« PreviousContinue »
37 N. H. 306; Bills v. Stanton, 69 Ill. 51.
STATE INSOLVENT LAWS. The thief's insertion of the name of the payee in the blank left for that purpose, is not such an alteration as will avoid the bond. Boyd v.
ASSIGNMENTS AT COMMON LAW, AND UNDER Kennedy, 9 Vr. 146; Dutchess Co. Ins.
STATUTES. Co. v. Hachfield, 1 Hun. (N. Y.) 675. For the fact of the bond not being payable to a
The repeal of the bankrupt law, which took particular person does not render it non
effect on the first day of September, revives negotiable. Smith v. County, 54 Mo. 58.
and brings into practical operation the assignIf overdue bonds or coupons are stolen, and
ment and insolvent laws of the different states, then come into a bona fide holder's hands, he
which, since the act of Congress of 1867, can not collect their amount. Arents v. Com.,
| have been in a state of practical suspension. 18 Gratt, 750; Vermilye v. Adams Ex. Co.,
As it becomes impracticable for insolvent 21 Wall. 138. In Everston v. Nat. Bank of
debtors to escape liability, by invoking the aid Newport, 66 N. Y. 14, coupons were held to
of the national bankrupt courts, resort will be entitled to three days grace, so that a pur
be had to state tribunals, either to obtain dischaser after the time specified for payment,
charge from liability, or to secure a ratable but before the expiration of the days of grace,
distribution among their creditors of their was deemed a purchaser before maturity. But estates. As creditors find the condition of in Arents v. Com., 18 Gratt. 750, such coup delinquent debtors becoming more hopeless, ons were held not entitled to days of grace. each will seek for himself such advantages as That the real owner gave immediate notice of may be obtained by superior diligence in pressthe theft by publication, will not of itself de- | ing his claims for settlement. Complaisant prive the holder of his right to recover. Sey debtors will seek by preferences such as were bell v. Nat. Currency Bank, 2 Daley, 383, 54 | inhibited by the bankrupt law to give to faN. Y. 288; Murray v. Lardner, 2 Wall. 710. | vored creditors such advantages as their feelBut after actual service of such notice, bank- ings of partiality may prompt. When local ers and brokers should retain a memorandum, statutes do not intervene, distant creditors in order to identify stolen bonds if presented. will become painfully aware of the old docVermilye v, Adams Ex. Co., 21 Wall. 138. | trine that transfers of property by insolvent Mere omission to look for such notice twelve debtors to one or more creditors, by way of months after publication is no proof of mala i preference, in satisfaction of their debts, in fides. Rapheal v. Bank of England, 17 C. B. the absence of actual fraud, instead of being 161. The case of Texira v. Evans, 1 Anstr. held constructively fraudulent, as under the re228, in which Lord Mansfield held that an agent | pealed act, will be sustained as valid and bindmight, under a parol authority, fill in blanks in ing, notwithstanding their disastrous effects a deed, has been overruled in England and in upon those less favored. Keen v. Preston, 24 some of the states, although followed in oth- | Ind. 395 ; Rankin v. Lador, 21 Ala. 380. The ers. In a note to Preston v. Hall, (23 Gratt. same doctrine has been declared where the 600), 21 Am. L. R. 699, nearly all the Amer property was conveyed in trust to pay cerican cases are collected, and the impossibility
tain preferred creditors, even where the execss of any attempt to collect them shown. For a
was to be returned to the debtors. Johnson further statement of the authorities, see the
v. McGrew, 11 Ia. 151; Claflin v. Maglaughelaborate note by Mr. Stewart, in 29 N. J.
lin, 65 Penn. St. 492. (Eq.) 587.
There are many other features of the law governing voluntary assignments, heretofore
regarded as obsolete, which have, by reaTHE Solicitor's Journal says: Respect for the office
son of the change, become of practical of judge is essential to the proper administration of importance. When the asssignment is by justice. On the otber band, may we be allowed to sug
deed, it is usual, and in some cases essengest for the consideration of learned judges during their vacation rambles, that judicial patience and cour tial, to require the assent of the creditors for tesy are pearls of great price. “Sir," said Lord Not
whose benefit it is made. Especially is this tingham to Mr. Somers, who apologized for rising after five or six other counsel on the same side," pray go on.
true when there are conditions, such as a reI sit in this place to hear everybody.”
