Vol. IV.] DIGEST OF CASES. [No. 4. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI ODICALS. ABBREVIATIONS. Albany Law Journal, Albany, N. Y., WEED, PARSONS & Co. Albany L. J. - Leg. Chron. Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. Leg. Int.-Legal Intelligencer, Philadelphia, Pa., J. M. POWER WALLACE. W. N. C. - Western Jurist, Des Moines, Iowa, MILLS & Co. ASSIGNMENT. 1. EQUITABLE ASSIGNMENT. POWER OF ATTORNEY. - DEATH OF ATTORNEY. A verbal agreement by a debtor to transfer stock to his creditor as security for the debt, followed by the execution of an irrevocable power of attorney to an agent of the creditor to transfer the stock, amounts to an equitable assignment of the stock to the creditor: and the power of attorney, being thus coupled with an interest, is not revoked by the death of the attorney before having executed it. Lightner's Appeal, S. C. Pa., W. N. C., February 1, 1877. 2. ASSIGNMENT DOES NOT, CARRY WITH IT RIGHT OF ACTION IN TORT. Although the assignment of a debt carries with it all remedies. and securities incident thereto, it does not transfer a personal right of action in tort, vested in the assignor, growing out of the same subject matter. Morris v. McCulloch, S. C. Pa., Ib., February 22, 1877. ATTORNEY. See ASSIGNMENT, 1. BANKRUPTCY. 1. IF AN ASSIGNMENT IS FRAUDULENT, a creditor may obtain a lien upon the real estate by getting a judgment against the debtor, and upon the personal property by the levy of an execution thereon; and such liens will be valid as against the assignee in bankruptcy, if they are obtained. before the commencement of the proceedings. Johnson v. Rogers, D. C. U. S. N. D. N. Y., 15 B. R. No. 1. 2. IF THERE ARE SEVERAL JUDGMENTS, the priority of the lien on Vol. IV.] DIGEST OF CASES. [No. 4. the real estate depends on the order in which the judgments are obtained, and the priority of the lien on the personal property is determined by the order of the levy. Ib. 3. A CREDITOR WHO IS PRECLUDED FROM ASSAILING AN ASSIGNMENT AS FRAUDULENT cannot obtain a lien on the property which will be valid as against the assignee in bankruptcy. 1b. 4. A CREDITOR WHO, WITH FULL KNOWLEDGE OF THE FACTS that constitute the fraud, concurs with other creditors in assenting to its execution, cannot impeach it as fraudulent. Ib. 5. A PARTY WHO TAKES A COLORABLE TRANSFER OF A CLAIM from a trustee who has accepted the trust with full knowledge of all the facts that constitute the fraud, cannot impeach the assignment. Ib. 6. .A CREDITOR WHO HAS ASSENTED TO AN ASSIGNMENT may purchase a claim from another creditor who has not done so, and as to that claim may impeach the assignment. Ib. 7. A CREDITOR WHO PURCHASES PROPERTY FROM THE TRUSTEE in ignorance of the fraud, is not precluded from impeaching the assignment. lb. 8. A JUDGMENT AGAINST A PARTNER individually is a lien upon real estate held by the firm, subject, however, to the payment of the firm debts and the equities of his copartners. 1b. 9. A PARTY WHO PURCHASES A JUDGMENT has no higher right to impeach a fraudulent assignment than his assignor had. 1b. 10. THE LIEN ACQUIRED BY FILING A CREDITOR'S BILL extends only to property which cannot be reached on execution. Ib. 11. UNTIL A RECEIVER IS APPOINTED in the creditor's action, there is no lien, as against chattels that are subject to levy and sale on execution, which can be upheld as against the assignee. Ib. 12. THE LIMITATION OF SECTION 2057 does not apply to a proceeding to review a decree in equity. Wilt v. Stickney, D. C. U. S. N. D. Ohio, Ib. 13. IF THE BANKRUPT GAVE A DEED WITH WARRANTY OF TITLE WHEN HE HAD MERELY A BOND for a title, his discharge will release him from his liability on the warranty. The mere levy of a fi. fa. is not sufficient evidence of a breach of a warranty of title. Williams v. Harkins, S. C. Ga., Ib. 14. THE REGISTER MAY DESIGNATE THE NEWSPAPERS in which notice of a rule by the assignee shall be published. Burke v. McKee, D. C. U. S. S. D. N. Y., Ib. 15. AN AFFIDAVIT OF DEFENCE WHICH SETS UP AN ADJUDICATION OF BANKRUPTCY is sufficient to prevent the entry of a judgment, and entitle the defendant to a stay of the action. Frostman v. Hicks, Ct. C. P. Pa., Ib. SPECIAL DEPOSIT, ETC. 16. SUSPENSION OF PAYMENT BY BANK.