The making of the rules and regula- printing, circulating, and posting the tions, being the "said rules " mentioned handbill. in the will, is not of the essence of the original bequest, and the whole of the claim of subsequent directions may be actually struck out of the will. Held, That there are special circumstances here, which take the case out of the general rule:-that such interrogatories ought not to be put, lest they might I submit that the appeal should be dis- criminate the defendant. missed with costs. Lord Hatherley said: The question wholly depends upon the construction of the will, and authorities are of no value in this case. There is a clear, original gift, and the testator there indicates an intention which he has not performed. He does not express any condition or anything which amounts to a condition. Yates, applt., v. The University College, London, and D'Eyncourt, respdt. Law Reports, House of Lords, 7 English and Irish Appeals, pp. 438447. Feb'y 16, 1875. WITNESS. Greenfield v. Reay. Law Reports, 10 Queen's Bench, pp. Opinion, Cockburn, C. J., Blackburn, ERRATA. In the case of Hart v. Chapman, N. Y. WEEKLY DIGEST, page 15 (No. 2), we substitute for the last point held-the following: Also, Held, That it was error for the court to grant an extra allowance of five per cent., under Sec. 309 of the Code; that an extra allowance on the foreclosure of a mortgage, is governed by Sec. 308, except where the case is difficult or When an examination will be allowed to extraordinary, when a defence has been ascertain who printed and published a libel. The rule that witness may be interposed, or in such cases where a trial called upon to criminate himself, re- has been had. In such a case, by Sec. laxed in such an examination. The plaintiff was libelled by a handbill on which no printer's name appeared; and he could not ascertain who printed it; but he had reason to believe, from seeing the defendant with a man who actually fixed and delivered the handbills, and also from having seen the defendant himself put up one of the handbills, that the defendant was the person who printed and circulated the libel. Plaintiff moved for an examination of defendant as to whether he had not been instrumental in 309, the court may make an allowance not exceeding two and a-half per cent. NOTE. The digests of the decisions of the Court of Appeals used by us, are received through an official source, on which we must rely, and we give the foregoing correction from the same source. EDITOR. For" 2 Hun." in Du Bois, jr., v. Barker et al., at page 50 supra, read "4 Hun." effect immediately, upon their passage. ute is: that the intoxicated person must When otherwise, it will be specially noted. ACTION. Act giving remedy for injury by reason of intoxication construed. Act constitutional. Lawfulness of sale of liquor considered. The plaintiff brought suit to recover damages under Chap. 646 of the Laws of 1873, which enacted that: Every person who shall be injured in person or property, or in means of support, by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action against any person who shall, by selling or giving away intoxicating liquors, cause the intoxication, in whole, or in part, of such person. The complaint alleged that the plaintiff's husband died on the morning of the fifth of July; that he was intoxicated on the evening and night of the day prereding; that his death "was occasioned or caused, in whole or in part, by such intoxication;" that the defendant sold and delivered to the deceased the liquor which caused, in whole or in part, his intoxication, and that the plaintiff sustained damage in being deprived of the companionship of her husband, and of the customary support and maintenance of herself and her children. The defendant demurred. The demurrer was overruled, and he appealed. Held, 1. The act is not unconstitu tional. 2. Deprivation of companionship is not, by the statute, a ground of action. be liable for the injury. 6. The statute does not create an injury, it gives a right of action against a person other than the wrongdoer, by reason of his acts conducing to the injury. Hayes v. Phelan. N. Y. Supreme Court, Gen'l T., 3d ALIENS. NEW YORK. Any alien resident of this State, or any naturalized or native citizen of the United States, who has purchased or taken, or who hereafter shall purchase or take, a conveyance of real estate within this State, and has died, or who shall hereafter die, leaving persons who, according to the statutes of this State, would answer the description of heirs of such deceased and being of his blood, such persons so person, or of devisees under his last will, answering, etc., whether citizens or aliens, shall take and hold as such heirs or devisees, as if they were citizens of the Unitowned and held by such deceased alien or ed States, the lands and real estate citizen, at his decease. But if such heirs or devisees shall be male, of full age, they shall not so hold, except they be citizens of the United States, unless they make and file in the office of the Secretary of State the deposition or affirmation mentioned in the first section of this act. Amending Sec. 1, Chap. 261, Laws of APPEALS FROM ORDERS. 