Vol. IV.] MORGAN v. BEAUMONT. [No. 8. as the mixture itself was sold, to wit, June and July, 1875. The sale of the bottles of the mixture with the label on it was a publication of the label. At all events the bill does not allege that the title and label were deposited before the publication of the label. Such averment is neces sary. As to the other three labels, they and their titles were registered March 20, 1877, and I understand the bill to state that those labels were used by the plaintiffs before that date, in the sale of the mixture. The motion for an injunction is denied. SUPREME JUDICIAL COURT OF MASSACHUSETTS. WAGERING CONTRACT DEFINED, ETC. MORGAN v. BEAUMONT. A party to an illegal wager, who demands his money from a stakeholder before it is paid over, is not in pari delicto, and can recover his deposit from him; and the fact that the defendant knew of and promoted the wager affords him no protection. In an action by a party to an illegal wager on a horse race, to recover back money deposited with a stakeholder, the defendant alleged in his answer that, in order to have the race to decide the wager, it was necessary to incur expenses for the use of the race-ground and other expenses, for which the defendant was liable; that he paid a portion of the money received from entrance fees to the race-ground to the plaintiff to pay a part of such expenses, and claimed to recoup this money and the money in his hands from the wager. He also filed a declaration in set-off for the money paid to the plaintiff. Held, that neither the answer in recoupment nor the declaration in set-off could be sustained. CONTRACT for money had and received. The answer set up that the money was handed to the defendant to hold as stakeholder, on a wager as to the result of a horse race, and was to be paid to the winner; that both the plaintiff and the defendant knew that the wager was illegal, and aided and abetted in the race. The answer also alleged that, in order to have the race to decide the wager, certain expenses were incurred for the use of the race-ground and for other expenses, for which the defendant was liable; and that on the day of the race, one hundred and fourteen dollars were collected as entrance fees, one fourth of which belonged to the defendant, and that said one fourth was paid to the plaintiff to pay such expenses, but the plaintiff did not pay them; and the defendant claimed to recoup so much of the money in his hands as stakeholder as should indemnify him for such expenses, together with what was required to pay the expenses, from the money in the plaintiff's hands. The defendant also filed a declaration in set-off for the money in the plaintiff's hands. The case was submitted to the superior court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts in substance as follows: The defendant, prior to May 22, 1875, received of the plaintiff the sum of one hundred dollars, as a stakeholder on a wager between the plaintiff and one Woodward, upon the result of a horse race, which actually took place on May 22, 1875. This money was to be paid to the winner Vol. IV.] NOTES OF NEW BOOKS. [No. 8. of the bet, after the race. After the race, while the money was still in the hands of the defendant, the plaintiff, claiming that the race was not fairly had, and that the decision of the judges of the race was not fairly made, forbade the defendant paying the money to Woodward, and requested the defendant to pay the same to him, which the defendant refused to do. Afterwards the money still remaining in the defendant's hands, the plaintiff commenced this action. The defendant well knew of the wager, and knew that the deposit of money was made in aid of illegal trotting and horse racing; and at the time of the racing both the plaintiff and defendant were present, encouraging it. The plaintiff received a certain amount of money as entrance fees at the race, and the expenses mentioned in the defendant's answer were to be paid therefrom, and the balance to four persons. If there should be any balance after the payment of such expenses, and the same, or any part thereof, could be legally set off in this action, an assessor was to be appointed to ascertain the balance of the defendant's share thereof, and the same was to be allowed him. H. Winn, for the defendant. S. T. Field, for the plaintiff, was not called upon. GRAY, C. J. The wager was illegal, the winner had no right to the money, the stakeholder was a mere depositary, and the plaintiff, having demanded the money before it was paid over, was not in pari delicto, and was entitled to recover his deposit from the stakeholder, whether it was still in his