STATES V. SAVAGE.
impossible;'a.nd cost the defendant Dlore than theamonnt oflLny probable deficiency. . Under the circumstances, it is much more just and reasonable thai the plaintiff should be denied a new trial, rather than that the defend. ant should incur the risk of having a judgment rendered against her for $7,000 or $8,000, because by the death of Logan and the inexcus. able delay of the former, it is no longer possible to make'legal proof of the facts and circumstances as they actually transpired. Another reason against allowing this motion, under the circum· stances, is this: These bonds having been taken upon a larger condition than the law requires, to-wit, that the principal would account for aU money and property which came into his hands, whether as Indian agent or as alleged on the absolute demand of the com." missioner of Indian affairs,-it is doubtful, under the authorities cited and commented on in the opinion herein of December 15, 1879, (D. v. Tingey, 5 Pet. 115 ; Hawe8 v. Marchant, lOur. 140;) if they are legal. In my own judgment, they ought to be held vlLlid, in any event, as to money and property received by the principal under them, as dian agent, but no further. D. K Bradly. 10 p$t. 348. The motion for a new trial is denied, and the defendant must have judgment that she go hence without day.
Action at Law.
Rufus Mallory, for the UnitedStaiies, Seneca Smith, for defendant.
DEADY, D. J. The motion for, a new trial in this ca.se rests "POP the same grounds as the precedingone,and is denied for the same reason.
UNItED STATES 'V. SA-nGB,
Rufu8 MaUory, for the United States. W. H. Effinger, f.oX' defendant.
DEADY, D. J. In this case the motion for a new trial is based upon the further ground that when the order was ,made, in pu,rsuance of the stipulation of the parties, including thisca'8e within.theverdict in theU. S. 'v. Huma8on, there ,was no 'the oomplaint
on file, and therefore there ought not to have been a verdict for the defendant. But it is admitted that there was a verbal stipulation between the counsel for the plaintiff and defendant to the effect that this case should abide the result of the case against Humason; and this stipulation was admitted by the district attorney in open court when the order was made, although he protested that he ought not to be bound by it, as it would not have been made if he had thought the Humason Ca,se would have gone off on a technical failure of proof of the execution of the bonds, as it did. . But the court ruled that if the stipulation was the case must follow the disposition of the Humason one, and thereupon .the order was made without other ox: fqrther objection; but it then appearing that the defendant had failed to answer, and it being suggested by the court that the record would show error in the proc.eeding if there was a verdict for the defendant without an answer contro. verting the material allegations of the complaint, an was made, without objection, giving the defendant leave to file such an answer, lUJ .of some day between the filing of the complaint and the trial, <?f February16th. which he did, or attempted to do, Objevtion is. taken to ,this proceeding as being irregular, but in what the irregularity consists is not apparent. The foundation of it was the stipulation of the parties, and when that was admitted and its binding effect considered, what followed wae a mere matter of form, and even had the consent of the parties at the time. It might have been as well to have waited until final judgment had been given in the Humason Case, and if that was in favor of the defendant, then to have moved to dismiss this one. But, in some form, the defendant was entitled under that stipulation to have his case aharethe fate of the one against Humason. But admitting the regularity of the proceedings thus far, counsel for the plaintiff insists that the verdict ought to be set aside in this case because the answer of the defendaut does not controvert or deny the execution of the bonds, but in effect admits it. The answer of Savage <lontains a denial of the execution of the bonds "except as hereinafter stated," and then "admits that at the dates mentioned he did, along with his co-obligors mentioned, make a bond to the plaintiff," but does not "remember" the penalty or condition thereof. It may be admitted that this is not a good denial of the execution or condition of the bond; but it is a question whether it is not sufficient to prevent judgment for want of an answer. If the plaintiff
ELLIS V. CONNECTICUT MUT. LIFE INS. 00.
considered the answer not such an one, in this or other respects, as the defendant was entitled to file under the order of the court, he should have moved to strike it out. Besides, the object of making the order allowing the defendant to file an answer nunc pro tunc was not so much, if at all, to compel him to make a defence to the action, as to give him the privilege of so doing, so as to secure to himself beyond a peradventure the benefit of his stipulation that his case should abide the event of the ot3er one. The stipulation was made without an answer being filed, and virtually suspended proceedings in the case; and if the defendant had seen proper he might have waited until there was a final judgment in, the case against Humason, and if such judgment wal> for the defendant tl.en moved on his stipulation to the action against him without answering the complaint at all. But apart from the attempted denial of the execution of the bonds, the answer is a sufficient defence to the' action, as it contains an allegation to the effect that Logan faithfully 'kept the condition of his bonds. That is sufficient to support the verdict and the face, and that was the only object record from being erroneous on in allowing an' answer to be filed at all. These are all the special grounds on which a new trial is asked in this case, and they are not sufficient. For this and the reasons given in U. S. v. Humason, the motion is denied.
Adm'x, etc., v.
CONNEOTIOUT MUT. LIFE. INS. Co ·.
(Circuit Court, D. Connecticut.
July 14, 1881.)
Statutes are to be considered prospective, unless the language is such as to leave no doubt that they were intended to be retrospective.
2. VOID JUDGMENT.
Upon a void judgment no action can be maintained.
The statute of Virg-inia passed in 1856, regulatinp; the conduct of the business of foreign life insurance companies who should do business therein, provided, among other things, that such companies should have an agent in that $tate upon whom service of process could be made. In 1877 the existing Jaw was amended so as to provide that, in case of the death of such an agent, his personal representative was authorized to accept service of process against such corporation. In 1852 the defendant, a foreign company, insured the deceased, Lewis Ellis, and in 1856 dulv appointed an agent with authority to accept