· -When a bank which had suspended payments advertised that it would, on a certain day, "resume business by receiving special separate deposits in trust to new account, pledging the bank to use these deposits only in payment of checks against that new account, and as fast as the bank can collect and realize from the loans and securities, to pay pro rata instalments on its present indebtedness," &c., &c., and received new deposits, Vol. IV.] DIGEST OF CASES. [No. 4. and soon after finally failed, and was adjudicated in involuntary bankruptcy: Held (on petition of a new depositor to be paid in full as a preferred creditor), that the new deposits were not special deposits; that no lien was secured when they were paid in over the counter of the bank; that no preference was secured by the advertisement; and that the new depositors were general creditors to be paid pro rata. In re Mut. Building Fund Soc., &c., D. C. U. S. E. D. Va., İb. 17. THE PARTNERS OF THE BANKRUPT ARE BOUND BY THE DISCHARGE as well as the joint creditors. Wilkins v. Davis, D. C. U. S. Mass., Ib. 18. A JOINT CREDITOR MAY PROVE AGAINST THE SEPARATE ESTATE OF THE BANKRUPT, and may vote for assignee, examine the debtor, and object to his discharge. He cannot compete with the separate creditors in the distribution of separate assets, but will receive dividends from any joint assets which the assignee may obtain, and from any surplus of the separate assets after the separate debts are paid. Ib. 19. BANKRUPTCY OF ONE PARTNER. DISSOLUTION. The bankruptcy of one partner, ipso facto, dissolves the partnership, and the assignee is tenant in common with the solvent partner in the joint stock. A court of equity may give either the solvent partners or the assignee the settlement of the joint affairs. It is not necessary that the firm should be declared bankrupt, in order to vest the bankrupt's share of the joint. estate in his assignee. The assignee may recover at law or in equity, as the nature of the case requires, from a solvent partner, what is due from him by the articles of copartnership. Ib. 20. THE CLAIM OF AN ATTORNEY FOR SERVICES rendered in defending a suit prior to the commencement of the proceedings in bankruptcy is not entitled to priority. The claim of an attorney for services rendered in preparing the petition and schedules and filing the same is not entitled to priority. In re Handell, D. C. U. S. W. D. Texas, Ib. No. 2. 21. WHEN DEFENDANT IN SUIT BY ASSIGNEE UNDER STATE LAW CANNOT PLEAD BANKRUPT ACT. Whether by an assignment by bank directors under the general banking law of Pennsylvania is invalid, because in contravention of the United States bankrupt law, is a question which can be raised only by the creditors of the bank. A debtor of the bank cannot, in a suit against him by the assignees, set up as a defence that the assignment was invalid under the bankrupt law. Shryock v. Bashore, S. C. Pa., W. N. C., February 22, 1877. 22. TRANSFER OF PROPERTY BY INSOLVENT. - A transfer of property by an insolvent debtor, contrary to § 5128 of the R. S., is contingently valid, and the receipt of the same by the creditor is not tortious, and does not itself amount to a conversion of the property. Schuman v. Fleckenstein, D. C. U. S. Oregon, Chicago L. N., February 17, 1877. 23. AN ACTION BY AN ASSIGNEE IN BANKRUPTCY TO RECOVER THE VALUE OF GOODS transferred by the bankrupt, contrary to § 5128 of the R. S., is in substance and effect an action of trover, and the complaint must either allege an actual conversion of the property to the use of the defendant, or a demand and refusal to deliver the same to the assignee. lb. 24. DAMAGES FOR DETENTION OF, OR INJURY TO, PROPERTY BY CRED ITOR. [No. 4. In such action the assignee may recover damages for the detention of the property, including profits made out of it, or injuries received by it while in possession of the creditor. 16. BILLS AND NOTES. 1. LEX LOCI CONTRACTUS. WHERE BILL IS PAYABLE. THE RATE OF INTEREST AND DAMAGES which the drawer of a bill is to pay, ex more, is governed by the law of the place where the bill is drawn. If a bill is made and dated at the business domicil of the drawer, his understanding is to pay it there, in case of dishonor, though it may have been negotiated elsewhere. Damages in a case of this sort, are a part of the law of performance, and not of the execution and validity of the contract nor of the remedy. Ex parte Heidelbock, D. C. U. S. Mass., Chicago L. N., February 24, 1877. 