3. The liability does not depend on the Order of General Term overruling de unlawfulness of the sale of the intoxi cating liquor. murrer as frivolous, and directing damages to be assessed, not appealable. This was an appeal from an order of 3. The evidence in the bankrupt's oath these creditors are of interested parties. the General Term, affirming a Special is on the side of truth, whilst the oaths of Term order, overruling a demurrer to a complaint as frivolous, and upon failure to answer, directing damages to be assessed by a jury upon a writ of inquiry. Held, Not appealable to the Court of Appeals. Citing 2 Kern., 591; 23 N. Y., 162; 27 id., 640; 47 id., 670. Armstrong, respdt., v. Weed, applt. 4. The character of the claims, running through years, is a material circumstance to be considered in examining the doubt. In re Milwain. U. S. Dist. Court, Oregon, 12 N. B. R. Opinion by Allen, J. Case not yet Joint and separate estates. Subrogation. reported. BANKRUPTCY. Rights of creditors of separate estate. II. Foot, one of the firm of bankrupts, endorsed the notes of the firm, and pledged collaterals of his own to raise Absence from bankrupt's schedule of money. The notes were not paid, and claims, raises a doubt as to their valid the holders realized on the collateral ity-proof of postponed. Better evi-security, after the firm had been adjudidence. cated bankrupts. The separate estate of I. The bankrupt did not include in his Foot was insufficient to pay his individschedule three certain claims which were ual debts, and his creditors applied to presented and sworn to by the claimants, have the amount realized on the securiand at the first meeting of the creditors ties paid out of the estate of the firm to some of them moved to postpone the proofs the separate estate of Foot, on these of these clains on the ground that their names did not appear on the schedule of the bankrupt, and Sec. 85 of the Revised Statutes was relied on. It is as follows: "When a claim is presented for proof before the election of the assignee, and the Judge or Register entertains doubts of its validity, or the right of the creditor to prove it, and is of opinion that such validity or right ought to be investigated by the assignee, he may postpone the proof of the claim until the assignee is chosen." These claims were for merchandise sold and delivered between 1871 and 1875, and on which large sums are credited, but no details of the goods sold are given. Held, Deady, J. 1. There is good reason to doubt the validity of these claims, for the effect of the bankrupt's schedule is that he does not owe the claims. 2. Where oath is against oath there is sufficient to raise the doubt contemplated by the statute. grounds: 1. That it was the duty of the assignee of the firm's estate to have exonerated the separate estate of Foot from the lien of the pledgees out of the funds of the joint estate. 2. That Foot, as surety of the firm. upon the payment of the firm's notes, became subrogated to the claims of the holders of the notes, and that this demand enured to the benefit of his separate estate. Held, Wallace J. 1. That the assignee could not apply the funds of the joint estate to discharge a lien upon. property of the separate estate, though the lien was created for the benefit of the firm. 2. That a subrogation to Foot would not enable his creditors to prove the debt, for that would be defeated by the rule which precludes a partner from proving his individual debt in competition wi the creditors of the joint estate. chief and advance the remedy. 2. The proceedings in Congress on the passage of this addition to Section 26, show that it was a mere declaration of the law as it was generally held, and that it was made to make the law uniform. 3. But there is relief for the creditors be construed so as to suppress the misof the separate estate on this principle: When there are two classes of creditors having a common debtor, who has several funds, and one class of his creditors can resort to all the funds, whilst the other class can resort only to part of them, the former shall take payment out of the fund to which they can resort to the exclusion of the other class, so that both classes may be protected; and if the former resort to the fund common to both classes, to the loss of the latter, the latter are entitled to be substituted in the place of the former. Norman B. Foot et al., in re. U. S. District Court, N. D. of New York. '12 N. B. R. Rep., pp. 337340. 3. That Congress has repeatedly refused to allow persons under indictment to testify in their own behalf. 4. That Section 26 refers only to proceedings in civil causes under the act. United States v. Black et al. U. S. Circuit Court, Massachusetts. 