fraud or collusion, and asserting the defenant's ignorance of the plaintiff's title, although due inquiry had been made; and argued that the Court had no jurisdiction to enjoin in such a case the proper forum was by reviewing the proceedings of the Justices in the law side of the Court. A Court of Equity will not enjoin judicial officers in respect to matters within their jurisdiction. THE COURT. This seems to be the very case where equity will restrain the commission of an illegal act. Motion refused and injunction continued. Gordon v. Baugher and Geddes. use of the money. It was a usurious loan, the repayment of which the brother could not enforce. The return of it to the extent of $125 would not be regarded as a wrongful act, even perhaps as against creditors, as it would be merely restoring what he had received. But giving his brother property sufficient to reimburse him for the amount actually received, and also the usurious interest, was fraudulent as against creditors. When the defendant mortgaged the horse and wagon, the property was worth at least $140, that being the amount for which the brother sold it under the mortgage; so that the brother received $15 for the loan of $125 for about six months. The property was evidently parted with to prevent its being taken upon execution, for it was mortgaged after the defendant had become liable to the plaintiff for the loss of her trunk, and the day before she commenced her action against the defendant. It must be regarded as an act to prevent her recovering any portion of her demand, and as such was not a proceeding which can be regarded as "just and fair" under the statute, within the decision of this Court in the case of Watson (12 E. D. Smith, 429). The act for the discharge of insolvents from imprisonment was created for the benefit of poor but unfortunate creditors. By the act the applicant is required to swear that he has The opinion of Daly, C. J., which not parted with, or made over any part shows the facts in full, is as follows: of his property with intent to defraud The applicant, "All that appears upon this application any of his creditors. upon the defendant's own showing, upon his own showing, cannot take that which is, that he has no property, and that oath, for the mortgaging of his property N. Y. Common Pleas-Special Term. INSOLVENT DEBTORS. Mortgaging his property to its full value to reimburse his brother for a usurious loan is an act by a debtor in fraud of creditors, and he is not entitled to a discharge. Debtor's proceedings must be just and fuir. On a petition to discharge a defendant held by virtue of an execution against his person issued on a return of the execution against his property unsatisfied; the application was denied. is what he had before the commencement of the action, which consisted of a horse and express wagon, he mortgaged to his brother the day before the commencement of plaintiff's suit, for the sum of $150, which mortgage his brother foreclosed, and sold the property for $140; that he purchased the property in 1874, for $150, and borrowed $125 from his brother to pay for it, agreeing, at the time of the loan, to pay him $25 for the to its full value to reimburse his brother for a usurious loan, embracing the principal received and usurious amount of interest, was an act in fraud of his creditor, the plaintiff, and does not entitle him to relief under an act which was not passed for the relief of fraudulent debt N. Y. Marine Court-Trial Term. JURY. The question of the legality of the appointment of a public officer cannot be raised by third parties. at rest any such question as the one now The objection must be overruled." On the calling of the jury in the case, the array was challenged for principal cause, on the ground that Thomas Dun- New York Supreme Court-At Chambers. lap, who superintended the drawing of the jury, was not the legal incumbent of the office of Commissioner of Jurors. McAdam, J., held that "that question could not be inquired into or determined. in any such collateral manner. MILITARY CODE. One not a citizen, and who has not declared his intentions, may be enlisted and be held subject to the penalties of the Military Code. Duration of imprisonment. Fraud in the enlistment. Habeas corpus and certiorari, Fritz Scheele was enlisted in the Twelfth Regiment N. Y. S. M., and was fined about $80 for non-attendance at drills and parades. He failed to pay the fine, and was, under a warrant issued by a court-martial, confined in the county jail of New York City. At the time of his enlistment Scheele was not a citizen, is not one now, and has not declared his intention to become a citizen. It was objected that the warrant of commitment does not specify the term of That Mr. Dunlap was in possession of the office under color of a legal appointment, and was therefore an officer de facto, and that his acts in that capacity were as valid, so far as the public were concerned, as the acts of an officer de jure, and, as Judge Bronson remarked in an analogous case : "As the duties of the office must be discharged by some one, for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed, before they submit themselves to his authority, or call upon him to