RICARD 'D. INHABITANTS OF TP. OF NEW PROVIDENCE.
the policy, requiring the assured to pay interest annually upon them, it certainly could not be claimed that such interest should be treated as a premium to be paid upon the paid.up policy. Griggsby v. Ins. Co. 10 Bush, 310. It would seem clear that the parties to this paid-up policy regarded this sum of $403 as a loan, and they made no provision for the forfeiture of the policy for the non-payment of the inter· est thereon; and. it would be a strained construction to say that the interest provided for in the body of the policy was a premium, within the letter or spirit of the third condition, the non-payment of which would make a forfeiture of the policy which had been paid up. This construction works no injus. tice to the defendant, for its debt, with the interest, is a lien upon the policy; it must be deducted, and the plaintiff reo receives only.the balance, which .seems his equitable right. Ins. Co. v. Ducker, 95 U. S. 269. Judgment for plaintiff for the amount of the policy, less the loan of $4.03, with interest thereon.
INHABITANTS OF THE TOWNSHIP OF NEW PROV
(Circuit OO'UlT't, D. New Jersey.
January 26, 1881.)
H 103-4, 110.
The Practice Act of the state of New Jersey (sections 103-4) reqUlres the plaintiff to file his declaration against the defendant within 30 days after being returned" summoncd," and the defendant his plea within 30 days after the expiration of the time limited or granted for tiling the declaration; and provides (section 110) that if any party shall not file his plea":;ng in the cause within the time required by law, and shall file the same after the expiration of such time, he shall give the adverse party notice in writing of the time of filing such pleading, and that the adverse party shall not be requirlXi to plead in reply thereto until ruled so to do. Held, under such statute, where a declaration was not filed within the time required by law, but within the time in which the defendant consented that it might be filed, that the defendant was not reqUired to plead until so ruled by the· plaintiff.-[ED.
In Debt. Motion to set aside judgment. v.5,no.5--28
Wm. A. Lewis, for plaintiff. McCarter Ii Keen, for defendant. NIXON, D. J. This is a motion to open. and set aside a judgment as improvidently entered. The summons in the case WitS returnable on the twenty-third of March, 1880. Before the time expired for filing the declaration, to-wit, on the twenty-first of April, the attorneys for the defendant corporation signed a consent in writing, as follows: "We hereby consent and agree that the time within which plaintiff's declaration in the above' cause may be filed, be extended 30 days from date, to-wit, until the twenty-second day of May next." On the eighteenth day of May, before the expiration of the extended time, the plaintiff filed his declaration and gave written notice thereof to the attorneys of the deJendant, and, at their request, furnished to them a copy of the declaration as filed. No further steps seem to have been taken in the cause until the twenty-second day of November following, when the plaintiff entered a rule for judgment by default, and had his damages assessed by the clerk of the court. IS8.11Ch'a jud2:ment regular? By section 914 of the Revised Statutes ?f the United States the practice, pleadings, and forms and modes of proceeding in civil causes, othcr than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, :1nd forms and modes of proceeding existing at the time in like causes, in the courts of record of the state within which such circuit and district courts are held, any rule of contrary notwithstanding. . court to It hence becomes necessary to turn to the statutes and the rules of the law courts of the state to ascertain the forms and modes of proceeding in such a case. Under t4-e Practice Act of New Jersey, (§§ 103-4,) the plaintiff is required to file his declaration against thedefendant within 30 days after being returned "sllmmoned," and the defendant his plea within 30 days after the expiratioa of the time limited or grantcd for filing the declaration.
RICA.RD V. INHABITA.NTS OF TP.OP' NEW PROVIDENCE.
By section 110 of the same act, if any party shall not.file his pleading in the cause within the time required by law, and shall file the same after the expiration of such time, he shall give the adverse party notice in wri,ting of the tiine of filing such pleading, and the adverse party shall not be required to plead in reply thereto until ruled so to do. rt is admitted that the declaration was not .filed within the cime required by law, but within the time in which the defend· ant consented that it might be filed. What was the legal of such consent? rt estopped the defendaLt from taking advantage of the laches of the plaintiff in regard to the time of filing the declaration, but it had no other effect. It cannot properly be construed, as' the counsel for the plaintiff insists, into a waiver of any right which resulted to the defendant by extending the time, and the last clause' of sec· tion 110, supra, absolved the defendant from the duty of putting in any plea, when the declaration is not filed within the time required by law,nntil ruled so to do by the plaintiff. As norule was taken, the judgment is irregular. This view renders it unnecessary to copsider the other ground of irregulal'ity taken by the defendant, under section 113 of the Practice Act, viz., that the plaintiff ought to ha,e moved for his .,judgment at the opening of the next term of the court after the default, and that, having failed so to do, he was not authorized to enter a judgment, during the 'conthe term, without an order of the court. ; is set aside., The plaintiff has leave to enter a rule that the defendant plead within 20 days after servi:-e of the rule, or that judgment. be entered for want of flo pleJi..
(Oircuit Oourt, 8. D. New York.
August 19, 1880.)
PnAcTICE-Bn..LS OF EXCEPTION-FILING AFTER TERM.
The power to redllceexceptions taken at trial to form, and have them signed and filed,is confined, under ordinary circumstances, to the term at which the judgment was rendered. Huller v. Ehlers, 91 U. S. 251.
A stay of proceedings was granted plaintift for 60 days from August 27, 1879, in order to enable him to prepare a bill of exceptions. Judgment was subsequently rendered December 27, 1879, and the term at which it was entered expired April 3, 1880. Held, under these cir;:umstances, that a motion to file a bill of exceptions after the expiration of the term, upon the ground of sickness from about February 25th to the latter part of May, 1880, and subsequent poverty owing to such protracted sickness, should be denied.
SAME-SAlIIE-NEW ):: ORK CODE OF PRACTICE.
The rules of the New York Code of Practice have no appl\cation to writs of error and bills of in the United States cO,urtS.-[ED.
Motion for leave, to file and serve a bill of exceptions nunc pro tunc. Scott Lord and a. a.Egan; for phtintiff. S. B. Clarke, Ass't Dist. Att'y, for defendant. CHOATE, D. J; This is a, 'tIlotion for leave to file and serve a bill of exceptions nunc pro tunc under the following circumstances: The action was for damages alleged to !laye been caused by a trespass committed in 1867. At -thWbc:itober term, 1878, on the twentieth day of December, 1878, the defendant had a verdict, and thereupon a stay of proceedings for 60 days was granted to the plaintiff. On the eighteenth of February, 1879, on the plaintiff's motion, a further stay of 60 days, after a motion for a new trial should be decided, was granted for the purpose of enabling the plaintiff to prepare a bill of excepFons. In April, 1879, the motion for a new trial was argued, and on the twenty-eighth of August, 1879, an order was entered denying the motion for a new trial. On the twenty-seventh of December, 1879, judgment was entered for the defendant on the verdict, and for his