Imágenes de páginas

this case. I assume, for the purpose of this case, that we have, after the Master of the Rolls, for the first the land lying intermediate between the defendants' | time to decide what is the proper definition of “adjaland and that which the plaintiffs desire to protect is cent lands," I think the Master of the Rolls has given remaining in the hands of other persons than the a very happy definition of them, and one which we plaintiffs or the defendants, and I assume that if the ought to accept. defendants work under their own lands they will cause JAMES, L. J. The appeal will be dismissed, with damage to the plaintiffs' land, which the plaintiffs de- costs. sire to protect, and I further assume that if the defendants should not work under their land no damage · COURT OF APPEALS ABSTRACT. will occur to the plaintiffs' land, so that in one sense

CONSIDERATION. it will be the act of the defendants which will cause

1. What sufficient to support contract: submitting to the damage to the plaintiffs' land. But then, as against

suspension from board of brokers. -- Plaintiff, a memthat, I take the finding to be, that if there had been

ber of the Board of Brokers, was a party to a stock no working under that intermediate land, no working

transaction for the benefit of defendant, whose interest under the defendants' land would damage the plain

was undisclosed. A demand was made by the other tiffs' land, and it is upon that last finding that I think

parties, and approved by the arbitration committee of this case must be determined, because upon that last

the board, for a deposit of $10,000. Defendant denied finding the defendants' land is brought within this

the right to call for a margin, but a refusal to furnish proposition, that it is land which, in its natural state

it would cause the suspension of plaintiff from the and in the natural state of the plaintiffs' land and of

board and the loss to him of a lucrative business de. the intermediate land, would be no support to the

pendent upon his remaining there. Defendant thereplaintiffs' land at all. It seems to me to follow from

fore agreed that if plaintiff would refuse to pay the that that if the defendants worked in their own land

margin and refuse to appear before the arbitration up to the boundary when there were no workings in

committee of the board when summoned, and should either the plaintiffs' land or the intermediate land,

on that account be suspended from the board, he would their workings would have had no effect whatever

pay him a specified amount to reimburse him for his upon the plaintiffs' land. They would have had a per

loss of business. Plaintiff refused the deposit, etc., fect right, therefore, to work up to the limit of their

and was suspended from the board. Held, that there own land. Then can that right of theirs which they

was a valid consideration for defendant's promise to have under these circumstances be diminished by any

reimburse, and it was immaterial whether the $10,000 act done either by the plaintiffs or by any one for

margin was legally demandable or not. Plaintiff had whose acts the defendants are not otherwise responsi

a right for his own protection to put up the margin, ble? It seems to me that their right cannot be so di

defendant being liable therefor only in case it was minished. As for their right being diminished by any

rightfully demandable. Judgment below affirmed. act of the plaintiffs themselves, I do not see that the

White v. Baxter. Opinion by Rapallo, J. case of Partridge v. Scott, 3 M. & W. 220, decides that

2. When agreement not void for want of mutualily. the right cannot be so diminished; but I think the

The agreement was not void for want of mutuality, reasoning of Mr. Baron Alderson, in Partridge v. Scott,

When one acting on the faith of a promise performs is conclusive to show that the defendants' right could

the consideration upon the faith of which the promise not be diminished under such circumstances by rea

was made, the promise attaches to the consideration son of any thing which the plaintiffs have themselves

so performed, and renders the promisor liable. (Addidone on their own land. Well, if that be the case

son on Cont. 13; 1 Parsons on Cont. 451; Sands v. with regard to the plaintiffs, and we have authority so

Crook, 46 N. Y. 564, 570;) Ib. far, we have only to go the additional step of saying |

[Decided Nov. 20, 1877.] that the defendants' right shall not be diminished by the act of an intermediate owner, that is, the act of a person for whose action they are otherwise not at all

