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zance issued in 1874 by K., the administrator of the obligee, B., pleaded payment, and testified that he had entered into the instrument sued on in 1839, and in 1840 paid the full amount of the debt to the clerk of the court in which the recognizance was given. He further testified that from 1840 to the beginning of the action he had frequently met the obligee, who had never mentioned the debt. There was no contradictory evidence, and no evidence of B.'s insolvency at any time. Held, that the original presumption of payment from lapse of time was not rebutted through B.'s admission of payment to an unauthorized person, but that, under the evidence, it was to be presumed that the money paid to the clerk had been received by the obligee. Beale's Ex. v. Kirk, S. C. Pa., W. N. C., October 11, 1877.

PRACTICE. GENERAL AND SPECIFIC INSTRUCTIONS. – Where the court in its general charge to the jury correctly states the general principles applicable to cases of the kind on trial, but follows it by an erroneous specific instruction on a controlling point, as to the legal effect of the case made by the evidence before the jury, which, if followed, misleads the jury, such erroneous specific charge is not cured by the general charge. Krouse v. Pittsburg, Cin., f St. L. R. R. Co., S. Č. Ohio, Cent. L. J., October 19, 1877.

See NATIONAL BANK, 1, 2; NEGLIGENCE.

RECEIVER.
See INJUNCTION.

REMOVAL OF CAUSES. POWER OF STATE COURT IN VACATION. – A cause was referred to a referee under the statute of Iowa for trial, in vacation. A petition, affidavit and bond were filed in the office of the clerk of the state court, under the Rev. Stats. sec. 539, subdivision 3, for the removal of the cause to the federal court. Held, not to have the effect to divest the jurisdiction of the state court, or of the referee to proceed to a trial pursuant to the order of reference. Under section 639 of the Revised Statutes, a removal of a cause cannot be effected in vacation, without any action of the state court. Scott v. Otis, C. C. U. S. Iowa, Chicago L. N., October 27, 1877.

TORT.
See JUDGMENT.

VOLUNTARY PAYMENT. COERCION IN FACT AND BY LAW DEFINED. — Money involuntarily paid on an illegal assessment may be recovered back. If the assessment is regular on its face, so that its collection can be enforced by seizure or sale, and evidence aliunde is necessary to show its invalidity, money paid thereon is paid involuntarily or by coercion by law. Peyser v. The Mayor, Ct. App. N. Y., Albany L. J., October 29, 1877.

TABLE OF CASES AND INDEX.

CASES REPORTED.

PAGE

PAGE Beaumoril, Morgan v. . . . . . 127 Orr, Philadelphia Hydraulic Iron Works v. 173 Blake v. The People . . . . . .29 Parker, Pierce v. . . . . . . . . . 143 Byrd v. Nunn . . ... .. . . .175 People, The, Blake v. .. ... 29 Harrington v. Libby, .. .: 47 Philadelphia Hydraulic Water Works v. Orr 173 Libby, Harrington v. · · · · · · · ·

. . 47 Pierce v. Parker . . . . . . . . . 143 Marsh v. Warren ...... . . 126 State v. Neagle . . . . . . . . . . 15 Morgan v. Beaumoril . . . . . . . 127 Warren, Marsh v. . . . . . . . . . 126 Neagle, The State v. . . . . .

.. 15 Watkins v. Watkins . . . . . . . . 159 Nunn, Byrd v. . . . . . . . .. 175

INDEX.

NOTE. In place of the Annual Digest of the twelve numbers of TAR AMERICAN LAW TIMES published during the year, which has usually been prepared for the bound volume of the REPORTS, tbe following Index to t for 1877 is given, in the belief that it will practically serve the same purpose. In binding the REPORTS for 1877, the TIMEs with this Index will be included at the back of the volume, in place of the Annual Digest.

...20

...............20

.............

3 9

..............39

ADMINISTRATOR. Place of appointment. Trusts, etc........
ADMIRALTY. Revised Statutes, sections 1956 and 4337...........

Who are mariners. ............................................
Stoppage of voyage. Rights of seamen........................
Rule - Freight is the mother of wages.”..............
Mortgage where local law gives lien upon the vessel for supplies...

..........9 Domestic vessel. Material-man has no lien for repairs.......