hands, or had been paid by him to the winner after notice from the plaintiff not to do so. The fact insisted upon at the argument, that the defendant knew of and promoted the illegal wager, affords him no protection. White v. Franklin Bank, 22 Pick. 181, 189; McKee v. Manice, 11 Cush. 357; Love v. Harvey, 114 Mass. 80; Fisher v. Hildreth, 117 Mass. 558. The agreement as to the collection of entrance fees and the payment of expenses at the horse race, upon which the wager was laid, was wholly distinct from the wager, and cannot therefore be set up by way of recoupment in this action; and, being itself illegal (Gen. Sts. c. 167, § 9), will not sustain the defendant's declaration in set-off. Judgment for the plaintiff affirmed. NOTES OF NEW BOOKS. McArthur's Reports, Vol. 2. JUDGE MCARTHUR'S second volume of Reports of Decisions of the Supreme Court of the District of Columbia has been issued. Messrs. BAKER, VOORHIS & Co., announce the following new works: Burroughs on the Law of Taxation: A Treatise which expounds the Law of Taxation in all its different aspects. Bump's Annotated Patent, Copyright, and Trade-mark Laws: giving Notes of all the Judicial Decisions under each Section of the Law to the latest date. This work will be found to embrace a complete Digest of the Decisions under the Patent, Copyright, and Trade-mark Laws. By O. F. BUMP, Esq. The New York Annotated Code: The New Code of Civil Procedure, with full Notes and References. The publishers say: We shall aim, with the assistance of the best legal ability and experience, to make our edition of the New Annotated Code the fullest and the best; and we believe it will be as indispensable to Courts and Lawyers as our previous editions of the old Annotated Code were for over a quarter of a century. THE AMERICAN LAW TIMES. NEW SERIES. - SEPTEMBER, 1877.- VOL. IV., No. 9. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI ODICALS. ABBREVIATIONS. Albany L. J. Albany Law Journal, Albany, N. Y., WEED, PARSONS & Co. Leg. Int.-Legal Intelligencer, Philadelphia, Pa., J. M. POWER WALLACE. - N. B. R.-National Bankruptcy Register, New York, CAMPBELL & Co. ADMIRALTY. 1. SEAMEN'S WAGES. THE REMEDY GIVEN TO SEAMEN BY SECS. 4546 AND 4547 of the Rev. Stat., as preliminary to the filing of a libel for wages, is not exclusive, but cumulative, merely. A libel for seamen's wages may be filed, and process for the arrest of a vessel obtained, without resort to the preliminary proceedings authorized by sec. 4546, 4547. Those sections examined and construed in connection with sec. 6 of the Act of 1790 (vol. 1, Stat. at Large, ch. 29, p. 131). Gibney v. The Steamer Waverly, D. C. U. S. E. D. Wisc., Chicago L. N., July 28, 1877. 2. APPEAL FROM DISTRICT TO CIRCUIT COURT. WITHIN WHAT TIME MAY BE TAKEN. - The provisions of sec. 635 Revised Statutes, relative to appeals within one year from the time of entering the judgment, order, or decree appealed from, does not apply to appeals from decrees in admiralty. Appeals in admiralty should be taken to the term of the circuit court next succeeding the term of the district court at which the decree 9 VOL. IV. Vol. IV.] DIGEST OF CASES. [No. 9. was rendered. Drake v. Schooner Oriental, C. C. U. S. No. D. Ohio, Chicago L. N., June 16, 1877. See INSURANCE, 7. 1. COMPOSITION. BANKRUPTCY. ATTACHMENT IN STATE COURT. — An attachment in a state court, levied within four months of the commencement of involuntary proceedings, is not dissolved by a composition under the bankrupt law, without an adjudication and assignment. In re Shields, D. C. Ù. S. Iowa, 15 N. B. R. No. 12. 2. WHERE THE HOMESTEAD OF THE BANKRUPT HAS BEEN SOLD, pursuant to an order of the bankruptcy court, to satisfy a debt secured upon it by a deed of trust or mortgage, such court has jurisdiction to order the bankrupt to deliver up possession of the property to the purchaser. An agreement to extend the time of payment of a debt secured upon real estate by a mortgage or deed of trust need not be in writing. In re Betts, C. C. U. S. E. D. Mo., Ib. 3. CLAIM OF CREDITOR OMITTED FROM SCHEDULE. Where notice has been duly given by publication, a discharge will bar the claim of a creditor whose name was omitted from the schedule, or was not furnished to the marshal, where such omission was not fraudulent. Heard v. Arnold, S. C. Ga., Ib. 4. A LIEN OBTAINED UNDER A JUDGMENT is not affected by proceedings in bankruptcy commenced thereafter. The fact that an appeal has been taken from the judgment does not alter the case, where no bonds have been executed by the appellant, as required by law. In re Gold Mountain Mining Co., D. C. Ü. S. Cal., Ib. 5. HUSBAND AND WIFE. WHERE A WIFE EXECUTES A MORTGAGE ON HER SEPARATE PROPERTY for the payment of the debts of her husband, who thereby receives a greater sum than he would be entitled to by the curtesy in the residue of the amount realized on a sale of the property under the mortgage after payment of the mortgage debt, the heirs or representatives of the deceased wife are entitled to the fund in preference to the assignees of the husband. Shippen's App., S. C. Pa., Ib. 6. COMPOSITION. - ONE MEMBER OF A FIRM WHICH HAS BEEN ADJUDICATED BANKRUPT may submit a proposition of composition to the creditors of the firm and his individual creditors. Pool v. McDonald, C. C. U. S. N. D. Ohio, Ib. ALLEGATIONS TOUCHING SCIENTER. 