Page images
PDF
EPUB
[merged small][merged small][ocr errors]

.

creditors, who have levied upon the property after the assignment and before the commencement of the proceedings in bankruptcy, have no priority over the assignee. In re Biesenthal, c. C. U. S. s. D. N. Y., 15 N. B. R. Nos. 5 and 6.

2. TITLE OF ASSIGNEE WHERE VOID TRANSFERS HAVE BEEN MADE.

While, in general, the title of the assignee relates back only to the commencement of the proceedings in bankruptcy, yet where transfers have been made which are void as to him, his title relates back to the time of such transfer. 1b.

3. FUND IN RECEIVER'S HANDS. WHERE, IN AN ACTION TO FORECLOSE A MORTGAGE, proceedings for the appointment of a receiver of the rents and profits are instituted before the adjudication of the mortgagor as a bankrupt, and there is a deficiency on the sale of the mortgaged premises, the assignee cannot claim the fund in the receiver's hands as against the mortgagee. Hayes v. Dickinson, S. C. N. Y., Ib., Nos. 8 and 9.

4. ATTACHMENT. THE COMMENCEMENT OF PROCEEDINGS in bankruptcy does not of itself dissolve an attachment granted within the time prohibited by law; the adjudication alone has that effect, and the deed of assignment relates back and vests the title to the property in the assignee as of the date of filing the petition. There is, therefore, no time at which the lien of a judgment can attach to such property. In re Badenheim, D. C. U. S. S. D. Miss., Ib.

5. BILL OF SALE. WHERE ONE WHO AFTERWARDS BECOMES BANKRUPT obtains a loan from another and executes a bill of sale of certain property to him, but retains possession of the property under a writing in the nature of a lease with rent reserved, and which contained a provision for a repurchase of the property for a specified sum, neither bill of sale nor lease being recorded, the transaction is in the nature of a mortgage, and void as to the creditors of the bankrupt. In re Gurney, C. C. U.S. E. D). Wisc., Ib.

6. AN ASSIGNEE HAS A STRONGER RIGHT THAN THE BANKRUPT. He stands in the place of an attaching or execution creditor and may impeach the validity of such mortgage. 16.

7. JURISDICTION. A STATE COURT IS NOT OUSTED of its jurisdiction in attachment cases by proceedings in bankruptcy, unless such proceedings are pleaded. Haber v. Klauberg, Ct. App. St. Louis, Ib.

8. PLEDGES OF THE BANKRUPT REDEEMED BY THE ASSIGNEE are assets in his hands, and cannot be considered to have been redeemed for the benefit of a single creditor to the prejudice of the general creditors whose funds have thus been diverted. Where the assignee redeems valuable pledges, he is subrogated to the rights of the pledgee until the fund is made good from the proceeds of the redeemed pledges. McLean v. Cadwalader, Ct. Com. Pl. Phila., Ib.

9. SAVINGS BANK. — THE LAW OF NEW HAMPSHIRE, which provides that when the assets of a savings bank shall fall below ninety per cent. of the amount of deposits, the deposit account shall be reduced so as to divide the loss equitably among the depositors, is not void because the general United States Bankrupt Law was in force when it was enacted. Under such circumstances the condition of the bank is such as to place it among the class of cases excepted from the operation of the bankrupt law. Simpson v. The City Savings Bank, S. C. N. H., Ib.

Vol. IV.)

DIGEST OF Cases.

[No. 7.

10. JUDGEMENT LIEN. WHERE A JUDGMENT CREDITOR OF THE BANKRUPT PROVES HIS DEBT, he will be considered as having waived his lien created by that judgment on other property of the bankrupt. Heard v. Jones, S. C. Ga., Ib.

11. INJUNCTION. WHEN EXECUTION CREDITORS OF A BANKRUPT PETITION the bankrupt court to modify an injunction so as to allow the sheriff to sell the property, and an order is thereupon entered directing the sheriff to sell and to pay the proceeds into court, the execution creditor is bound by the order, and cannot maintain an action against the sheriff for paying the money into court in pursuance of such order instead of paying it to them. O'Brien v. Weld, S. C. U. S., Ib.

12. PLEADING, ETC. UNDER SECTION 13 OF THE REVISED STATUTES of the United States, in a suit brought by an assignee in bankruptcy, after the passage of the Act of June 22, 1874, amending the bankrupt act, to recover back money paid before June 22, 1874, in violation of section 5128 of the Revised Statutes, it is sufficient for the declaration to lay the payment as made within four months of the bankruptcy, instead of two months; and to charge that the defendant had reasonable cause for believing that the payment was made in fraud of the provisions of the bankrupt law, and need not charge that the defendant knew that it was so made. Warren v. Garber, C. C. U. S. E. D. Va., Ib.

13. EVIDENCE. UNDER THE GENERAL MONEY COUNTS IN SUCH A DECLARATION, evidence will not be admitted to prove any liability or implied promise, contract, or obligation arising exclusively under section 5128 of the Revised Statutes, in a trial before a jury. Ib.

