« AnteriorContinuar »
period which would bar an action at law for the prop- estate in joint tenancy. While such an estate exists erty is, except under special circumstances, such laches neither husband nor wife has any interest wbich can as to disentitle him to the aid of a court of equity. Ib. | be sold on execution, or will pass to the assignee of
either. U. S. Dist. Ct., Indiana. In re Benson, 16 TAXATION. Of claim to government lands: lands not designated. —
Nat. Bankr. Reg. 377.
2. Effect of dirorce as to real estate owned in common. Plaintiff in error was entitled to eleven leagues of gov
| - If the effect of a divorce, procured subsequent to an ernment land in Colorado, but such land was not sep
adjudication in bankruptcy, is to destroy the unity of arated from the body of government land, nor could
possession and turn the estate into a tenancy in comit be until a survey which was provided for should be
mon, it is simply the creation, by operation of law, of made, when the boundaries would be fixed and the
a new interest in the bankrupt, and is, to all intents specified tract of land designated. The statute, under which plaintiff claimed, provided that the commis
and purposes, a new acquisition which the assignee
camot claim. Ib. sioner of the land office should make the surveys, but
MORTGAGE. “before the confirmation provided for by this act shall
Deed of trust to secure debt: trust: personal one will become legally effective” the plaintiff should pay the ex
not pass to trustee's assignee in bankruptcy. – Where a pense of the surveys, eto. Held, that until plaintiff paid
deed of trust, given to secure a debt, contains a prosuch expense, etc., the plaintiff had no title or perfect
vision that, on the failure of the trustee to act, the equitable right to title to any lands, and the same could
cestuis que trust may appoint a new one in his stead, not be taxed under the laws of Colorado. Railway Co.
the power thereby conveyed is a personal trust or conv. Prescott, 16 Wall. 603; Union Pacific R. R. Co. v.
fidence in the cestuis que trust, and will not pass to McShane, 22 id. 444. Judgment of Supreme Court of
their assignees in bankruptcy. Sup. Ct., Mississippi. Colorado reversed. Cent. Colorado Improv. Co., plain
Clark v. Wilson, 16 Nat. Bankr. Reg. 356. tiff in error, v. County Commissioners of Pueblo.
PARTNERSHIP. Opinion by Miller, J.
Two firms composed of same partners: insolvency of RECENT BANKRUPTCY DECISIONS. one firm: drafts by one firm on the other. -- Where all DISCHARGE.
| the members of one firm are partners in another firm, 1. Not impeachable collaterally for fraud.-A dig.
they cannot prove its debt agaiust the latter. Where charge cannot be impeached collaterally for fraud iu
| a bank has discounted drafts drawn by the former preventing notice to creditors of the pendency of the
firm upon one who is a partner with the members of proceedings, nor on the ground that the bankrupt, be
such firm in the latter firm, it cannot prove its claim fore the proceedings in bankruptcy were commenced,
thereon against the joint estate, but must look to the fraudulently removed his property out of the juris
separate estate of the drawee. U.S. Dist. Ct., N. D. diction of the court in which an action against him
New York. In re Suvage, 16 Nat. Bankr. Reg. 368. was pending, with intent to defraud his creditors.
PREFERENCE. Sup. Ct. Commission, Ohio. Howland v. Carson, 16 1 1. What constitutes : procuring property to be seized on Nat. Bankr. Reg. 372.
execution.-An insolvent debtor, who was a trader, 2. Judgment a provable debt, whether for tort or con- | gave to a creditor new notes, payable ou demaud, tract.-A judgment against the bankrupt, existing at signed by himself alone, to take up others of the same the time his petition is filed, whether founded upon amount, secured by the signature and indorsement of contract or tort, is a provable debt. Ib.
other responsible parties, and purchased goods of per3. When court will look back of judgment : discharge sons who were ignorant of his insolvency, in order will not bar judgment founded on sruud.-Where it is that such goods might be taken on execution on judgclaimed that the collection of a judgment is not barred ments recovered on such notes. Held, that he thereby by a discharge in bankruptcy on the ground that such procured, or at least suffered his property to be seized judgment is a debt created by fraud, the court will on execution within the meaning of section 5,128 of the look back of the judgment, and if it had its root and Revised Statutes, if seizure there was. U. S. Circ. Ct., origin in fraud, the discharge will not bar it. Ib. N. D. New York. Sage, Jr., v. Wynkoop, assignee, 16
4. Judgment for seduction not a debt created by fraud. | Nat. Baukr. Reg. 363. --A judgment recovered by a father for the seduction 2. Knowledge of agent that of principal.-Where the of his daughter, where there was no promise of mar-agent of the creditor had reasonable cause at the time riage, and no arts or devices were practiced to accom- | to believe the debtor was insolvent, and knew that the plish such seduction, is not a debt created by fraud transaction was in fraud of the Bankrupt Law, it is within the meaning of the bankrupt act. Ib.
