Green v. Town of Dyersburg. done at different times the stipulations are to be construed as independent of each other. Goldsborough v. Orr, 8 Wheat. 217. This rule is not inflexible but yields wholly or in part to the intention of the parties, and the good sense and equity of the case. Cunningham v. Merrell, 10 Johns. 203, and cases cited in note to Wilks v. Smith, 10 M. & W. 360, by Hare & Wallace. A more practical test for all cases is, whether the defendant reasonably appears to have looked to the plaintiff's covenant, or to its performance as the consideration and condition of his being bound. Ibid. Here, however, no time is fixed for building this railroad to Dyersburg. The law implies that a reasonable time was intended to be given. Chitty Contr. 1062; Davis v. Gray, 16 Wall. 204, 231; Cooke v. Taylor, 2 Tenn. 49. The act of January 27, 1870, chap. 49, § 5, allowed seven years from the date of the act for the completion of the road. The bonds being issued subsequent to that amendment the parties are supposed to have contracted with reference to it, and this fixes the time within which this condition should have been performed, and it had expired when this suit was brought, and about six years before this money was payable; so that the rule operates the other way, unless the fact, that some of the coupons fell due prior to that time, changes it. The town may have been willing to pay the coupons falling due prior to the date designated by statute as the time for the completion of the road; relying upon the security which the condition gave as to the remainder. They could make this contract if they chose, and we have seen that the rule yields to the actual intention. There are some cases which hold that, if part of the money be payable before the act is to be done by the other side, the respective promises are independent as to the installments of interest; but these cases have, in their peculiar facts, furnished other evidences of such intention, such as delivery Green v. Town of Dyersburg. of possession of the thing sold. Generally, however, the cases have been those where the principal money was payable in installments. Wilks v. Smith, 10 M. & W. 355; Mattock v. Kinglake, 10 A. & E. 50, 37 E. C. L. 37; Dicker v. Jackson, 60 E. C. L. 102; Edgar v. Boies, 11 S. & R. 445; Chitty Contr. 1082 and cases. It was held in Loan Association v. Topeka, 20 Wall. 656, that the mere payment of interest would not work an estoppel, and I think the application of this rule of part payments to installments of interest, aside from other controlling circumstances is a perversion of the rule itself, and often would operate to defeat the intention. It should only be applied where the mode of payment of the principal money indicates that the parties could have had no other intention than that the promises should be independent. Gardiner v. Corson, 15 Mass. 500, shows that annual payments of interest do not bring the case within the rule of payment by installments. The plaintiff here also relies on the rule that where an essential part of the consideration has been paid, the party receiving it will not be allowed to defeat a recovery against him because some remaining portion of the whole consideration remains unperformed, the argument being, that the town has received the stock of the railroad company for which it subscribed, and because the whole consideration has not been received it cannot refuse payment. Chitty Contr. 1092. This question might become important if the railroad company were in a condition to tender performance of its undertaking, but the pleas aver that it has been foreclosed and its property and franchises sold under a mortgage. If a party has disabled itself from fulfilling the contract, there is already a breach, and the contract is at an end. Chitty on Contr. 1079–1084. And the non-performance of one part of a contract is not excused by showing performance of another part. Idem, 1079; Cutter v. Powell, 2 Smith's Lead. Cases, and notes, is Green v. Town of Dyersburg. a case that discusses this doctrine; and it will be found that the rule does not apply where the main and essential part of the consideration remains unperformed. Here, the chief consideration was the railroad facilities to be acquired by the construction of the road to the town. It is well known, that in these days, stock in railroad companies, as property, is not of much value, and the shares are not, in this class of cases, any very essential part of the consideration. case. The case of Iumboldt v. Long, 92 U. S. 642, is not like this The bond did not show any condition, and therefore the subsequent use of the words "upon