and that the insertion of the 29th of December, 1877, was a mistake in the name of the month, and not in the date of the year. His lordship rejected the evidence on this ground, that it was seeking to contradict and qualify the legal effect of the bill. In delivering judgment, he said, "It is established that the alteration of a bill in any material part, by the holder, makes the bill so varied null and void. If the figures, denoting the year for this bill, are to be considered material, the plaintiff cannot recover upon it; and, as the amount he paid was not advanced by way of loan, but by way of discount, in effect as a purchase of the bill, he cannot recover that either. On the other hand, if the alteration in the bill is such as not to vary its legal effect, then it is not a material alteration, and does not affect the holder's rights. I am of opinion the alteration of the figure 7 into a 6 was, in this case, an immaterial alteration. In construing contracts, words which are repugnant and insensible are to be rejected. If the year inserted in the bill had been 1777, or 1977, it plainly would have been repugnant and insensible; no one could have doubted that the date would have been rejected. The date of December, 1877, on a bill of three months, discounted in February, 1877, is also obviously a mistake, and is equally repugnant and insensible, and must on that ground be rejected, and the bill treated as if the date of the year had been left in blank, in which case the law would have supplied the only possible date, namely, December, 1876. This is the date which the plaintiff has inserted, and he has not, in so doing, altered the legal effect of the bill, and is therefore entitled to judgment."

RECENT BANKRUPTCY DECISIONS.

ATTACHMENT.

Priority between creditors: levy subsequent to attachment: dissolution of attachment. Where an attachment upon property of the bankrupt for its full value is dissolved by an adjudication, a judgment creditor who has made a levy subject to such attachment is not entitled to priority as against the assignee. But where a creditor has obtained a valid and effectual lien by attachment, and has prosecuted his suit to judgment, and made an execution levy, his lien under such levy is to be considered as prior in time to that of other creditors who have levied attachments in the meantime, and is not affected by the dissolution of the attachments. U. S. Dist. Ct., E. D. Wisconsin. In re Steele, 16 Nat. Bankr. Reg. 105.

DISCHARGE.

Requirements as to assets: voluntary and compulsory cases.--In the absence of consent by creditors in voluntary cases, no matter when commenced nor when the debts were contracted, the assets must pay 30 per cent, or there can be no discharge. In compulsory cases, if otherwise entitled thereto, the bankrupt is entitled to a discharge, irrespective of the assent of creditors or the amount of his assets. U. S. Dist. Ct., W. D. Michigan. In re Gifford, 16 Nat. Bankr. Reg. 135.

FRAUD.

1. In purchase of goods: new promise after discharge. -Where one purchases goods under a contract to pay cash on delivery, and, upon delivery, ships them beyond the control of the vendor, and then refuses payment, such conduct may be regarded as a fraud in the creation of the debt under section 33 of the Bankrupt Act, and his discharge will not release him. Where a

new promise to pay is made after a discharge, such discharge will not preclude a recovery. Sup. Ct., Illinois. Classen v. Schoeneman, 16 Nat. Bankr. Reg. 99.

2. What is, under bankrupt law. When A obtains goods of B, representing himself to possess property which he does not possess, and such representations induce a credit which the seller would not give without it, A has "created" a debt "by fraud,” in violation of the Bankrupt Law, section 5117, Revised Statutes U.S. When A obtains goods, making no other special promise of payment than is involved in the ordinary assumpsit or undertaking to pay for goods purchased, but deliberately intending at the time not to pay for them, he has "created" a debt by "fraud," in violation of the provisions of the Bankrupt Law in section 5117, Revised Statutes U. S. U. S. Dist. Ct., Delaware. In re Alsberg, 16 Nat. Bankr. Reg. 116. HABEAS CORPUS.

