Vol. IV.] DIGEST OF CASES. [No. 8. tional Bank of Keokuk. In error to the Circuit Court of the United States for the District of Iowa. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in this cause for the want of jurisdiction. The only matter in dispute between the parties was a judgment of $1,508 recovered against the plaintiff in error and the surety upon the delivery bond. The plaintiff had the possession of the property, and both that and the ownership had been adjudged in its favor, except to the extent of the lien which the defendants had to secure the payment of the judgment. Of this the defendants did not complain, so that the only question was whether the judgment for the money was properly rendered against the plaintiff. The case was not one where the value of the property in controversy showed the value of the matter in dispute, as was that of Bennett v. Butterworth, 8 How. 128. Adjourned to the time and place appointed by law. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERIODICALS. ABBREVIATIONS. Am. Law Rec. Albany Law Journal, Albany, N. Y., WEED, PARSONS & Co. American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Cent. L. J. Central Law Journal, St. Louis, Mo., SEYMOUR D. THOMPSON. Chicago L. N.-Chicago Legal News, Chicago, Ill., CHICAGO LEGAL NEWS CO. Ins. L. J.-Insurance Law Journal, New York, C. C. HINE, 176 Broadway. Int. Rev. Rec. - Internal Revenue Record, New York, W. P. & F. C. CHURCH. La. L. J.-Louisiana Law Journal, New Orleans, La. Leg. Chron. Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. N. B. R. National Bankruptcy Register, New York, CAMPBELL & Co. - Weekly Notes of Cases, Philadelphia, KAY & BRO. West. Jur. - Western Jurist, Des Moines, Iowa, MILLS & Co. ATTORNEY. See CONTEMPT; CONTRACT 1. BANKRUPTCY. 1. MORTGAGE. - PREFERENCE. -To sustain a mortgage, otherwise invalid as a preference, upon the ground of a promise to give security, made at the time of the loan, the prior promise must contemplate the giving of a specific and definite security-such an agreement as could be enforced by a bill for specific performance. In re Jackson Iron Manufacturing Co., D. C. U. S. E. D. Mich., 15 N. B. R. No. 10. 2. DISCHARGE CANNOT BE IMPEACHED COLLATERALLY. A discharge duly granted under the bankrupt act cannot be impeached in a collateral action on the ground that it was obtained by fraud. Smith v. Ramsey, S. C. C. Ohio, Ib. 3. PRACTICE. WHERE A HUSBAND, BEING INSOLVENT, HAS PURCHASED FURNITURE AND ARTICLES OF LUXURY AND GIVEN THEM TO Vol. IV.] DIGEST OF CASES. [No. 8. HIS WIFE, such gift does not ipso facto constitute an adverse interest in the wife; but the bankrupt court, upon a petition of the assignee for possession of such property, may require the bankrupt to answer the petition, and if it shall then appear that the wife really has any adverse interest, she will be permitted to have her right ascertained in an independent proceeding. In re Pierce & Whaling, C. C. U. S. E. D. Wisc., Ib. 4. THE ASSIGNEE ACQUIRES NO TITLE TO PROPERTY EXEMPT AS A HOMESTEAD by the law of the state, although the bankrupt owned no other property not exempt by the bankrupt law, and the homestead was not ascertained and set apart until after the conveyance to the assignee was executed. In re Bass, C. C. U. S. So. D. Ga., Ib. 5. IBID. - A PRIOR AGREEMENT BY THE BANKRUPT WITH A CREDITOR TO WAIVE HIS RIGHT to such exemption confers no power on the bankrupt court over such property. The creditor claiming under such agreement must proceed in the state courts. Ib. 6. DISCLOSURE BY BANKRUPT. On an application to review the decision of the district court upon the question whether the bankrupt has made a full disclosure in obedience to an order requiring it, the petitioner must satisfy the court that the relation given by the bankrupt is such that a reasonable man would not be able to credit it, but would be satisfied of its substantial untruth. In re Mooney, C. C. U. S. So. D. N. Y., Ib. 7. CHECK. FAILURE TO PRESENT BEFORE BANKRUPTCY. Where one who has purchased a check of one bank upon another fails to present it for payment until the drawer has been adjudged a bankrupt, he is not entitled to priority of payment from the fund in the hands of the assignee, although there were sufficient funds in the hands of the drawee at the time of presentment to pay the check. Such check creates no appropriation of or lien upon the fund in the bank, nor does it give a right of action against the drawee. In re Smith, D. C. U. S. So. D. Ohio., Ib. 8. A CLAIM FOUNDED UPON A JUDGMENT RECOVERED AFTER COMMENCEMENT OF PROCEEDINGS in bankruptcy, without leave of the bankrupt court, cannot be proved. In re Maybin, D. C. U. S. N. D. Miss., Ib. 9. THE LIABILITY OF A GUARDIAN TO HIS WARD is not affected by his discharge in bankruptcy. Ib. 10. PROOF OF CLAIMS MAY BE FILED AFTER AN ORDER DISCHARGING THE ASSIGNEE has been set aside, and the assignee ordered to proceed. Ib. 