per- the imprisonment. form official acts which it is necessary should be performed." Any other rule would lead to interminable confusion and perhaps conflict of decision in the various courts. This principle has been applied to those acting in judicial as well as ministerial offices, and in cases where most important rights were depending upon the result. The only way in which the title to that office can properly be determined is by quo warranto, by the people upon the relation of the one claiming the office against the person charged with usurp 2. But the 13th Section of Military ing it; and even if that proceeding re- Code in providing that "volunteers may sulted favorably to the claimant, still be received and enlisted in any troop, batthe acts of the officer de facto, while in tery or company, whether they reside in possession of the office pending the liti- the troop, battery or company district or gation would, so far as the public was not ;" indicated an intention on the part concerned, be perfectly legal. These of the Legislature to allow those not sub rules have long been settled and may al-ject to military duty to waive this ex most be considered elementary, and put emption and voluntarily submit them And his discharge was urged on the ground that he did not understand the enlistment papers, because his knowledge of the English language, as he is German, was imperfect. And it was said that he did not swear to the papers before the person before whom the oath purports to be taken. Held, Lawrence, J.: 1. That the pris oner was not subject to military duty at the time of his enlistment. (Military Code, Sec. 1, Chap. 80, Laws of 1870.) selves to the obligations, duties and pen- Laws, sec. 46; Sprague v. Litherbury, 4 alties prescribed by that Code. *** It McLean, 442.) was perfectly competent for Scheele to volunteer and enlist. "Being sent by them to Germany when sixteen years of age, for a temporary 3. The warrant is properly drawn. It purpose-to wit, to acquire an education is in the exact language of the 214th -the residence of his parents not being Section of the Military Code, which pro- changed, and no intention being entervides that the prisoner shall be held for tained, on his or their part, on his being two days for a fine not exceeding two sent or during his stay there, that he dollars, and for one day for each dollar should remain in Germany, or separate above that sum, and that the imprisonment shall not exceed twenty days. Isaac J. Rice, the applicant, in his affidavit attached to his application for admission as a citizen, says he was born in Germany in the year 1850, and came to New York when he was only six years old, in 1856, in company with his parents, with whom he resided until he was sixteen years old, when, under their direction, he returned to Germany for the purpose of completing his education. He remained in Germany for three years, when, having completed his course, he returned to his parents in this city, with whom he has since resided; and that, from the time that he was capable of forming an opinion or desire on the subject, it was always his intention to become a citizen of the United States. Robinson, J.-"The domicile of the applicant, from 1856 to 1866, when living with his parents in this city, was the same as theirs. (Stc.y on Conflict of himself from his family, his residence continued to be that of his parents. "Our Election Laws (2 R. S., Edm. ed., 128) enact that 'No person shall be deemed to have lost or acquired a residence by being a student in a college, academy or seminary of learning;' and although this provision relates rather to the rights of electors under the State laws, and not to that of naturalization under the Federal laws, it is but a recognition or affirmance of the rule at common law. not used due care in the examination of the truck, or in requiring the Wagon Co. ing of an axle of a truck of a car of the Birmingham Wagon Co. This car had been put aside for repairs, after coming to make a proper examination. on defendant's road, and certain repairs The jury was directed to find a verdict were made on it, but the bad condition for defendant, with leave reserved to enter a verdict of £250 for plaintiff. Held, 1. That the effect of the answers of the jury is that the defect could have been discovered, had a proper and careful examination been made. of the axle was not discovered, as it might have been, had due care been used. There was a crack in the axle, which defendant said was filled with oil and dirt so that it could not be seen, and that the crack could not have been discovered, 2. It would have been impracticable unless the dirt had been scraped off. to scrape off the dirt, and minutely examDefendant showed that from 20,000 to ine every axle of 20,000 to 30,000 foreign 30,000 foreign trucks came on its road trucks. That would have stopped the every week, and that a minute examina- traffic. tion of every car would prevent the running of the road. The axle was of the most approved make. The case was tried by Kelly, C.B., and these question were left to the jury. 1. Would the defect in the axle, which was the cause of the accident, have been discovered or discoverable upon any fit