Discharge of bankrupt under: practice and pleading: arrest for fraud. — Where a bankrupt is in prison or under arrest for a debt which is not dischargeable in bankruptcy, the United States court, on a writ of habeas corpus, will not discharge him. "Order 27 in Bankruptcy," prescribed by the Supreme Court of the United States, for the regulation and government of the courts in bankruptcy matters, as regards the arrest of the bankrupt, and petition for release, must be construed as not applying to cases where the debt is dischargeable. The question to be determined is one of fact, viz. Was the debt for which the bankrupt was arrested dischargeable under the Bankrupt Law, or not? This question must be determined by the court or judge hearing the habeas corpus case, on all the legal evidence within its or his reach. No ex parte affidavits made in the State courts as to character of the debt contracted, and no evidence of want of authority in the State courts to arrest for the frauds contemplated by section 5117 of the Revised Statutes, will be permitted to interfere with the full examination from all sources of evidence of the simple fact, whether the debt was or was not dischargeable under the Bankrupt Act. If the debt for which the prisouer is arrested is of such a character, it matters not that the State laws do not give authority to arrest for the frauds mentioned in said section 5117, Revised Statutes. It is the character of the debt as affected by the frauds mentioned in the said section which is the subject of investigation, and not the grounds of arrest which the creditor may or may not have under the State laws. If the debt is dischargeable in point of fact, on the evidence before the court, no declaration to the contrary in any State proceedings will be considered. The provisions of law in reference to the writ of habeas corpus, sections 760 and 761, Revised Statutes U. S., when the petitioner claims the protection of a United States law against his imprisonment, are conclusive on the judge or court hearing the case, as to the admission of all legal evidence touching the right to retain in custody or discharge. U. S. Dist. Ct., Delaware. In re Alsberg, 16 Nat. Bankr. Reg. 116.

JUDGMENT.

Lien of, under Oregon law: docket entry. - The lien given by section 266 of the Oregon Civil Code, upon the docket of a judgment, arises from the docket and not the judgment; it is a strict legal right, and must stand or fall by the statute which gives it. The docket entry is not a part of the judicial proceeding which

ends with the entry of judgment, and therefore such entry cannot be referred to for the purpose of supplying omissions or explaining ambiguities in the docket; but the latter must be complete in itself. A judgment which, by its terms, cannot be enforced against the property of a party cannot become a lien thereon. U. S. Dist. Ct., Oregon. In re Boyd, 16 Nat. Bankr. Reg. 137.

PARTNERSHIP.

Bankruptcy of one partner: rights of solvent partner: subrogation.-Where a partnership of two partners in equal interest were bound as a firm as surety for a debt, and a decree was rendered against the firm for the debt, to be paid, and which was paid, out of the social assets, the firm having been dissolved, and a balance having been left due, but not ascertained by judicial judgment or decree, from one of the partners to the other, and the partner who owed the balance having, after all this, gone into bankruptcy. Held, that the solvent partner had no right to be subrogated to the rights of the creditor of the firm, who obtained the decree for half the amount paid, against the individual estate of the bankrupt partner, as against other creditors of that partner. U. S. Dist. Ct., E. D. Virginia. In re Smith, 16 Nat. Baukr. Reg. 113.

SET-OFF.

When not allowed: knowledge of suspension: compensation: jurisdiction.-A court of equity will not aid a debtor to a bankrupt's estate to set off debts bought upon a speculation of the probable dividends against the debt he owes the estate. Knowledge that a merchant has suspended payment generally includes a constructive knowledge of each particular suspension. A creditor who receives a composition from his bankrupt debtor, with full knowledge of all facts, is not entitled afterward to require a set-off to be enforced by a court of equity which he had opportunity to assert at the time the composition was made. The courts of law in Massachusetts have authority to adjust credits. U. S. Dist. Ct., Massachusetts. Hunt v. Holmes, 16 Nat. Bankr. Reg. 101.

RECENT AMERICAN DECISIONS.

NEW JERSEY COURT OF ERRORS AND APPEALS NEW JERSEY COURT OF CHANCERY-NEW JERSEY PREROGATIVE COURT.*

CORPORATE STOCK.

