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Vol. IV.)

DIGEST OF CASES.

(No. 6.

Leg. Chron. — Legal Chronicle, Pottsville, Pa., Sol. Foster, Jr.
Leg. Int. Legal Intelligencer, Philadelphia, Pa., J. M. Power WALLACE.
Mo. West. Jur. — Monihly Western Jurist, Bloomington, Ill., T. F. Tipton.
N. B. R. — National Bankruptcy Register, New York, CAMPBELL & Co. •
Pac. Law Rep. — Pacific Law Reporter, San Francisco, Cal., J. P. BOGARDUS.
Pittsb. L. J. Pittsburg Legal Journal, Pittsburg, Pa., J. W. & J. S. MURRAY.
W. L. R. - Washington Law Reporter, Washington, D. C., JNO. L. GINCK.
W. N. C. - Weekly Notes of Cases, Philadelphia, KAY & Bro.
West. Jur. - Western Jurist, Des Moines, Iowa, Mills & Co.

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ATTACHMENT.

See BANKRUPTCY, 5.

ATTORNEY.

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EMPLOYMENT TO EXAMINE TITLE. - FORECLOSURE OF MORTGAGE. PAYMENT. — An attorney, employed by a person about to make a loan of money,

“ to examine the title” of premises upon which a mortgage is to be made, as security for the loan, is not necessarily the agent of the person employing him, to receive money from the borrower, to pay off prior liens and incumbrances, nor is the lender liable for the misapplication of moneys so received by the attorney. The specific employment of an attorney to examine a title does not in itself include the duty or obligation to satisfy liens; it is discharged by truly ascertaining and reporting them. Graves v. Mumford, 26 Barb. 94, examined and distinguished. Josephthal v. Heyman, S. C. N. Y., Cent. L. J., April 20, 1877.

BANKRUPTCY.

1. THE FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION IN ACTIONS BROUGHT BY THE ASSIGNEE to recover the value of goods fraudulently transferred by the bankrupt. Bromley v. Goodrich, S. C. Wisc., 15 N. B. R. No. 7.

2. WHERE A SALE BY AN INSOLVENT DEBTOR HAS BEEN AVOIDED by proper proceedings in the bankrupt court, it is the duty of the state courts to enforce and carry out that decision ; but the state courts cannot of themselves annul a sale valid under the laws of the state, where it was made, because fraudulent under the bankrupt law. 16.

3. WHERE PROPERTY WHICH HAS BEEN TRANSFERRED BY A DEBTOR TO HIS CREDITOR BY A SALE VALID UNDER THE STATE LAW is seized by a sheriff under an attachment against such debtor, and, after such attachment, such debtor is adjudged a bankrupt, and the property is taken from the sheriff by the marshal under a warrant from the bankrupt court, and sold by the assignee without any judgment of the bankrupt court that such sale was void, the full value of the property may be recovered in an action for such unlawful taking. 16.

4. IN NORTH CAROLINA THE STATUTE OF LIMITATIONS BEGINS TO RUN against a purchaser of a chose in action at the assignee's sale from the date of the adjudication, and this although the bankrupt himself is the purchaser. Blackwell v. Claywell, S. C. N. C., Ib.

5. A CLAIM BY A SHERIFF FOR FEES AND EXPENSES IN ATTACHMENT proceedings begun within four months prior to the commencement of pro

Vol. IV.]

DIGEST OF CASES.

(No. 6.

ceedings in bankruptcy will not, as a general rule, be allowed. But where it is conceded that the attachment conserved the property and benefited the general creditors, the court will allow such claim. In re Jenks, S. C. Minn.. Ib.

6. THE LIMITATION WITHIN WHICH A PREFERENCE MAY BE SET ASIDE is four months in voluntary, and two months in involuntary cases. In re Schoenenberger, D. C. U. S. S. D. Ohio, Ib.

7. A PARTY WHO RECEIVES A PREFERENCE WITH KNOWLEDGE of his debtor's insolvency, and that a fraud on the act is intended, can prove but a moiety of his debt in either class of cases. But where he voluntarily restores to the assignee the preference which he has received, and there is no actual but only a constructive fraud, he will be allowed to share pro rata with the other creditors. 16.

8. A MORTGAGE UPON REAL ESTATE EXECUTED IMMEDIATELY BEFORE THE COMMENCEMENT of the proceedings in bankruptcy, in pursuance of a parol agreement made long before that time, is not a preference, and is valid as against the assignee. Burdick v. Jackson, S. C. N. Y., Ib.

9. AN AGREEMENT WITH A GUARDIAN TO EXECUTE A MORTGAGE inures to the benefit of the infant, and is well executed by a mortgage to the latter. Ib.

10. AN AGREEMENT BY A GUARDIAN TO DISCHARGE ONE MORTGAGE AND TAKE A NEW ONE, although he transcended his power in making it, is not absolutely void, but is voidable only at the election of the infant on coming of age, and until so avoided is valid as against the assignee of the mortgagor. 16.