lease of the debtor or an extension of time upon which the assignment is made. And equity will compel the execution of the trusts when the deed stipulates for the assent of cred for the benefit of creditors, though they have itors to be evidenced by their execution of the not consented to the conveyance. 2 Kent. instrument, they must so signify their assent, Com. 543, and cases cited. At all events such otherwise they cannot take under the instru an assignment seems irrevocable by the asment. 2 Story Eq. Jur. $1036, cases cited in signor. Burrell on Assignments, $125, and notes. When, however, there is no stipula cases cited in notes. tion for express assent, it has frequently been The general doctrine governing assignheld that it would be presumed, in the absence ments by insolvent debtors, and the disof evidence of dissent, regardless of whether tribution of their estates, has been rarithe assignment is with preferences or not. ously modified or entirely abrogated by Ingram v. Kirkpatrick, 6 Ired. Eq. 462, [Cit statute in many, if not most of the states, ing with approval Walker v. Crowder, 2 id., and the only reason why these statutes 478, and Moore v. Collins, 3 Dev. 126 ;] have, until recently, been of little practical Stewart v. Hull, 3 B. Mon. 218; McBride v. importance, is that their operation has been Bohanan, 50 Ga. 155; Furman v. Fisher, 4 suspended by the national bankrupt law, by Cold. 626; Green v. Banks, 24 Tex. 508; which they were superseded, especially in Gale v. Mensing, 20 Mo. 461. The doctrine, those particulars most beneficial to the debtor, however, has been qualified by the proviso which might serve as an inducement to the that the assignment is clearly beneficial to the assignment. Those states whose statutes procreditor, in the sense that it does not extend vide for an unconditional discharge of the the time of payment, or require any conces debtor, or exemption of subsequently acsions from the creditor disadvantageous to quired property from prior debts, upon a surhimself. Evans v. Loman, 21 Ala. 333 ; Ran render of his property and a compliance with kin v. Lodor, Id. 381; England v. Reynolds, the conditions of laws resembling more or less 38 Id. 370; Kolkman v. McElderry, 16 Md. the national act lately repealed, are California, 56; Hempston v. Johnson, 18 Ark. 123 ; Law Idaho, Maryland, Michigan, Nevada, Verrence v. Davis, 3 McLean, 177. We believe mont and Wisconsin, and probably Arkansas, the rule that assent of creditors will be | as an old statute, omitted from the last revispresumed, obtains in early decisions in New ion of the statutes of this state, on account of York, while the courts of Massachusetts and | its conflict with the bankrupt law, may be those of England make the validity of the as- regarded as revived by the repeal. The Consignment dependent upon the assent of the | necticut statute discharges the debtor upon beneficiary, and hold that without such assent | payment of 70 per cent of the amount of his the assignment is revocable at the will of the indebtedness, and contains various provisions assignor. 2 Kent. Com. 532-533, note (a). for the payment in full of creditors of a cerWhen the assignment is directly to the cred- tain class. The Massachusetts statute, which itor or creditors to be benefited, there seems is published in connection with the decisions no doubt tbat it must be assented to by them of the courts of that state, in Cutter's Insolvent in order to become binding, for the reason | laws, requires, as a condition to discharge, in that when there are but two parties to a trans case of the first application of a debtor for the action, it requires a mutual concurrence of benefit of its provisions, a payment of 50 per minds to render a contract binding. Law- cent. of his liabilities, or the assent of a marence v. Davis, 3 McLean, 177; Burrell on As- jority in number and value of creditors who signments, $$124, 125. But when the assign- ) prove their claims. In case of a second apment is to trustees for the benefit of creditors plication by the same debtor, it requires paynamed, whether with or without preferences, ment of 50 per cent., or the assent of threethe authorities, in the absence of controlling fourths in number and amount of such credistatutory provisions, are far from uniform as to tors as have proved their claims. In Louisiwhether the assignment will be binding prior ana, the debtor may be discharged from liato the assent of beneficiaries; many of them bility for prior debts by obtaining the consent holding such assent unnecessary. The legal of a majority of his creditors. In Maine, estate vests in the trustees, and a court of | New Hampshire, New Jersey and South Caro
lina, the discharge only affects the demands of CONSTRUCTION OF WILL-DEVISE TO THE creditors who assent to the assignment, and
UNITED STATES. participate in the dividends. The only dis
DICKSON v. UNITED STATES. charge provided for by statute in Illinois, Indiana, New York, North Carolina, Ohio,
Supreme Judicial Court of Massachusetts, July Pennsylvania, Rhode Island, and West Vir
Term, 1878. ginia is from imprisonment and future arrest
[Filed September, 1878.] on civil process for prior debts scheduled by
HON. HORACE GRAY, Chief Justice. the debtor. All assignments made under the
JAMES D. COLT,
SETH AMES, statutes of Alabama, Dakotah, Iowa, Kansas,
MARCUS MORTON, Minnesota, Missouri, Nebraska, inure to the
WILLIAM C. ENDICOTT. | Associate Justices.