Transfer of stock held in pledge: presumption: executor.- A person holding stock in a fiduciary capacity has, prima facie, no right to pledge it to secure a debt growing out of an independent transaction unconnected with the trust; and whoever takes it as security for such a debt, does so at his own peril. A certificate of stock accompanied by an irrevocable power of attorney, either filled up or in blank, is, in the hands of a third party, presumptive evidence of ownership in the holder. And where the party in whose hands the certificate is found is a holder for value, without notice of any intervening equity, his title cannot be impeached. The holder of the certificate may fill up the letter of attorney, execute the power, and thus obtain the legal title to the stock. And such a power is not limited to the person to whom it was first delivered, but inures to each bona fide holder into whose hands the certificate and power may pass. Mere knowledge

on the part of a purchaser that an executor or adminis

To appear in 1 Stewart's (28 N. J. Eq.) Reports.

trator is dealing with the assets in a fiduciary capacity, is not enough to raise suspicion or to put the party on inquiry, for the reason that it is their primary duty to dispose of the assets and settle the estate. A sale and transfer by them is ordinarily in the line of their duty. The common duty of a trustee is not administration or sale, but custody and management for his cestuis que trust. Prall v. Tilt (Court of Errors).

INTEREST.

When one receiving money paid by mistake, not liable for.-One to whom money is paid and who receives it believing that it is his due, is not liable for interest upon it before demand made and refusal to pay, nor until he shall have reason to be satisfied that he ought to repay it, and shall know to whom he should pay it. Ashhurst v. Field's Administrator.

MORTGAGE.

Of after-acquired property. - A mortgage of afteracquired property can only attach itself to such property in the condition in which it comes to the mortgagor's hands. If it is already subject to mortgages or other liens, the general mortgage does not displace them, though they may be junior in point of time, it only attaches to such interest as the mortgagor acquires. Williamson, Trustee, v. New Jersey South. R. R. Co.

MUNICIPAL CORPORATION.

Sewers in streets of city.-The common council of the city of Newark, having the power to construct drains and sewers whenever the public good requires it, and to provide generally for the protection and maintenance of the health of the city, may lawfully, and without compensation to the owners of the fee, use the streets, not only for the purposes of an ordinary sewer, but also for the drainage of any stagnant or running water, whenever the public health, comfort or convenience will be thereby promoted. Stoudinger v. Mayor of Newark (Court of Errors).

RAILROAD.

Rolling stock on, when real estate: mortgage of rolling stock. As between a mortgagee and an execution creditor, rolling stock of a railroad company mortgaged with the railroad is part of the realty. Where the rolling stock is mortgaged with the road and its fixtures necessary to the operation of the road, the necessity which exists to use it in order to use the real estate itself, the peculiar connection between the rolling stock and the road, are themselves—if it be conceded that such stock is personal property-sufficient reasons for holding that the provision of the act concerning mortgages, requiring immediate delivery and continued possession of chattels mortgaged, or filing instead thereof, is inapplicable to such mortgages. The fact that the mortgagee of chattels had taken possession of them under his mortgage, before the judgment creditor recovered his judgment, will not give validity to the mortgage as against the latter if the mortgage was not filed according to the provision of the act concerning mortgages, and there were not immediate delivery and continued possession of the goods according

from defendant's negligence, the presumption is against contributory negligence. Spelman v. City of Portage, p. 144. When a city constructs a street in a negligent and unskillful manner, so as to prevent the waters of a neighboring river, in times of high water, from passing in their natural course, and thus causes land to be overflowed and injured, it is liable to the owner of the land for such injury. Roe v. Batcheldor, p. 360. Where a vendor selling goods which he knows to be designed by the vendee for a particular use, warrants them to be perfect, this must be construed to mean perfect for the use intended, and parol evidence of such knowledge is admissible to explain a written warranty. Johnson v. Harrison, p. 381. A homestead is exempt from mere personal liabilities of the owner, and a devisee of a deceased owner takes it free from such liabilities. Goodell v. Bloomer, p. 436. A sale of a homestead by a judgment debtor does not render it liable to sale under the judgment. Wedgwood v. C. & N. W. Ry. Co., p. 478. The duty of a master to furnish safe appliances for the use of his servants, and his liability for injury to his servants arising from defective implements, is maintained. Tewksbury v. Schulenberg, p. 584. The legislature has power to authorize the construction of dams to improve the use of navigable streams, and to allow those erecting such dams to exact toll from those using the streams. The work of the reporter is carefully done, and the volume is well printed and bound.

CORRESPONDENCE.

THE NEW CODE.