Admission of evidence upon appeal to support judg

ment. - Plaintiff alleged in his complaint that he was responsible. They could not prevent that owner working in any way he pleased; they had no remedy

appointed to an office under the provisions of a certain against him for doing so, and, therefore, according to

act, but no proof was given of such appointment at ordinary principles of law, it seems to me that their

the trial, and attention was in no way called to the right ought not to be diminished by the acts of those

defect. Held, that in support of the judgment forpersons. Those are the reasons why I think the Mas

mal record proof of the appointment might be introter of the Rolls' proposition is a correct one, that the

duced on the argument of an appeal. (Rockwell v. only acts of the defendants in mining for which they

Merwin, 45 N. Y. 166; Stillwell v. Carpenter, 62 id. 639; can be responsible with regard to adjacent and neigh

Jarvis v. Sewell, 40 Barb. 449.) Judgment below boring owners are workings under land which, if it

affirmed. Wines v. Mayor of New York. Opinion by remained in its natural state, and the other lands re

Earl, J. mained in their natural state, would be a support to

[Decided Sept. 25, 1877.] the land of the person complaining. I can hardly

FRAUD. think that this is a question of dominant and servient What necessary to appear in action for false repretenements. I would rather, for myself, put it that sentations, and in action for conspiracy. -- In a case this is a relation between adjacent owners, although submitted to the jury under two aspects, first as au something analogous to that which exists between action for a conspiracy to defraud the plaintiffs, by dominant and servient tenements; but in whatever imposing upon them worthless checks of one Stern, in relation we regard the reciprocal acts of the parties, exchange for their property, and second, as an action we are led to the same conclusion as that which we for false and fraudulent representations as to the have already arrived at. Although, therefore, this is pecuniary responsibility of Stern, by which the plaina case of first impression, that is to say, a case in which I tiffs were induced to part with their property on his


credit. The court at trial charged, that if Stern was that, as to defendant, plaintiff's mortgage was invalid. irresponsible and his checks worthless, and the defend- (Palmer v. Gurnsey, 7 Wend. 248, distinguished.) Judgant falsely represented him to be solvent, knowing or ment below affirmed. Macaulay v. Porter. Opinion having reason to believe that this was untrue, and by Rapallo, J. with intent to defraud, the action would lie for the [Decided Nov. 13, 1877.) fraudulent representations, and charged further in

NEW YORK CITY. substance, that, if with knowledge of the fraudulent

Salaries of Marine Court officers: power of superriscombination of other parties to deprive plaintiffs of

ors to regulate.-By Laws 1870, chap. 382, 53, which took their property, defendant became a party to it, and

effect April 26, 1870, it was provided that “the board of aided in accomplishing the fraudulent purpose, by supervisors of the county of New York are hereby makiug representations which he knew, or had reason prohibited from creating any new office or department, to believe, was false, he was liable for the damages sus

or increasing the salaries of those in office or their tained by the plaintiff's thereby. Held, no error. successors." Plaintiff at that time was an attendant Judgment below aflirmed. Morehouse v. Yeager. in the Marine Court, at a salary of $1,200 per annum. Opinion by Allen, J.

By Laws 1870, chap. 582, passed May 2, 1870, it was pro[Decided Oct. 9, 1877.]

vided in reference to the Marine Court, that “the LIFE INSURANCE.

court shall have power to appoint such other assist1. Condition against suicide: avoids policy except ants, etc., and attendants as the board of supervisors when insanity is shown.- When a life insurance policy may from time to time authorize, etc., who shall be by its terms is to become void if the insured shall die respectively paid such rates as may be fixed by said by his own hand, the policy is avoided by suicide, un board of supervisors. The board, by resolution thereless the mind of the insured at the time was so im after passed, authorized the appointment of additional paired that he did not understand the consequences assistants and attendants in the Marine Court, and of his action, and that death would ensue. (Van fixed the salaries of attendants of the court at $1,500 Zandt v. Mut. Ben. Life Ins. Co., 55 N. Y. 169; Mc per annum. Held, that the resolution of the board of Clure v. Mut. Life Ins. Co., id. 651.) Judgment below supervisors was valid, and plaintiff was thereafter enaffirmed. Weed v. Mut. Ben Life Ins. Co. Opinion titled to $1,500 per annum. Judgment below affirmed. by Allen, J.

