Vol. I.]

GALPIN v. PAGE.

[No. 12.

also took his interest with similar knowledge of the defect. Independently of this fact, their title fell with the reversal of the decree. On this subject we can add nothing to what was said in the opinion of the supreme court, except that the doctrine of Reynolds v. Harris was reaffirmed in the late case of Reynolds v. Hosmer, reported in 45 California, 617.

As to the claim for rents, we are of opinion that the cost of filling up the water lot, which was a valuable and permanent improvement, is a just offset to the rents received or which might have been received by the defendant.

It follows from the views we have expressed that the plaintiff is entitled to judgment for the possession of the premises; and such judgment will be entered upon the findings filed with costs.

INDEX.

ADMIRALTY.

1. The rule is that a passenger cannot be a salvor, and any exception to it is to be ad-
mitted with the greatest caution. Brady v. Am. Steamship Co. 402.

2. Where a passenger, who was a master navigator, assumed command of a ship of great
value during a violent storm and after the master and other officers had been lost, and
rendered efficient service during the continuance of the storm: Held, that he was to
be regarded as a salvor. Ib.

3. But having acted as master after the subsidence of the storm such passenger was held
to have thereby detracted materially from the merit of his services, and the compensa-
tion was reduced accordingly Ib.

4. Maritime liens for necessaries supplied in England to a foreign ship have always
existed there. The Champion, 493.

5. The assignment of a claim under a maritime lien divests the lien. 1b.

AGENT.

See PRINCIPAL AND AGENT.

ALTERED CERTIFICATE.

See WARRANTY.

ASSESSMENTS.

Discussion of the mode of assessing railroads, especially as prescribed by the statute of
California. Huntington v. Cent. Pac. R. R. Co. 94.

ASSIGNMENT OF DEBT.

An assignment of a debt to arise for wages not yet earned, against any person by whom
the assignor may thereafter be employed, although followed by a subsequent notice of
the assignment to such an employer, is insufficient, without acceptance, to make a
valid transfer of the debt against the employer. Jermyn v. Moffitt, 367.

ATTORNEY.

The power to disbar an attorney is possessed by all courts which have authority to admit
attorneys to practice. But the power can only be exercised where there has been
such conduct on the part of the party complained of as shows him to be unfit to be a
member of the profession; and before judgment disbarring him can be rendered he
should have notice of the grounds of complaint against him and ample opportunity of
explanation and defence. In re Robinson, 326.

See CONTEMPT.

BAILOR AND BAILEE.

1. Where a livery-stable keeper undertakes for reward to receive a carriage and lodge it
in a coach-house, the case comes within the second class of the fifth sort of bailment
mentioned by Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym, at pp. 917, 918, viz., a
delivery to carry, or otherwise manage for reward, to a private person, not exercising a
public employment; and he is bound to take reasonable care.
Searle v. Laverick, 174.

2. The obligation to take reasonable care of the thing intrusted to a bailee of this class
involves in it an obligation to take reasonable care that any building in which it is

deposited is in a proper state, so that the thing deposited may be reasonably safe in it;
but no warranty or obligation is to be implied by law on his part that the building is
absolutely safe. Ib.

3. The fact that the building has been erected for the bailee on his own ground makes
no difference in his liability. Ib.

4. The plaintiff brought his horses and two carriages to defendant, a livery-stable keeper;
the carriages were placed under a shed on defendant's premises, a charge being made
by defendant in respect of each. The shed had just been erected, the upper part
being still in the hands of the workmen. Defendant had employed a builder to erect
the shed for him, as an independent contractor, not as defendant's servant, and he was
a competent and proper person to be so employed. The shed was blown down by
a high wind, defendant being ignorant of any defect in it, and the carriages were
injured, upon which plaintiff brought an action against defendant. At the trial, the
above facts having been admitted, the judge rejected evidence to prove that the fall of
the shed was owing to its being unskilfully built through the negligence of the con-
tractor and his men; and he nonsuited the plaintiff, ruling that the defendant's
liability was that of an ordinary bailee for hire, and that he was only bound to take
ordinary care in the keeping of the plaintiff's carriages, and that if he had exercised in
the employment of the builder such care as an ordinary careful man would use, he was
not liable for damage caused by the carelessness of the builder, of which he, defendant,
had no notice: Held, that the nonsuit and ruling were right: Redhead v. Midland Ry.
Co. Law Rep. 4 Q. B. 379; and Francis v. Cockrell, Law Rep. 5 Q B. 184, 501,
distinguished. Ib.

BANK.