the same as if the creditor had himself taken part EXEMPTION.
therein with the same cause to believe and the same Bachelor supporting family: change of residence.
knowledge. Ib. A bachelor may be considered as the head of a family, so as to be entitled to a homestead exemption, when
BOOK NOTICE. his widowed sister has resided with him, taking charge
BIGELOW ON FRAUD. of his household and domestic arrangements, and pay- | The Law of Fraud and the Procedure Pertaining to the Reing no board, but regarding it as her home. The right
dress Thereof. By Melville M. Bigelow, author of "The
Law of Estoppel,'' etc. Boston: Little, Brown & Comto such exemption is not abandoned by residence of pany, 1877. the bankrupt for a time at another place, occasioned THIS work is well arranged and carefully written, by ill-health. U. S. Ciro. Ct., E. D. Missouri. Bailey, I and the statements of principle appear to be accuassignee, v. Comings, 16 Nat. Bankr. Reg. 382.
rate. The plan of the work, as set forth in the preface, HUSBAND AND WIFE.
| is this: The common-law doctrines of fraud, both the 1. Conveyance of real estate to. - In Indiana a con- substantive law and the principles of procedure, have veyance of real estate to husband and wife creates an | been stated. Following established divisions, the sub
stantive law has been divided into actual and presump- / previous calendar, will be placed on the calendar to be tive or constructive fraud, the former consisting of made as of the day they were so “passed." three chapters and the latter of two. The chapters Members of the bar will take notice that all cases relating to actual fraud treat first of deceit as the type uudisposed of on the present calendar must be re-noof all fraud, and, secondly, of frauds not necessarily ticed or they will not be placed upon the new calendar. turning upon the doctrines of deceit, and this second class has been divided into special instances of fraud
CORRESPONDENCE. in pais, and frauds upon the administration of the law. The doctrines of presumptive or constructive fraud
THE NORTH CAROLINA SUPREME COURT. are presented in two chapters, the first of which treats of confidential relations, and the second of notice. / To the Editor of the Albany Law Journal : The consideration of the adjective part of the law car
SIR- In your number of the LAW JOURNAL of the ries the subject of procedure through all its stages
date of December 1st, there is an interesting review from jurisdiction to damages. The treatise, however,
of the 21st American Law Reports. Your comments is very deficient in its citation of authority. Not only
upon the two cases cited from this State, I am sure, is the case of Chandelor v. Lopus, mentioned in the
meet the approbation of the North Carolina bar. But preface, omitted, for which there is a sufficient reason
let one seeming error be corrected. Your idea, evigiven, but later cases, which are not referred to in the
dently, is, that the court is Democratic. Such is not preface, and for whose omission we can conceive no pos
the case. The court, as now constituted, is composed sible reason. For instance, Ellis v. Andrews, 56 N.Y. 83,
of five judges, all of whom are Republicans. It would which is a leading case upon the question of fraudulent
be hard to find a Democratic lawyer in the State who misrepresentation, and Holbrook v. Connor, 60 Me. 578,
would agree with the chief-justice's opinion in the case upon the same subject. The proof reading on the work,
of the State v. Neely, 74 N. C. at least, so far as the names of the cases are concerned. In justice to our bar, will you publish this statehas been somewhat carelessly done; for instance, the name“ Canaday," in the citation Simar v. Canaday,
SALISBURY, N. C., December 19, 1877. on page 18, is wrongly spelled, and the citation is not referred to in the table of cases cited. The work is,
THE GRAMMAR OF THE NEW CODE. however, in most respects, so well done that it will be | To the Editor of the Albany Law Journal: accepted by the profession as a valuable contribution
SIR-Your correspondent, T. C., this week, makes to the law upon the subject concerning which it treats.
an extraordinary attack upon the grammar of the
New Code of Procedure, upon the ground that instead COURT OF APPEALS DECISIONS.
