and putting it in tbe hands of an ofllcer for service. The officer attached the goods of defendant, who was a non-resident, 8nd a notice'.was given defendant by on order of the court. Judgment for plaintiff was ,reversed on, writ,' of error, and, the action ordered dismissed for want of jurisdiction. Held, that plaintiff could commence 'a new action on the'same causewitlilna year thereafter. Pub. St. Mass. c. 197, §,H, providing that "no action shall brought by, any per-, son whose causa of actioIi has been barred by the laws of an)' state, territory, or country while he resided therein, no words manifesting such intent, is not retrospective· The lapse of 20 years raises no presumption of payment where the only evidence ' on the question is the testimony of clerk that the claim, was never· paid, ' and it appears that an action. W8spending during that period to enforce the. claim. Plaintiff intrusted goods to defendant to sell on commission, rendering accounts monthly. was .stated by them in settlement. Held. that. it being a claim by a principal against his agent for money, which the latter was bound to account for aI;ld .pay over, it bore interest from the time the cause of action accrued.
PAYMENT-PRESUMPTION FROM LAPSE OF TIllIE.
-4. PRINCIPAL AND AGENT-ACCOUNTING-INTEREST.
At Law., This w.asan action of contract, brought May 16,1887, by McCo..mick, .a citizen pf,;UliQois, against Eli(>t, a citizen, of Massachusetts, to reoover