To the Editor of the Albany Law Journal:

Suppose the censured subdivision did not exist, what would become of a case like the Long Branch one?

I have read the Code carefully, and think it is far superior to the old Code. Most of those who condemn it are persons who have not read it, and who hate it, not "for cause " but "peremptorily."

To be sure, "Old Fogy" is not one of those, for he says "he turned it upside down and read crosswise the section." He ought not to have turned it upside down and read it crosswise, but straight down, and then given it a little thought, and he would have been all right. ANTI-FOGY.

NEW YORK, August 30, 1877.

Ε

NOTES.

in your number of August 11, and have since been looking for a reply. It surprises me that none has come, for one can be given (as I think) to the utter confusion of O. F.

Subdivision 4 of section 438 (and indeed all the remaining subdivisions of that section) is controlled by the opening clause of the section. That reads:

"An order directing the service of a summons upon a defendant without the State may be made in either of the following cases."

"Subd. 4. Where the defendant is a resident of the State, and the complaint demands judgment annulling a marriage, or for a divorce or a separation."

It is the word "resident" that " Old Fogy" gets so excited about. He fancies that the section would bear the construction that the order might be granted where a defendant was actually in the State.

That is not so. The provisions would paraphrase thus: If a man is a resident of this State, but is without it at the time the order may be granted. A man may certainly be a resident of this State and be at Long Branch for the season, or for a time. Now, suppose his spouse was in New York, diligently and affectionately attending at the bedside of a maiden aunt, aged, infirm and rich, and suppose, while thus engaged, she discovered evidence undubitable that the husband at Long Branch was "cutting up," would he, or would he not be, in an action properly classified under section 438 of the Code, a resident of the State without the State. It appears to me he would. A "non-resident" is one class of person, and a "resident of the State without the State" quite another.

in the field of legal journalism. Its title is The Texas Law Journal, and it is to be published weekly, at Tyler, Texas, by S. D. Wood, Esq., who is editor as well as proprietor. It is in newspaper form, having eight pages, and the initial issue contains several decisions of the courts of Texas, a decision of the Supreme Court of Pennsylvania, and a number of articles selected from other publications. It is the intention of the conductor of the journal to publish in extenso all the decisions of the various courts in Texas State and Federal, and copious notes of cases decided elsewhere. If the Journal keeps up to the promise of the first number it will make itself a necessity to the bench and bar of Texas, and of more than ordinary value to those of other States.

In order to correct an erroneous impression that the Court of Appeals has ordered a new calendar for the September sitting, the clerk publishes the following: COURT OF APPEALS-CLERK'S OFFICE, ALBANY, N. Y., Sept. 4, 1877.

}

In answer to inquiries regarding the next calendar, no new calendar will be made for September 17, on which day the court convenes. Probably none will be ordered before January, 1878, but this depends entirely upon progress made.

No new causes can be placed upon the present calendar without a special order from the court, except appeals from orders (interlocutory) entitled to be heard as motions, which may be noticed for any Tuesday during session, but the return must be first filed in this office, and also a copy of the notice served, claiming preference as a motion, under class V, of rule XX. Criminal actions also have a preference.

E. O. PERRIN, Clerk.

Mr. John F. Tobey, of Providence, R. I., and until recently the very able Reporter of the Supreme Court of that State, writes us as follows:

PROVIDENCE, R. I., September 4, 1877. Your Journal of date of September 1st has afforded me, as usual, much reading, which is at once profitable and entertaining. The article on Law for the Dog Days is very amusing and interesting, but permit me to say that you do Judge Dykman an injustice in supposing that in quoting the appropriate verses beginning

"The ox toils through the furrow," etc.,

he is trying to palm off some of his own verses on the profession. The author of these lines is Lord Macaulay, and they form the sixteenth stanza of that one of the Lays of Ancient Rome, entitled The Prophecy of Capys. Not doubting that you will be desirous of making this correction out of regard to the learned judge, I am very truly yours,

JOHN F. TOBEY.