11. IF A CREDITOR IN MAKING PROOF OF HIS CLAIM OMITS to show that the bankrupt has an unsatisfied claim against him, he cannot, when sued by the assignee for the amount of such unsatisfied and omitted claim, plead as a set-off the amount allowed in his proof. Russell v. Owen, S. C. Mo., Ib.

12. A BANKRUPT WHO MAKES A WILFUL AND FRAUDULENT OMISSION from his inventory of some of his assets, contrary to subdivision 6 of section 5132 of the Revised Statutes, may be prosecuted by information. The offence is not an infamous crime within the meaning of that term at common law, and as used in the fifth amendment to the Constitution. United States v. Block, D. C. U. S. Or. Ib.

13. WHERE A CLAIM ORIGINATED IN CONTRACT, ALTHOUGH FRAUDULENTLY INDUCED, and is prosecuted in an action sounding in damages, it continues to constitute a provable debt, even though the fraud must be proved to entitle the plaintiff to a recovery. Such an action is within the provisions of section 5106 of the Revised Statutes, which prohibits any creditor prosecuting to final judgment any suit founded on a provable debt, until the question of the debtor's discharge has been determined. The fact that the creditors have not proved their claim in the bankruptcy proceedings gives them no right to proceed in the action. In re Schwarz, C. C. U. S. S. D. N. Y., Ib.

14. THE JOINT ESTATE OF A PARTNERSHIP IS FIRST LIABLE FOR THE PARTNERSHIP DEBTS, and the separate estate of the partners for the separate debts of its individual members, and neither class has a right to go on the fund primarily belonging to the other, until the creditors having preference are fully satisfied. In re McLean, D. C. U. S., Del., Ib.

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DIGEST OF Cases.

(No. 6.

15. THE DEBT OF A FIRM WHICH HAS ADVANCED MONEY TO AN INDIVIDUAL MEMBER beyond his share of the capital is a separate debt of the firm as against the partner receiving the same, and the assignee of the firm may prove the debt in bankruptcy. But while such claim

may

be proven by the assignee of the firm against the separate debtor partner, he cannot be permitted to come upon the separate estate of the debtor copartner for the use of the creditor copartner, until all the joint creditors are fully satisfied. 16.

16. A BANKRUPT CREDITOR PARTNER has no such equitable claim to his share in the separate estate of his debtor copartner as that he can absolutely transmit it to his assignee in trust for himself, until all the firm creditors are satisfied. 16.

BILLS AND NOTES. CONDITION THAT NOTE IF PAID WHEN DUE MAY BE PAID IN CURRENCY. — Where a note provides for payments in gold coin, but a subsequent provision in the note provides that in case the note is paid when due the payment might be in any lawful money of the United States : Held, that if not paid when due the court should render a judgment payable in gold coin. Churchman v. Martin, S. C. Ind., Mo. West. Jur.,

May, 1877.

See CONSTITUTIONAL LAW.

BILL OF LADING. NEGOTIABILITY. BROKER. PRINCIPAL AND AGENT. D., a broker in St. Louis, bought meat for M. in Philadelphia, for $13,000, M. advancing $5,000 as margin, and D. raising the balance of the purchase money himself by hypothecating the warehouse receipt. M. having requested a shipment of a portion of the meat, D. shipped two car loads, drew on M. for $3,600, and procured one S. to discount the draft, indorsing to S. as security therefor the bill of lading. M. received and sold the meat, but refused to accept the draft, alleging that it was for a larger amount than the proportion due upon the shipment and for more than the amount due by him to D. In an action of trover by S. against M. for the value of the meat: Held, that no property in the meat passed to M. until payment of the draft, and S. was therefore entitled to recover. Millar v. Sav. Ass'n, S. C. Pa., W. N. C., April 5, 1877.

See COMMON CARRIER.

BROKER.

See BILL OF LADING.

BUILDING ASSOCIATION. 1. PLEDGE OF SHARES. USURY. When a member of a building association obtains an advance upon a pledge of his shares, agreeing to pay legal interest for its use, and besides to pay two dollars a month on each of his shares until their whole nominal value has been paid, the contract is lawful, and is not usurious. Mulloy v. Fifth Ward Building Association, S. C. D. C., W. L. R., April 16, 1877.

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DIGEST OF CASES.

(No. 6.

2. EXCESSIVE FINES. — EQUITABLE JURISDICTION. Where fines at the rate of ten per cent. per month are imposed, upon default being made in paying the monthly dues, chancery will interpose to prohibit the collection of these penalties, and will restrain a sale of real estate by virtue of a deed of trust given to secure the amount advanced, when the account between the parties shows that nothing is owing the society except the fines. Ib.