..............20 Foreign or domestic vessel. Residence. Enrolment. ....... Contract to build ship. Ownership.............................. Maritime contracts defined..................................................... Possession defined................................. Jurisdiction. Marine toil...... Seamen's wages. Remedy given to seamen by section 4546 and 4547.....

Appeal from district to circuit court. Within what time may be taken...... ALIMONY. Imprisonment for failure to comply with decree for payment. ........ ASSIGNMENT.' Equitable assignment. Power of attorney. Death of attorney...

Assignment does not carry with it right of action in tort............. ATTACHMENT. The United States, when a plaintiff in civil action....... ........145 ATTORNEY. Employment to examine title. Foreclosure of mortgage. Payment........87 ATTORNEY AND CLIENT. Compensation of attorney......

130

................52

.....................143

............

...................................

.............................

BANKRUPTCY. Number and value of creditors. Attaching creditors.................

Composition. Only one meeting of creditors required...
Who may be heard..........
Passage of resolution. Debtor...
Hearing. What court must decide...

..................................
Signature to resolution. Meeting to vary original proposition. When must be held....23
Creditor's name on list. Evidence.....
Attorney appearing for creditor. Dispute. Procedure.....
Attorney. Evidence of authority to represent creditor.........
Effect of omission of assets in statement.......
Diligence required of creditors...........

f creditors.....................................................24 Mechanic's lien. Proceedings in bankruptcy to preserve.............................40 Separate business and accounts........ Attachment. Bill of sale. Preference. .... If there is an omission to enter an order refusing a discharge........ Second petition......... Goods on commission. Fiduciary debt............................................41 The cost of an attachment....

.....40

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10..................

4

..............

.71

If the bankrupt being trustee, deposited the trust funds in bank....
Marshal's fees. Commissions for disbursements................
The meaning of the word "tradesman ”.......

...41
Composition. Secured creditor. Levy of execution on personal property....
If an assignment is fraudulent..........

...52
If there are several judgments......................
A creditor who is precluded from assailing an assignment as fraudulent......
A creditor who concurs in fraud with full knowledge of facts..........
A party who takes a colorable transfer of a claim....
A creditor who has assented to an assignment......
A judgment against a partner.....

.53
A creditor who purchases property from the trustee....
A party who purchases a judgment......
The lien acquired by filing a creditor's bill......
Receiver. Creditor's action. Lien......
The limitation of section 2057........
If the bankrupt gave a deed with warranty of title when he had merely a bond..
The register may designate the newspapers.......
An affidavit of defence which sets up 'adjudication ....
Suspension of payment by banks. Special deposit, &c. ........
The partners of bankrupt bound by discharge.....
A joint creditor may prove against separate estate of bankrupt...............
Bankruptcy of one partner. Dissolution......

The claim of an attorney for services.....
When defendant in suit by assignee under state law cannot plead bankrupt act.....
Transfer of property by ins
An action by assignee in bankruptcy to recover value of goods.........
Damages for detention of or injury to property by creditor....
Reins

nvoluntary proceedings without notice, etc..............
Chattel mortgage. Possession by mortgagee before commencement of proceedings
Proof by assignee, to recover against party who has obtained a preference.........
When trader is insolvent......
A confession of judgment by an insolvent debtor. .......
Reasonable cause to believe debtor to be insolvent.............
Disposition of property by an insolvent....
Corporation. Bank. "Insolvency. Deposits. Check. The Portsmouth Savings Fund
Society case.....

..71
Dividend. Power of register..........
Computing number of creditors..................................................
Oral testimony to prove assignment....
Creditor may prosecute action against surety..................................
Agreement between creditors who have received preferences ........
Witness fees. Evidence. Clerk's certificate.....................................

72
Promise to pay debt discharged by proceedings........................
The federal courts have exclusive jurisdiction in actions brought by assignee............
Where sale by insolvent debtor has been avoided......
Where property which has been transferred by debtor to his creditor by sale valid under

state law......................
In North Carolina statute of limitations begins to run.....
Claim by sheriff for fees and expenses in attachment..............................
The limitation within which preference may be set aside..................
Party who receives preference with knowledge.......
Mortgage upon real estate executed immediately before proceedings.......
Agreement with guardian to execute mortgage....
Agreement by guardian to discharge one mortgage and take new one......
Omission by creditor in making proof of claim...
Bankrupt who makes wilful and fraudulent omission.......
Where claim originated in contract although fraudulently induced.....
Joint estate of partnership first liable for partnership debts..........
Debt of firm which has advanced money to individual member.....
Where assignment for benefit of creditors is set aside. Priority...
Title of assignee where void transfers have been made...........
Fund in receiver's hands. Action to foreclose mortgage..........
Attachment. Commencement of proceedings.......
Bill of sale. Where one who afterwards becomes bankrupt....
Assignee has stronger right than bankrupt....................
Jurisdiction. When state court not ousted. ......

