Bonneau agt. Dinsmore. upon the face of the complaint. It does not appear, from the complaint in this case, that there were any stockholders besides the defendants. It states, indeed, that they were the owners of 44,750 shares; but it does not appear that the capital stock consisted of any greater number of shares. If the complaint is uncertain or indefinite in this or any other respect, the remedy is by motion, and not by de murrer. The demurrer must be overruled, with costs. SUPREME COURT. THOMAS C. BONNEAU agt. Wм. B. DINSMORE and others. A citizen of South Carolina, under the existing state of hostilities between that state and this state, is not allowed to enforce, in our courts, the collection of any claims against our own citizens. New York Special Term, February, 1862. THE plaintiff sued the defendant on a promissory note. Defendant set up that the plaintiff, being a citizen of South Carolina and an alien enemy, could not recover. Plaintiff demurred to the answer, on the ground that defendant, while alleging that he (plaintiff) was an alien enemy, still admitted that he was a citizen of the United States. Mr. MITCHELL, for plaintiff. DAVISON, BURRILL & DAVISON, for defendant. GOULD, Justice. The answer in this case sets up for a defence that the plaintiff is an alien enemy. Of course, if such is the fact, the defence is sufficient. But the plaintiff claims that in pleading the defence, the defendant has stated facts which do not make the plaintiff an alien enemy, but on the contrary, show that he is a citizen of the United States, and entitled in all respects to sue in our courts. Bonneau agt. Dinsmore. Thus the answer says that the plaintiff is a citizen of, and now resident in the state of South Carolina, which state is in a state of actual hostility to and in open war with the United States; to which the plaintiff (in argument) replies, that the hostilities are those of an insurrection, and the United States claim to be still sovereign over the whole territory, South Carolina included, and that no state court can say that the citizens of South Carolina, though having levied actual war against the general government, are alien enemies. There is a sense in which this reply is technically correct; but it is not the sense in which is founded the rule which, in any case, makes the defence spoken of a valid one. An enemy is not allowed to enforce (in our courts) the collection of any claims against our own citizens, because (in the words of ELLSWORTH, Ch. J., in the case of Hamilton agt. Eaton, before the U. S. circuit court in North Carolina, in 1792,) "it would be dangerous to admit him into the country or to correspond with agents in it; and also because a transfer of treasure from the country to his, would diminish the ability of the former and increase that of the latter to prosecute the war." The whole ground of excluding a public enemy from our courts is one exclusively of public policy, and whenever public policy would carry the rule, the courts should be bound by it. This reason for the rule applies in full force and in every particular to the case before the court, and the plaintiff is completely within the undoubted spirit of the prohibition, which suspends his remedy while leaving his claim to remain untouched and liable to be revived and recovered after hostilities are ended. Of course this view is based upon the concession (by demurring to the answer) that the facts are correctly stated by the defendants. There is a further ground for holding the plaintiff within the real disability to sue in our courts, which is intended Tanner agt. Bank of Fox Lake. to be asserted by this answer. By act of congress, passed July 15, 1861, the president of the United States was authorized to declare by proclamation, any state or states "in insurrection against the United States," under certain circumstances, and that whenever he so declared, "thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue." In pursuance of this act the president, by proclamation, declared the state of South Carolina to be in such a state of hostility, and expressly stated that all commercial intercourse with that state was unlawful. There should be no question that the endeavors to enfoce commercial rights-the attempt to collect the avails of prior commercial transactions-come completely within the spirit of this restriction; and that under a proper construction of this act it is unlawful to allow a citizen of that rebellious state (especially one alleged to be himself in hostility to the government) to enforce any such remedy in our courts. The demurrer should be overruled, with costs. SUPREME COURT. TANNER and others agt. BANK OF FOX LAKE. It never has been held that the check of a party bound to pay, is a payment, if the check is not paid. New York General Term, October, 1861. By the court, INGRAHAM, Justice. In this case it appears that the defendants, on being informed that the first draft was not paid, sent the draft on which this action is brought to take it up. This would be a good consideration for the Valentine agt. Van Wagner. draft, if there was no fraud or misrepresentation used in obtaining it. Such is the defence set up by the answer. On the trial the judge charged " that giving the check was no payment." To this the defendants excepted. There was no error in such charge. It has never been held that the check of the party bound to pay is a payment, if the check is not paid. It does not appear whether the question of fraud was submitted to the jury. We are to presume it was, if no request was made to submit that question to the jury by the defendants. They should have asked to have that question passed upon. Judgment affirmed, with costs. SUPREME COURT. AUGUSTUS A. VALENTINE agt. JOHN VAN WAGNER and others. A condition in a mortgage of real estate that in default in the payment of interest for twenty days after the time limited for the payment thereof, the principal sum, together with all arrears of interest thereon, was, at the option of the mortgagee, to become and be due and payable immediately thereafter, Held, to be an agreement which the parties had a right to make, and the extension of credit was lawfully made dependent upon the punctual payment of interest. Upon the failure of the mortgagor to perform the condition upon which the credit depends, the principal becomes due and payable by the terms of his contract. And in the absence of fraud, this, like any other contract, will be enforced by a court of equity. New York Special Term, February, 1862. MOTION for judgment on foreclosure of mortgaged premises. E. KETCHUM, for plaintiff. J. G. MCADAM, for defendants. ALLEN, Justice. By the terms of the mortgage, upon default in the payment of interest for twenty days after Valentine agt. Van Wagner. the time limited for the payment thereof, the principal sum, together with all arrears of interest thereon, was, at the option of the plaintiff, to become and be due and payable immediately thereafter. This condition is not in the nature of a forfeiture, to be relieved against by a court of equity, or which a court of equity will not enforce. It is an agreement which the parties had a right to make, and the extension of credit was lawfully made dependent upon the punctual payment of interest. Upon the failure of the mortgagor to perform the condition upon which the credit depended, the principal became due and payable by the terms of his contract. In the absence of fraud, this, like any other contract, will be enforced by a court of equity. It is neither oppressive nor unconscionable. (Noyes agt. Clarke, 7 Paige, 179; Ferris agt. Ferris, 28 Barb., 29, and cases cited by INGRAHAM, J.) In this case the first semi-annual instalment of interest was suffered, by the mere negligence and omission of the mortgagee, to remain in arrear and unpaid from December to May, and the plaintiff then, by his attorney, demanded payment of the principal and interest, treating it all as due, as he lawfully might. What would have been the effect of the payment and acceptance of the interest as interest after that, without an agreement further to extend the time of payment of the principal then actually due, it is not necessary to decide. Be that as it may, the evidence fails to show that the plaintiff did accept the proffered payment of interest on the 23d day of May, 1860. There was an attempt to force upon him, or to leave with him against his will, a sum of money equal to the interest in arrear. But what a court of equity could not do-relieve the party from the consequences of his contract and deliberate act-he could not do of himself without the consent of the other contracting party, and without the intervention of this court. The claim that the plaintiff accepted the money VOL, XXIII, 26 |