Wines v. Mayor of New York. Opinion by Earl, J. 2. Sanity presumed: burden of proof : acts showing [Decided Sept. 25, 1877 ] neither sanity nor insanity.-The presumption is in favor of sanity, and suicide alone is not proof of in UNITED STATES SUPREME COURT ABSTRACT. sanity, consequently in case of suicide of one whose life is jusured the burdeu of proving insanity is upon

OCTOBER TERM, 1877. those claiming the benefit of the policy. Acts and

CONSTITUTIONAL LAW. appearances which are consistent with a sane condi

Law impairing obligation of contract: what is not.tion, such as occasional serere pains in the head, etc.,

A statute passed by a State legislature prescribing a are not sufficient to warrant a submission of the case

mode of service of judicial process upon a corporation to the jury upon the question of insanity. Ib.

different from that provided for in its charter, held, [Decided Sept. 25, 1877.]

not in conflict with the provision of the Federal conMORTGAGE.

stitution forbidding laws impairing the obligation of Conditional deed not: when deed not required to be re- | a contract. Judgment below affirmed. Cairo & Fulcorded as : priority of lien.-One Mrs. Tracy made a ton R. R. Co. v. Hecht. Opiniou by Waite, C. J. mortgage to plaintiff upou land owned by her, which

DURESS. plaintiff, at her request, neglected to have recorded. 1. What does not constitute.-To constitute the coSubsequently Mrs. Tracy conveyed the land by deed to ercion or duress which will be regarded as sufficient to defendant, who had no knowledge of plaintiff's mort | make a payment involuntary, there must be some gage, at the price of $2,500, of which he paid $1,300 in actual and threatened exercise of power possessed or cash, and $1,200 by assuming another mortgage, and believed to be possessed by the party exacting or rehad his conveyance recorded as a deed. He also lent ceiving the payment over the person or property of her $500 on her note at one year. At the same time | another, from which the latter has no other means of he executed back to Mrs. Tracy an instrument under immediate relief than by making the payment. A seal, wherein the deed and consideration and the note payment is not to be regarded as compulsory unless were recited, and it was provided that in considera made to emancipate the person or property from an tion of the sale and conveyance defendant should pay actual and existing duress imposed upon it by the party her $1,300 in cash, etc., and should at her discretion to whom the money is paid. (Brumagim v. Tillingand his sell the property within oue year and divide hast, 18 Cal. 266; Mayor of Baltimore v. Jefferman, 4 the profits equally between them, that he should loan Gill, 425; Mays v. Cincinnati, 1 Ohio St. 268.) Judgher $500 and take her note, to be paid within the year ment below affirmed. Radich v. Hutchins. Opinion “if the property is sold. If the property be sold within | by Field, J. four months for $4,000, I will cancel the note and sur 2. Payment of money to Confederate officer in compliance render it to her. The premises may be sold at the option with Confederate law.-Plaintiff, a foreigner, resident in of either party for not less than $4,000. If not sold the State of Texas and engaged in business there, within one year from date all interest of Mrs. Tracy during the late war, had procured a quantity of cotton in the premises shall cease.” The property was found for the purpose of exportation to Mexico. Defendby the court to be worth $3,500. Held, that the con-ant, an officer in the Confederate service, and having veyance to defendant was not a mortgage and re troops to enforce his orders, by public notice forbade quired to be recorded as such in order to make it the exportatiou of cotton from Texas except by a pereffectual and valid against plaintiff's mortgage, and I mit from his office, which was to be issued only on condition that the one desiring to export should sell Sperry, brought suit in a California court against the to the Confederate government an equal quantity of appellants, who duly appeared and caused the suit to cotton at an arbitrary price. Plaintiff, fearing to risk be removed into the Circuit Court of the United the export of his cotton without complying with the States for the District of California. In that court requirement of the notice, applied for and obtained Sperry filed an amended or new complaint. On apthe permit, furnished the required amount of cotton, peal to the Supreme Court one of the errors alleged as which he afterward redeemed by paying a certain ground for reversing the decree in favor of Sperry sum. Held, not duress on the part of defendant so as was, that this amended bill showed no jurisdiction in to render him liable to plaintiff for the amount paid the Circuit Court. If nothing else was looked at but by him to redeem the cotton. Ib.