11. LIMITATIONS. THE FILING OF THE PETITION arrests the running of the statute of limitations. Ib. 12. PRACTICE, ETC. So LONG AS THERE IS FUND TO DISTRIBUTE, all those who had valid, subsisting claims existing at the time of the commencement of the proceedings, upon making proof, will be permitted to participate in it. Ib. 13. WHERE A PAYMENT MADE BY A BANKRUPT DEBTOR HAS BEEN RECOVERED BY HIS ASSIGNEE in bankruptcy, the acceptance of such payment with knowledge of the debtor's insolvency is no defence to an action by the creditor against the surety for the amount thereof, where the creditor has acted in good faith towards the surety and has been reasonably diligent to save him from loss. The surety is liable for the amount of such Vol. IV.] DIGEST OF CASES. [No. 8. payment, although he has in the mean time paid the balance of the indebtedness and taken up the evidence thereof. Watson v. Poague, S. C. Iowa, Ib. 14. PREFERENCE. —SUBSTITUTION OF ONE CLASS OF SECURITY FOR A LESS DESIRABLE ONE, ETC. Where an insolvent, with knowledge of his condition and with intent to give his bank a preference, substitutes small notes, payable immediately, for older and larger ones held by the bank, some of which have already matured, such substitution, as a condition for a further loan, having been demanded by the president of the bank with knowledge of the insolvent's condition, and thereby the bank is enabled more easily to and does obtain judgment upon said notes, and seize and sell the insolvent's property upon executions issued thereon, such seizure and sale will be declared void, and the amount realized at the sale will be ordered paid to the assignee of such insolvent. Loudon v. First National Bank of Wilmington, D. C. U. S. E. D. N. C., Ib. 15. IBID. - KNOWLEDGE OF INSOLVENCY. - Where a bank demands of a depositor, who has theretofore always been prompt in his payments, and who has a note overdue and others about to mature, which he has made no arrangements to meet, that he shall, as a condition of a further loan which he requires to meet a borrowed note, substitute smaller notes, payable immediately, for those then held by the bank, and also for such further loan, in order to enable it more easily to obtain judgment thereon. Held, that the demand was made with knowledge of the applicant's insol vency. Ib. 16. FIDUCIARY CAPACITY. A DEBT DUE BY A FACTOR for the value of goods consigned to him, to be sold on commission and remittance made in thirty days, is not such a debt contracted in a fiduciary capacity as will be excepted from the operation of a discharge. Owsley v. Cobin, C. C. U. S. S. C., 15 N. B. R. No. 11. 17. TERMINATION WITHOUT DISCHARGE. SECTION 5105 CONTINUED. Where assets have come into the hands of the assignee, and he has not rendered his final account within three years from the adjudication, and the bankrupt has not been discharged or refused a discharge, the proceedings are not terminated without a discharge, within the meaning of section 5105 of the Revised Statutes, so as to revive the right of action by a creditor who has proved his claim. Wood v. Hazen, S. C. N. Y., Ib. 18. THE BANKRUPT LAW DOES NOT INTERFERE WITH THE DEBTOR'S POWER TO SELL HIS EXEMPT PROPERTY. The Bankrupt Act of 1867, while adopting the exemption laws of the states as to the measure and amount thereof, does not embrace local restrictions upon the debtor's estate in and dominion over exempted property. Farmer v. Taylor, S. C. Ga., Ib. BILLS AND NOTES. 1. NOTE INDORSED BY FOUR PERSONS. LIABILITY OF INDORSERS. -A promissory note was indorsed, "For the amount of the within note received, I hereby guarantee its prompt payment," &c., which guaranty was signed by the payee and three others. In a suit by a holder for value against the last of the guarantors: Held, that the guaranty necessarily applied to the holder for value, and that the omission in it to indicate to whom it was made was supplied by the advancement of money upon it. Vol. IV.] DIGEST OF CASES. [No. 8. Held further, that the contract of each subscriber was sufficient to make him severally liable, and that therefore the suit was properly brought. Douglass v. Second National Bank, S. C. Pa., W. N. C., July 5, 1877. 2. WHEN ONE DRAWS A NOTE PAYABLE TO HIMSELF, there is no contract until he indorses it to some one, and his indorsement then becomes a direct, not a contingent, liability. He is maker in fact, and is not entitled as indorser to notice of dishonor. Aughinbaugh v. Roberts, S. C. Pa., W. N. C., July 12, 1877. See BANKRUPTCY, 14, 15; CERTIFICATE OF DEPOSIT; CHECK. BROKER. COMMISSIONS. - PROMISE AFTER COMPLETION OF TRANSACTION. — A broker employed by A. to negotiate an exchange of properties between him and B. cannot recover commissions of B., although after the exchange was effected he expressly promised to pay. Lynch v. Fallon, S. C. R. I., Am. Law Reg., June, 1877. BUILDING ASSOCIATION. 