A correspondent calls attention to the fact that the question of the constitutionality of the New Code, raised by a correspondent last week, is entirely answered by section 25 of art. 3 of the Constitution, which exempts the work of the commissioners from the provisions of section 17 of the same article. Our attention has been drawn to a defect in the Code of Procedure, which does not seem to be supplied in the new Code. There is no requirement that the obligation of sureties in undertakings on appeal shall be several; therefore it is joint only, and if one dies his estate is absolutely discharged. See Wood v. Fisk, 63 N. Y. 245. This is a very serious omission, and should be corrected by amendment.

The Evening Post has the following sensible comment on the Nation: "The Nation, commenting on the case of Judge Dillon, says that when a scandal exists involving the character of a judge of a United States court and a candidate for the Supreme Bench, not only lawyers, but laymen perform a duty to the public in insisting that it be probed to the bottom.' Very good, but it is one thing to probe a scandal to the bottom, and it is another thing to help to set it going without inquiry into the good or ill foundation, and, making no pretense of probing at all, to convey, by insinuations, and inferences, and assumptions, the impression that the story is true. The thing last mentioned is a process of treatment of public questions and public men, which the Nation has contemptuously described as 'journalism.'"

The late State reporter of New Hampshire, in a letter to the editor of the Chicago Legal News, says: The legislature of 1877 took in hand the publication of the reports. They provided that the bar of the ten counties in the State, meeting at the adjourned law term in each year, should establish a council of law reporting; that the council should not consist of a greater number than one for each county; that all decisions of the Supreme Court, the publication of which is regarded by the court of doubtful necessity, must be delivered to this council; that this council shall determine which of them are not of sufficient importance to justify the expense of their publication; that such decisions shall not be published in the regular series of reports but shall be filed in the office of the Secretary of

State. The bar promptly organized the council under this act, and the decisions of the new court, commencing with the December term, 1876, will be reported in accordance therewith. By the constitutional amendments, adopted in March, 1877, the legislature was authorized to abolish the right of trial by jury in civil causes of less than $100, the purpose being to empower the court to send any cause of less than that amount to referees, and thus relieve the court of the burden of small causes. The last legislature passed a law putting this in force on August 1, 1877.

The London Law Journal, in commenting upon the derelictions of the detective police inspectors in the metropolis, recently brought to light, says: Practically their authority far exceeds that of any secretary of State, or of any judge. They can leave at large whom they please; they can arrest whom they please; they can command any amount of evidence to prove any charge against any one. In their hands the thief can be made to appear innocent, and the innocent can be convicted. In a word, they are masters of the thousands who are members of the criminal class, and can do with them pretty much as they like. The detective officer who is placed in this position of power, exposed to the temptations necessarily accompanying such authority, and expected to do, under all circumstances, what is right, and just, and fair, is a man almost entirely self-educated, without those incentives to honorable conduct which are abundantly supplied in higher ranks of society, and, what is of no small importance, in receipt of a salary by no means proportionate to his responsibilities or his wants. We recollect hearing Tanner, whose success as a detective was very great, say that the great defect in the force was the employment of men of too humble a class in society. He thought that the detective should be a man of excellent education, and of good origin, and that he should be highly paid. His mind evidently was directed to the employment of men of the rank of officers in the army at good salaries. His experience had, no doubt, taught him exactly where the present system failed, and his natural shrewdness suggested the true remedy. It must not be imagined that gentlemen of this stamp would decline the office; on the contrary, we believe that there would be no more hesitation on the part of officers or men of like position in entering the service than there now is on their part in applying for the post of chief constables in our counties and cities, if once the service were placed on a proper footing. Society nght also to get rid of the notion that there is any thing derogatory to a gentleman in being a member of the force. It is just this sort of notion that helps to produce the very mischief, which excites so much astonishment among those who do not reflect on its real origin. We need hardly point out that recruits of the class thus indicated would add greatly to the efficiency of the force. Linguistic acquirements, good manners, the address of a gentleman - all these things make it easier for the possessor to play his part; while in the selfrespect, social pride, and honorable feelings of such officials we should have a real safeguard against temptation. The maxim noblesse oblige has lost nothing of its ancient strength. It has only spread itself over a wider area. In these directions, and not in complicated formalties, must we seek for the solution of the problem which the secretary of State has already submitted to the consideration of a committee.