,102
Pledges of bankrupt redeeded by assignee.........................
Savings bank. Law of New Hampshire...........................

102
Judgment lien. Where judgment creditor of bankrupt proves his debt..
Injunction. When execution creditors of bankrupt petition..........
Pleadings, &c. Under section 13 of Revised Statutes.............................

71

71

....72

72

....72

.72

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....103

........104

..............117

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130

Evidence. Under general money counts in such declaration.....
Discharge in bankruptcy granted to one member of partnership, after he alone had been

adjudged bankrupt...........................................................103
Proof of debt. Where warden of state prison receives moneys from state...

..........103
Practice in involuntary cases. Petition by corporation. Verification. Affidavits, &c. .103
Debt due from factor...........................................

.....104
Creditor cannot compel partners, willing or unwilling, to petition........

....104
Fees of registers are governed by General Order No. 30....
Involuntary proceedings against separate partner...................................104
Mortgage. Preference.....................................................
Discharge cannot be impeached collaterally......
Practice. Where husband, being insolvent, has purchased furniture and articles of lux

ury and given them to his wife........
The assignee acquires no title to property exempt as homestead.....

...........118
Disclos

sclosure by bankrupt.........................................................118
Check. Failure to present before bankruptcy.......

.....118
Claim founded upon judgment recovered after commencement of proceedings....... .....118
Liability of guardian to his ward.......

.....118
Proof of claims may be filed after order discharging assignee. ......
Limitations. Filing of petition ........

...........118
Practice, &c. So long as there is fund to distribute....

....118
Where payment made by bankrupt debtor has been recovered by assignee...... .....118
Preference. Substitution of one class of security for less desirable one, &c....... 119
Fiduciary capacity. Debt due by factor.........

119
Termination without discharge. Section 5105 continued.

119
Bankrupt law does not interfere with debtor's power to sell exempt property........ 119
Composition. Attachment in state court........

130
Where the homestead of bankrupt has been sold....

130
Claim of creditor omitted from schedule.....

130
Lien obtained under a judgment.............

130
Husband and wife. Where a wife executes mortgage on her separate property....... 130
Composition. One member of firm which has been adjudicated bankrupt.......... 130
Pleading and practice. Allegations touching scienter...

130
Waiver of discharge by debtor.........
Assignee is but trustee for creditors...........

...131
Partnership. Sale of interests of partners. Partnership property........

...131
Preference. Exchange of mortgage for notes....

....131
Jurisdiction of state court. Habeas corpus, &c.........

...131
Section 5117 does not embrace surety in guardian's bond........

...131
Under laws of Vermont attachment of debt by trustee process....

...131
The fact that persons have been adjudicated bankrupts as members of one firm.....
Interest. Where assignee has sold real estate discharged of liens...

145
Attorney's conmissions and costs..........

145
Jurisdiction. When bankrupt court has first taken......

............146
Attachment. Assignment to assignee ..........
Payment by mistake to sheriff.........
....................................

146
Set off. Voluntary assignee.....................
Procuring entry of judgment............
Jurisdiction. Under act of June, 1874........
Discharge in bankruptcy cannot be set up as general defence.

..146
Conveyance made in fraud of creditors voidable.....

.146
Cross-bill setting up defendant's discharge...........

...146
Conveyance by bankrupt within four months. When void

146
Guardian's bond. Discharge...........

.147
Where goods are fraudulently shipped beyond control of vendor. Discharge

.147
Bad debts bought to be used as set-off....

147
Knowledge that merchant has suspended.....

147
Composition. Set-off. Diligence..........

147
Judgment creditor. Priority. Attachment........

147
Subrogation. Partnership of two partners in equal in terest...

147
Creation of debt by fraud. Section 5117 construed.......

148
Assent of creditors and amount of assets...............

148
Creditor having lien upon bankrupt's estate may decline to appear........

162
Objection cannot be made in collateral proceeding. Attorney....

.........162
Omission from schedule. If bankrupt honestly regards judgment held by him as

worthless ......
Books of account. Merchant or trader who, prior to his becoming such, has kept books.. 162
Keeping proper books of account, within the meaning of the bankrupt act........ 162
Assignment of equitable estate, &c. ......