the bill, there was no jurisdiction sbown. Held, that as EVIDENCE.

the proceedings in the State court, which were properly 1. What presumptive evidence of ownership of stock

here as part of the record of the case, showed that it in corporation : what conclusive evidence of owner

was removed from the State court to the Federal ship.-Where the name of an individual appears

court on account of the citizenship of the parties, and in the stock-book of a corporation as stockholder,

this of itself must have given jurisdiction to the United the prima facie presumption is, that he is the

States court before the amended bill was filed ; that juowner of the stock. In a case where there is nothing risdiction was not lost because the facts on which it to rebut the presumption, and in an action agaiust

arose were not set out in the old or the new complaint. him as stockholder the burden of proving that he is (Railway v. Ramsey, 22 Wall. 322.) Decree below not such is cast upon the defendant. (Hougland v. affirmed. Malbec de Monjoc, etc., v. Sperry. Opinion Bell, 36 Barb. 56; Turnpike Road v. Van Ness, 2 Cranch, by Miller, J. C. C. 451; Mudgett v. Morrell, 33 Cal. 29; Coffin v. Col

LIFE INSURANCE. lins, 17 Me. 442; Merrill v. Walker, 24 id. 237; Plank

1. Condition against suicide: notice of death and Road v. Rice, 7 Barb. 162.) The receipt of dividends

just claim:" construction of condition.-By a clause is conclusive evidence of ownership. Decision below

of a policy of life insurance, which was conditioned affirmed. Turnbull v. Payson. Opinion by Clifford, J.

to be void if the one whose life was insured should

die by his own hand, it was provided that before de2. Judicial records : of bankrupt court: in United States District Court.-Records of a bankrupt court

manding payment in case of death due and satisfacin the Northern District of Illinois authenticated in

tory proof should be made to the company of death conformity with the provisions of the bankrupt act,

and of the just claim of the assured. Held, that the held admissible in an action in the United States Dis

just claim of the assured had reference to the title or trict Court in Maryland by the assignee of a bankrupt

claim to the policy, and not to the justness of the corporation against a stockholder for contribution to

cause of action thereon, and proof that the death had pay the debts of the company. It is not necessary

occurred by suicide did not render the proof unsatisthat the record of a judgment should be authenticated

factory. Judgment below affirmed. Charter Oak Life as provided by the act of Congress passed in pursu

Ins. Co. v. Rodel. Opinion by Bradley, J. ance of article 4, section 1, of the Federal constitu

2. What kind or degree of insanity will excuse and not tion to render it admissible in the courts of the United

excuse suicide so as to make insurance company liable.States; and the District Court of the United States,

The judge, after stating that the burden of proving the even out of the State composing the district, is to be re

insanity of the deceased was on the plaintiff, charged garded as a domestic and not a foreign court, and the

the jury as follows: “It is not every kind or degree records of the court may be proved by the certificate

of insanity which will so far excuse the party taking of the clerk with the seal of the court without the cer

his own life as to make the company insuring liable; tificate of the judge. (Adums v. Way, 33 Conn. 430;

to do this, the act of self-destruction must have been Michener v. Payson, 13 N, B. R. 50; Mason v. Law

the consequence of insanity, and the mind of the derason, 1 Cranch, C. C. 190.) Ib.

ceased must have been so far deranged as to have

made him incapable of using a rational judgment in FIRE INSURANCE.