OTIS P. LORD, benefit of all creditors who choose to partici
“ AUGUSTUS L. SOULE, pate, but the assignment does not release the debtor from liability without full payment, or A MADE his will in 1862, which recited that, “ wish
ing to contribute my mite toward suppressing the reconsent of all his creditors, either of which,
bellion and restoring the Union, I give and devise the of course, will serve the purpose without the residue of my estate to the United States of America,"
and died in 1873; Held, in a suit by the executors of the intervention of a statute. In the other states
will to ascertain to whom the money should be paid, and territories, it is believed, the insolvent that the devise to the United States is valid and binddebtor may make assignments to trustees for the benefit of creditors, with or without a
This was a bill in equity by the executors under
the will of John Gardner, late of Boston, deceased, preference, to one or more, and if the assign
brought before the Justices of the Supreme Judiment is made in good faith for the benefit of cial Court. The bill alleges that the will of said those having bona fide demands against the Gardner, which bears date Jan. 17, 1862, was duly
proved on the 17th of April, 1876, and letters testassignor, the assignee or assignees who accept
amentary issued to the plaintiffs, as executors; the trust will be required to execute the same.
that the will, after making sundry legacies and beIn the light of the alteration of the relations quests, provided in terms as follows: “ 5th. Wishbetween debtor and creditor which the re ing to contribute my mite towards suppressing the
rebellion and restoring the Union, I give and depeal of the national act inaugurates, the state
vise the rest and residue of my estate, after paying insolvent and assignment laws supply a field
the donation and providing for the payment of the of inquiry, practically new to the younger annuities aforesaid, to the United States of Amermembers of the profession, whose experience
ica." The bill further alleges that the plaintiffs are
prepared to pay the residue of the estate to the party in practice extends back no more than ten or
or parties legally entitled; that the United States of twelve years. To older members of the pro
America claim to be entitled to the said residue, fession the condition of things presents the ne and have, by their attorney, forbid them paying it cessity of furbishing up some of their old learn to any other person; that the heirs at law also ing. Constitutional limitations upon the power
claim to be entitled to said residue, and have for
bid them paying it to the United States. They, of state legislatures to pass laws which have a
therefore, ask that each party be required to intertendency to retroact upon contracts; the effect plead, and that this court will ascertain and decide of such acts, when constitutional, upon resi
whether the said heirs have any and what rights dents of different states, and between residents
in the premises. To this, answers were filed by the
United States and by the heirs at law of Gardner, of the same states respectively; judicial con
both claiming the property. struction placed upon legislation of this kind
Geo. P. Sawyer, U. S. Att’y, for the United by courts of the states and by those of the
States; C. C. Read, for the heirs. general government; when the statute im
GRAY, C. J., delivered the opinion of the court: pairs the obligation of the contract or only
The simple question in this case is, whether the affects the remedy, are questions possessing residuary devise and bequest to the United States renewed interest to those engaged in commer of America is valid, and upon this question, after cial practice, and will be reserved for future
free examination of the authorities cited in the
learned argument for the next of kin, we can have consideration.
no doubt. (To be continued.)
The introductory clause of this gift merely ex
presses the motive of the testator, and in no way A LATE Irish statute in regard to the public health
defines or limits the purposes to which the gift prescribes a penalty of $10 for any person havin; a
may be applied by the legatee. *. wake" over a person dying of an infectious disorder. ' In England bequests for the benefit of the coun
try or for the payment of the national debt have | States v. Bradley, 10 Pet. 343, 359; United States always been held valid. Newland v. Attorney v. Linn, 15 Pet. 290, 311; Nelson v. Lagon, 12 General, 3 Wend. 684; Nightingale v. Colburn, 5 How. 98, 107, 108; United States v. Hodson, 10 Hare, 484, and 1 Phillips, 584; Aston v. Langdale, Wall. 395, 407, 408. Upon the same principle the 15 Jur. 868. While Massachusetts was an English power to take property by the right of eminent colony, that eminent lawyer, Sergeant Maynard, domain for the public use has been declared by gave an opinion that a bequest “to the public use the Supreme Court to exist in the United States, of the country of New England” was a good be. not by virtue of any express grant in the constituquest. Hutchinson's Hist. Mass. (2d ed.) 101. tion, but as an inherent attribute cf sovereignty.
