JOHN HANCOCK MUT. LIFE INS. CO. V. MANNING.
gross upon the whole, as has been found and stated, there is 'no apparent ground upon this bill, which only goes for the application Of payments as such, for applying the excess over one loan to the payment of another. All payments so taken from one debt to another would, in efIect, be recovered back, and the bill is not adequate to such relief. The payments on acconnt of each debt are to be applied to the legal inte.rest then due on that debt, and the residue to the principal as of that date. This method will extinguish the $3,000 note, but probably not the other debts. Schedule A is conceded to show the times of payment, and the amount remaining due can be readily ascertained by computation. It is objected that the bill is defective in not offering to pay the balance due. The objection was not taken by demurrer nor otherwise until the hearing, and cannot prevail now. In bills to ' redeem, costs are generally allowed to the defendant; butin this case the defendant has denied the right to redeem, and the orator has not tendered the balance due, and no costs are allowed either way.
Let a decree be entered for an account, if necessary, of the sum due on each debt, and for the redemption of the mortgaged premises, on payment of the sum due on the mortgage, and ofthepolicies of insurance, ·on pay- ' ment of the sum due on the note of ,716.85, to the clerk of this court,fol' the benefit of the defendant, within 10 days from entering the decree, and that in default of such payment the bill be dismis,ged.
JOHN HANCOCK MUT. LIFE
INs. Co. v.
(Oircuit Oourt, S. D. NetD York. April 27, 1881.)
1. NEW TRIAL-!IANDATB FItOH SUPREME COURT.
The circuit court cannot entertain,a motion for a new trial upon the ground of newly-discovered eVIdence, after a mandate has been received from the supreme court entitIingthe pla'intift to an absolute and final judgment.-lED.
WALLACE, D. J.' If the defendant's motion for a new trial, on account of newly-discovered evidence, were to be docided according to the rules which govern the exercise of judicial
discretion on such motions, the case made would not seem to be a sufficient one. But this court has no authority to grant the motion, however meritorious the case might be, because it must execute the mandate of the supreme court 'lent here upon the affirmance of the judgment of this court by the supreme court. That mandate entitles the plaintiff to an absolute and final judgment. If a mandate of the supreme court is open to construction, the court below can resort to the opinion of the supreme court, and can apply proper rules of construction, but further than this the court below cannot go In 8killeru's Ex'rs v. ]}[ay's Ex'rs, 6 Cranch, 267, where it appeared to the, circuit court, in a case remanded by the supreme court proceedings, that. the cause was one pot WIthin the, of. the court, it was' held the court was the mandate' into executiqn. In iJ1 parte :Story,12'J?et.. SS9, it was held tpat the court below' properIy' to 11110w the file a plemental plea and the before it. upon a mandate of the supreme court, and the below was bound to execute the See,also, Ex parte Sib. 12 :Pet. where it inferLQI coqrt, is bound as the law oi the case, andmnstcarryit into execution according to .the 'mahda,te. They cannot vary it or examine it for any other imrl>ose than execution; or give any other or fmther reliet" In Ex parte Dubuque v. Pacific Railroad, 1 Wall. 69, where the court below, after entering judgment according to the mandate, and thereafter affidavits of ability to show new facts having been filed, granted a motion for a new trial, the supreme court issued a mandamus commanding the lower court to vacate and erase the order, upon the ground that the authority of the court below extended only' to executing the mandate. The motion is, therefore, denied.
COFFEY V. UNIVERSAL LId INS. co.
COFFEY V. UNlVERS.u. LIFE INS. Co.
(O'ircuit Oourt, B. D. Wisconsin. May 20, 1881.)
The plaintiff was the holder of a policy issued by the defendant company, which provided that In case of default in any payment of premiums after two full years' payment had been made, the policy might be exchanged for a paid-up endowment policy for a certain amount, subject to the condition that the policy, duly receipted,. .. shall have been transmitted to and received by the company within 60 days after such default." The premium due AuguSt 23,1877, was unpaid, and no offer to surrender the original policy for a paid-Up policy was made by the plaintiff until March, 1879. Held.: (I) That failure to transmit the policy to the company within the ilO days after default, in' the a'l\sence of. circumstances adequate' to excuse non-compliance with this' condition, involved 'the loss 'of aU right of the plaintiff to the policy. if ,,'; .' . . (2) Th.at tbe company, Iritbe' light of :all- the faoUl and 'circum.stances of the case-havi'iig'retri.ed, by itS"agent, to accept the pr&. mium on the day it was due, of 'proceedings It for dissolution and theappointfueJit ofareoeiver, and tiot htiving thereafter given 'the plaintiff 'any Jlotice Of ail. opportunitY' to' pay the premIum elsewhere;' and'hBving; in reply to' higlettets of inquiry"denie<i his right to nny' iilforfuatiotl, 'and hivirig led him,to . sUppose that his policy had w!iolltiapsed, i1nd tbMitcould do noth" , big towards revivIng the same:tintilelear of .the' court' pl"Oceedlngs" , and then only an' a.ct 'gra'Ce'ol'favor..:,1,.'Were 1!8topped to' aSSel'" , that the plaintiff hadforfeltlld to'thepaid-up pd1iCy by , :thilure to transmit the origirialpolicy within '60'dats after'lion-pay'" . ment of the premium <in AUgUSt'23, 1877. . .' .
Dixon ,J; Noye3, for complaina.nt. Sleeper et Whiton, for defendant.
This is & bill to -cc)1npel the defendant company t which is a corporation of the state of New York, to issue to the complainant & paid-up policy of life insurance of the amount of $600; and the controversy between the pa.rties arises upon the following state of facts: .
On the twenty-third day of May, 1868, the complainant procured from the defendant company a policy ot insurance on his own life, for the sum of 11,000, payable to Honora Coffey on the twenty-third day of May, 1883, or in case of complainant's death before that day, then within 30 days after notice and proof of death. The policy required the premiums to be