COMMON CARRIER. NON-DELIVERY OF GOODS AT APPOINTED PLACE. — NEGLIGENCE. BILL OF LADING. — LOSS FROM FLOOD. - A railroad company undertook to transport certain machinery to a station upon its line. The machinery arrived safely at the station to which it was marked, and there remained unloaded in the car for about a month. It was then taken by a lateral railway to a private platform, situated on the bank of a river about half a mile from the station, which was used by the company for storage, under an arrangement with its owner. There the machinery was unloaded and stored to await the action of the consignees. Ten days after being thus placed, the platform, and with it the machinery, was swept away by an unusually heavy flood, and the machinery was lost in the river. Held, that this was a case of non-delivery by the common carriers at the appointed place of destination, and a breach of the contract set forth in the bill of lading which rendered them liable for the loss of the goods. P. R. R. Co. v. Mitchell, S. C. Pa., W. N. C., May 3, 1877.

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CONFLICT OF LAWS. 1. A COVENANT OF 'SEISIN does not run with the land. Bethel v. Bethel, S. C. Ind., Cent. L. J., March 30, 1877.

2. A DEED, MADE BETWEEN CITIZENS OF INDIANA, OF LAND SITUATED IN MISSOURI, contained no covenant of seisin except the words “grant, bargain, sell, and convey,” which, by the laws of Missouri, implied a covenant of seisin, but by the laws of Indiana did not: Held, that such a covenant being a personal one was governed by the laws of Indiana. Ib.

See MARRIAGE.

CONSTITUTIONAL LAW. 1. STATUTE FORBIDDING CONTINGENT FEE. - BILLS AND NOTES. The Act of March 10, 1875, which provides that all provisions in notes, bills, &c., for attorneys' fees, dependent upon conditions shall be void, is not unconstitutional. Hence that part of a note providing for ten per cent. attorneys' fees in case suit is brought, is void. Churchman v. Martin, S. C. Ind., Mo. West. Jur., May, 1877.

2. MEANING OF THE WORD " DAY.” Where a constitution provides for an election to fill a vacancy in the office of judge " at the first election that occurs more than thirty days after the vacancy shall have happened, the word “ days" must be taken to be used in its ordinary meaning; and therefore neither the day on which the vacancy happens nor the day of the election can be included in computing the time. State v. Brown, S. C. Minn., Am. Law Reg., April, 1877.

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Vol. IV.]

DIGEST OF CASES.

[No. 6.

CONTRACT. CONSTRUCTION. — NOTICE TO BAILEE BY STRANGER NOT TO DELIVER, ETC. — A. received of B. certain moneys, in consideration of which he agreed to run into the Williamsport Boom 2,500 logs, which logs were to remain under the control of B., who was to saw them, sell the lumber, and after paying all bills for boomage, interest on advances, and retaining five per cent. commission on sales, was to pay the balance of the proceeds of the lumber to A.: Held, that the property in the logs did not pass to B. by this agreement, and that A. might afterwards prosecute an action of trover against the Boom Company for their conversion. Susq. Boom Co. v. Rogers, S. C. Pa., W. N. C., April 5, 1877.

See BILLS AND NOTES.

CORPORATION.

1. A BOARD OF DIRECTORS OF A CORPORATION HAVE NO POWER TO MAKE OR AMEND THE BY-LAWS UNLESS authority so to do be specially given them by the charter. In the absence of such authority the power is lodged in the corporation itself, and can only be exercised by its members as a body acting in their corporate capacity. United Fire Assur. Co. v. Aenseman, S. Č. Pa., W. N. C., May 3, 1877.

2. THE PROPER MODE OF TESTING THE LEGALITY OF AN ELECTION OF A BOARD of directors is by quo warranto and not by mandamus. 1b.

DEED.

See CONFLICT OF LAWS; DIRECT Tax LAW.

DIRECT TAX LAW. VALIDITY OF DEED. - TAX DISTRICT. A tax deed under the act of Congress for the collection of direct taxes within insurrectionary districts (U. S. Stat. at Large, p. 422), which provided that the deed should be evidence of the regularity and validity of the sale, should be defeated only by proof of non-subjection to taxation, payment of the tax, or that the land had been subsequently redeemed, can be avoided in no other way. Irregularities will not affect the validity of the title, provided the proceedings are colorable and free from fraud, accident, or mistake. A city, township, or subordinate taxing district within which military authority shall have been established, constitutes a district for the purpose of taxation, although not a parish, district, or county within the meaning of the law of the state. Sharpleigh v. Surdam, C. C. U.S. W. D. Tenn., West. Jur.,

. April, 1877.

EASEMENT. WAYS OF NECESSITY, ETC. — M. C. owning a tract of land bounded N. by a street, conveyed to D. the west portion, whereon was a well, reserving a right to use the well by the words, “ excepting a privilege to the well of water on said lot which I reserve for the use of my said homestead estate," this homestead estate being the remainder of the tract. Subsequently M. C. devised to J. in fee simple the land between the house

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