852
FEDERAL REPORTER.
given a right unknown to the common law, but it has seen :fit to qual'ify this right by providing that no more than one action shall lie for the same subject·matter, and that every such action shall be commenced within 12 months after the death of a deceased person. To permit an action to be brought upon it here after the 12 months would be giving plaintiff a right which the statute he invokes does not authorize, and to that extent nullifying the statute. In the Dennick Case the supreme court held that the method of distribution provided by the local act, although a part of the remedy, should be pursued by the court in which the action is brought. It would seem from this that even so far as the remedy is concerned the court will not universally adopt the law of the former. The true rule I conceive to be this: that where a statute gives a right of action unknown to the comnion law, and, either in a proviso to the section conferring the right or in a separate section, limits the time within which an action shall be brought, such limitation is operative in any other jurisdiction wherein the .. plaintiff may sue. It results from this that the action is barred by the statute and the demurrer must be sustained
RICH 'V. THE TOWN OF SENECA FALLS. ((Ji1'OUit
Oourt, No D. New York. September 3, 1881.)
1.
MUNICIPAL BONDS-OVERDUE COUPONs-INTEREST.
Coupon bonds bear interest from the date of the maturity of the respective coupon,s.
Jas. R. Cox, for plaintiff. Comstock et Barnet, for defendant. WALLACE, D. J. The objections raised by the defendant to the validity of the bonds may be sufficiently disposed of by adopting the decisions of the state court in Syracuse Sav. Bank v. Town of Seneca Falls, (MS.) and Angel v. Town of 17 Hun. 374, as these decisions entirely commend themselves to the judgmt:nt of this court. The objection to the jurisdiction, based upon the ground that the bonds were transferred to the plaintiff by a written assignment, and that an action could not have been maintained thereon by the assignor on account of his being a citizen of this state, is not well taken, because these coupon bonds are promissory notes, negotiable by the law-merchant, and therefore not within the restriction of the jurisdiction clause.
RICH
v.
TOWN .OF SENECA FALLS.
853
The question in the case which presents more doubt is whether the plaintiff is entitled to recover interest on the unpaid instalments of interest. The action is brought upon the bonds, and these provide for the payment of the principal Bum in 30 years, with interest semi. annually, at 7 per cent. per annum, on the first day of January and July in each year, at the office of the Union Trust Company, New York city, on presentation of the proper interest warrant hereto annexed. If the action had been brought upon the interest coupons, it is well-settled the plaintiff would be entitled to interest on them from the time of their maturity. On the other hand, were this an ordinary bond for the payment of the principal at a future time, with interest at specified times before the principal should mature, it is concededly the law of this state that interest could not be recoverable upon the unpaid instalments of interest. The plaintiff could not recover for the unpaid instalment of est without presenting and surrendering the coupons upon the trial, and in legal contemplation they are not severed from the bond until payment. The City v. Lamson, 9 Wall. 477, 485. It would seem, therefore, that a right of action upon the bond necessarily carries with it all the rights of recovery upon the coupons, including· that for interest upon non-payment of the coupon at maturity. The bond may be considered as an agreement for the. payment of a prin. cipal sum at a specified date, and for the payment of divers promissory notes representing interest at specified dates. As the owner of the bond can transfer the coupons, and the transferee would be enti· tIed to interest from the time of their maturity, there seems to be no . sound reason why he should not also be entitled to like interest if he retains the coupons. The character of the obligation is not affected by the form of the action adopted by the plaintiff, and he does not obtain the full benefit of his obligation unless he is allowed interest by way of damages for the defendant's failure to fulfil the obligation. Judgment is ordered for plaintiff accordingly.
MARTINDALE V.
WUS· and another.
(Circuit Oourt, D. Minnesota. September, 1881.\ 1. CoNTRACTS-TIME NOT OF THE: ESSENCE.
Time is not of the essence of a contract to convey real estate, in the absence of any express provision. 2. 8.um-CONCURRENT CoNDITIONS.
When, in an agreement for the sale of real estate, the same day has been fixed for the payment of the money and the delivery of the deed, the two sides of the contract will be mutual and concurrent conditions. 3. SAME-TENDER OF PERFORMANCE.
The expression of a willingness to give a deed is not a sufficient tender ot performance where the agreement was to giv.. a deed and also assign an inter. est in a lease.
Suit brought to enforce specific performance of a contract for the sale of real estate. A.. F. Scott, for complainant. A.. F. Fader, for defendants. FACTS. NELSON, D. J. The defendants, on January 23, 1880, entered into a written contract for the conveyance to complainant of the south half of a lot, designated on' the government plat as lot No.7, in the W. t of section 5, townShip 28, range 23, together with water.rights, etc. John Waas negotiated the sale. The land was supposed to contain 18.25 acres, and the complainant agreed to pay $12Ul2 per acre. The defendants were to have the land surveyed, and proper monuments placed, so as to show the quautity sold, and a suitable plat or map made and a copy furnished the complainant, and the quantity of land shown by the survey was to be paid for, whether more or less than 18.25 acres. The defendants also agreed that their two daughters should execute to complainant a quitclaim deed of the premises sold,containing a. grant of right of way for public streets or avenues running northerly and southerly through the north and south half of said lot, as the complainant might desire. They also agreed to assign over to the complainant 67-150, the share in a lease given to one Hans Johnson, of the premises sold, with adjoining lands, in which lease Johnson agreed to pay a rental of $150 per annum. The complainant paid $100 down on January 23d, when the contract was executed, and the balance was to be paid on February 6, 1880, upon the fulfilment, by defendants, of provisions which were agreed to, and the execution