1. MARRIED WOMAN. MORTGAGE. A married woman cannot become a member of a building association, nor bind herself to them by bond and mortgage for the repayment of a loan, together with premiums, fines, and dues. If she attempts so to do, all that the building association can recover on the mortgage is the actual amount of money advanced to and used by her in the improvement of her separate estate, with legal interest. W. and wife gave a bond and mortgage to a building association, by which, in consideration of a sum of money loaned for the improvement of the wife's separate estate, they bound themselves to pay a larger sum, the wife assigning to the association as collateral security certain shares of their stock held by her, and agreeing to pay the dues thereon, or in default thereof certain fines to the association. On a sci. fa. upon the mortgage: Held (reversing the court below), that the wife was bound only to the extent of the actual money received by her, together with legal interest. Wolbach v. Lehigh Building Assn., S. Č. Pa., W. N. C., July 5, 1877. 2. IBID. USURY.-The Act of 12 April, 1859 providing that the premium and fines accruing to a building association should not be deemed usurious, does not apply to a loan by such association to a married woman. Ib. CERTIFICATE OF DEPOSIT. LIMITATIONS. NATURE OF CERTIFICATE OF DEPOSIT. - Certificates of deposit, payable at their return to the bank, properly indorsed, are in legal effect promissory notes payable on demand, and the statute of limitations begins to run against them from their date, and no one can be held a bona fide purchaser of them who does not take them within a short time after their issue. It seems that two years and four months is too long. Certificates of deposit are not within Comp. Laws, § 7151, exempting bank bills, notes, and other evidence of debt from the operation of the statute of limitations. Tripp v. Curtemirs, S. C. Mich., Chicago L. N., June 30, 1877. CHECK. See BANKRUPTCY, 7. Vol. IV.] DIGEST OF CASES. No. 8. CONTEMPT. FOR SNEERING, INSULTING, AND DISRESPECTFUL LANGUAGE USED BY AN ATTORNEY to a judge before whom a matter is pending, concerning such matter and the judge's ruling thereon, the attorney may be punished by a fine, as for a contempt. Such language as the following, coming from an attorney to a judge in a matter still pending before him: "The ruling you have made is directly contrary to every principle of law, and everybody knows it, I believe;" and that it is "my desire that no such decision shall stand unreversed in any court I practise in," is insulting and disrespectful. It is immaterial whether this language is used in an oral address in the hearing of others, or in a written communication to the judge. An attorney, as an officer of the court, is under special obligations to be considerate and respectful in his conduct and communications to the court or judge. In re Prior, S. C. Kans., Am. Law Reg., June, 1877. CONTRACT. 1. AGREEMENT BETWEEN ATTORNEYS. HOW FAR BINDING UPON CLIENTS. While suit for divorce was pending, an agreement was signed by counsel, but not by either of the parties, providing that the husband might "retain all . . . . real estate, ... however received:" and then, no defence being interposed, a decree of divorce not referring to the agreement passed by default for the wife. Held, that it would not be presumed the attorneys had authority to make this agreement, and that it did not bind the wife; and further, that she was not estopped from asserting title to property previously conveyed by her directly to her husband by a deed which, for that reason, was void. Brooks v. Kearns, S. C. Ill., Chicago L. N., July 7, 1877. 2. HIRING HORSE ON SUNDAY. — INJURY TO VEHICLE. - A statute being in force and providing that "every person who shall do or exercise any labor or business, or work of his ordinary calling, on the first day of the week, or suffer the same to be done by his children, servant, or apprentices, works of necessity and charity only excepted, shall be fined not exceeding -:" S., a livery-stable keeper, let, in his ordinary business, a horse and carriage to be driven for pleasure to a particular place. The hirer drove them to a different place, and returned them damaged, whereupon S. brought trover against the hirer. Held, that the action would not lie. Mattison J., S. C. R. Ill., Chicago L. N., May 19, 1877. See BROKER; INSANITY. CRIMINAL LAW. 1. MURDER. CHARGE OF COURT. MISAPPREHENSION OF JURY, ETC.- One, who in consequence of a mistaken though reasonable apprehension of bodily harm, caused by the threatening manner of another, shoots him with a pistol, should not be convicted of murder in the first degree, although he fired with an intent to kill, and although the danger he apprehended was not great enough to warrant his taking the life of his assailant. Where, on a homicide trial, the idea intended to be conveyed by the charge of the court below is correct, but owing to the manner in |