regard to the act which he was committing. If he was Condition in policy: loss caused by petroleum.-In impelled to the act by an insane impulse, which the reaan insurance policy against fire issued to an express son that was left him did not enable him to resist, or company upon goods transported by it over railroads, if his reasoning powers were so far overtbrown by his etc., was this clause: “It is a further condition of this mental condition that he could not exercise his reainsurance that no loss is to be paid in case of collision

soning faculties on the act which he was about to do, except fire ensue, and then only for the loss or dam

the company is liable. On the other hand, there is no age by fire. And that no loss is to be paid arising presumption of law, prima facie or otherwise, that selffrom petroleum or other explosive oils.” By a col

destruction arises from insanity, and you will rememlision between a disabled train containing petroleum

ber a great many jurors were excused from the panel and an express train, upon which the express com

because they thought the law was otherwise; therepany had goods, the petroleum was ignited and burned,

fore you will bear in mind that there is no presumpand with it the goods. The petroleum did not belong tion, prima facie or otherwise, that self-destruction to the company, and was not under its control. Held,

arises from insanity; and if you believe from the evithat the loss of the goods was caused by the petroleum, dence that the deceased, although excited or angry or and the insurance company were, under the clause in

disturbed in mind, formed a determination to take his the policy, exempted from liability therefor. Judgment

own life, because in the exercise of his usual reasoning below reversed. Imperial Fire Ins. Co. v. Fargo, Presi faculties he preferred death to life, then the company dent Am. Express Co. Opinion by Strong, J.

is not liable, because he died by his own hand within JURISDICTION.

the meaning of the policy. “If the iusured, being in Cause transferred from State court: amendment of the possession of his ordinary reasoning faculties, pleading after transfer.- In this case the appellee, I from anger, pride, jealousy, or a desire to escape from

the ills of life, intentionally takes his own life, the their bill in the chancery court of that State against proviso attaches and there can be no recovery; that the defendant in error, a inunicipal corporation, to is, he did die by his own act. If the death is caused enjoin the collection of a tax imposed upon their shares by the voluntary act of the assured, he knowing and of stock by said corporation, and to have the tai de intending that his death shall be the result of his act, clared illegal and void. and when his reasoning faculties are so far impaired The bill was demurred to. The chancellor sustained that he shall not be able to understand the moral char- the demurrer and dismissed the bill. Upon appeal to

cter or the general nature, consequence and effect of the Supreme Court of Tennessee, the highest court of the act he is about to commit, or when he is impelled law or equity in the State, the decree of the chancellor thereto by an insane impulse which he has not the was affirmed, and thereupon the case was brought to power to resist, such death is not in the contempla- this court by writ of error. tion of the parties to the contract, and the insurer is It is contended that the statute of the United States liable." Held, no error (following Life Ins. Co. v. | which authorizes the taxation by State authority of the Terry, 15 Wall. 580). Ib.

shares of stock in a national bank, but provides that 3. Conditions avoiding policy: condition as to pay such taxation shall not be at a greater rate than is ment: as to residence : waiver.-By conditions in a life | assessed upon other moneyed capital in the hands of insurance policy, the same was to become void in case individuals, has been violated in the case of the present of failure to pay the regular premium on the day it plaintiffs. 13 Stat. at Large, 102. The first cause of was due, aud also if the insured, without the consent complaint arises out of the act of the legislature of the of the company, should reside within certain prohib State of Tennessee of March 1, 1869. The act, it is ited districts. It was, however, provided, that even said, provides that no tax shall be assessed upon the after the day for the payment of the premium bad capital of any bank or joint-stock company organized passed, the company would waive the failure upon under the laws of that State. This, it is insisted, is an being satisfied tbat the insured was still in health, and exemption from taxation of property in the hands of it was customary for an agent of the company to re individual citizens, and operates to produce a greater ceive premiums after they were due, and his acts in rate of taxation on the plaintiffs' shares in the Fourth doing so were sanctioned by the company, who fur- | National Bank of Nashville than is assessed on other nished him with renewal receipts for the purpose. moneyed capital in the hands of individuals, to wit, The agent had. however, no authority to waive the on such banking capital, and hence, that such taxation forfeiture arising from residence in the prohibited dis is illegal. trict. The insured, who had failed to pay a premium The statute enacts that no tax shall be assessed upon when due and was residing within the prohibited dis- | the capital of a State bank, but proceeds,