of using the old fashioned statutory subjunctive, and
saying "if an action shall be brought," it says “if an THE following decisions were handed down on Fri
action is brought," whereupon, “T. C.” denounces the 1 day, December 21, 1877:
codifiers as guilty of ignorance which “would disJudgment affirmed, with costs — Leonard v. The City | grace a schoolboy." of Brooklyn; Wiljon v. Van Pelt; Browning v. The | The difficulty is, that “T. C.” has been too long out Home Ins. Co. of Columbus, Ohio.- Judgment of school, and is not familiar with the new grammars. affirmed - The People ex rel. Hayes v. The City of I think it safe to say that all the best authorities now Brooklyn. Order grauting new trial affirmed and discard the old form of subjunctive, and use the prejudgment absolute for plaintiffs on stipulation, with cise form adopted by the new Code. The author of costs - Brennan v. Willson.- Order granting new the Code of Procedure of 1848 (which “T.C." admires) trial affirmed and judgment absolute for defendant on deliberately abandoned the old style in preparing the stipulation, with costs - Sanxay v. Hamel. - Motion later codes, which represent his mature judgment. for reargument denied, with $10 costs – Tone v. The Civil Code, reported in 1865, uniformly rejects the The Mayor; Coleman v. Cramp; Shand v. Hanly. old subjunctive. Thus, section 875 says: “If a seller - Order modified so as to read as follows: Or agrees to send, * * * if he follows such directions," ders of General and Special Term reversed and ap etc., eto. The same form is used in sections 52, 122, plication denied without prejudice, and without costs 872, 874, 1530, 1782, and indeed throughout. This form - Collins v. Collins.
is also adopted by those very “ignorant” gentlemen, The court adjourned without day.
the judges of the court of appeals. Chief Justice Church says, “ if this argument is sound (66 N. Y. 13).
Judge Rapallo says, “if the article is attached, * * The following order was handed down by the court:
if it is placed" (66 N. Y. 495). Judge Allen says, “if Ordered, That a term of this court for 1878 be held a conveyance is made" (66 N. Y. 381). All of which at the Capitol, in the city of Albany, commencing on forms of expression are, according to "T. C.," proof the third Tuesday of January next, and continued for of ignorance disgraceful to any boy. the year with such intermissions or recesses as the But this frightful ignorance is not confined to our court shall from time to time order.
own courts, it darkens the bench in England. Those A calendar will be made for said term, upon which ignoramuses, Lord Chief Justice Cockburn, and Lord the clerk will place only such appeals, the returns in Justice Mellish, habitually blunder in the same manwhich shall have been filed, or shall be duly noticed ner. See Law Rep., 1 Q. B. D. 230, 262, 541, for several for argument by one or both parties, and due proof of melancholy instances, sometimes occurring twice on the service of such notice filed with the clerk as re a page. Macaulay and Emerson make the same quired by the twenty-second general rule of the court, “disgraceful blunder." on or before the fifth day of January.
It is obvious that the new Code should be repealed Causes which have been marked as passed” on any at once, and that “T. C." should be made the next judge of the Court of Appeals, to reform its grammar. | Au interesting decision in criminal practice was renIn the hope of which, I remain
dered in the Supreme Court at Columbus, Ohio, on the Yours penitently,
19th inst. Sarah M. Victor, convicted of poisoning AX ENLIGHTENED IGNORAMUS. her brother, Joseph Parquet, in order to obtain $2,00) NEW YORK, Dec 22, 1877.
life insurance, was originally sentenced to be hanged.
but as there were symptoms of insanity the Governor NOTES.
commuted her punishment to imprisonment for life.
While she was in the penitentiary her reason was reTHE Illinois State Bar Association meets at Spring
| stored and she refused to assent to the commutatien I field, in that State, on the 3d of January, 1878.
of the sentence. Having obtained a writ of habeas The Chicago Legal News says that though not one
corpus, she asked the court to release her; but the year old, "it has exercised an influence upon the legis
bench ruled that although she was detained in the lation of the State that has remodeled its judicial sys
penitentiary without warrant of law inasmuch as she tem, that will, as soon as the accumulated cases of the
had not consented to the commutation of sentence, past are disposed of, relieve our Supreme Court of its
she was not entitled to liberty, but was an escaped overwork, and has caused many and valuable changes
prisoner after conviction, and must, therefore, be deto be made in the laws relating to the practice of the
livered to the sheriff and the original sentence be carcourts.”
ried out. In a word, the prisoner who was trying to We take the following from The (Brussels) Nord of
crawl out of the courts through the knot-hole of a the 5th of December, 1877: “The chamber began on
technicality, was ordered to be hanged. This was Wednesday the discussion of the first book of the new
more than she and her lawyer had bargained for. As penal Code. The vote on the article which abolished
soon as she was taken to the county jail, she opened the death penalty was greeted with prolonged applause.
proceedings in error and applied for a reversal of the Almost all the deputies, except some members of the
judgment and order which she had herself procured. Right, rose in favor of the adoption of the articles.