2. SUCH A QUESTION, ARISING IN THE COURTS OF THE UNITED STATES, is one of general jurisprudence and not of local law. Ib. BOND. 1. CURATOR'S BOND. CONDITIONAL SIGNING. A curator's bond, perfect on its face, cannot be avoided at the instance of a surety, upon the ground that he signed it under a conditional agreement, made with his principal, that the latter was not to deliver it until the signature of a certain person was also obtained, although in violation of such agreement the bond was delivered. State v. Potter, S. C. Mo., Cent. L. J., January 26, 1877. 2. CONTEMPORANEOUS PAROL AGREEMENT. ESTOPPEL. Testimony concerning a contemporaneous parol agreement is always objectionable, but in instances like the present, doubly obnoxious, where the agree ment is kept sedulously concealed from the other contracting party. In such cases, the doctrine of estoppel in pais is fully applicable, and effectually precludes the surety from asserting anything to the contrary of that denoted by the face of the bond. 1b. 3. PUBLIC POLICY. PATRIMONY OF ORPHANS. Public policy forbids that a surety, in cases of this sort, should defend and defeat an action brought in the bond; because it concerns the state that the patrimony of orphans, confided to the protection of her courts, should not suffer loss. 1b. BROKERAGE. COMMISSIONS. WHEN EARNED. The rule that "no brokerage is due until the consideration has passed to the vendor," is not supported by authority. When the broker has effected a bargain and sale by a contract which is mutually binding on both vendor and vendee, he is entitled to his commission, whether the sale is finally executed or not. Love v. Miller, S. C. Ind., Cent. L. J., February 16, 1877. CAPITAL. See TESTAMENTARY LAW. Vol. IV.] DIGEST OF CASES. [No. 4. COMITY. FOREIGN LAW. COMITY WILL IN NO CASE REQUIRE A STATE COURT TO FOLLOW OTHER THAN WHAT IT REGARDS AS THE clearly established law of the foreign jurisdiction with reference to the contract to be affected by it. Where the contract is affected by the laws of two foreign jurisdictions, the court will adopt that construction which it believes to be authorized by law without regard to where the contract was made. Miss. Valley, &c. R. R. Co. v. U. S. Express Co., S. C. Ill., Cent. L. J., January 12, 1877. COMMISSION. See BROKERAGE. COMMON CARRIER. LIABILITY FOR GOODS SHIPPED BEYOND ITS OWN LINE. - LIMITING LIABILITY BY NOTICE.-A common carrier is not bound to assume responsibility for the transportation of goods beyond the terminal points reached by its own conveyance. It is optional whether the carrier will take upon itself the enlarged responsibility of making the connecting carrier its agent for the transportation of goods, rather than the agent of the shipper. The acceptance of goods delivered for carriage, marked to a point beyond the terminus of the carrier's lines, will be construed prima facie as a contract for through transportation. But although the goods may be so marked, the carrier may by express contract limit its obligations so as to bind itself to carry safely over its own lines, or only to points reached by its own. carriages, and for safe storage and delivery to the next carrier in the route beyond. A clause in a receipt given to the owner for the goods, restricting the carrier's obligation in this respect, if understandingly assented to by the shipper, will as effectually bind him as though he had signed it. Erie R. W. Co. v. Wilcox, S. Č. Ill. (two judges dissenting), Chicago L. N., February 17, 1877. CONSTITUTIONAL LAW. CONDEMNATION OF LAND FOR MANUFACTURING PURPOSES.- Under the Constitution of Michigan it is not competent for the legislature to provide generally for the condemnation of the lands of non-consenting parties. in order to obtain water-power for manufacturing purposes, the statute not undertaking to define the purposes except in this general way, and not making any provision under which the public will have rights as regards the manner in which the power shall be employed. Ryerson v. Brown, S. C. Mich., Cent. L. J., February 16, 1877. CONTRACT. 1. WHEN SEVERABLE. -The rule adopted in Lucesco Oil Co. v. Brewer (16 P. F. Smith 31), that where the part of a contract to be performed by one of the parties consists of several and distinct items, and the price to be paid by the other is apportioned to each item, the contract is severable, does not apply when it clearly appears from the face of the contract that the parties intended it to be entire. Quigley v. De Haas, S. C. Pa., W. N. C., February 1, 1877. |