the performance of this condition" had no force. If the bond had said "payable upon express conditions that the road be constructed through the township," it would have been this case, but it does not so say. In Pendleton County v. Amy, 13 Wall. 305, the condition was precedent to the issuance of the bonds, and its performance was presumed from the recitals in the bonds and the fact of their issuance. But here the condition is attached to the payment of the money. Usually, these bonds are issued in aid of the road without incumbrance as to conditions, and it would have been better for the railroad company had these bonds have been so issued. But the parties could attach this condition to their contract, and the bonds were not valueless if the condition has been performed. It was simply a transfer of confidence in the railroad company from the town to the capitalist, who takes the bonds. It is he who trusts the railroad company in this case, and not the defendant corporation. It was a wise contract on the part of the town, and it has taken the precaution to inform persons dealing in the bonds of the fact that it had attached the condition to the contract by this recital. The language of the proposition as voted, and the proceedings of the town authorities do not indicate any other condition than that shown on the face of the bond. But if they did, the Green v. Town of Dyersburg. expression in the bond itself is not ambiguous. The case of Miller v. Pittsburg R. R. Co., 40 Penn. St. 237, falls directly within the case of a contract for payment before the road was to be built, and to build it. The principal money -the subscription itself was all due two years before the road suspended. Here it is deferred for ten years, and the charter of the company required the road to be completed six years before these bonds were due. The case of Brooklyn v. Etna Life Ins. Co., decided by the United States Supreme Court, October term, 1878, (not yet reported) 11 Chicago Legal News, 319; 8 Centr. Law Jour. 422; 19 Albany Law Jour. 361, is a clear recognition of this defense as a good one. And there can be no doubt that if the bonds in that case had on their face given notice, as in this case, the plaintiff would have failed. The case of Conrad v. Portsmouth Savings Bank, 92 U. S. 625, is directly in point in favor of this opinion. There the act of the Legislature attached the condition to the subscription; here the contract of the parties attached it. There the bonds were void; here the condition, being broken, the bonds became valueless. The case of N. & N. W. R. R. Co. v. Jones, 2 Coldw. 574, is also an authority directly in favor of this conclusion. The importance of this case demands, and has received my most careful consideration, and the defenses set up have raised some of the most perplexing questions known to the law. This must be my apology for the delay in deciding it, and the fullness of the opinion. Demurrer overruled. Osborn v. Mich. Air Line R. R. Co. RUFUS OSBORN vs. MICHIGAN AIR LINE RAILROAD COMPANY ET AL. CIRCUIT COURT-EASTERN DISTRICT OF MICHIGAN AUGUST, 1879. JURISDICTION-BILL TO IMPEACH FOR FRAUD-AVERMENTS NECESSARY. In a proper case a decree may be impeached collaterally in another court; but where a bill is brought to set aside and declare void a decree rendered in this court, whether on the ground of fraud or otherwise, this court being the one in which the decree was rendered, is the only tribunal which can properly take cognizance of such a bill. 2. PARTY HAVING AN INTEREST MAY INTERVENE, WHEN.-It has been frequently ruled in the Courts of the United States that a person, having an interest though not a party to the suit, may intervene to assert his rights without reference to the citizenship of the parties. 3. BUT IF THE DECREE ASSAILED HAS BEEN EXECUTED? - Where a court has jurisdiction of a suit brought to impeach a former decree for fraud, if the decree has been carried into execution, the party complaining of the former decree may be put into the situation in which he would have been if the decree had not been executed. Alfred Russell, for complainant. Meddaugh & Pond, for defendant. The facts are fully stated in the opinion. WITHEY, J.-Complainant was a stockholder in the Michigan Air Line Railroad in 1873, when suit was commenced in this court to foreclose a mortgage made by that corporation to secure bonded indebtedness. Scammon, a trustee, was plaintiff, and the corporation and others defendants. The railroad corporation, by its directors, appeared and answered, and proofs were taken. At the hearing, in January, 1875, a decree was entered against the company for $265,000, and |