The property or money, when received by the Kohl v. United States, 91 U. S. 367. United States, must doubtless be applied to public In Cotton v. United States, 11 How. 229, 231, purposes authorized by the constitution and laws. Mr. Justice Grier said: “Every sovereign state is But the right to receive money or property volun of necessity a body politic, or artificial person, tarily contributed is not a separate power, but a and as such capable of making contracts and holdcapacity belonging to the United States as a body ing property, both real and personal.” politic and incident to the right of sovereignty, The Smithsonian Institute at Washington was and to which may be applied the words used by erected by the bequest of an Englishman, estabeminent jurists, in speaking of the implied capa lished by a decree of Lord Langdale, as Master of city of the United States to enter into contracts. the Rolls, and accepted by act of Congress. Presi
Chief Justice Marshall said: “The United States dent of the United States v. Drummond, cited in is a government, and consequently a body politic Wicker v. Hume, 7 H. L. Cas. 124, 155, U. S. St., and corporate, capable of attaining the objects for July 1st, 1388. which it was created by the means which are nec To hold that the supreme government of the essary for their attainment. This great corpora
country is vested by the constitution with the power tion was ordained and established by the American
to levy and collect taxes and duties to pay the people and endowed by them with great power for
debts, and provide for the common defense and important purposes. Its powers are unquestiona
general welfare of the United States, and to borbly limited; but, while within tbose limits, it is a
row money on the credit of the United States, and perfect goverment as any other, having all the fac
capable of making contracts, and of accepting seulties and properties belonging to a government, curity for debts, and, in case of necessity, of takwith a perfect right to use them freely in order to
ing private property by the right of eminent doaccomplish the objects of its institution. It will
main, has no capacity to receive a voluntary decertainly require no argument to prove that one of
vise or bequest, is a conclusion that nothing short the means by which some of these objects are to be
of an express statute, or a binding judicial deciaccomplished is contract; the government, there
sion, could justify us in adopting. fore, is capable of contracting, and its contracts
The decision in United States v. Fox, 94 U.S. may be made in the name of the United States."
315, affirming s. C., 52 N. Y. 530, by which it was United States v. Maurice, 2 Brock. 96, 109.
held that a devise by a citizen of New York of real So Mr. Justice Story, delivering the judgment
estate in New York, to the government of the of the Supreme Court upon the question "whether
United States, was void, proceeded upon the the United States have, in their political capacity,
ground that the law of New York allowed real es. a right to enter into a contract, or to take a bond
tate to be devised only to natural persons and to in cases not previously provided for by some law,”
corporations established by the legislature of that said: “Upon full consideration of this subject
state. That decision has no application to this we are of opinion that the United States have
case. The statutes of this commonwealth, where such a capacity to enter into contracts. It
the testator had his domicil and part of his real is, in our opinion, an incident to the gen
estate lay, make no restriction as to who may be eral right of sovereignty, and the United St:tes,
devisees or legatees; and there is no evidence bebeing a body politic, may, within the sphere
fore us that any such restriction is made by the law of the constitutional powers contided to it,
of Iowa, where the rest of the real estate is situated. and through the instrumentality of the proper de
Gen. Stat. ch. 92, SS 1, 2; Jackson v. Phillips, 14 partment to which these powers are confided, enter
Allen, 539, 552, 589, 591; Fellows v. Miner, 119 into contracts not prohibited by law, and appro
Mass. 54; Loring v. Marsh, 6 Wall. 337, 355; Ould priate to the just exercise of those powers. To
v. Washington Hospital, 95 U. S. 303; 6 Cent. L. J. adopt a different principle would be to deny the
191. ordinary rights of sovereignity not merely to the
We have had some hesitation in expressing an general government, but even to the state govern
opinion upon the validity of this devise, so far as it ment, within the proper sphere of their own pow
affects rents of real estate with which executors ers, unless brought into operation by express legis
ordinarily have no concern, and devised in part lation. A doctrine to such an extent is not known from lands situated in another state. But, as it apto this court as ever having been sanctioned by pears that the executors, acting for the benefit of any judicial tribunal." United States v. Tingey, 5 the estate and by the consent of all parties in inPet. 115, 128.
terest, have managed and received the rents of the In the later cases these views have been repeat-| lands there as well as of the lands here, they are edly affirmed, and held to cover the taking of bound, under the laws of this commonwealth, to security for debts to the United States United ' account in its courts for all the rents so received.
Gen. Stats., ch. 95, $ 5; Brown v. Jackson, ante. conditioned for the performance by his principals The sum received by them for such rents being sub of the stipulations of this agreement. ject to our jurisdiction, we can not avoid the duty 1. The question in the case arises on the notes which of expressing an opinion on the validity of the were afterwards given. The following is a copy whole devise upon which the right to such rent de- of one of them: pends. DECREE AFFIRMED. 6870 83. MOUNT PLEASANT, April 12, 1875.