The Supreme Court now rules that the decision of the Mr. Pierantoni having asked as the crowning of the
court below was wrong in affirming that a prisoner edifice that the chamber should decide that, when
must consent to a commutation of sentence, and dethere shall be a question as to the delivery of a crimi
cides that Mrs. Victor must be sent back to the peninal to a foreigu power, the condition shall be imposed
tentiary for life. that the criminal shall not be executed. Mr. Marcini,
A singular decision of Vice Chancellor Bacon in the minister garde des Sceaux, declared that he accepted
case of German v. Chapman, 25 W. R. 802, has, says the recommendation of the Hon. Mr. Pierantoni, and
The Solicitors' Journal, been reversed by the Court of the latter thereupon withdrew his motion.” The pass
Appeal. The question turned on the construction of age of the measure by the Senate is regarded as cer
a covenant in a conveyance of a piece of land, whereby tain, says The Nord, in another column.
the purchaser undertook that “no house or other
building to be erected on the land should be used or An unusual legal question has arisen in Philadelphia
occupied otherwise than as and for a private residence growing out of the case of John H. Brown, a negro
only, and not for any purpose of trade." This covebarber, who assaulted and shot the son of Hon. Wil
pant the Vice-Chancellor held would not be broken liam D. Kelley in a street car, while under the influ
through the erection by the institution, for the educa·ence of liquor, and without any provocation on the tion of the daughters of missionaries, of a building inpart of young Kelley, who was an entire stranger to
tended to be used for the board, lodging, and educshim. The negro was sentenced to one year's impris- tion of 100 girls; but the Court of Appeal has taken onment by Judge Pierce, after his trial and conviction the contrary view. There is, probably, no person of early last week. But it was not known at the time
| ordinary common sense, outside the profession, who that Brown was an old offender. As the judge be
| would have adopted the view held by the learned Vicelieved him to be repentant for his offense and to have
Chancellor; that is to say, there is no one who would been more drunk than he really was, he passed a light have dreamt of calling such an institution a private sentence upon him. Since the sentence it has been residence. But to a miud trained in legal fictions, the ascertained that he has been guilty of murderous as- fact that the committee of the institution might be saults upon several preceding occasions. A motion
regarded as standing in loco parentis to the children, has, therefore, been made that the prisoner's sentence
and that the building might be called their “home," be reconsidered, a proceeding said to be unprece seemed to have come with all the force of an argudented, except where such a motion was made in the
ment, especially when the keen professional instinct prisoner's behalf with a view of reducing his punish-| for analogous instances had discovered that there ment. The judge, after some consideration, granted
might be such a thing in rerum naturæ as a real father the order, and the matter came up to-day. Testi
of 100 daughters. Accordingly the Vice-Chancellor mony was introduced to show the bad antecedents of
imported, for the occasion, a Turkish pasha with the negro, Mr. Kelley himself testifying upon infor
“several of his wives and a hundred children," and mation and belief as to previous crimes committed by
set him to build a house on the land; and, warming the barber. Mr. Benjamin H. Brewster, as a friend
up in his contest with common sense, came at last to of Mr. Kelley, stated, for the information of the court,
ask: “What is this house to be if not a private resithat the reconsidering of a sentence and the imposi
dence, according to a just interpretation of that tion of a severer one was not altogether without pre | phrase?" One is almost sorry to see that this beauticedent, the question having once come before the Su ful instance of full-developed and trained legal instinct preme Court while he was attorney-general, and it was
dit was bas met with so little admiration in the Court of Ap
peal. "The proposed use," said Lord Justice James, decided that the court was justified in reconsidering
"was not, in auy sense of the words, a use as a private the act before the close of the term.
...... 89 ARREST:
assault by police officer; aggravated assault......... 301
disposition of goods to prevent replevin; what nec-
essary to authorize arrest; paid check not sub-
ject of replevin....
eration; when agreement does not run with lands, 223 ARSON cannot be committed by person in respect to
his own property.....
(see Criminal Law.)
cover moneys paid on erroneous assessment ...... 263 ASSAULT-taking from mother's arms child sup-
posed to have small-pox.................. . ..
ASSESSMENT - Illegal, when payment upon, re-
under State law in New York city.. .............. 309
of lease (see Suretyship).
