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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. 16.


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. Ib.
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.Bsought 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. 16. 13. The petition must also contain a jurisdictional allegation. And the amended peti

tion 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 satisfac

tion 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.


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 claim 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 Natl Bank of Grand Rapids, 386.


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 asso

ciation, 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, Au

gust 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.



See BillS AND Notes, 3.



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. Tb. 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.

6. A common carrier may by contract so limit his liability as to be responsible only as an
ordinary bailee for hire. "Ib.


An executor is personally liable for money of his testator invested in Confederate bonds,

even if such investment was approved by a court having charge of the settlement of
the estate. Horn v. Lockhart, 55.

1. Although a part of a statute may be in conflict with the constitution, and therefore
void, yet the whole statute will not be pronounced void if the other provisions are com-
plete in themselves, and may be executed without regard to the obnoxious portions.

Supervisors of Knox Co. v. Davis, 461.
2. Article 6, section 1, of the constitution of Illinois of 1848, declared that every white
male citizen, above the age of twenty-one, who had resided in the state one year next
preceding the election, should be entitled to vote at such election; and every white
male inhabitant, of the age aforesaid, who resided in the state at the adoption of the
constitution, should have the same right to vote; and then provided that no citizen or
inhabitant should be entitled to vote except in the district or county in which he should
actually reside at the time of such election. The election law of 1861 provided that
no person should be entitled to vote at any general or special election unless he should
have actually resided in the election precinct thirty days immediately preceding such
election; and the charter of Galesburg, which regulated elections in that city, required
six months' residence in the city and thirty days in the ward, preceding an election, to
entitle the citizen to vote. Heid, on bill to contest an election for the removal of the
county seat of Knox County, that the fact that some legal voters under the constitution
were deprived of their right of suffrage under such laws did not render the election
void; but that if the laws were restrictions on the right of suffrage, it was a wrong to
the elector who was deprived of his vote, for which he had a complete remedy against

the judges of election." 16.
3. The usual and ordinary legislation of the states regulating or prohibiting the sale of
intoxicating liquors raises no question under the Constitution of the United States prior

to the fourteenth amendment of that instrument. Bartemeyer v. The State, 200.
4. The right to sell intoxicating liquors is not one of the privileges and immunities of

citizens of the United States which by that amendment the states were forbidden to

abridge. Ib.
7. But if a case were presented in which a person owning liquor or other property at the

time a law was passed by the state absolutely prohibiting any sale of it, it would be a
very grave question whether such a law would not be inconsistent with the provision of
that amendment which forbids the state to deprive any person of life, liberty, or prop-
erty without due course of law. Ib.
6. The latter clause of the first section of the fourteenth amendment to the federal Con-

stitution -“nor shall any state . ... deny to any person within its jurisdiction the
equal protection of the laws" — secures to each child in California, regardless of the
race or color of such child, a legal right to attend as a pupil, and receive instruction at
the public schools in the state, under the law providing for common schools. Ward

v. Flood, 204.
7. The act of the legislature providing for the maintenance of separate schools for the

education of children of African or Indian descent, and excluding them from schools

where white children are educated, is not obnoxious to constitutional objection. Ib.
8. But unless such separate schools be actually maintained for the education of colored
children, then the latter have a legal right to resort to schools where white children are
instructed, and cannot be legally excluded therefrom by reason of race or color. 16.
See Election, 1; HOMESTEAD EXEMPTION, 2; TAXATION, 1, 2.

The word “to” held to be inclusive - to December 31, held to include December 31.
Conawango Pet. Ref. Co. v. Cunningham, 57.

1. In the construction of a statute, it is to be presumed that the legislature did not intend

to grant to a corporation such an exemption from the operation of the general law ap-
plicable to similar corporations as would create an unreasonable monopoly or immunity
at variance with constitutional principles; and, when such an exemption is excluded by
a fair construction implying the qualification that the statute is to operate in harmony
with and subject to the general law, such a construction will be adopted. De Lancey v.

Ins. Co. 80.
2. A general statute authorizes a tax collector for state and county taxes to execute a

deed upon a tax sale, and further provides that such deed shall be primâ facie evidence
of certain facts recited therein, and conclusive evidence of the regularity of the pro-
ceedings in all other respects. A subsequent statute provides that a town tax in a cer-
tain town shall be assessed and collected at the same time, and in the same manner, as
provided by said general act, and confers upon the town treasurer all the powers exer-
cised by the tax collector of the state and county taxes under the general act, but
makes no provision as to the effect of the tax deed executed by the town treasurer.
Held, that such deed will not be primâ facie evidence of the regularity of the prior
proceedings. Minturn v. Smith, 507.

1. The power to punish for contempts is inherent in all courts; its existence is essential

to the preservation of order in judicial proceedings, and to the enforcement of the judg.
ments, orders, and writs of the courts, and consequently to the due administration of
justice. The moment the courts of the United States were called into existence and
invested with jurisdiction over any subject, they became possessed of this power. In

re Robinson, 326.
2. The act of Congress of March 2, 1831, entitled " An act declaratory of the law con-

cerning contempts of court," limits the power of the circuit and district courts of the
United States to three classes of cases : 1st, where there has been misbehavior of a
person in the presence of the courts, or so near thereto as to obstruct the administra-
tion of justice; 2d, where there has been misbehavior of any officer of the courts in his
official transactions; and, 3d, where there has been disobedience or resistance by any
officer, party, juror, witness, or other person, to any lawful writ, process, order, rule,

decree, or command of the courts. Ib.
3. The 17th section of the judiciary act of 1789, in prescribing fine or imprisonment as

the punishment which may be inflicted by the courts of the United States for con-
tempts, operates as a limitation upon the manner in which their power in this respect
may be exercised, and is a negation of all other modes of punishment. Ib.


1. The defendant having been indicted for murder, a jury was duly empanelled and

sworn; evidence was introduced and the case was submitted to the jury on the 30th of
July. The jury remained together until the evening of the 2d of August, when the
court ordered the sheriff to proceed to the door of the jury room and inquire of them
if they had agreed upon a verdict, to which they replied that they “had not, and could
not agree on a verdict;" whereupon the court was adjourned for the term. The term
would not have expired by operation of law until the evening of the next day. Held,
that the defendant by these proceedings had been placed in jeopardy, and that they

therefore operated as a verdict of acquittal. People v. Cage, 127.
2. Under the provision of the Penal Code of California, the defendant upon being placed

again on trial had a right to introduce evidence of the above facts under the plea of not

guilty. Ib.
3. By the constitution of the Commonwealth of Massachusetts, the governor, with the

advice of the council, may grant a pardon of an offence after a verdict of guilty, and
before sentence, and while exceptions allowed by the judge who presided at the trial
are pending in the supreme judicial court for argument; and the convict, upon waiving
his exceptions and pleading the pardon, is entitled to be discharged. Commonwealth

v. Lockwood, 141.
4. There can be no doubt about the general power of a court over its own decrees, judg.

ments, and orders during the existence of the term at which they are first made ; but
this power must be exercised within common law restrictions and constitutional pro-
visions that sustain personal rights. In re Lange, 257.

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