12 N. B. R. Rep., pp. 340–345. Jurisdiction. Assignees' right to estate. No power to seize in third hands. IV. The plaintiff bought four sewingCompetency of bankrupts who have been machines from a bankrupt, and paid him indicted, to testify. Construction of for them. They remained in the shop Sec. 26, as extended. occupied by the bankrupt, by agreement, III. Bankrupts were indicted for a vio- until the termination of his tenancy, but lation of the 44th Section of the Bank- they were worked by plaintiff's wife, and rupt Act, in secreting and concealing to his profit. On the expiration of the money of the estate, and in fraudulently bankrupt's lease, plaintiff hired the shop. omitting the money from their schedules. Ten days afterward, a petition in bankAt the trial they were called as witnesses, ruptcy was filed against the bankrupt; but were excluded on objection being adjudication was had, and the defendants made, to which exception was taken. were duly appointed assignees. They were found guilty, and moved for a new trial on the gound of this exclusion. They rely on the following provision of the Act of June 22, 1874, which adds to Section 26 of the Bankrupt Act these words: "That in all causes and trials arising or ordered under this act, the alleged bankrupt and any party thereto shall be a competent witness." Held, Fox, J. That whilst the words of the addition to Section 26 are sufficient to allow the testimony excluded, without any forced construction, yet the words must not be so taken, for these They took possession of the machines about six weeks after the filing of the petition, and plaintiff sued out a writ of replevin on January 23, 1871, which was served on January 30, 1871. On the trial the Judge was asked to rule: 1. That the Court had no jurisdiction; 2. That the suit could not be maintained, as no notice was given as was required by the Bankrupt Act; and the defendant also asked the Judge to rule, that if the machines were taken by the defendants, bona fide, believing them to be the property of the bankrupt, and that under the circumstances they might have rea1. That the mere words of a law may sonably so inferred, that the action show a different sense from that intended could not be maintained. Defendant by the Legislature, and that an act must contended that the 14th Section of the reasons: Bankrupt Act protected them against himself, maintain an action thereon in liability. That section provides that his own name. "no person shall be entitled to maintain 2. An assignee in bankruptcy could an action against an assignee in bank maintain such an action, having, by the ruptcy, for any thing done by him as Bankrupt Act, the same power to deal such assignee, without previously giving with and dispose of choses in action ast him twenty days' notice of such action, the bankrupt himself had. But no such specifying the cause thereof, to the end power is given to the purchaser from that such assignee may have an opportunity of tendering amends, should he see fit to do so." Held, 1. That the assignment gave a mere right of ownership, but no authority, or color of authority, to take the property of strangers. 2. That the assignees have no right to seize forcibly the property of the bankrupt; they have only a vested right therein. 3. The Bankrupt Act does not purport to exempt any person from an action in a State court for the wrongful taking of property. Any such exemption must be by express enactment. Leighton v. Harwood. Supreme Court of Massachusetts, 12 Lex fori. Assignee of chose in action cannot sue in Massachusetts in his own name. V. Plaintiff brought suit for thirtyeight barrels sold and delivered, and the declaration contained a count for the conversion of the same goods. Defendant had the barrels, which belonged to a bankrupt, and plaintiff bought the bankrupt's right to them from the assignees of the bankrupt, and the sale was approved by the United States Court. Demand was made for the barrels, before the bankruptcy, in the bankrupt's name, and after the sale to the plaintiff, in his name. Held, 1. That, by the laws of Massachusetts, an assignee of a chose in action cannot, in the absence of a promise to him. 3. The lex fori must govern in this suit. Leach v. Greene. Supreme Court of Massachusetts. 12 N. B. R. Rep., 376-379. Opinion by Endicott, J. Chattel mortgage. Who may attack it for want of filing. New York Statute and decisions. Effect of Bankrupt Act. VI. The bankrupt bought three boilers from the petitioner, but paid but a small portion of the purchase money; and on the 29th of October, 1873, he gave the petitioner a chattel mortgage on the boilers for the debt due on them. The mortgage was not filed until the 5th of June, 1874. On the 22d of April, 1874, a petition was filed against the bankrupt, and, on the 11th of June, 1874, he was adjudicated a bankrupt. The boilers were taken by the assignees in bankruptcy, who had been duly appointed, and the petitioner got an order holding that his lien was valid. From this an appeal was taken on the debt of creditors, but it did not appear that they had obtained a judgment against the bankrupt, or that they had in any way a lien on, or any property in, the boilers. The appellant relied on the New York Statute, that a chattel mortgage not accompanied by an immediate delivery and change of possession of the thing mortgaged "shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, |