ASSOCIATION for Reform and Codification of the
Law of Nations...........
............... 213, 230, 250, 420
.... ... 60
ATTACHMENT of goods in hands of carrier who
has issued bills of lading ; failure to give bonds....... 263
ATTORNEY AND CLIENT:
discontinuance; parties to action have right to set-
... ........ 00
tle; rights of attorney; lien of attorney on judg
ment for compensation; notice to defendant;
what notice necessary to nullify settlement with
principal and agent; solicitor receiving inoney for
his client ; payment by solicitor in to his private
account; money earmarked .....
....... .... 303
personal liability; conditions of sale; delay in clear-
ing goods within prescribed time ; condition pre-
what does not constitute trade of auctioneer........ 2
bailee converting goods; lien for labor on goods;
trover for conversion........
liability of bailee without reward; what constitutes
negligence; duty of bailee without reward : facts
showing want of good faith; bonds left for safe-
rights of pledgee as to disposition of pledge... ... 34
rights of pledgee as to use of pledge....
cashier, powers of .....
liability of, for goods deposited in....
(see Criminal Law.)
tax on bank notes ; taxation...
tax on national banks....
banker under revenue law, what constitutes ........
ultra vires; limitation of authority of directors of
* ... ..........
national bank, reduction of stock by .......
acts not in fraud of bankrupt law; what does not
amount to preference; preference not given by
as to repeal of bankrupt law...
............. 289, 309, 326
extra fees to...............
assignment for benefit of creditors ; delivery of
Section 5057... .... 394
when State courts have; service of process; im-
peachment of jurisdiction ..........
lien of executions subsequent to attachment, not
enlarged by bankruptcy proceedings.......
Maori chief's, definition of. ................ ....... 258
by corporations; when policy-holders corpora-
deed of trust to secure debt; trust; personal
one will not pass to trustee's assignee in bank-
sustaining one presumptively invalid ........
when assignee permitted to redeem in foreclos-
bankruptcy of one partner; rights of solvent
dissolution of; retiring partner must not impair
partnership fund to detriment of creditors ;
insolvent partnership; retiring partner; home-
.......... .. 352
real estate belonging to partnership; rights of
bankrupt partner; lien of partner of bankrupt, 371
right of partner to propose individually for com-
position; jurisdiction ............
.... ...... .. 119
sale of partner's interest on execution; what is
partnership property ; partners in two firms;
two firms composed of same partners; insol-
vency of one firm; drafts by one firm on the
petition, practice when facts requisite to authorize
denied ; supplementary petition ....
confirmation of sale......
non-appearance by creditor in bankrupt court.
effect of; waiver; attorney for assignee pur-
chasing property ; when United States District
Court should not restrain proceedings in State
........ 18, 478
setting off exempt property : irregular order;
rights of creditors: exemption in Colorado;
misconduct of assignee; issue of fraud: cost
of keeping property covered by lien ...
termination of proceedings; what don't consti-
when interest allowed ; attorney's commissions;
jurisdiction; foreclosure of mortgage. ....... 154
distress pursuant to lien.....
exchange of securities, when not...
mortgage executed with view to; knowledge of
creditor, what constitutes......
notice to creditors of insolvency : what consti-
tutes knowledge of insolvency; oral prom-
ise to give security; accepting chattel mort-
procuring property to be seized on executi
knowledge of agent that of principal.......... 478
substituting notes at short time for those at
longer time; what shows knowledge of insolv-
.. .... ... 19
what amounts to procuring entry of judgment, 156
... 390, 478
promise by third person to pay debt of bankrupt,
proof of debt taken in foreign country .............. 102
character of distributable assets not determined
by bankrupt law ; local law governs tenure of
real estate.................. ........
repeal of bankrupt law.. ...
::................. 289, 309, 328
review, what must appear to entitle to.............. 19
in case of voluntary assignment, deposits in
when not allowed ; knowledge of suspension ;
compensation; jurisdiction.................... 109
discharge, in bankruptcy, of sureties on appeal
bond: when it must be pleaded.........
pay made on surety debt by bankrupt, and re-
covered back, does not release surety..........
when assignment of equitable estate to indem-
nify sureties valid ; consideration; when
Bureties regarded as creditors; what assign-
discharge in bankruptcy may be waived; posi-
tion of assignee.........
what it passes ; badge of fraud...........
witness; death of bankrupt......,
BAR, And the courts; new rules as to admissions to
the bar in New York. ...
... 229, 242, 284, 307, 309
address by John K. Porter to New York State....... 386