the same trict without consent, was taken sick with yellow section, to say that its shares shall be included in the fever, of which he shortly after died. While he was valuation of the personal property of the owner, for sick his agent called upon the insurance agent the purpose of assessment for State, county, and and paid the premium and received a receipt renewing municipal taxation, at the same rate that is assessed the policy for one year, signed by the company and upon other moneyed capital, and that, in addition countersigned by its agent. The agent of the insured thereto, the real estate owned by the bank shall be was asked nothing about the health of the insured, and subject to the same taxation as other real estate, he said nothing. Held, that while the insurance agent This objection, in its general character, may be conwould be presumed to have authority to waive the sidered in connection with the second objection. The failure to pay the premium when due, he would not be answer to both of them is found in the principle thas to waive the forfeiture caused by residing in the pro laid down in People v. Commissioners: “That the hibited district, and the receipt of the premium by rate of taxation upon the shares should be the same or him and issue of the renewal receipt would not oper not greater than upon the moneyed capital of the inate as a waiver. Even for the purpose of making the dividual citizen which is liable to taxation; that is, no waiver of the failure to pay effective, the insurance greater in proportion or percentage of tax in the valuagent should have been informed of the state of the

ation of shares should be levied than upon other mouhealth of the insured. Globe Mut. Life Ins. Co. v. eyed taxable capital in the hands of the citizens." Wolf. Opinion by Field, J.

4 Wall. 256. See, also, Hepburn v. School Directors,


Second. By an ordinance of the defendants' corpo

ration, passed on the 18th of April, 1870, it is provided SUPREME COURT OF THE UNITED STATES

that certain interest-paying bonds issued by the said OCT. TERM, 1877.

corporation shall be exempt from taxation by said cor

poration. It is said that there are many such bonds ADAMS et al., plaintiffs in error, v. MAYOR, ETC., OF

in existence in the hands of individuals; that by such NASHVILLE.

exemption the complainants' shares are taxed at a The act of Congress of June, 1864, in relation to the taxation

greater rate than is assessed upon such bonds, and of natlonal banks does not curtail state power as to the that, therefore, the taxation complained of is in violasubject of taxation, or cut off the right to exempt cer

tion of the act of Congress forbidding the taxation of tain kinds of property if a legislature chooses to do so. Its only object is to prevent unfriendly discrimination national shares at a greater rate than is assessed upon against national banks.

other moneyed capital in the hands of individuals. IN error to the Supreme Court of the State of Ten. There are several answers to this objection: I nessee. Sufficient facts appear in the opiuion.

1st. It is not alleged in the bill that the bonds thereMr. Justice HUNT delivered the opivion of the in referred to are in fact exempted from taxation for court.

municipal purposes. After reciting the issue and proThe plaintiffs in error, who are stockholders in the posed exemption, the bill says that said property is Fourth National Bank of Nashville, Tennessee, filed “thus exempted from all municipal taxes;" that is,

that, as a matter of law, it follows from the facts be- and it appears that since the bankruptcy he has carried fore stated that it is thus exempt.

on business as the agent of his wife. U. S. Circ. Ct., This is not sufficient, especially when it is alleged in | E. D. Missouri. In Re Peltasohn, 16 Nat. Bankr. Reg. the brief opposed that the fact is otherwise.

265. 2d. By the statutes of the State of Tennessee, passed

PARTNERSHIP. subsequently to the issue of the bonds, all personal Bankrupt partner: rights of creditor of firm.- A joint property, of every kind and nature, is required to be creditor, in case of the separate bankruptcy of one listed and assessed for taxation.

member of the firm, has a right to prove his joint The Supreme Court of Tennessee hold, in the case debt, and vote for assignee in the separate bankruptcy. before us, that this statute repeals and overrides the | U.S. Dist. Ct., Nevada. In Re Webb, 16 Nat. Bankr. ordinance of exemption and brings these bonds within | Reg. 258. the scope of general taxation. This is a decision of a

PRACTICE. State tribunal upon the construction of its own stat Summary petition by assignee. - An assignee may utes, which we are bound to respect.

petition summarily to set aside a mortgage given after 3d. Considering the objection on its merits and in the commencement of proceedings in bankruptcy. connection with the objection first described, the case Resort to a bill in equity is unnecessary. U. S. Dist. is met by Hepburn v. School Directors, 23 Wall. 480. | Ct., Michigan. In Re Stephen Sims, 16 Nat. Bankr.