See NATIONAL BANK; SPECIAL DEPOSIT; WARRANTY.

BANKRUPTCY.

1. Something more than passive non-resistance in an insolvent debtor is necessary to
invalidate a judgment and levy on his property when the debt is due and he has no
defence. Wilson v. Bank of St Paul, 1.

2. In such case there is no legal obligation on the debtor to file a petition in bankruptcy
to prevent the judgment and levy, and a failure to do so is not sufficient evidence of
an intent to give a preference to the judgment creditor, or to defeat the operation of
the bankrupt law. İb.

3. Though the judgment creditor in such a case may know the insolvent condition of
the debtor, his judgment and levy upon his property are not, therefore, void, and are
no violation of the act. Ib.

4. A lien thus obtained by him will not be displaced by subsequent proceedings in bank-
ruptcy, though commenced within four months after levy of the execution or rendition
of the judgment. Ib.

5. Set-off is enforced in equity only where there are mutual debts or mutual credits, or
where there exists some equitable consideration or agreement between the parties
which would render it unjust not to allow a set-off. Gray v. Rollo, 195.

6. Where a bankrupt owes a debt to two persons jointly, and holds a joint note given by
one of them and a third person, the two claims are not subject to set-off under the
bankrupt act, being neither mutual debts nor (without more) mutual credits. Ib.
7. Where one of two joint debtors becomes bankrupt, it seems that the creditor may set
off the debt against his separate indebtedness to the bankrupt, because each joint
debtor is liable to him in solido for the whole debt; but, if this be conceded, it does
not follow that if one of two joint creditors becomes bankrupt, the common debtor
may set off against the debt a separate claim which he has against the bankrupt, for
this would be unjust to the other joint creditor. Ib.

8. A and B were joint makers of certain notes, which were transferred to an insurance
company. B and C held policies in this company which became due in consequence
of loss by fire. The company being bankrupt, its assignee claimed the full amount of
the notes from A and B. B sought to set off against his half of the liability the claim
due to him and C on the policies of insurance, the latter consenting thereto : Held,
that this was not a case for set-off within the bankrupt act, the two obligations having
been contracted without any reference to each other. Ib.

9. The sovereign is not bound by an enactment that divests its interest or affects its
rights, title, or prerogatives, unless expressly included within the terms of the law.
Hence, a discharge in bankruptcy under the U. S. statute does not include liability
as surety upon a bond for the performance of duty by an official of the United States.

General discussion of the requirements of the bankrupt act by Mr. Justice CLIFFOrd. U. S. v. Herron, 274.

10. The amendatory bankruptcy act of March 3, 1873, is unconstitutional, in that it is not uniform in its operation. In re Deckert, 336.

11. Under the amendatory bankruptcy act of June 22, 1874, the petition of creditors in involuntary cases must show affirmatively a compliance with the provisions of the act as to number and amount of claims of creditors. In re Scammon, 372.

12. In cases pending at the time of the passage of the act the petition may be amended and made to contain the allegations of the requisite number and amount. Ib.

13. The petition must also contain a jurisdictional allegation. And the amended petition should be sworn to as if it were an original paper. Ib.

14. The naked allegation that the number and amount of creditors required have joined in the petition is not sufficient, even though it be admitted by the debtor that the allegation is true. The court must be satisfied of the facts as they exist.

Ib.

15. In involuntary cases where the petition has been duly filed prior to the passage of the act of June 22, 1874, it must be so amended as to show affirmatively that the requisite number of creditors, representing the prescribed amount, have joined therein. Otherwise there can be no adjudication. The petition must contain an allegation that the prescribed number and amount have joined, and the court must be satisfied by affirmative evidence of the truth of such allegation. The fact that there was a default prior to the passage of the act of June 22, 1874, which, at the time it took place, entitled the petitioning creditors to an adjudication, is of no moment. In re Scull, 416. 16. The averment that the debtor suffered his property to be taken is not sufficient. It must be averred that he procured it to be taken. Ib.

17. The signature by a judge of his initials to a memorandum on the petition prior to June 22, will not warrant the signing of an order of adjudication afterward nunc pro tunc. In re Hill, 421.

18. In involuntary cases the petition must contain a proper allegation as to the requisite number and amount of petitioning creditors. The admission of the debtor that the terms of the law have been complied with will not dispense with such allegation. There can be no adjudication except it be made and shown to be true to the satisfaction of the court. In re Keeler, 422.

19. In a state whose statute law makes a married woman living apart from her husband liable to be sued as if sole, she may be adjudged bankrupt. In re Lyons, 167.