14. A DISCHARGE IN BANKRUPTCY, GRANTED TO ONE MEMBER OF A PARTNERSHIP, AFTER HE ALONE HAD BEEN ADJUDGED BANKRUPT in a proceeding affecting him alone, to which his copartner was not a party, is not a bar to an action against him and his copartner by a partnership creditor, where the creditor shows affirmatively that, at the time of the filing of the petition, there were partnership assets as well as partnership debts. Crompton v. Conkling, D. C. U. S. s. D. N. Y., .

Ib. 15. PROOF OF DEBT. WHERE THE WARDEN OF A STATE PRISON RECEIVES MONEYS FROM THE STATE and deposits them in his name as such warden in a bank, which subsequently becomes bankrupt, the state is not entitled to a preference over the other creditors to such money. The warden may prove his account as a general creditor. In re Corn Exchange Bank, C. C. U. S. E. D. Wisc., Ib.

16. PRACTICE IN INVOLUNTARY CASES. PETITION BY CORPORATION. VERIFICATION. AFFIDAVITS, ETC. A charge in the alternative in an involutary petition, that the debtor is insolvent or in contemplation of bankrupty at the time of the alleged fraudulent preference, is not sufficient. A petition filed by a corporation may be verified by an agent, who need not be an officer of such corporation ; but the authority of such agent to act for the corporation must be set forth in the affidavit, or otherwise established; it is not sufficient that it be stated by way of recital following deponent's name. Where the affidavits to the petition or the depositions as to indebtedness and acts of bankruptcy are insufficient, the court has power to allow supplemental affidavits or proofs to be filed. In re Hanibel, D. C. U. S. Col., İb. No. 5.

[ocr errors]
[merged small][ocr errors][merged small]
[ocr errors]

17. A DEBT DUE FROM A FACTOR for the proceeds of goods sold is barred by his discharge in bankruptcy. Woolsey v. Cade, S. C. Ala., Ib.

18. A CREDITOR CANNOT COMPEL PARTNERS, WILLING OR UNWILLING, TO PETITION for the adjudication of other persons who are alleged to be their fellow partners. Nor can any man lawfully be called upon to show cause why he shall not go himself, or put anybody else into voluntary bankruptcy. In re Harbaugh, D. C. U. S. W. D. Pa., Ib.

19. THE FEES OF REGISTERS ARE GOVERNED BY GENERAL ORDER No. 30, promulgated April 12, 1875, although the services were rendered before its adoption. In re Carstens, D. C. U.S. S. D. N. Y., Ib.

20. IN INVOLUNTARY PROCEEDINGS AGAINST A SEPARATE PARTNER, creditors of the partnership must be counted in computing the legal quorum of petitioning creditors. One fourth of the creditors whose provable debts severally are over two hundred and fifty dollars, and in the aggregate are equal in amount to one third of all the provable debts, are sufficient; or in default of enough of this class signing the petition, one fourth in number of all the creditors whose debts, without regard to their several amounts, equal in the aggregate one third of all the provable debts, must be joined. The claim of a creditor on a bond, the sureties on which have been indemnified by mortgage, is not a secured claim and should be counted. The register should return lists of the claims counted and rejected with his report. In re Lloyd, D. C. U. S. W. D. Pa., Ib.

BILLS AND NOTES.
See PARTNERSHIP, 1, 3.

COMMON CARRIER. LIABILITY FOR INJURY SUSTAINED BY ONE PASSENGER AT THE HANDS OF A FELLOW PASSENGER. — DAMAGES. — In this case, four or five persons in the employ of the railroad company, but no temployees on that train, were co-passengers with the plaintiff on a special train, improvised to meet the demands of travel to and from the state fair. They and the plaintiff were riding in the baggage car, and they rudely deprived the plaintiff of his hat; the plaintiff went in search of the conductor to get redress, and informed him of the injury; the conductor went with the plaintiff to the baggage box and asked for the hat to be returned to the plaintiff ; very insulting language was immediately used by one of these parties towards the plaintiff, and immediately a fight ensued, in which the plaintiff was shot, and the plaintiff, retreating from the car, knocked two of his assailants senseless with a hatchet. The conductor retreated in advance of the plaintiff, so that, when the plaintiff reached the platform of the car, he found the conductor there. Immediately the conductor rushed the plaintiff through a car-window and through several passenger cars, to get him beyond the reach of the assailants. Some of the assailants followed into the car next to the baggage car, and in that car, after the plaintiff and conductor had left it, and not in the hearing of the plaintiff, heaped abusive epithets on him. The conductor did nothing more to quiet the assailants, or to eject them from the car, but left them in the baggage car where the plaintiff's luggage was, and in the

Vol. IV.]

DIGEST OF CASES.