By a statute of Pennsylvania, it was enacted that Reg. 251. "all mortgages, judgments, recognizances and money

PRIVILEGED DEBT. owing upon articles of agreement for the sale of real What does not constitute : construction of shall be exempt from taxation, except for State The bankrupts were a firm carrying on business under purposes.” There, as here, it was objected that this the firm name of the Middleborough Shovel Comexemption by relieving certain specified property from pany. On June 28, 1877, Richardson, one of the taxation brought the case within the prohibition of the | partners, happened to meet in the cars Mr. Tobey, act of Congress, and thus vitiated the tax sought to be treasurer of the Tremont Nail Company, and told him enforced. This court held otherwise.

that he wanted to borrow about a thousand dollars to The act of Congress was not intended to curtail the save him a journey to New York, where he could State power on the subject of taxation. It simply re obtain it; that if the Tremont Nail Company would quired that capital invested in national banks should lend him the money it would be repaid out of the not be taxed at a greater rate than like property sim first money received from John Dunn of New York, ilarly invested. It was not intended to cut off the for whom they were filling a large order. The loan power to exempt particular kinds of property if the was made and a note for thirty days given. A few legislature chose to do so. Homesteads, to a specified days after Richardson went to New York, and found value, a certain amount of household furniture (the six | that the agents of his firm there were about to fail, or plates, six knives and forks, six tea-cups and saucers, had failed. He received an advance of $1,700 from of the old statutes), the property of clergymen to some Mr. Dunn, and returned to Boston on July 4. He extent, school-houses, academies and libraries, are saw Mr. Tobey on the 5th, and told him about the generally exempt from taxation. The discretion matter. On July 6 the money due was paid to Mr. ary power of the legislature of the States over all Tobey, and the same day the firm stopped payment. these subjects remains as it was before the act of Con

Negotiations were entered into for settlement with gress, of June, 1864. The plain intention of that

creditors, by which the petitioners were to stand in statute was to protect the corporations formed un

the same condition as if the sum of $994.92 had not der its authority from an unfriendly discrimination

been paid to Tremont Nail Company. The Shovel against them of the power of State taxation. That

Company afterward went into bankruptcy, and the particular persons or particular articles are relieved

Tremont Nail Company claimed this as a privileged from taxation is not a matter to which either class can

debt. The court held that the agreement between the object.

parties did not give any lien or charge on Dunn's debt The third objection is equally untenable. The stat

in favor of these petitioners, and their petition to stand ute referred to does not purport to relieve any prop

as privileged creditors was denied. U. S. Dist. Ct., erty from taxation. It provides a mode for ascertain

Massachusetts, Nov. 23, 1877. Ex parte Tremont Nail ing the average capital of the merchant, and for giving

Co.; Re Middleborough Shovel Co. a license to carry on the business of a merchant. He is required to pay an ad valorem tax on all his capital

RECENT AMERICAN DECISIONS. and a license tax in addition. The observations already made are pertinent under


BANKRUPTCY. The judgment is affirmed.

1. Agreement to forbear bankruptcy proceedings, not

forbidden by bankrupt law.– The Bankrupt Act of the RECENT BANKRUPTCY DECISIONS. United States (1867, ch. 176) does not prohibit the

creditor of an insolvent from taking a contract or DEFICIENCY.

covenant from a third person for the payment of In estate of bankrupt: liability of bankrupt to make

money, as an inducement to forbear proceeding against good.-The bankrupt must give a satisfactory explana

such insolvent to have him declared a bankrupt. tion of deficits which are shown in the assets of his

Ecker v. McAllister. estate, or pay over the amount thereof to the assignee.

2. When promise by third person to pay debt of bankWhere the bankrupt fails to account for a large amount

rupt voidable.- An action cannot be maintained upon of property, he will be ordered to pay over the value

a promise to pay the debt of a third person, in considthereof, where it appears that his wife has property which is not showu to have come from third parties,

*To appear in 45 Maryland Reports.

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