20. The ninth section of the amendatory bankruptcy act of June 22, 1874, is applicable to cases which were pending at the time of its passage. In re Griffiths, 476. To the contrary see In re Franke, 476.

See HOMESTEAD EXEMPTION, 1; JUDGMENT NOTE.

BILLS AND NOTES.

1. The defendant made a promissory note payable to the plaintiff to which this clause was added: "And we agree also to pay an attorney's fee of ten per cent. if this note is collected by suit." The note having been put in suit, held that the stipulated ten per cent. could be recovered, and that it was not in the nature of a penalty, but of liquidated damages. McIntyre v. Cagley, 104.

2. The holder of a promissory note executed a written instrument by which he agreed with the maker to extend the time of payment, which written instrument contained the following clause: "Provided further, that no delay of demand shall interfere with any elaim I may have upon the indorsers of said note." Held, on a suit against the indorser upon the note, that his liability was not discharged by such agreement. Hager v. Hill, 139.

3. Complainants, a bank, discounted a note the amount of which was placed to A's credit. Prior to the maturity of the note A drew his check on complainants for an amount less than had been credited to his account, which check was purchased by defendants, and upon being presented payment thereof was refused. Defendants having brought an action at law upon the check, complainants filed their bill for an injunction to restrain the same. Held, that there could be no injunction; that the check was in effect an assignment of the amount necessary to pay it, and that no right of equitable set-off existed in respect of the note, as against the holders of the check. Fourth Nat'l Bank of Chicago v. City Nat'l Bank of Grand Rapids, 386.

See HOMESTEAD EXEMPTION, 1.

BOARD OF BROKERS.

1. Where under the articles of association of a board of stock brokers, a member cannot

transfer his seat to a party not elected and approved by the board; and where, upon the insolvency of a member, his rights as such are forfeited, and the board is authorized to dispose of his seat, and apply the proceeds to the payment of his indebtedness to other members of the board to the exclusion of all others, only the residue of the proceeds of the sale, after paying all the liabilities provided for in said articles of association, is assets of such insolvent member. Hyde v. Woods, 354.

2. Under such articles, F., a member, failed to meet his engagements in the board, August 24, 1872, and being indebted in a large amount to sundry members, on that day assigned his seat in the board to W., with authority to sell and pay the proceeds to his various creditors in the board. With the assent of the board, W., sold the seat to T., who was elected by the board, for ten thousand dollars, and, with the approval of the board, paid the entire proceeds pro-ratably to F.'s creditors, who were co-members. October 1st, 1872, F. was adjudged a bankrupt on petition of a general creditor filed September 18th, 1872. After said sale and payment, an assignee having been appointed, he brought suit against W. to recover said sum of ten thousand dollars. Held, That the assignee was only entitled to the residue after the payment of F.'s liabilities to the co-members provided for in the articles of association, and there being no surplus, he was not entitled to recover. Ib.

BOND.

1. Held that a surety upon a bond delivered by the obligor to the obligee, the face of which is such as to excite no suspicion, is estopped to deny the validity of the same on the ground of an antecedent agreement touching the delivery. Nash v. Fugate, 69. 2. A signed a bond as surety, and delivered it to the principal obligor upon condition that it was not to be delivered to the obligee unless signed in like manner by others. Obligor delivered the bond to obligee without other signatures, and it contained no evidence of the existence of the condition made by A: Held, that A was estopped to deny as against the obligee that it was his deed. 16.

BY-BIDDER.

See JUDICIAL SALE; PUBLIC Sale.

CERTIORARI.

See HABEAS CORPUS.

CHECK.

See BILLS AND NOTES, 3.

CLOUD ON TITLE.

See INJUNCTION, 1; TAX Deed.

COLORED CHILDREN.

See CONSTITUTIONAL LAW, 6.

COMMON CARRIER.

1. Held: That a common carrier cannot lawfully stipulate for exemption from responsi bility when such exemption is not just and reasonable. N. Y. C. R. R. v. Lockwood, 21. 2. That it is not just and reasonable for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. Ib.

3. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter. Ib.

4. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire. Ib.

5. A common carrier who has limited his responsibility by contract is not liable for loss occasioned by a cause against which he has stipulated with the shipper, unless it arises from his own negligence or that of his agents. He cannot be held for a loss which results from an employment of the vehicles of another over which he has no control, if he has exercised reasonable care in selecting such as he might properly make use of, and the shipper has agreed to exempt him from liability in case of loss by reason of the acts of those in charge of such vehicles. Bank of Ky. v. Adams Express Co. 451.