Nine months after date we promise to pay to R.
D, Bullock or order, the sum of seventy 83-100 dolNEGOTIABLE PAPER – PROVISION FOR
lars value received, with ten per cent, interest, with EXCHANGE OR EXPRESS CHARGES
current exchange or express charges. If this note ATTORNEY'S FEE IN NOTE – LIABILITY
is not paid at maturity, it is to draw ten per cent. OF SURETY.
from date, and the undersigned agree to pay fifteen dollars attorney's fees over and above all taxable
cots, should any proceedings be instituted to colBULLOCK V. TAYLOR.
lect this note, payable at Second National Bank, East Saginaw.
WM. TAYLOR & Co." Supreme Court of Michigan, June Term, 1878.
The surety insists that such notes are not within
the terms of his undertaking; first, because they Hon. J. V. CAMPBELL, Chief Justice.
contain a promise to pay exchange or express " ISAAC MARSTON, )
charges in addition to the sum owing; second, be" B. F. GRAVES, Associate Justices. “ T. M. COOLEY, )
cause they provide for the payment of an attorney's
fee, to which he has never consented, and third, 1. EXCHANGE OR EXPRESS CHARGES IN NOTE
because, being for the payment of uncertain sums, SURETY'S LIABILITY.-In suit against a surety whose
they are not promissory notes at all. principal had agreed to execute and deliver for the
We quite agree with counsel for the plaintiff, that purchase price of goods sold him, promissory notes
the provision for the payment of exchange or expayable at a certain price: Held, that a provision in press charges is merely nugatory. By the agreeserted without the surety's consent, in the notes, for ment as well as by the terms of the potes, they payment of exchange or express charges, did not add were made payable at East Saginaw; and it thereto or vary the 'surety's liability, as it was the promis
fore becomes the duty of the promissors to be at sor's duty, independently of agreement, to be at any
any expense necessary in the transmission of the expense necessary in the transmission of the money to the place of payment.
money to that place. Whether they sent by draft
or by express, the expense would equally fall upon PROVISION FOR ATTORNEY'S FEE VOID.—Where in
them, and an express promise to pay it could add each of several promissory notes varying from $41.50 to
nothing to their liability. The provision on the $194.12, there was inserted a provision for an attorney's fee of $15 should any proceedings be instituted for col
subject may have been inserted in the notes for a lection: Held, that this was absolutely void as against more perfect understanding of the agreement; but the policy of the laws limiting attorney's fees and the the surety could not complain of it, because it could rate of interest.
not in any way add to his liability or vary his un3. LIABILITY OF SURETY.-A surety's liability con dertaking. tinues, where the provision which would add to it The agreement embodied in some of the notes for without consent is void as contrary to law.
the payment by the makers of an attorney's fee,
in case any proceedings are instituted for collecCOOLEY, J., delivered the opinion of the court:
tion, presents a somewhat different question. If The action in this case is brought to recover from the agreement is valid, and constitutes a part of the William Taylor and Aaron B. Taylor, as principals, | obligation of the makers, upon which a recovery and Joseph K. Taylor, as surety, the amount of may be had in a suit for the amount owing on the several promissory notes given by the principals, note, then it will be conceded the notes which conand for the payment of which the surety is sup tain it are not within the terms of the obligation posed to have bound himself by a bond executed the surety has assumed. The surety undertook, before the notes were given.
for the payment of the price of goods to be sold, The notes were given in pursuance of a certain and not for any penalty for failure to pay promptly; agreement under which William and Aaron B. Tay and his promise can not be enlarged in the slightlor became agents for the plaintiff in the sale of est particular without his consent. Smith V. musical instruments. They also agreed to buy cer Sheldon, 35 Mich. 42. It is suggested, howevertain instruments, and “to execute and deliver to and there is some authority for that view—that the said Bullock their equal promissory notes, executed provision for the payment of an attorney's fee is by them and payable to his order for the full amount only the personal undertaking of the makers, of the aggregate prices of said instruments," and which, from its very terms, does not become opethat said notes shall be due and payable at the rative until suit brought, and, consequently, can Second National Bank of East Saginaw, Michigan, not be counted upon in the suit for collection of in three equal instalınents of six, nine and twelve the note, and is no more a part of the obligation months from the date of each delivery of said in- for wbich the surety has undertaken than if it were struments, with interest thereon at the rate of ten a promise evidenced by a separate instrument. A per cent. per annum from the date of each of said more important suggestion is, that the promise is notes." The bond signed by Joseph K. Taylor was ' absolutely void.