162
Rights of sureties. Where the principal debt is insolvent........

162
Interest in lands acquired at administrator's sale.......

162
Compensation of assignee. Where insolvent who has made general assignment....... 163

...131

...................145

146

.146
..146
.146

....162

..........163

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.... 89

....119
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....148
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....178
...178

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Action against assignee. Where marshal has demanded and received from sheriff

property..............
Injunction to prevent assignee interfering with assets...

............163
Practice. Where notes given upon a composition settlement fall due pending action
upon petition to review.......

.............163
Assignment. Delivery of schedule not necessary ...................................163
Possession of property. Delay of more than three months...........................163

If on dissolution of copartnership, retiring partner takes out portion of assets.........
BANKS AND BANKING. Presumptions as to knowledge of director of bank.........
Bank cannot buy its own stock....................

.....177
Liability of director..............

178
BILL OF LADING. Demurrage. Receiving cargo without objection................... 72
BILLS AND NOTES. Addition of name of another maker without consent of original

maker.........
Alteration of note by filing blanks. Right of bonâ fide holder........................
Fraud or illegality in inception of negotiable promissory note transferred before maturity
Lex loci contractus. Where bill is payable. The rate of interest and damages..........
Such a question arising in courts of United States. ........
An agreement to forbear suit........
Partial failure of consideration no bar to action.......
Parol evidence admissible to show consideration.........
Condition that note if paid when due may be paid in currency................
Note indorsed by a number. Liability.........
Notice to maker in fact......................
Negotiability defined..................
To whom may be given, &c. ................
Collection fee clause........
Judgment note. Waiver of exemption. Ignorance of maker. Negligence...
“Patent right notes.” Invalidity of state enactment controlling.............
Validity of indorsement of note by third party before maturity.

....179
BOND. Curator's bond. Contemporaneous parol agreement. Public policy...

... 55
Action on official bond. Presumptions. Limitations.....

....149
BROKER. Commissions. Promise after completion of transaction ......

...120
Right of broker to commissions.....
BUILDING ASSOCIATION. Usury. Pledge of shares...
Loan by..................

. 120
Married woman. Mortgage.............................
CERTIFICATE OF DEPOSIT. Nature of. Limitations..
CHATTEL MORTGAGE. Seizure where identity is lost....

Chattels as trust fund....................................

Insurance of mortgaged chattels.....
CITIZENSHIP. Alienage. Domicil. Citizenship of child.....
COMITY. How far construction of court will be affected by.......
COMMON CARRIER. Negligence. Limiting common law liability...........42, 56,

Liability for goods shipped beyond its own line.........
Loss by flood. Bill of lading....................

.90
Liability for injury of one passenger at hands of fellow passenger. Damages........
Express company. Liability...............

.....................132

132
CONFLICT OF LAWS. Covenant of seizin........

...........90

.90
Public policy. Order for goods illicit in Michigan by citizens of state where goods not

illicit, ler loci.......
CONSTITUTIONAL LAW. Effect of recognition of validity of act.

................133

ion of validity of act............
Journal of legislature, &c. ............
Taxation of property of corporation.......

...... 25
Of the power of courts to examine into how act was passed.........
Condemnation of land for manufacturing purposes...
Assessing cost of paving. Frontage method......
Statute forbidding contingent fee..........
Meaning of word “day".....
Corporation. Taxation. Charter. Passenger railway..

Condemnation of land for railroad purposes.....
CONTEMPT. Disrespectful language by attorney...
CONTRACT. “Entire" contract defined.......

Agreement between R. R. and Telegraph Co. Public Policy.....
When severable...........
Notice to bailee by stranger.........
Agreement between attorneys. How far binding on clients...
Hiring horse on Sunday............

Contract in contravention of statute, &c.......
COPYRIGHT. Labels deposited under Act of June, 1874. Publication before copyright.. 126
COVENANT. Covenant not to build does not run in favor of adjoining lot.............133

....120

.... 25

25

90, 132

104

............9

purposes.................................

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