7. PLEADING AND PRACTICE. In a suit in equity brought by the assignee to set aside a sale as fraudulent under sections 5128 and 5129, the bill must allege that the defendant knew that such sale was made in fraud of the provisions of the act, and such knowledge must be proved in the evidence taken in support of the bill. Crump v. Chapman, D. C. U. S. E. D. Va., Ib. 8. WAIVER OF DISCHARGE BY DEBTOR. - A debtor who has been discharged in bankruptcy may waive the discharge and allow a judgment to be recovered against him for the original debt. Where the debtor has waived his discharge as a defence, it cannot be raised by one who is in possession of property of the debtor, transferred with intent to defraud Vol. IV.] DIGEST OF CASES. [No. 9. creditors, in an action to set aside such transfer. Dewey v. Moyer, S. C. N. Y., 15 N. B. R. No. 16. 9. THE ASSIGNEE IS BUT A TRUSTEE FOR THE CREDITORS; while he holds the property a creditor may bring an action to set aside a transfer by the bankrupt as fraudulent, if he makes the assignee a party; if not, the defendant must set this up as a defect of parties. Ib. 10. UPON THE DISCHARGE OF THE ASSIGNEE the property remaining in his hands reverts to the debtor without reassignment. Ib. 11. PARTNERSHIP.― SALE OF INTERESTS OF PARTNERS. PARTNERSHIP PROPERTY. The sale on execution of either or both the partners' interest in the joint assets gives to the purchaser only an interest in such assets as may remain after the payment of the partnership debts. The fact that the interests of both partners were sold on separate executions to the same purchaser can have no effect to enlarge the interest of either partner acquired by such purchaser on the separate sale of such interest, nor to discharge the assets from liability for the partnership debts. Premises used by partners for the purpose of carrying on their business prima facie form part of the partnership property; but this presumption may rebutted. Osborn v. McBride, D. C. U. Š. Cal., Ib. be 12. PREFERENCE. THE EXCHANGE OF A MORTGAGE FOR NOTES, in pursuance of a parol contract that such mortgage should be given when the creditor asked for it, is not a preference under the provisions of the bankrupt act, although made within four months before the commencement of bankruptcy proceedings. Hewitt v. Northup, S. C. N. Y., Ib. 13. JURISDICTION OF STATE COURT. HABEAS CORPUS, ETC. Where a decree operating as a lien upon defendant's estate has been obtained in a state court, and the defendant afterwards goes into bankruptcy, proceedings under a state statute will not lie before a state officer against defendant for discovery of his estate similar to those given by section 5086 of the Revised Statutes of the United States; they must be taken in the bankruptcy court. Where such proceedings are taken before a state officer, and the bankrupt is imprisoned by him, he will be released on habeas corpus by a U. S. court, where the decree of the state court is not for a fiduciary debt of the bankrupt. In re Taylor, D. C. U. S. E. D. Va., Ib. 14. SECTION 5117 DOES NOT EMBRACE THE SURETY IN A GUARDIAN'S BOND among those not released by a discharge in bankruptcy. Ib. 15. UNDER THE LAWS OF VERMONT AN ATTACHMENT OF A DEBT BY TRUSTEE PROCESS creates a lien on the funds in the hands of the trustee after service upon him, although no notice is given to the principal debtor. Such lien is a lien by attachment by mesne process and will be saved when made the prescribed length of time before the commencement of the proceedings in bankruptcy. In re Peck, S. C. U. S. Vt., Ib. 16. THE FACT THAT PERSONS HAVE BEEN ADJUDICATED BANKRUPTS AS MEMBERS OF ONE FIRM is no bar to nor does it defeat a petition against them as partners with others in another firm. As to whether the individual property of such persons should go to pay the debts of the former or of the latter firm, quære. In re Jewett & Co., C. C. U. S. W. D. Wisc., Ib. WHAT CONSTITUTES BILLS AND NOTES. |