and careful examination of it to which it might have been subjected? Answer. Yes. 1. Was it the duty of the defendant to examine this axle by scraping off the dirt, and minutely looking at it-so minutely as to enable them to see the crack, and so to prevent or remedy the mischief? Answer. No. 3. If that was not their duty upon the first view of the truck, did it become their duty so to do when, upon having discovered the defect (in the spring and on the sole of the truck?) they ordered it to be repaired, and it remained for four or five days upon the premises for that purpose? Answer. It was their duty to require from the Birmingham Wagon Company some distinct assurance that it had been thoroughly examined and repaired. The Chief Baron agreed with the jury. Defendant claimed that the defect was latent, and that the truck was duly examined by the Wagon Co. Plaintiff insisted that he should be carried in safety, and that defendant had 3. A proper examination was necessary, and defendant should have been satisfied that it was made. 4. It was negligence in defendant to Richardson v. Great Eastern Railway L. R., 10 Common Pleas, pp. 486-496. Philadelphia Common Pleas-In Equity. NUISANCE. PRIVATE RIGHT. Erection of a bay window beyond the building line of the street permitted by Act of Feb. 18, 1769, if the passage of the street is not obstructed. Ordinance of Sept. 23, 1864, permits the foot-way of Arch street to be reduced in its width to twelve feet. Motion to continue special injunction. Horner and Craig were owners of adjoining buildings, Nos. 1725 and 1727 Arch street, Philadelphia. Craig, defendant, was building a bay window, extending two feet five inches beyond the street line or building line. Horner complained that the window, being an encroachment beyond the street. line, was a public nuisance, and specially injurious to him. In Gilmore v. Hempstead (3 How. Pr., Craig replied that there was more than twelve feet between the window and the 153,) the question was examined by curb line, and therefore there was not Judge Hand, who said: "In England it an encroachment under the Act of Feb- has long been considered irregular to ruary 18, 1769, and none under the city take an affidavit before the attorney in ordinance of September 23, 1864, and the cause, and even in a proceeding by that there was no special injury to plain habeas corpus the Court of King's Bench, tiff's privacy, or to his view. out of respect to personal liberty, would have disregarded the circumstance, but they said the rule was invariable, and was founded on the wisest and most ob. vious principles,' and adhered to it. (King v. Wallace, 3 T. R., 403.) And Held, 1. The Act of 18th of February, 1769, does not prevent the erection of a bay window beyond the building line of the street, but permits it if the "passage" of the street is not obstructed. 2. The ordinance of September 23, in Taylor v. Hatch (12 Johns. Rep., 339), 1864, permits the foot-way of Arch our Supreme Court said it was a fit and street to be reduced to the width of proper rule, which we shall therefore adopt as the practice here."" twelve feet. In the present case a passage-way of 12 feet 10 inches has been left, and thus the ordinance has been complied with, and the Act of 1769 has not been violated. Horner v. Craig. The same practice prevailed in our Court of Chancery. (The People v. Spalding, 2 Paige, 326.) It seems that it may be taken before counsel, or the clerk or partner of the attorney, but as to the attorney, the rule is well established. (15 Johns. R., 531; 17 Johns. Rep., 2; 6 Cow., 587; 5 Paige, 530; Barnes, 45; 1 Tidd., 451; 1 Lee's Dic. Pr., 28; 2 Richardson's Pr., 95; 2 Paine N. Y. Marine Court.-Special Term. & Duer's Pr., 54.) PRACTICE. It is irregular to make proof of service The rule, however, does not extend to an affidavit to hold to bail, nor to a con fession of judgment, nor where it is preparatory to the commencement of a suit, and no suit pending. In such cases the affidavit may be taken even before the attorney of record. (Post v. Coleman, 9 How., 64; Vesey v. Godfrey, 6 Cow., 587; 1 Tidd., 155, 451; Howard v. Nadler, Barnes, 60.) The affidavit of service in the present case was made in an action already pending, and was, therefore, one of those proofs which could not be taken before the attorney of record. (See 4 How. Pr., 290.) MCADAM, J.-The defendant, Surratt, moves to set aside the judgment entered by default against the defendants herein, upon the service of the summons on the defendant Gordon alone, on the ground that the affidavit proving such service was sworn to before the plaintiff's attorney of record, and was on that account irregular. The objection must be deter- These old rules long since became part mined from the roll, which, upon inspec- of the settled practice of the Courts of tion, establishes the irregularity complained of, and which irregularity is such a departure from established practice as to entitle the defendant, as matter of right, to the relief applied for. the State, and there is nothing in the modern practice which justifies a departure from them, and as an irregularity is defined to be a departure from the rules and settled practice of the Courts, it fol |