(No. 7.

car next to it, to the end of the journey, which was less than twenty miles. The plaintiff was slightly injured, being able to go about the next day, but was prevented from attending to his business for more than ten days. The jury found a verdict of $6,000 damages. The company did not discharge any of these employees from its service, but promoted one of them. Held, that the conduct of the conductor, up to the time of his retreat from the fight to the platform of the car, was such as to render the company liable for compensatory damages ; and that his allowing the assailants to continue in the baggage car, where the plaintiff's luggage was, and a part of them to go into a passenger car, and there use abusive language towards the plaintiff, without making any effort to stop it, or to eject these parties from the train, coupled with the fact that the company had not discharged any of the assailants, but had promoted one of them, made a case where exemplary damages were allowable. N. 0., St. L. & C. R. R. Co. v. Burke, S. C. Miss., Cent. L. J., June 8, 1877.

The se

[ocr errors]

CRIMINAL LAW. 1. SELECTION OF JURORS FIVE DAYS BEFORE HEARING. lection of jurors in a homicide case was completed on the last day of the term, the jury were then sworn, and the case adjourned from day to day until five days thereafter, when the hearing actually commenced. Held, that, the jury having been sworn during the term, the case could be continued after the term ; and that the adjournment was a matter within the sound discretion of the court below, which in this case did not appear to have been abused. Carroll v. Commonwealth, S. C. Pa., W. N. C., June 14, 1877.

2. MOTIVE. EVIDENCE, ETC. — UPON A TRIAL FOR MURDER it appeared that, although the crime was instigated by one who wished to avenge a private injury, yet it was actually executed by the prisoners, who were strangers to the murdered man, and had no cause of enmity against him. To explain the motive for the crime, the commonwealth offered to prove the existence of a secret and criminal organization which furnished men from one division to commit murder, and in return obtained men from the division to which the instigator of the crime belonged to murder a man obnoxious to the first division. Held, that this evidence was properly admitted. 15.

3. EVIDENCE OF ACCOMPLICE. — An accomplice, besides proving the murder, testified to a number of subsequent occurrences, which, although not directly connecting the prisoners with the commission of the crime, yet tended to explain the relations, conduct, and motives of the prisoners. The commonwealth then called other witnesses to prove these occurrences. Held, that this evidence was not simply corroboration of an accomplice upon immaterial points, but was to a large extent independent and comfirmatory, and in view of the other evidence in the cause was properly admitted. 16.

DAMAGES.
See COMMON CARRIER ; INJUNCTION.

EVIDENCE.
See CRIMINAL LAW, 2, 3.

Vol. IV.]

DIGEST OF CASES.

(No. 7.

INJUNCTION. A COURT OF EQUITY WILL ONLY INTERFERE IN A CASE OF TRESPASS to prevent irreparable mischief, or a multiplicity of suits, and not when the trespass is temporary and adequate compensation in damages can be obtained in an action at law. S. filed a bill praying for an injunction to restrain M., the owner of an adjacent lot, from removing the boundary fence between the properties to the distance of two feet upon his (S.'s) land. M. set up title to the two feet of land, and the master to whom the case was referred reported that such title was proved by the evidence. The court below, nevertheless, enjoined M. from removing the fence until the determination of an action of ejectment which, after the filing of the bill, had been instituted by M. against S. for the strip of land in dispute. Held, that the facts did not give the court jurisdiction to grant an injunction. Minnig': Appeal, s. c. Pa., W. N. C., June 7, 1877.

INSURANCE. 1. CONSTRUCTION OF POLICY. 66 CONTIGUOUS DEFINED. The policy provided that “the generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting, is prohibited, unless by special agreement indorsed on this policy. Held, that gasoline works fifty feet distant for lighting the building, were not "contiguous” within the meaning of the policy,

, “ and that the use of gas so generated from gasoline is not "the use of gasoline ” within the meaning of the policy. Arkell v. Commerce Ins. Co., Ct. App. N. Y., Ins. L. J., April, 1877. 2. INSURANCE OBTAINED THROUGH BROKER.

MISREPRESENTATION, ETC. — The policy provided that the application should be deemed a part of the policy, and a warranty; " and if any person insuring any building or goods in this office shall make any misrepresentation or concealment, such insurance shall be void.” Also, “in all cases of application for insurance in this company, the applicant shall state the true value of the property, and also the amount of incumbrance, if any exist thereon.' The insurance was effected through a broker. No written application was made or required. He merely presented the written forms adopted in policies in his own companies on the same property, and stated to the defendant's agent that he approved the risk. The existence of mortgages on the property was not stated in the written forms, nor mentioned to the agent. Held, that the presentation of the written statement in the policies by the broker was an application by the insured ; that the failure to disclose the existence of the incumbrances rendered the policy void, regardless of the materiality ; and that there was no ground in the construction of the policy, or in the facts, for applying the doctrine of estoppel. Beck v. Hibernia Ins. Co., Ct. App. Md., Ib.

3. CONSTRUCTION OF POLICY. IMPERFECT ANSWER IN APPLICATION. — The application contained the following questions : Whether the

. party had had any sickness or disease during the last ten years, and if so, “state the particulars and the name of the physician or physicians who prescribed or were consulted.” Answer, “ Nine years ago, had an attack

[ocr errors]
« PreviousContinue »